Allowed

Manoj Kundar v. State of Karnataka

Karnataka HC2 Nov 2020CRL.A/858/2020

Case brief

AI extract

What is this about?

This Court allowed the criminal appeal and set aside the order rejecting bail. It held that the bar under Section 22(5) of KCOCA Act, barring bail if the accused was on bail for any other offence, is ultra vires. The matter was remanded to the Sessions Judge for fresh consideration.

What did the court decide?

Impugned order dated 28.04.2018 set aside; bail application remanded to Sessions Judge for fresh consideration.

Manoj Kundar Vs State of Karnataka — Bail and Remand | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 02^ND DAY OF NOVEMBER, 2020

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BEFORE

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THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA

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CRIMINAL APPEAL No.858/2020

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BETWEEN:

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Manoj Kundar @ Manju

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@ Military Manju

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@ Chithrapu Manju, Aged about 28 years, S/o. Janardhan, R/at Indira Nilaya, Chithrapu Village, Mulki Post, Mangaluru, D.K. District – 574 154.

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Chandrashekara @ Tikki Annu @ Annu S/o. Appu Poojary, Aged about 35 years, R/at Athur Kapikadu, Panja Post, Pakshikere, Mangalore Taluk, D.K. District – 574 232. …Appellants

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(By Sri. Nishit Kumar Shetty, Advocate)

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AND:

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State of Karnataka, By Mulki Police Station, Rep. by State Public Prosecutor,

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High Court Building, Bengaluru – 560 001.

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...Respondent

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(By Smt. K.P. Yashodha, HCGP)

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This Criminal Appeal is filed under Section 12 of Karnataka Control of Organized Crimes Act, 2000 praying to set aside the order dated 28.04.2018 in Cr.No.155/2017 (Spl.C.C.No.283/2018) for the offence p/u/s 447, 506, 387 and 427 r/w 34 of IPC and Sections 3, 5(1) (a), 5(2) and 27 of the Indian Arms Act and Section 3 of KCOCA Act, 2000 made by the Court of Principal District and Sessions Judge, Mysuru and release the appellants on statutory bail u/s 167(2) (a) (i) of Cr.P.C.

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This Criminal appeal coming on for Orders, this day, the Court through video conference delivered the following:

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J U D G M E N T

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Though this appeal is listed for Admission, yet with the consent of learned counsel appearing for appellants and learned HCGP for respondent, the appeal is taken up for final disposal.

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This appeal is directed against the order dated 28.04.2018 passed by the learned Prl. District & Sessions Judge, Mysuru, in Spl.C.C.No.283/2018 arising out of Crime No.155/2017. By the said order, the application filed by the accused/appellants under Section 167(2) of Cr.P.C. has

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been rejected. In para 12 of the impugned order it is observed thus:

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“12. Further , Section 22(5) of KCOCA Act provides as under:

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“Notwithstanding anything contained in the Code, the accused shall not be granted bail if it is noticed by the Court that he was on bail in an offence under this Act or under any other Act as on the date of the offence in question”.

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In this context, it is pertinent to note that, accused No.1 and 2 are involved in other five criminal cases and they were on bail when the crime in this case took place. Therefore, Section 22(5) bars them from seeking the benefit of Section 167(2) of Cr.P.C. Such being the fact, without touching the merits of the case, it can be very well concluded that, the accused No.1 and 2 are not entitled to seek the statutory bail under Section 167(2) of Cr.P.C., irrespective of the fact that the Final Report is not submitted within 90 days from the date of their detention in custody.”

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From the reading of the above part of the order, it is clear that the learned Sessions Judge has rejected the application solely on the ground of bar contained in Section 22(5) of the Karnataka Control of Organized Crimes Act,

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2000 (KCOCA Act), without considering the merits of the case.

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Learned counsel for appellants has placed on record a copy of the order passed by the Hon’ble Supreme Court in RAJESH NAYAK & OTHERS Vs. THE STATE BY VITLA POLICE BANTWAL TALUK in CRL.APPEAL No.20/2018 (SPECIAL LEAVE PETITION (CRL.) No.9140/2017), wherein the Hon’ble Supreme Court has held as under:

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“4. This Court in State of Maharashtra Vs. Bharat Shanti Lal Shah and others, reported in (2008) 13 SCC 5, at Page No.29, struck down a pari materia provision, which is in identical terms, under the Maharashtra Control of Organised Crime Act (MCOCA). It was held by this Court that the expression “or under any other Act” was unconstitutional.

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5. This being the case, we have to proceed on the footing that the same expression contained in Section 22(5) does not exist.”

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In view of the above decision, the impugned order

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cannot be sustained. The bar engrafted in Section 22(5) of the KCOCA Act is held ultra vires. As a result, the appeal is

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allowed . The impugned order dated 28.04.2018 passed by the learned Prl. District & Sessions Judge, Mysuru, in Spl.C.C.No.283/2018 arising out of Crime No.155/2017 is set aside.

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Since the learned Sessions Judge has not considered the merits of the case, the matter is remanded to the learned Sessions Judge for consideration of the application filed by the accused/appellants under Section 167(2) of Cr.P.C. afresh, in accordance with law, as expeditiously as possible.

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Sd/JUDGE

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Manoj Kundar v. State of Karnataka

Case brief

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Manoj Kundar v. State of Karnataka

Case brief

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