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2023. KHC-D:6849 CRL.P No.101337 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE7H DAY OF JULY, 2023 R BEFORE THE HON'BLE MR JUSTICE V.SRISHANANDA CRIMINAL PETITION No.101337 OF2023BETWEEN:
1. SRI. HONNURSWAMY S/O. NAGAPPA, AGE:
50. YEARS, OCC: AGRICULTURE AND MEMBER OF HALAKUNDI GRAM PANCHAYAT, R/O: WARD NO.1, HALAKUNDI VILLAGE, TAL: AND DIST: BALLARI -583101.
2. SRI. RAGHAVENDRA S/O. LATE RAMACHANDRA, AGE:
45. YEARS, OCC: AGRICULTURE AND MEMBER OF HALAKUNDI GRAM PANCHAYAT, R/O: WARD NO.1, HALAKUNDI VILLAGE, TAL: AND DIST: BALLARI -583101.
3. SRI. DASARA GOVINDA S/O. LATE DASARA THIMAPPA, AGE:
50. YEARS, OCC: DRIVER AND EX GRAM PANCHAYAT PRESIDENT CUM DRIVER, R/O: WARD NO.1, HALAKUNDI VILLAGE, TAL: AND DIST: BALLARI -583101.
4. SRI. T.M.S. MAHESH S/O. THIMMAREDDY, AGE:
28. YEARS, OCC: LORRY MAINTENANCE WORK, R/O: WARD NO.1, HALAKUNDI VILLAGE, TAL: AND DIST: BALLARI -583101. …PETITIONERS (BY SRI. SRINAND A. PACHHAPURE, ADVOCATE) - 2 - NC:
2023. KHC-D:6849 CRL.P No.101337 of 2023 AND: THE STATE OF KARNATAKA, THROUGH BALLARI RURAL POLICE STATION, NOW REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA DHARWAD, BENCH AT DHARWAD -580011. …RESPONDENT (BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1) THIS CRIMINAL PETITION IS FILED UNDER SECTION438OF CR.P.C. SEEKING TO GRANT ANTICIPATORY BAIL THE PETITIONERS/ACUSED NO.1, 4, 7 AND8IN THE EVENT OF THEIR ARREST IN CRIME No.137/2023 REGISTERED FOR THE OFFENCES P/U/SEC. 143, 147, 148, 323, 324, 307, 448, 427, 504 AND506R/W SEC. 149 OF IPC BY THE RESPONDENT BALLARI RURAL PS, PENIDNG ON THE FILE OF COURT OF3D ADDL. CIVIL JUDGE (JR.DN.) AND JMFC, BALLARI. THIS PETITION, COMING ON FOR ORDER
S, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
Heard Sri. Srinand A. Pachhapure, learned counsel for petitioners, Smt. Girija S.Hiremath, learned High Court Government Pleader for the respondent No.1-State and Shri. Sandesh Chouta, learned Senior Counsel representing Shri. Avinash M. Angadi, for the complainant. Perused the records.-. 3 - NC:
2023. KHC-D:6849 CRL.P No.101337 of 2023 2. The present petition is filed under Section 438 of Cr.P.C. with the following prayer :- "WHEREFORE, it is respectfully prayed before this Hon'ble Court to grant anticipatory bail the petitioners/accused Nos.1, 4, 7 and 8 in the event of their arrest in Crime No.137/2023 registered for the offences punishable under Section 143, 147, 148, 323, 324, 307, 448, 427, 504 and 506 read with Section 149 of IPC by the respondent Ballari Rural Police Station, pending on the file of Court of III Additional Civil Judge (Jr. Dn.) and JMFC, Ballari, in the interest of justice.
3. The brief facts of the case are as under:- 3.1. A complaint came to be lodged by Shri. C. Basavaraja with Ballari Rural Police Station on 27.05.2023 which was registered in Crime No.137/2023 for the offences punishable under Sections 143, 147, 148, 323, 324, 307, 448, 427, 504 and 506 read with Section 149 of IPC.-. 4 - NC:
2023. KHC-D:6849 CRL.P No.101337 of 2023 4. Gist of the complaint averments reveal that on 27.05.2023 at about 3.00 p.m. 15-20 persons including petitioners herein residents of Halakundi village, visited the factory of the complainant and in respect of transportation of sponge iron, picked up the quarrel. At that juncture, the altercation turned into an ugly incident whereby they started assaulting Shri.Manish Agarwal and he was also mercilessly beaten on parts of the body including the head with TMT Cutting Strip Machine. As a result, Shri.Manish Agarwal sustained grievous injury. The quarrel was pacified and injured was shifted to hospital. On behalf of VRKP Sponge and Power Plant L.L.P. Factory, Shri. C. Basavaraj lodged the complaint with the police around 8.30 p.m. Police after registering the case apprehended few of the persons and are investigating the matter. Accused Nos.2, 3, 5 and 6 have been arrested and they are in judicial custody. Accused Nos.1, 4, 7 and 8 have approached this - 5 - NC:
2023. KHC-D:6849 CRL.P No.101337 of 2023 Court for grant of anticipatory bail after their request was rejected by learned II Additional District and Sessions Judge, Ballari by order dated 13.06.2023 in Criminal Miscellaneous No.406/2023.
