[Cites 28, Cited by 0]
Karnataka High Court
Smt Bhagyalaxmi vs State Of Karnataka on 10 February, 2026
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE Mr. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION No.7180/2025
BETWEEN :
SMT. BHAGYALAXMI
AGED 65 YEARS
SHIRALAKOPA TOWN
SHIKARIPURA, SHIVAMOGGA
KARNATAKA- 577 428
... PETITIONER
(BY SRI. ASHOK N. NAIK, ADVOCATE)
AND :
1. STATE OF KARNATAKA
BY SHIRALAKOPPA P.S
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560 001
2. KOTESHA @ KOTESHWARA
@ ELUKOTESHWARA
S/O DYAMAPPA
AGED ABOUT 41 YEARS
R/O CHANNAPURA VILLAGE
2
SORABA TALUK
PIN:577 429
... RESPONDENTS
(BY SRI. M.R. PATIL, HCGP FOR R1;
SRI. SYED AKBAR PASHA, ADVOCATE FOR
SRI. PARAMESWARAIAH D.C, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) OF THE Cr.P.C PRAYING TO SET ASIDE ORDER
GRANTING BAIL DATED 20.03.2025 PASSED BY THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE,
SHIVAMOGGA, IN S.C.No.18/2023 FOR OFFENCE
PUNISHABLE UNDER SECTIONS 504, 506, 448, 232, 302,
307, 326 OF I.P.C AND ACCUSED MAY BE DIRECTED TO
SURRENDER BEFORE THE TRIAL COURT.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 20.01.2026, THIS DAY,
SHIVASHANKAR AMARANNAVAR J, DELIVERED THE
FOLLOWING;
CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CAV ORDER
1. This petition is filed by the defacto complainant
under Section 439(2) of Cr.P.C. praying to cancel the bail
granted by III Additional District and Sessions Judge,
Shivamogga, by order dated 20.03.2025 passed in S.C. No.
18/2023 and direct the accused to surrender before the trial
Court.
2. Heard learned counsel for petitioner - defacto
complainant and learned counsel for respondent No. 2 -
accused.
3. Learned counsel for petitioner - defacto
complainant would contend that respondent No. 2 - accused
was facing trial in S.C. No. 18/2023 on the file of III
Additional District and Sessions Judge, Shivamgga, for offence
under Sections 504, 506, 448, 323, 303, 307, 326 of IPC.
Respondent No. 2 - accused was in judicial custody. Bail
application came to be filed on 30.12.2024 by advancing the
case. The bail application came to be filed when the trial was
in progress and prosecution had already examined 4
witnesses as P.W.1 to P.W.4. On 05.03.2025, in the cross-
examination of P.W.6 by the learned Public Prosecutor there
was a suggestion that money had been offered to give false
evidence and produced pen drive containing conversation.
The trial Court recorded the same in the order sheet of
05.03.2025 and referred the matter to the concerned CPI,
Shiralkoppa Police Station along with the said pen driver for
proper investigation and suitable action. Thereafter the
matter came to be adjourned to 20.03.2025 for examination
of C.W.11 to C.W.12 and passing of order on bail application
of the accused. On 20.03.2025 when the said mater regarding
inducing C.W.6 by offering money to give false evidence was
pending consideration the trial Court has allowed the bail
application and granted bail to respondent No. 2 - accused.
The offence alleged against respondent No. 2 - accused is
heinous offence punishable under Section 302 of IPC and also
under Section 307 of IPC. The bail has been granted by
cryptic order only on the ground that the Investigating Officer
did not produce property seized along with the FSL report in
time. As trial could not be commenced on time and also on
the ground that material witnesses have already been
examined and there is no reason that respondent No. 2 -
accused may tamper the prosecution witnesses. Respondent
No. 2 - accused is in judicial custody for more than three
years. Therefore, order passed by the trial Court is perverse,
suffers from serious infirmities resulting in miscarriage of
justice. The trial Court has ignored the relevant materials
indicating prima facie involvement of respondent No. 2 -
accused and taken into account irrelevant material, i.e., not
furnishing the material objects and FSL report in time and
respondent No. 2 - accused is in judicial custody for more
than three years. Learned counsel for petitioner further
submits that as the order has been passed by the Sessions
Court, the petition seeking cancellation of bail before this
Court is maintainable and on that point he placed reliance on
the following decisions:
A. Puran Vs. Rambilas and another, 2001 (3) SC 860
B. Ansar Ahmad Vs. State of Uttar Pradesh and another,
2023 Supreme (SC)1236
C. State of Karnataka Vs. Sri. Darshan, 2025 Supreme
(SC) 1201
On these grounds he prayed to allow the petition and
cancel bail granted to respondent No. 2 - accused.
