Karnataka High Court
Bharthi W/O Manohar Karnal vs State Of Karnataka on 27 January, 2025
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CRL.P No. 100810 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE S.RACHAIAH
CRIMINAL PETITION NO. 100810 OF 2024
BETWEEN:
BHARTHI
W/O MANOHAR KARNAL
AGE: 32 YEARS
OCC: BANK EMPLOYEE
R/O #69, ADYAPAKNAGAR, HUBBALLI
...PETITIONER
(BY SRI. L S SULLAD, ADVOCATE)
AND:
1. STATE OF KARNATAKA
THROUGH HUBBALLI WOMEN'S
POLICE STATION
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATKA, DHARWAD BENCH
2. KARIYAPPA
S/O NINGAPPA KARNAL
AGE: 66 YEARS , OCC: RETIRED PERSON
Digitally signed R/O: 59, IIND CROSS, VISHWESHNAGAR
by SREEDHARAN
BANGALORE HUBBALLI - 580 009.
SUSHMA
LAKSHMI ...RESPONDENTS
Location: HIGH (BY SRI.RAMESH B CHIGARI, AGA FOR R1;
COURT OF
KARNATAKA SRI. JAGADISH PATIL, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED U/S 439(2) OF CR.P.C.,
SEEKING TO CANCEL THE BAIL GRANTED TO RESPONDENT NO.2
VIDE ORDER DATED 13.12.2023 IN CRIMINAL PETITION
NO.103075/2023 IN MAHILA POLICE STATION CRIME NO.87/2023
U/S 498-A, 504, 506, 354 R/W 34 OF IPC AND SECTIONS 3 AND 4
OF DOWRY PROHIBITION ACT 2005.
THIS PETITION HAVING BEEN HEARD AND RESERVED ON
20.12.2024, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS
DAY, THE COURT MADE THE FOLLOWING:-
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CRL.P No. 100810 of 2024
CORAM: THE HON'BLE MR. JUSTICE S.RACHAIAH
CAV ORDER
(PER: THE HON'BLE MR. JUSTICE S.RACHAIAH)
1. Heard Sri. L.S.Sullad, learned counsel for the
petitioner, Sri. Ramesh B Chigari, learned AGA for
respondent No.1 and Sri. Jagadish Patil, learned
counsel for respondent No.2, through video
conference.
2. This petition is filed by the petitioner under Section
439(2) of Cr.P.C., seeking cancellation of regular bail
granted to her father-in-law / accused No.2 by this
Court in Crl.P.No.103075/2023 dated 13.12.2023.
Brief facts of the case:
3. The petitioner / complainant married Manohar, who
is accused No.1 and also son of the respondent No.2.
After the marriage, the husband of the petitioner
went to Germany on his official duty. She was
residing with her in-laws. During the said period,
the respondent No.2 was sending vulgar messages
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and also making some gestures and also asking her
to do some sexual favours. Being annoyed by the
act of respondent No.2, she lodged a complaint
before the police after having exhausted all the
possible avenues for her safety. The jurisdictional
police have registered a case in Crime No.87/2023
against the accused persons.
4. The respondent No.2 had obtained anticipatory bail
for the complaint lodged by the petitioner herein.
This Court granted bail on the condition that he
should not send any messages to the complainant
henceforth. The said order was passed on
13.12.2023. However, the petitioner herein made
available some documents reflecting that the
respondent No.2 had sent the messages even after
the complainant obtained a restraint order.
5. Now, it is relevant to refer the judgment of the
Hon'ble Supreme Court relating to the cancellation of
bail. The Hon'ble Supreme Court in the case of
HIMANSHU SHARMA v. STATE OF MADHYA
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PRADESH1, in paragraph Nos.10 and 11, held as
under:-
"10. While cancelling the bail granted to the
appellants, the learned Single Judge referred to this
Court's judgment in Abdul Basit. However, we are
compelled to note that the ratio of the above
judgment favours the case of the appellants. That
apart, the judgment deals with the powers of the
High Court to review its own order within the limited
scope of Section 362 CrPC. Relevant observations
from the above judgment are reproduced below :
(Abdul Basit case SCC pp. 761-64, paras 14-21)
"14. Under Chapter XXXIII, Section
439(1) empowers the High Court as well as
the Court of Session to direct any accused
person to be released on bail. Section 439(2)
empowers the High Court to direct any
person who has been released on bail under
Chapter XXXIII of the Code be arrested and
committed to custody i.e. the power to cancel
the bail granted to an accused person.
