Dismissed

Hemalatha E v. N B Shwetha

Karnataka HC7 Nov 2024CRL.P/3400/2024

Case brief

AI extract

What is this about?

Complainant sought cancellation of bail granted to accused No.2 in a murder and disappearance-of-evidence case, alleging threat and pre-charge-sheet grant. The High Court found charge sheet invoked only Section 109 against her, she had no criminal antecedents, and mutual complaints showed vengeance; dismissed the petition.

What did the court decide?

Petition dismissed; Tumakuru Rural Police directed to provide suitable protection to the petitioner from accused Nos. 1 and 2 and their henchmen.

Hemalatha E Vs N B Shwetha — Murder and Culpable Homicide | Karnataka HC (2024)

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NC: 2024:KHC:45019 CRL.P No. 3400 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE M G UMA

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CRIMINAL PETITION NO. 3400 OF 2024

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BETWEEN:

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HEMALATHA E W/O GANGARAJU S G AGED ABOUT 40 YEARS, SRI KANNIKA NIVASA, SIDDARTH NAGARA, HEGGERE HOBLI, TUMAKUR TALUK, TUMAKUR - 572 107

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…PETITIONER

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Digitally signed by NANDINI B G Location: high court of karnataka

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(BY SRI. AKASH PATIL A.V., ADVOCATE)

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AND:

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N.B. SHWETHA, W/O C. SHIVAMURTHY, AGED ABOUT 37 YEARS, R/O KOTTANAHALLIPALYA, MALLASANDRA, KASABA HOBLI,

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TUMAKURU TALUK.

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STATE OF KARNATAKA REPRESENTED BY RURAL POLICE TUMAKURU S.P.P., HIGH COURT BUILDING BENGALURU - 560 001.

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…RESPONDENTS

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(BY SRI. VIKYATH .B., ADVOCATE FOR R1

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SMT. YASHODHA K.P., HCGP FOR R2)

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THIS CRL.P IS FILED U/S.439(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 14.12.2023 PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU

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2 - NC: 2024:KHC:45019 CRL.P No. 3400 of 2024

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DISTRICT IN CRL.MISC.NO.1791/2023. THE PETITION FILED BY THE RESPONDENT NO.1 U/S 439 OF CPRC. THE RESPONDENT NO.1 IS ORDERED TO BE RELEASED ON BAIL IN CR.NO.282/2023 REGISTERED BY THE TUMAKURU RURAL POLICE FOR THE OFFENCE P/U/S 302 AND 201 OF IPC AND CANCEL THE BAIL WHICH IS GRANTED TO THE RESPONDENT NO.1 BY THE SESSIONS COURT BY ALLOWING THE PETITION.

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THIS CRL.P, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE M G UMA

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ORAL ORDER

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The complainant in Cr.No.282/2023 of Tumakuru Rural Police Station now pending in S.C.No.35/2024 on the file of the learned VI Additional District and Sessions Judge, Tumakuru is seeking to set aside the order dated 14.12.2023 passed in Crl.Mis.No.1791/2023, on the file of the learned I Additional District and Sessions Judge, Tumakuru, granting bail to the respondent - accused No.2, registered for the offences punishable under Sections 302 and 201 of IPC.

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Initially, the petitioner has filed the first information against accused No.1 alleging commission of the offence punishable under Sections 302 and 201 of IPC. The investigation was undertaken and accused Nos. 1 and 2 were

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3 - NC: 2024:KHC:45019 CRL.P No. 3400 of 2024

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apprehended. Accused No.2 moved an application for bail in Crl.Mis.No.1791/2023. The said petition came to be allowed vide order dated 14.12.2023 granting bail to the respondent, subject to conditions. The petitioner is now before this Court seeking cancellation of the said bail by setting aside the order granting bail.

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Heard Sri. Akash Patil, learned counsel for the petitioner, Sri. Vikyath B, learned counsel for respondent No.1 and Smt. K.P.Yashodha, learned High Court Government Pleader for the respondent No.2. Perused the materials on record.

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It is contended by the learned counsel for the petitioner that respondent No.1 through some unruly elements is following the petitioner and there is threat to her life and therefore, the bail is to be cancelled. He also contended that the learned Sessions Judge has granted bail to respondent No.1 even before filing of the final report. The charge sheet filed by the Investigating Officer makes out several incriminating materials against her, which were never considered and there was no occasion for the learned Sessions Judge to consider all

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those materials on record. Therefore, the bail granted in favour of respondent No.1 is to be cancelled.

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Learned counsel placed reliance on the decision of the Hon'ble Apex Court in Deepak Yadav v/s State of U.P. & Anr¹ to contend that the bail was granted on untenable grounds and there is possibility of the accused committing similar offence, threatening the petitioner and other material witnesses. Hence the bail granted is to be cancelled.

