Dismissed

State of Karnataka v. Sri Arun Kumar C.

Karnataka HC29 Oct 2024CRL.P/7249/2024

Case brief

AI extract

What is this about?

The State sought cancellation of regular bail granted to accused no.4 in a double murder case. The High Court held the bail order was not wholly unjustified, the accused had no antecedents and violated no bail conditions, and dismissed the petition while directing expeditious trial.

What did the court decide?

None; petition dismissed with a direction to the Trial Court to expedite the trial.

State of Karnataka Vs Sri Arun Kumar C. — Murder and Culpable Homicide | Karnataka HC (2024)

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NC: 2024:KHC:43507 CRL.P No. 7249 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29^TH DAY OF OCTOBER, 2024 BEFORE

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THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY CRIMINAL PETITION NO. 7249 OF 2024

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BETWEEN:

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STATE OF KARNATAKA BY AMRUTHALLI POLICE STATION BENGALURU CITY, REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU - 560 001. ...PETITIONER

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(BY SRI VIJAYAKUMAR MAJAGE, SPP-II A/W

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SRI M. DIWAKARA MADDUR, HCGP)

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AND:

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Digitally signed by NANDINI MS Location: High Court of Karnataka

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SRI ARUN KUMAR C. S/O CHANDRAPPA AGED ABOUT 39 YEARS RESIDING AT NO. 28 1ST MAIN, 2ND CROSS SIR M. VISHVESWARAIAH ROAD VIJAYA BANK LAYOUT BILLEKAHALLI, BENGALURU - 560 076. …RESPONDENT

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(BY SRI S. SSREEVATSA, SR. COUNSEL FOR SRI T.N. VISWANATHA, ADV.,)

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THIS CRL.P. IS FILED U/S.439 CR.P.C PRAYING TO CANCEL THE ORDER GRANTING BAIL TO RESPONDENT / ACCUSED NO.4, VIDE ORDER ATED 03.11.2023 PASSED THE LEARNED LVI ADDL. CITY CIVIL AND SESSIONS JUDGE AT BENGALURU IN S.C.NO.1492/2023 IN CR.NO.186/2023 REGISTERED BY THE AMRUTHAHALLI POLICE STATION, FOR OFFENCE P/U/S 302, 120B, 109, 201 R/W 34 OF IPC ALONG WITH SEC. 25(1B)(b) OF ARMS ACT, 1959.

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NC: 2024:KHC:43507 CRL.P No. 7249 of 2024

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THIS PETITION HAVING BEEN HEARD AND RESEVED ON 24.10.2024, COMING ON FOR PRONOUNCEMENT THIS DAY,THE COURT MADE THE FOLLOWING:

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CORAM: HON'BLE MR JUSTICE S VISHWAJITH SHETTY

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CAV ORDER

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This petition under Section 439(2) of Cr.PC is filed by the State with a prayer to cancel the order granting bail to respondent/accused no.4 vide order dated 03.11.2023 passed by the Court of LVI Addl. City Civil & Sessions Judge, Bengaluru, in S.C.No.1492/2023 arising out of Crime No.186/2023 registered by Amruthahally Police Station, Bengaluru City, for the offences punishable under Sections 302, 120B, 201, 34 and Section 25(1B)(b) of Arms Act, 1959.

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Heard the learned Counsel for the parties. 3. FIR in Crime No.186/2023 was registered by Amruthahally Police Station, Bengaluru City, initially for the offences punishable under Section 302, 120B, 34 IPC against Philics and others based on the first information dated 11.07.2023 received from Shankara Narayan S/o Mahadeshwar. Respondent herein was arrayed as accused no.4 in the FIR. During the course of investigation, he was arrested on 12.07.2023. Investigation in the case was completed and

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charge sheet was filed against four persons and respondent was arrayed as accused no.4 in the charge sheet. Bail application filed by the respondent (accused no.4) in S.C.No.1492/2023 before the Trial Court was allowed on 03.11.2023. Assailing the said order, the State is before this Court.

