Dismissed

Sri Lakshminarayana v. the State of Karnataka

Karnataka HC18 Nov 2020CRL.P/4155/2020

Case brief

AI extract

What is this about?

The Criminal Bench dismissed a petition seeking cancellation of bail already granted to an accused in a murder trial. Relying on Supreme Court precedents, the Bench held that a High Court cannot review a bail order it granted in the same matter as a matter of discretion under Section 439(2) Cr.P.C., given the statutory bar under Section 362 Cr.P.C., rendering the petition functus officio and non-m

What the court decided

AI extract

Sri Lakshminarayana Vs the State of Karnataka — Bail and Remand | Karnataka HC (2020)

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Crl.P.No.4155/2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^th DAY OF NOVEMBER 2020

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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CRIMINAL PETITION No.4155/2020

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BETWEEN :

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SRI.LAKSHMINARAYANA S/O GANGAPPA AGED ABOUT 27 YEARS R/AT MUNIRAJAPPA BUILDING SINGANAYAKANAHALLI BENGALURU NORTH TALUK BENGALURU DISTRICT – 560 064 …PETITIONER (BY SRI.GOPALAKRISHNAMURTHY.C. ADVOCATE)

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AND :

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THE STATE OF KARNATAKA DOBBESPET P.S. REP/BY SPP HIGH COURT, BENGALURU – 560 001

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DANANJAYA S/O LATE RAMAIAH AGED ABOUT 26 YEARS R/AT MASTER RANGAIAH SHETTIHALLI, BAGALAGUNTE BENGALURU – 560 078 …RESPONDENTS

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(BY SRI.H.R.SHOWRI, HCGP FOR R1; SRI.TEJAS.N, ADVOCATE FOR SRI.MANJUNATHA RAO LOKANDE.N. ADVOCATE FOR R2)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 439(2) OF CR.P.C. PRAYING TO SET ASIDE THE ORDER PASSED IN CRIMINAL PETITION NO.2653/2020 (439) ON THE FILE OF THIS HON’BLE COURT DATED 04.08.2020 AND

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Crl.P.No.4155/2020

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CONSEQUENTLY CANCEL THE BAIL GRANTED IN FAVOUR OF RESPONDENT NO.2 ON THE FILE OF THIS COURT DATED 04.08.2020 PASSED IN CRL.P.NO.2653/2020 (439) IN SPECIAL CASE NO.375/2018 (CRIME NO.108/2018) PENDING ON THE FILE OF THE II ADDITIONAL SESSIONS AND SPECIAL JUDGE, BANGALORE RURAL DISTRICT, BANGALORE.

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THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 3^RD NOVEMBER 2020, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THROUGH PHYSICAL HEARING THE COURT MADE THE FOLLOWING:

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O R D E R

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The petitioner is seeking cancellation of bail granted by this Court in Crl.P.No.2653/2020 to the second respondent in Crime No.108/2018 of Dabaspet Police Station.

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The second respondent was accused No.1 in Crime No.108/2018 of Dabaspet Police Station. The second respondent and 7 others were charge sheeted in the said case for the offences punishable under Sections 143, 364, 302 read with Section 149 IPC and Section 3(ii)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘the SC/ST Act’ for short) on the basis of the complaint of the present petitioner.

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Crl.P.No.4155/2020

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Petitioner was the brother of deceased Naveen

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Kumar. Respondent No.2 was the brother, Accused No.8 was the husband of CW.2. Accused No.8 and CW.2 were having two children out of their wedlock. The deceased indulged into illicit relationship with CW.2 despite admonition by the petitioner, accused No.8 and others. Being frustrated by that it was alleged that on 13.05.2018 at 9.45 p.m. accused kidnapped Naveen Kumar from the house of accused No.8 in Bagalkunte and assaulted him with cricket bat, clubs etc and committed his murder.

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On 07.08.2019 this Court rejected the first bail petition of the second respondent in Crl.P.No.2516/2019. Thereafter, on 23.09.2019, this Court granted bail to accused No.8 in Crl.P.No.2123/2019. The second respondent again filed Crl.P.No.2653/2020 which came to be allowed on 04.08.2020 on the ground that the allegation of causing injuries leading to the death were against accused No.8,

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Crl.P.No.4155/2020

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since he was granted bail, the second respondent was entitled to extension of parity.

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Petitioner is seeking cancellation of the said bail order in the above petition on the following grounds:

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(i) Against an order of rejection of bail in the case involving the offences under SC/ST Act, as per Section 14A of the said Act an appeal lies. Therefore, Crl.P.No.2516/2018 was not maintainable;

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(ii) Notice of the petition was served on the petitioner on 04.08.2020 itself without mentioning the hearing date. The copies of the petition and other annexures were not served on him. Therefore, the order in Crl.P.No.2653/2020 was passed without giving sufficient opportunity of hearing to the petitioner;

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(iii) There was overwhelming incriminating material against the second respondent. While extending parity to the second respondent, this Court ignored the observations made against the second

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Crl.P.No.4155/2020

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respondent in the bail order dated 07.08.2019 in Crl.P.No.2516/2019.