4. Learned counsel for respondent No. 2 - accused
would contend that cancellation of bail can be sought only if
the accused had violated any of the conditions imposed while
granting bail and if there are allegations of tampering the
prosecution witnesses and destroying of evidence. He placed
reliance on the decision of a coordinate Bench of this Court in
the case of Devibai, W/o Channappa Chinnarathod Vs.
The State of Karnataka and another, Crl.P. No.
200940/2025 decided on 24.06.2025. He further
contended that respondent No. 2 - accused was in judicial
custody for more than 3 years and all material witnesses were
examined. Delay in trial has been caused as the Investigating
Officer had not produced the material objects and FSL report
in time. Petitioner, if aggrieved by the order granting bail, has
to challenge the same under Section 482 of Cr.P.C. On these
grounds he prayed to reject the petition.
5. Having heard learned counsel for the parties, this
Court has perused the materials placed on record.
6. Respondent No. 2 - accused is facing trial in S.C.
No. 18/2023 pending on the file of III Additional District and
Sessions Judge, Shivamogga registered for offence under
Sections 504, 506, 448, 323, 303, 307, 326 of IPC. As per
chargesheet case of the prosecution is that on 27.08.2022, at
about 10.40 am, when deceased Dayanand A.R. and C.W.2
were doing work in Passage Bar Lane, respondent No. 2 -
accused saw the same and thought that if they were allowed
to do the work they will not give money, took a knife kept on
the table in front of Sri. Vijaya Stores, kept it hidden in pant
pocket, at about 10.45 am entered the said Passage Bar
Lane, quarreled with the deceased Dayanand and C.W.2,
abused them, took out the knife kept in the pant pocket and
assaulted with the same on left side chest of C.W.2 and on
left hand six times and when C.W.2 screamed, the deceased
Dayanand came to rescue him and at that time respondent
No. 2 - accused assaulted with the said knife on the stomach
of deceased and pressed his neck with hand and pushed him
to the ground. Said Dayanand was taken to hospital and the
Doctor who examined him told that he was dead.
7. C.W.2 is the injured and eye witness to the
incident. C.W.3 to C.W.5 are eye witnesses to the incident.
Respondent No. 2 - accused was in judicial custody since
02.09.2022. Bail order has been passed on 20.03.2025.
8. Cancellation of bail has been sought on the ground
that order passed by the Sessions Court is cryptic, perverse
and pending consideration of the fact of inducing P.W.6 to
give false evidence after receiving money and considering
relevant material of delay in commencing the trial for non-
production of material objects and FSL report. Whether the
said grounds can be considered for cancellation of bail
requires consideration.
9. The Hon'ble Apex Court in the case of Kanwar
Singh Meena vs. State of Rajasthan and Another, reported in
(2012) 12 SCC 180 has held as under:
10. Thus, Section 439 of the Code confers very wide
powers on the High Court and the Court of Session
regarding bail. But, while granting bail, the High Court
and the Sessions Court are guided by the same
considerations as other courts. That is to say, the
gravity of the crime, the character of the evidence,
position and status of the accused with reference to the
victim and witnesses, the likelihood of the accused
fleeing from justice and repeating the offence, the
possibility of his tampering with the witnesses and
obstructing the course of justice and such other
grounds are required to be taken into consideration.
Each criminal case presents its own peculiar factual
scenario and, therefore, certain grounds peculiar to a
particular case may have to be taken into account by
the court. The court has to only opine as to whether
there is prima facie case against the accused. The court
must not undertake meticulous examination of the
evidence collected by the police and comment on the
same. Such assessment of evidence and premature
comments are likely to deprive the accused of a fair
trial. While cancelling the bail under Section 439(2) of
the Code, the primary considerations which weigh with
the court are whether the accused is likely to tamper
with the evidence or interfere or attempt to interfere
with the due course of justice or evade the due course
of justice. But, that is not all. The High Court or the
Sessions Court can cancel the bail even in cases where
the order granting bail suffers from serious infirmities
resulting in miscarriage of justice. If the court granting
bail ignores relevant materials indicating prima facie
involvement of the accused or takes into account
irrelevant material, which has no relevance to the
question of grant of bail to the accused, the High Court
or the Sessions Court would be justified in cancelling
the bail. Such orders are against the well-recognised
principles underlying the power to grant bail. Such
orders are legally infirm and vulnerable leading to
miscarriage of justice and absence of supervening
circumstances such as the propensity of the accused to
tamper with the evidence, to flee from justice, etc.
would not deter the court from cancelling the bail. The
High Court or the Sessions Court is bound to cancel
such bail orders particularly when they are passed
releasing the accused involved in heinous crimes
because they ultimately result in weakening the
prosecution case and have adverse impact on the
society. Needless to say that though the powers of this
Court are much wider, this Court is equally guided by
the above principles in the matter of grant or
cancellation of bail.