Generally the grounds for cancellation of bail,
broadly, are, (i) the accused misuses his
liberty by indulging in similar criminal
activity, (ii) interferes with the course of
investigation, (iii) attempts to tamper with
evidence or witnesses, (iv) threatens
witnesses or indulges in similar activities
1
(2024) 4 SCC 222
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which would hamper smooth investigation,
(v) there is likelihood of his fleeing to another
country, (vi) attempts to make himself scarce
by going underground or becoming
unavailable to the investigating agency, (vii)
attempts to place himself beyond the reach
of his surety, etc. These grounds are
illustrative and not exhaustive. Where bail
has been granted under the proviso to
Section 167(2) for the default of the
prosecution in not completing the
investigation in sixty days after the defect is
cured by the filing of a charge-sheet, the
prosecution may seek to have the bail
cancelled on the ground that there are
reasonable grounds to believe that the
accused has committed a non-bailable
offence and that it is necessary to arrest him
and commit him to custody. However, in the
last-mentioned case, one would expect very
strong grounds indeed. (Raghubir Singh v.
State of Bihar.
15. The scope of this power to the High
Court under Section 439(2) has been
considered by this Court in Gurcharan Singh
v. State (UT of Delhi)
16. In Gurcharan Singh case this Court
has succinctly explained the provision
regarding cancellation of bail under the Code,
culled out the differences from the Code of
Criminal Procedure, 1898 (for short "the old
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Code") and elucidated the position of law vis-
à-vis powers of the courts granting and
cancelling the bail. This Court observed as
under : (SCC pp. 123-24, para 16)
'16. Section 439 of the new Code
confers special powers on the High
Court or Court of Session regarding bail.
This was also the position under Section
498CrPC of the old Code. That is to say,
even if a Magistrate refuses to grant
bail to an accused person, the High
Court or the Court of Session may order
for grant of bail in appropriate cases.
Similarly, under Section 439(2) of the
new Code, the High Court or the Court
of Session may direct any person who
has been released on bail to be arrested
and committed to custody. In the old
Code, Section 498(2) was worded in
somewhat different language when it
said that a High Court or Court of
Session may cause any person who has
been admitted to bail under sub-section
(1) to be arrested and may commit him
to custody. In other words, under
Section 498(2) of the old Code, a
person who had been admitted to bail
by the High Court could be committed
to custody only by the High Court.
Similarly, if a person was admitted to
bail by a Court of Session, it was only
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the Court of Session that could commit
him to custody. This restriction upon
the power of entertainment of an
application for committing a person,
already admitted to bail, to custody, is
lifted in the new Code under Section
439(2). Under Section 439(2) of the
new Code a High Court may commit a
person released on bail under Chapter
XXXIII by any court including the Court
of Session to custody, if it thinks
appropriate to do so. It must, however,
be made clear that a Court of Session
cannot cancel a bail which has already
been granted by the High Court unless
new circumstances arise during the
progress of the trial after an accused
person has been admitted to bail by the
High Court. If, however, a Court of
Session had admitted an accused
person to bail, the State has two
options. It may move the Sessions
Judge if certain new circumstances have
arisen which were not earlier known to
the State and necessarily, therefore, to
that Court. The State may as well
approach the High Court being the
superior court under Section 439(2) to
commit the accused to custody. When,
however, the State is aggrieved by the
order of the Sessions Judge granting
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bail and there are no new circumstances
that have cropped up except those
already existed, it is futile for the State
to move the Sessions Judge again and it
is competent in law to move the High
Court for cancellation of the bail. This
position follows from the subordinate
position of the Court of Session vis-à-
vis the High Court.'
17. In this context, it is profitable to
render reliance upon the decision of this
Court in Puran v. Rambilas. In the said case,
this Court held (SCC p. 345, para 11) that
the concept of setting aside an unjustified,
illegal or perverse order is absolutely
different from cancelling an order of bail on
the ground that the accused has
misconducted himself or because of some
supervening circumstances warranting such
cancellation. In Narendra K. Amin v. State of
Gujarat, the three-Judge Bench of this Court
has reiterated the aforesaid principle and
further drawn the distinction between the two
in respect of relief available in review or
appeal. In this case, the High Court had
cancelled the bail granted to the appellant in
exercise of power under Section 439(2) of
the Code. In appeal, it was contended before
this Court that the High Court had erred by
not appreciating the distinction between the
parameters for grant of bail and cancellation
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of bail. The Bench while affirming the
principle laid down in Puran case has
observed that when irrelevant materials have
been taken into consideration by the court
granting order of bail, the same makes the
said order vulnerable and subject to scrutiny
by the appellate court and that no review
would lie under Section 362 of the Code. In
essence, this Court has opined that if the
order of grant of bail is perverse, the same
can be set at naught only by the superior
court and has left no room for a review by
the same court.