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Learned SPP submits that the Trial Court was not justified in allowing the bail application of the respondent having regard to the gravity and nature of crime. He submits that respondent had hired accused nos.1 to 3 to commit the heinous offence and there are sufficient material to connect the respondent to the crime. He was in constant touch over phone with accused no.1 immediately prior to the crime and also after the crime. CW-55 is the person who had procured the machete which was used to commit the crime and the material on record would go to show that respondent had paid a sum of Rs.7,000/- to CW55 for purchase of three machetes. Two out of three machetes procured by CW-55 was recovered from the house of the respondent after his arrest. Respondent had also transferred amount to the account of accused no.3 prior and after the crime was committed. He further submits that CW-74 - wife of

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deceased Vinu Kumar has spoken about the threat to life given by respondent on 18.01.2023 to the deceased. The Trial Court has granted bail to the respondent taking into consideration irrelevant facts and the reasoning assigned by the Trial Court is perverse in nature. He submits that the trial in the case is likely to commence. Accused nos.1 to 3 are in custody. Petitioner being an influential person, is likely to tamper with the prosecution witnesses. In support of his arguments, he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of JAGJEET SINGH & OTHERS VS ASHISH

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MISHRA ALIAS MONU & ANOTHER - (2022)9 SCC 321 , and AJWAR VS WASEEM & ANOTHER - 2024 SCC OnLine SC 974 .

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Per contra, learned Senior Counsel appearing on behalf of the respondent submits that respondent is a qualified person and a Director of a Software Company. Neither the respondent nor accused nos.1 to 3 have any criminal antecedents. Accused nos.1 & 2 are the former employees of the petitioner. The only allegation against the respondent is that he had conspired with accused nos.1 to 3 to commit the murder of deceased Phanindra Subramanyam and Vinu Kumar who were his

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employees earlier. The alleged threat given by the respondent as stated by CW-74 is in the month of January 2023 and the incident in question had taken place in the month of July 2023. The respondent who was arrested on 12.07.2023 was in custody for a period of nearly four months and only after the charge sheet was filed, the Trial Court has granted him bail. Taking into consideration the facts and circumstances of the case and the nature of allegations as against the respondent who has no other criminal antecedents, it cannot be said that the Trial Court was wholly unjustified in enlarging the respondent on bail. He has not violated any of the bail conditions. The prosecution has not made out any supervening circumstance for cancellation of bail granted to the respondent. Accordingly, he prays to dismiss the petition.

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It is the case of the prosecution that respondent is the owner of a Software Networking Company known as Deshkal Networking Pvt. Ltd., (G-Net) and deceased Phanindra Subramanyam and Vinu Kumar were working as HR Manager and CEO in the said company for a period of nearly four years. Thereafter, Phanindra Subramanyam and Vinu Kumar had left the company of the respondent and started their own

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networking company. Some of the employees of the respondent had joined the new company started by Phanindra Subramanyam and Vinu Kumar. Respondent who apprehended

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that his company is likely to suffer loss as a result of the new company started by Phanindra Subramanyam and Vinu Kumar, intended to commit the murder of Phanindra Subramanyam and Vinu Kumar, and therefore, he had conspired with accused nos.1 & 2 who were earlier working in his company. Accused nos.1 & 2 had thereafter informed accused no.3 about the conspiracy to commit the murder of Phanindra Subramanyam and Vinu Kumar and accused no.3 also had agreed to assist accused nos.1 & 2 to commit murder of Phanindra Subramanyam and Vinu Kumar.

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On 11.07.2023 between 3.00 p.m. to 4.00 p.m., accused nos.1 to 3 came to the premises of the company known as Heronics Media Pvt. Ltd., which was the newly started company of deceased Phanindra Subramanyam and Vinu Kumar and entered into the chambers of Phanindra Subramanyam and assaulted him with the weapon they had brought with them. When Vinu Kumar tried to rescue Phanindra Subramanyam, accused nos.1 to 3 also assaulted Vinu Kumar with the very

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same weapon and had escaped from the spot of crime. Immediately thereafter, Phanindra Subramanyam and Vinu Kumar were admitted to the hospital. However, both of them succumbed to the injuries in the hospital while undergoing treatment.

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The allegation against the petitioner is that he had conspired with accused nos.1 & 2 to commit the murder of Phanindra Subramanyam and Vinu Kumar. Undisputedly, he was not present at the spot of crime on 11.07.2023, and on the other hand, he was at Delhi on the said date along with CW-24. The prosecution in order to prove the charge against the respondent, has placed reliance on the statement made by CW55 & CW-74. CW-55 is the person who is said to have procured machetes used by accused no.1 to assault deceased Phanindra Subramanyam and Vinu Kumar. According to the prosecution, CW-55 had purchased three machetes and supplied the same to the respondent and one out of the three machetes was used by accused no.1 to commit the crime. Two other machetes are said to have been seized from the house of the respondent. The machete which was used by accused no.1 in the present case has been recovered after his arrest. However, the material on

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record does not disclose that CW-55 has identified the said machete.