5. Reiterating the grounds urged in the petition, Shri. Srinand A. Pachhapure, learned counsel for petitioners vehemently contended that petitioners are innocent of the offences alleged against them and they have been falsely implicated in the incident inasmuch as in the complaint itself, there is a clear averment that 15-20 persons had come from Halakundi village. The altercation took place on account of the fact that petitioners were starving on account of Covid-19 and had no job and they requested the said factory personal many times for giving them job on a temporary basis to load the sponge iron into the lorries and same was negated by the factory people on number of occasion. At a spur of moment, an incident has taken place which - 6 - NC:
2023. KHC-D:6849 CRL.P No.101337 of 2023 is trivial in nature and has been blown out of proportion and sought for grant of anticipatory bail.
6. Per contra, learned High Court Government Pleader opposes the bail grounds vehemently. She also pointed out that accused persons have taken law into their hands and has assaulted Shri. Manish Agarwal on his head with deadly weapon resulting in grievous injury and petitioners are absconding from the date of offence and therefore investigation is crippled to a considerable extent and sought for rejections of the bail.
7. Shri. Sandesh Chouta, learned Senior Counsel representing Shri. Avinash M. Angadi for the defacto complainant placing reliance on the judgment of the Hon'ble Apex Court in the case of Jagjeet Singh and Others Vs. Ashish Mishra @ Monu and another reported in 2022 (9) SCC321 contended that the scope of victimology is being widened day by day and in heinous offences, the complainant/victim also need to be heard at least at - 7 - NC:
2023. KHC-D:6849 CRL.P No.101337 of 2023 important stages of the criminal trial. As such, victim also needs to be heard at the time of granting of the bail necessarily. 7.1. He also pointed out that at times the prosecution may not be in a position to express the apprehension in the mind of victim as effective as the victim by himself. As such, taking the victim's view while deciding a bail plea of an accused in a matter of this nature would be necessary to meet the ends of justice and to evaluate transparent procedure in a adjudicating a bail request.
8. Accordingly, Shri. Sandesh Chouta, learned Senior Counsel representing the complainant/victim had also been given right of audience though, under the proviso of Section 24(8) of Cr.P.C. or under Section 301 of Cr.P.C., limited scope is given for the victim to assist the prosecution.-. 8 - NC:
2023. KHC-D:6849 CRL.P No.101337 of 2023 9. No doubt the wordings used in Section 301 of Cr.P.C. and the wordings used in proviso under Section 24(8) of the Cr.P.C. has got a little difference. Taking note of the dictum of the Hon'ble Apex Court in the case of Jagjeet Singh (supra) it all boils down to a situation that it is the Court which is required to use its discretion in allowing the defacto complainant/victim in a given case not only to assist the prosecution but also participate in the proceedings as an adversary.
10. In order to appreciate the said contention of Shri. Sandesh Chouta, learned Senior Counsel for defacto complainant, it is necessary for this Court to extract Section 301 of Cr.P.C. and Section 24(8) of Cr.P.C., which reads as under; "Section 301-Appearance by Public Prosecutors. (1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written - 9 - NC:
2023. KHC-D:6849 CRL.P No.101337 of 2023 authority before any Court in which that case is under inquiry, trial or appeal. (2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case. Section 24-Public Prosecutors- (1) to (7) - xxxxxxxxxxxx (8)-The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor: Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub- section."
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2023. KHC-D:6849 CRL.P No.101337 of 2023 Further the relevant paragraph in the judgment of the Hon'ble Apex Court in the case of Jagjeet Singh (supra) is also culled out hereunder:
"24. The above stated enunciations are not to be conflated with certain statutory provisions, such as those present in the Special Acts like the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, where there is a legal obligation to hear the victim at the time of granting bail. Instead, what must be taken note of is that:
24. 1.First, the Indian jurisprudence is constantly evolving, whereby, the right of victims to be heard, especially in cases involving heinous crimes, is increasingly being acknowledged. 24.2.Second, where the victims themselves have come forward to participate in a criminal proceeding, they must be accorded with an opportunity of a fair and effective hearing. If the right to file an appeal against acquittal, is not accompanied with the right to be heard at the time of deciding a bail application, the same may - 11 - NC:
2023. KHC-D:6849 CRL.P No.101337 of 2023 result in grave miscarriage of justice. Victims certainly cannot be expected to be sitting on the fence and watching the proceedings from afar, especially when they may have legitimate grievances. It is the solemn duty of a court to deliver justice before the memory of an injustice eclipses.