18. Reverberating the aforesaid
principle, this Court in the recent decision in
Ranjit Singh v. State of M.P. [Ranjit Singh v.
State of M.P.,has observed that : (SCC p.
806, para 19)
'19. ... There is also a distinction between
the concept of setting aside an
unjustified, illegal or perverse order and
cancellation of an order of bail on the
ground that the accused has
misconducted himself or certain
supervening circumstances warrant such
cancellation. If the order granting bail is
a perverse one or passed on irrelevant
materials, it can be annulled by the
superior court.'
19. Therefore, the concept of setting aside
an unjustified, illegal or perverse order is
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different from the concept of cancellation of a
bail on the ground of accused's misconduct or
new adverse facts having surfaced after the
grant of bail which require such cancellation
and a perusal of the aforesaid decisions
would present before us that an order
granting bail can only be set aside on
grounds of being illegal or contrary to law by
the court superior to the court which granted
the bail and not by the same court.
20. In the instant case, the respondents
herein had filed the criminal miscellaneous
petition before the High Court seeking
cancellation of bail on grounds that the bail
was obtained by the petitioners herein by
gross misrepresentation of facts, misleading
the court and indulging in fraud. Thus, the
petition challenged the legality of the grant of
bail and required the bail order to be set
aside on ground of it being perverse in law.
Such determination would entail eventual
cancellation of bail. The circumstances
brought on record did not reflect any
situation where the bail was misused by the
petitioner-accused. Therefore, the High Court
could not have entertained the said petition
and cancelled the bail on grounds of it being
perverse in law.
21. It is an accepted principle of law that
when a matter has been finally disposed of
by a court, the court is, in the absence of a
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direct statutory provision, functus officio and
cannot entertain a fresh prayer for relief in
the matter unless and until the previous
order of final disposal has been set aside or
modified to that extent. It is also settled law
that the judgment and order granting bail
cannot be reviewed by the court passing such
judgment and order in the absence of any
express provision in the Code for the same.
Section 362 of the Code operates as a bar to
any alteration or review of the cases disposed
of by the court. The singular exception to the
said statutory bar is correction of clerical or
arithmetical error by the court."
11. Law is well settled by a catena of judgments
rendered by this Court that the considerations for
grant of bail and cancellation thereof are entirely
different. Bail granted to an accused can only be
cancelled if the Court is satisfied that after being
released on bail:
(a) the accused has misused the liberty
granted to him;
(b) flouted the conditions of bail order;
(c) that the bail was granted in ignorance of
statutory provisions restricting the powers of
the Court to grant bail;
(d) or that the bail was procured by
misrepresentation or fraud.
In the present case, none of these situations
existed."
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6. On careful reading of the above dictum of the
Hon'ble Supreme Court, the bail granted to an
accused can only be cancelled if the Court is satisfied
that, after being released on bail, the accused has
misused the liberty granted to him.
7. Having considered the dictum of the Hon'ble
Supreme Court, in the present case, there are some
documents which would indicate that the respondent
No.2 has misused the conditions imposed by this
Court. Therefore, it is appropriate to cancel the bail.
8. In the light of the observations made above,
I proceed to pass the following:-
ORDER
(i) The Criminal Petition is allowed.
(ii) The anticipatory bail granted to respondent
No.2 / accused No.2 in Crime No.87/2023 of
Hubballi-Dharwad City Women Police Station,
vide order dated 13.12.2023 in Criminal
Petition No.103075/2023 is cancelled.
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(iii) Liberty is reserved to the respondent No.1 -
Police to take appropriate steps in accordance
with law and also directed the respondent No.1
- Police to follow the guidelines of arrest
stipulated for the arrest of the accused in the
matrimonial issues.
Sd/-
(S.RACHAIAH)
JUDGE
Bss