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Reiterating the said grounds, Sri C.Gopalakrishnamurthy, learned counsel for the petitioner urged for cancellation of the bail. In support of his contentions, he relied upon the following

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judgments:

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i) Jagadeesh and another vs. State of Karnataka and another¹ ; ii) Satyendra and another vs. State of U.P.² ; iii) Sunita Gandharva vs. State of M.P.and another³ and iv) Maranna @ Mareppa vs. State through Shahapur Police Station⁴ .

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Sri.H.R.Showri, learned HCGP submits that

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the allegations of inadequate service of notice is false. He submits that notice was served in advance and the petitioner cleverly has not mentioned the date of receipt

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1 Crl.P.No.3055/2020 DD.06.08.2020

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2 2018 SCC Online All 2087

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3 2020 SCC Online MP 2193

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4 Crl.P.No.200315/2020 c/w

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Crl.P.No.200318/2020 D.D.21.07.2020

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Crl.P.No.4155/2020

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of the notice under his signature. He further submits that the State opposed the grant of bail and taking into consideration the legal position, suitable orders may be passed.

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Shri.Tejas.N, learned counsel for second respondent opposes the petition on the following grounds:

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(i) The remedy of the petitioner against grant of bail is to file an appeal and he cannot seek review of the order in the hands of this Court only;

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(ii) The discretionary relief of bail once granted can be cancelled only if there are any supervening circumstances like petitioner abusing the bail granted to him, tampering the witnesses or absconding. Petitioner has made out none of these circumstances to cancel the bail.

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In support of his arguments, he relied upon the following judgments:

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i) State of Gujarat vs. Salimbhai Abdul Gaffar Shaikh and others⁵

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5 (2003)8 SCC 50

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Crl.P.No.4155/2020

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ii) Narendra K Amin (Dr) Vs. State of Gujarat and another⁶

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iii) Dolatram and others vs. State of Haryana⁷

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iv) Abdul Basit @ Raju and others vs. Mohammed Abdul Kadir Choudhary and ors⁸

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v) R.Rathinam vs. State by DSP, District Crime Branch, Madurai Dist, Madurai and another⁹

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Apparently, petitioner is seeking cancellation of bail not on any supervening circumstance subsequent to grant of bail, but questioning the merits or validity of the order passed by this Court in Crl.P.No.2653/2020.

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The Hon’ble Supreme Court in Salimbhai’s case referred to supra in para 9 of the judgment held that while canceling the bail, the Court does not examine the merits of the order granting the bail.

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In Dolatram’s case ( supra ) at para 4 of the

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judgment it was held that factors for cancellation of bail

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6 (2008)13 SCC 584

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7 (1995)1 SCC 349

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8 (2014)10 SCC 754

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9 (2000)2 SCC 391

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Crl.P.No.4155/2020

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are only the supervening circumstances like accused

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abusing the bail granted in his favour.

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In Rathinam’s case ( supra ) at para 5 of the judgment it was held that against the order of the learned Single Judge granting bail, an appeal lies to the Supreme Court under Article 136 of the Constitution.

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In Basit’s case referred to supra , it was held that once the Court grants bail, it becomes funtus officio . Unless that order is set aside, the Court granting bail cannot review that. It is relevant to extract paragraphs 21 and 26 of the said judgment.

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“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 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

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Crl.P.No.4155/2020

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singular exception to the said statutory bar is correction of clerical or arithmetical error by the court.

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In the instant case, the order for bail in the bail application preferred by the accusedpetitioners herein finally disposes of the issue in consideration and grants relief of bail to the applicants therein. Since, no express provision for review of order granting bail exists under the Code, the High Court becomes functus officio and Section 362 of the Code applies herein barring the review of judgment and order of the Court granting bail to the petitioner-accused. Even though the cancellation of bail rides on the satisfaction and discretion of the court under Section 439(2) of the Code, it does not vest the power of review in the court which granted bail . Even in the light of fact of misrepresentation by the petitioner-accused during the grant of bail, the High Court could not have entertained the respondent/informant’s prayer by sitting in review of its judgment by entertaining miscellaneous petition.”

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(emphasis supplied)

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In this case also, the bail order was passed

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considering the material on record. Hence, this Court has become funtus-officio. Since the petitioner has sought review of the order by way of cancellation of

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Crl.P.No.4155/2020

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bail, it is contrary to the judgment of the Hon’ble Supreme Court in Basit’s case. Therefore, the present petition is not maintainable. Since the petition itself is not maintainable, it is not necessary to go into the other grounds urged by the petitioner.

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Therefore, the petition is dismissed.

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Sd/JUDGE

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akc

Sri Lakshminarayana v. the State of Karnataka

Case brief

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Sri Lakshminarayana v. the State of Karnataka

Case brief

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