10. The Hon'ble Apex Court in the case of Abdul Basit
vs. Mohd. Abdul Kadir Chaudhary, (2014) 10 SCC 754 has
held as under:
"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 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 [(1986) 4 SCC 481 : 1986 SCC (Cri) 511 : 1987 Cri
LJ 157].)
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 (Delhi Admn.) [(1978) 1 SCC
118 : 1978 SCC (Cri) 41] .
16. In Gurcharan Singh case [(1978) 1 SCC 118 :
1978 SCC (Cri) 41] 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 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 498 Cr.P.C 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 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 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."
(emphasis supplied)
17. In this context, it is profitable to render reliance
upon the decision of this Court
in Puran v. Rambilas [(2001) 6 SCC 338 : 2001 SCC (Cri)
1124] . 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 [(2008) 13 SCC
584 : (2009) 3 SCC (Cri) 813] , 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
of bail. The Bench while affirming the principle laid down
in Puran case [(2001) 6 SCC 338 : 2001 SCC (Cri) 1124]
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."
11. The judgment relied on by learned counsel for
petitioner in the case of Puran Vs. Rambilas reported in
(2001) 6 SCC 338 has been considered in the aforesaid
judgment at paragraph No. 17.
12. Learned counsel for petitioner has placed reliance
on the judgment of the Hon'ble Apex Court in the case of
Ansar Ahmad vs. State of Uttar Pradesh and Another 2023
Supreme(SC) 1236 has held as under:
"15. We are not at all impressed by the aforesaid
submission of Mr.Basant as it is well settled position of
law that cancellation of bail is not limited to the
occurrence of any supervening circumstances. In Ash
Mohammad vs. Shivraj Singh @ Lalla Babu and Another.
(2012) 9 SCC 446, this Court has observed that there is
no defined universal rule that applies in every single case.
Hence, it is not the, law that once bail is granted to the
accused, it can only be cancelled on the ground of
likelihood of an abuse of bail. The Court before whom the
order of grant of bail is challenged is empowered to
critically analyse the soundness of the bail order. The
Court must be wary of a plea for cancellation of bail order
vs. a plea challenging the order for grant of bail. Although
on the face of it, both situations seem to be the same
yet, the grounds of contention for both are completely
different. Let's understand the different conditions in both
the situations.
16. In an application for cancellation of bail, the court
ordinarily looks for supervening circumstances as
discussed above. Whereas in an application challenging
the order for grant of bail, the ground of contention is
with the very order of the Court. The illegality of due
process is questioned on account of improper or arbitrary
exercise of discretion by the court while granting bail.
So, the crux of the matter is that once bail is granted, the
person aggrieved with such order can approach the
competent court to quash the decision of grant of bail if
there is any illegality in the order, or can apply for
cancellation of bail if there is no illegality in the order but
a question of misuse of bail by the accused. In Puran vs.
Rambilas and Another, 2001 (6) SCC 338, this Court has
observed "the concept of setting aside as unjustified,
illegal or perverse order is totally different from the
canceling an order of bail on the ground that the accused
had mis-conducted himself, are because of some
supervening circumstances warranting such cancellation."
13. Considering the above decisions this Court can
cancel the bail granted to the accused if the order of grant of
bail is perverse; the order granting bail suffers from serious
infirmities resulting in miscarriage of justice; when irrelevant
materials have been taken into consideration by the Court for
granting bail.
14. The co-ordinate Bench of this Court in Devibai
(supra) in the petition filed under Section 483(3) of BNSS
seeking cancellation of bail has dismissed the said petition as
not maintainable. The co-ordinate Bench has observed as
under:
11. As a general rule, application seeking cancellation of
the bail is to be filed before the Court, which granted bail,
inasmuch as, it is that Court which is exclusive knowledge
of facts for grant of bail or rejection thereof.
12. Even though concurrent powers vested in this Court
along with the Special Court or the Sessions Court to grant
or cancel the bail, the application seeking cancellation of
bail shall not be construed as if it is an appeal over the
order of grant of bail.
13. Scheme of the statute does not provide for such an
eventuality. Even in BNSS, 2023, no such provision is
carved out by the legislature so as to vest the power of
either revision or appeal over the discretionary order of
grant of bail.