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According to the prosecution, respondent had earlier threatened the deceased with dire consequences to their life and in this regard, the statement of CW-74 - wife of Vinu Kumar is relied. The alleged threat was given in the month of January 2023, whereas the crime was committed after a period of more than six months from the date of threat. Though it is stated that respondent had entered into conspiracy with accused nos.1 & 2 and had hired their services for the purpose of committing the crime, the prosecution has failed to produce any strong piece of evidence in support of these allegations. Bank transaction of accused no.3 would go to show that he had received a sum of Rs.2,000/- prior to the date of crime and Rs.10,000/- after the crime was committed, from the account of the respondent. The said transaction itself is not sufficient to prima facie prove the allegation that respondent had hired the services of accused nos.1 to 3 for committing the murder of deceased Phanindra Subramanyam and Vinu Kumar. Accused no.1 to 3 were arrested in the present case on 12.07.2023 and after recording their voluntary statement, petitioner was

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subsequently arrested on 12.07.2023. The Trial Court appears to have observed that respondent was implicated in the case solely on the basis of the voluntary statement of accused nos.1 to 3, and therefore, has granted regular bail to the respondent after charge sheet was filed.

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In Jagjeet Singh's case supra, in paragraphs 27 & 28, it is observed by the Hon'ble Supreme Court as under:

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"27. We may, at the outset, clarify that power to grant bail under Section 439 Cr.PC, is one of wide amplitude. A High Court or a Sessions Court, as the case may be, are bestowed with considerable discretion while deciding an application for bail. But, as has been held by this Court on multiple occasions, this discretion is not unfettered. On the contrary, the High Court or the Sessions Court must grant bail after the application of a judicial mind, following well-established principles, and not in a cryptic or mechanical manner.

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Ordinarily, this Court would be slow in interfering with any order wherein bail has been granted by the court below. However, if it is found that such an order is illegal or perverse, or is founded upon irrelevant materials adding vulnerability to the order granting bail, an appellate

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court will be well within its ambit in setting aside the same and cancelling the bail."

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In Ajwar's case supra, in paragraph nos.27 & 28, the Hon'ble Supreme Court has observed as under:

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"27. It is equally well settled that bail once granted, ought not to be cancelled in a mechanical manner. However, an unreasoned or perverse order of bail is always open to interference by the superior Court. If there are serious allegations against the accused, even if he has not misused the bail granted to him, such an order can be cancelled by the same Court that has granted the bail. Bail can also be revoked by a superior Court if it transpires that the courts below have ignored the relevant material available on record or not looked into the gravity of the offence or the impact on the society resulting in such an order. In P v. State of Madhya Pradesh (supra) decided by a three judges bench of this Court [authored by one of us (Hima Kohli, J)] has spelt out the considerations that must weigh with the Court for interfering in an order granting bail to an accused under Section 439(1) of the CrPC in the following words:

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“24. As can be discerned from the

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above decisions, for cancelling bail once granted, the court must consider

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whether any supervening circumstances have arisen or the conduct of the accused post grant of bail demonstrates that it is no longer conducive to a fair trial to permit him to retain his freedom by enjoying the concession of bail during trial [Dolat Ram v. State of Haryana, (1995) 1 SCC 349 : 1995 SCC (Cri) 237]. To put it differently, in ordinary circumstances, this Court would be loathe to interfere with an order passed by the court below granting bail but if such an order is found to be illegal or perverse or premised on material that is irrelevant, then such an order is susceptible to scrutiny and interference by the appellate court.”

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CONSIDERATIONS FOR SETTING ASIDE BAIL ORDERS

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The considerations that weigh with the appellate Court for setting aside the bail order on an application being moved by the aggrieved party include any supervening circumstances that may have occurred after granting relief to the accused, the conduct of the accused while on bail, any attempt on the part of the accused to procrastinate,

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resulting in delaying the trial, any instance of threats being extended to the witnesses while on bail, any attempt on the part of the accused to tamper with the evidence in any manner. We may add that this list is only illustrative and not exhaustive. However, the court must be cautious that at the stage of granting bail, only a prima facie case needs to be examined and detailed reasons relating to the merits of the case that may cause prejudice to the accused, ought to be avoided. Suffice it is to state that the bail order should reveal the factors that have been considered by the Court for granting relief to the accused."

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12. In the case of PURAN VS RAMBILAS & ANOTHER -

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(2001)6 SCC 338 , in paragraph 11, the Hon'ble Supreme Court has observed as under:

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"11. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan Singh v. State (Delhi Admn.). In that case the Court observed as under: (SCC p. 124, para 16)

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“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 existing, 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-àvis the High Court.”