11. Applying the principles of law enunciated in the case of Jagjeet Singh (supra) in the light of legal provisions under Section 301 and proviso to Section 24(8) of Cr.P.C. to the case on hand since the prosecution has expressed its apprehension in clear and categorical manner in opposing the bail request of petitioners with vehemence, the defacto complainant can only be permitted to play the role of assisting the prosecution in effectively opposing the bail application of petitioners/accused persons.
12. Further, there cannot be in dispute as to the principles of law enunciated in the case of Jagjeet Singh (supra) and victimology is being evolved day by day and rights of the victim is being - 12 - NC:
2023. KHC-D:6849 CRL.P No.101337 of 2023 widened day by day through various judicial pronouncement affording an opportunity for the victim to be heard in a bail request of an accused in heinous offences has practically became necessary.
13. In the case on hand, since the prosecution has expressed its apprehension in a clear and categorical manner, the role that could be limited to the victim is only to assist the prosecution in opposing to bail application of the accused/petitioners.
14. In the light of rival contentions of the parties, this Court perused the material on record meticulously.
15. Shri. Srinand A. Pachhapure, learned counsel for petitioners, contended that the incident has occurred at a spur of a moment especially when petitioners and others had visited the factory only with a request of providing them an employment to eak out their livelihood and they cannot be branded - 13 - NC:
2023. KHC-D:6849 CRL.P No.101337 of 2023 as a rate criminals. He further argued that a trivial incident has been blown out of proportion by the prosecution by invoking Section 307 of IPC. 12.1. He also pointed out that none of the petitioners/accused persons visited the factory premises armed with deadly weapons which results in an invariable inference that there was no intention to take away life of Shri. Manish Agarwal or anybody from the factory.
16. However, when the altercation turned into an ugly incident, minor injuries could have been caused to the people of the factory and few people from accused party have also sustained injuries. He further contended that taking note of these aspects of the matter, petitioners can be enlarged on bail. But the fact remains that petitioners are not available for Investigation Agency from the date of offence till today. There are direct allegations as against first petitioner who is accused No.1 in as much as he is the one who assaulted Shri. Manish - 14 - NC:
2023. KHC-D:6849 CRL.P No.101337 of 2023 Agarwal with a weapon on his head. Though this Court is not required to hold a mini trial to find out the merits of the case at this stage, the prima facie material on record would go to show that the weapon used being a deadly weapon and part chosen being a vital part of the body namely the head of the injured, resulting in head injury to Shri. Manish Agarwal, this Court is of the considered opinion that anticipatory bail request of first petitioner who is accused No.1 cannot be entertained by this Court.
17. Further, insofar as accused Nos.4, 7 and 8 are concerned their non availability with the investigation agency, has resulted in crippling the investigation to a considerable extent. There are no specific overt acts alleged against these petitioners either.
18. Accordingly, directing these petitioner Nos.2 to 4 / accused Nos.4, 7 and 8 to join the investigation and undergo limited period of custodial interrogation would not only meet the ends of justice - 15 - NC:
2023. KHC-D:6849 CRL.P No.101337 of 2023 but also protect the rights of these petitioners and need of the prosecution in an harmonious way.
19. Accordingly, following order is passed. ORDER
The criminal petition against first petitioner(accused No.1) is hereby rejected. The criminal petition is allowed partly in respect of petitioner Nos.2 to 4 who are accused Nos.4, 7 and 8 / accused Nos.4, 7 and 8 subject to the following conditions:
1. Petitioner Nos.2 to 4 are directed to join the investigation by appearing before the Investigation Officer on 18.07.2023 at 10.00 a.m.
2. The Investigation Officer is at liberty to take petitioner Nos.2 to 4 to custody and complete the custodial investigation if any, on the same day before 6.00 p.m. and thereafter enlarge the petitioner on bail by taking a bond in a sum of Rs.1,00,000/- (Rupees one lakh - 16 - NC:
2023. KHC-D:6849 CRL.P No.101337 of 2023 only) each with two sureties for the likesum.
3. Petitioner Nos.2 to 4 shall co- operate with the investigating agency by furnishing necessary information as would be required by the investigation agency.
4. Petitioner Nos.2 to 4 shall not tamper the prosecution witnesses in any manner.
5. Petitioner Nos.2 to 4 shall attend the Court regularly and appear before the Investigation agency as and when directed.
6. Petitioner Nos.2 to 4 shall mark their attendance before the Investigating Officer on every third Sunday between 10.00 a.m. and 2.00 p.m., till the final report is filed.
7. Petitioner Nos.2 to 4 shall not directly or indirectly tamper the prosecution evidence or hamper the investigation process in any manner.-. 17 - NC:
2023. KHC-D:6849 CRL.P No.101337 of 2023 8. Petitioner Nos.2 to 4 shall not leave the jurisdiction of Ballari District without prior permission. Violation of any one of the conditions would entitle the prosecution to seek for cancellation of the bail. Ordered accordingly. Sd/- JUDGE SMM List No.:
1. Sl No.:
1.