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Learned counsel for the petitioner contended that the petitioner had filed the police complaint on 13.02.2024. But the police have not taken any action on such complaint. There is life threat to the complainant and therefore, he prays for allowing the petition.

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Per contra, learned counsel for respondent No.1 opposing the petition submitted that respondent No.1 had never made any attempt either to influence or threaten the petitioner. On the other hand, the father of the deceased had issued the notice claiming that he had lent an amount of Rs.4 Lakhs to respondent No.1 and the same is to be re-paid.

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1 2022 LiveLaw (SC) 562

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5 - NC: 2024:KHC:45019 CRL.P No. 3400 of 2024

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Moreover, respondent No.1 has filed the complaint against the petitioner stating that some unknown persons are visiting the school of her daughter, taking photos and they are also coming near house of respondent No.1 behaving inappropriately. Therefore, she sought for protection from the police as they are doing so at the instance of the complainant. Hence, he prays for dismissal of the petition.

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Both the learned counsel produced several

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documents in support of their contentions.

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Learned HCGP contended that the police are ready to give protection to the complainant and her family members in case of necessary and prays for passing appropriate orders.

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In view of the rival contentions urged by the learned counsel for both the parties, the point that would arise for my consideration is:

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“Whether the petitioner has made out any ground for cancellation of bail?”

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My answer to the above point is in ‘Negative’ for the following:

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R E A S O N S

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The grounds on which the bail granted under Section 439 of Cr.PC is to be cancelled is very well settled. In Deepak (supra,) the Hon'ble Apex Court has reiterated several circumstances under which the bail could be cancelled. As rightly contended by the learned counsel for the petitioner, if the bail was granted taking into account irrelevant materials ignoring the relevant material on record, the bail is required to be cancelled. If it is found that the accused is very influential, who is capable of influencing the victim and other material witnesses by misusing the position and power, the bail granted to the accused may have to be cancelled. If the Court ignores the past criminal records and conduct of the accused while granting bail, that is also one of the grounds, on which the bail could be cancelled. Where there are serious discrepancies found in the order granting bail, which causes prejudice to the victim, then also the bail granted could be cancelled. Similarly if the order granting bail is prima facie whimsical, capricious and perverse, it is liable for cancellation.

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In the present case, it is the contention of the petitioner that, she being the complainant has lodged the first information. Learned counsel for the petitioner has raised two points to urge cancellation of bail. Firstly, the learned Sessions Judge has granted bail before filing of the charge sheet and therefore, the bail is to be cancelled. It is not in dispute that while granting bail to respondent - accused No.2, the final report was not yet filed. However, the charge sheet filed against accused Nos. 1 and 2 discloses that Section 302 of IPC is invoked against accused No.1, while it is only Section 109 of IPC is invoked against the present respondent No.1. She was said to have been in illicit relationship with accused No.1 and she instigated accused No.1 to cause the death of the deceased. The overt act to cause the death of the deceased was solely by accused No.1, as per charge sheet it was he, who smothered the deceased with a pillow and thereafter had taken to the hospital where she was declared to be dead. Therefore, even if the charge sheet was to be considered by the Court for the purpose of considering as to whether respondent No.1 is entitled for granting bail or not, she will be entitled for bail. Moreover, respondent No.1 is a lady and admittedly, she is not

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having any criminal antecedents. Under such circumstances, I do not find any justification in the contention raised by the learned counsel for the petitioner for cancellation of bail.

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The second contention raised by the learned counsel for the petitioner is that, after granting bail some unknown persons are following the petitioner and she is very much terrified by their acts and in that regard a police complaint is filed with the jurisdictional police. The police have not registered the FIR and not taken any action against respondent No.1. Even though, the copy of police complaint and the NCR is produced before this Court by the petitioner, the respondent has also produced similar complaint and the acknowledgement by the police. Moreover, learned counsel for respondent No.1 has produced copy of the legal notice said to have been issued by the father of the deceased to respondent No.1 contending that she had availed loan of Rs.4 Lakhs and the same is to be re-paid. From all these materials on record, it is clear that both the parties are wreaking vengeance against one another. It cannot be a ground for cancellation of bail granted to respondent No.1. Hence, the petition is liable to be dismissed.

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Accordingly, I answer the above point in the

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negative and proceed to pass the following:

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ORDER

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The petition is dismissed.

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However, looking to the nature of allegations made by the petitioner against respondent No.1, the jurisdictional police i.e., Tumakuru Rural police is directed to provide suitable protection to the petitioner from accused Nos. 1 and 2 and their henchmen.

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Registry is directed to communicate this order to the jurisdictional police i.e., Tumakuru Rural police for needful action.

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Sd/(M G UMA) JUDGE

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SPV

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List No.: 3 Sl No.: 11

Hemalatha E v. N B Shwetha

Case brief

What is this about?

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Hemalatha E v. N B Shwetha

Case brief

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