14. Section 483(3) of BNSS, 2023 is retained in verbatim
of Section 439(2) of Cr.P.C. If at all the legislature is of the
opinion that even in case of a discretionary order, if no
proper discretion is exercised by a Court, then such orders
could also be subject matter of either revision or appeal,
necessarily the legislature would have carved out such
power in the higher Courts namely, the High Court as
against the Sessions Court or the Special Court.
15. In the absence of any such power being vested in the
higher Courts either under Section 483(3) of BNSS, 2023
or any other provision of BNSS, 2023 and no such power
being carved out in the POCSO Act as well, this Court is of
the considered opinion that bail once granted cannot be
cancelled just for asking.
16. No doubt, if there is a grave and serious error that has
been committed by the Court while granting the bail, same
can be questioned under the supervisory power under
Article 227 of the Constitution of India and by invoking
inherent power of this Court under Section 482 of Cr.P.C.
17. Reserving such liberty for the petitioner/complainant,
the present petition in the considered opinion of this Court
is not maintainable.
15. The co-ordinate Bench has not considered the
judgments of the Hon'ble Apex Court referred to supra. The
said judgments of the Hon'ble Apex Court have not been cited
before the co-ordinate Bench. Considering the judgments of
the Hon'ble Apex Court, the petition filed under Section
439(2)/483(3) of BNSS is maintainable only on the grounds
mentioned in para 13 supra.
16. The Sessions Court while granting bail to
respondent No. 2 - accused has observed as under:
"9. As could be seen from the records, the accused is
in judicial custody from 02.09.2022. It cannot be disputed
that the accused is allegedly involved in heinous offence
namely the offence punishable under section 302 of IPC
along with other penal provisions. Since the Investigating
Officer did not produce the property seized in this matter
along with FSL report, the trial could not be commenced
on time. Finally the trial was commenced on 18.09.2024.
This Court has already examined the material witnesses
and now there is no reason that the accused may tamper
the prosecution witnesses. The accused is in judicial
custody from more than 3 years. The accused is said to
be the permanent resident of Soraba and he has
undertaken to abide by any condition that may be
imposed by this Court at the time of granting bail and he
is ready to offer surety to the satisfaction of this Court.
Therefore, it is the considered view of this Court that bail
may be granted to accused and the apprehension of the
prosecution is that if the applicant is released on bail, he
may abscond and tamper the prosecution witnesses. Such
apprehensions could be meted out by imposing certain
stringent conditions. With these observations, the point
No.1 is answered in the Affirmative."
17. Considering the above aspect bail has been
granted to respondent No. 2 - accused on the following
grounds:
a) Investigating officer did not produce property seized
along with the FSL report and therefore trial could not
be commenced on time and it commenced on
18.09.2024.
b) Prosecution has already examined material witnesses
and therefore there is no apprehension of respondent
No. 2 - accused tampering the prosecution witnesses.
c) Respondent No. 2 - accused is in judicial custody for
more than three years.
18. C.W.1 -complainant, C.W.2 - injured, C.W.3 to
C.W.5 are eye witnesses to the incident. Said witnesses are
examined as P.W.1, P.W.2, P.W.6, P.W.4, P.W.3 respectively.
Said witnesses are material witnesses and they are examined
as on the date of grant of bail by the trial Court. In the
chargesheet there are totally 31 witnesses and out of them,
the prosecution has already examined 12 witnesses.
Remaining witnesses, C.W.13 to C.W.31 are formal, official
witnesses and Investigating Officers.
19. Chargesheet itself indicate that respondent No. 2 -
accused was arrested on 02.09.2022 and he was in judicial
custody since then. Charge has been framed on 18.06.2024.
The Investigating Officer has submitted FSL report on
23.07.2024 and on the same day itself the Court has issued
summons to C.W.1 and C.W.2 and trial has commenced on
18.09.2024.
20. Considering the above aspects it cannot be said
that bail has been granted by cryptic order or by taking into
consideration irrelevant material.
21. Even though pen-drive has been produced
regarding inducing P.W.6 to give false evidence by offering
money, same is under consideration before the Investigating
Officer as on the date of passing of the bail order by the
Sessions Court. If anything is found by the report of the
Investigating Officer after examining the pen-drive the Court
can suo motu take the matter regarding cancellation of bail
granted or the defacto complainant can also make an
application for cancellation of bail.
22. There are no allegations against respondent No. 2
- accused of he violating any conditions of bail.
23. Considering the above aspects there are no
grounds made out for cancellation of bail as sought.
In the result, petition is dismissed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
LRS