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13. In the case of DEEPAK YADAV VS STATE OF UTTAR

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PRADESH & ANOTHER - (2022)8 SCC 559 , in paragraph 33,

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the Hon'ble Supreme Court has observed as under:

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"33. It is no doubt true that cancellation of bail cannot be limited to the occurrence of supervening circumstances. This Court certainly has the inherent powers and discretion to cancel the bail of an accused even in the absence of supervening circumstances. Following are the illustrative circumstances where the bail can be cancelled:

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33.1. Where the court granting bail takes into account irrelevant material of substantial nature and not trivial nature while ignoring relevant material on record.

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33.2. Where the court granting bail overlooks the influential position of the accused in comparison to the victim of abuse or the witnesses especially when there is prima facie misuse of position and power over the victim.

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33.3. Where the past criminal record and conduct of the accused is completely ignored while granting bail.

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33.4. Where bail has been granted on untenable grounds.

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33.5. Where serious discrepancies are found in the order granting bail thereby causing prejudice to justice.

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33.6. Where the grant of bail was not appropriate in the first place given the very serious nature of the charges against the accused which disentitles him for bail and thus cannot be justified.

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33.7. When the order granting bail is apparently whimsical, capricious and perverse in the facts of the given case."

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In the case of KANWAR SINGH MEENA VS STATE OF

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RAJASTHAN & ANOTHER - (2012)12 SCC 180 , in paragraph 10, the Hon'ble Supreme Court has observed as under:

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"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

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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

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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."

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15. In the case of BHURI BAI VS STATE OF MADHYA

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PRADESH - 2022 SCC OnLine SC 1779 , in paragraphs 19 & 20, the Hon'ble Supreme Court has observed as under:

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"19. It remains trite that normally, very cogent and overwhelming circumstances or grounds are required to cancel the bail already granted. Ordinarily, unless a strong case based on any supervening event is made out, an order granting bail is not to be lightly interfered with under Section 439(2) CrPC.

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It had not been the case of the prosecution that the appellant had misused the liberty or had comported herself in any manner in

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violation of the conditions imposed on her. We are impelled to observe that power of cancellation of bail should be exercised with extreme care and circumspection; and such cancellation cannot be ordered merely for any perceived indiscipline on the part of the accused before granting bail. In other words, the powers of cancellation of bail cannot be approached as if of disciplinary proceedings against the accused and in fact, in a case where bail has already been granted, its upsetting under Section 439(2) CrPC is envisaged only in such cases where the liberty of the accused is going to be counteracting the requirements of a proper trial of the criminal case. In the matter of the present nature, in our view, over-expansion of the issue was not required only for one reason that a particular factor was not stated by the Trial Court in its order granting bail."

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In the case on hand, the respondent is arrayed as accused on three counts, (i) on suspicion; (ii) on the basis of the confession statement of other accused; (iii) on the basis of circumstantial evidence. Undisputedly, respondent was not present at the spot of crime and there is no direct evidence to connect him to the crime. Respondent has no criminal antecedents. He is a qualified person and owner of a software

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company. Though State has expressed that he is likely to tamper with the prosecution witnesses, the State has not produced any material before this Court to show that after the respondent was enlarged on bail in the month of November 2023, he has made any attempt to tamper with the prosecution witnesses. It is also relevant to take note of the fact that though bail was granted to the respondent by the Trial Court on 03.11.2023, this petition seeking cancellation of bail was belatedly filed by the State on 19.07.2024 on the ground that the Trial Court was not justified in granting bail to the respondent on the merits of the case, and not on the ground of violation of any of the bail conditions.

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It is also not the case of the prosecution that the respondent has violated any one of the bail conditions till date. The State has sought cancellation of bail mainly on the ground that the Trial Court has failed to appreciate the statements of CW-55 & CW-74. The statement of those witnesses have been perused and considered by this Court. Merely for the reason that a particular factor has not been considered by the Trial Court while granting bail to an accused, the same cannot be a ground to cancel the bail, if it is otherwise found that the order

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granting bail to the said accused is justifiable and the accused who has been released on bail has not violated the bail conditions. The relevant factors which are required to be taken into consideration for the purpose of cancellation of bail has to be considered cumulatively and merely for the reason that one

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of the several factors has not been considered, in normal circumstances, the bail granted to an accused cannot be cancelled. Cancellation of bail would amount to interfering with the right to liberty guaranteed under Article 21 of the Constitution of India, and therefore, unless it is found on the facts and circumstances of the case which includes, the antecedents of the accused, gravity of the crime, gravity of accusation, role of the accused in the crime, danger of accused fleeing or influencing witnesses, or that the court was not at all justified in enlarging the accused on bail, the order of bail cannot be cancelled.

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In the case on hand, though the Trial Court has not passed a well reasoned order while enlarging the respondent on bail, it cannot be said that the Trial Court was completely unjustified in granting bail to the respondent or that the order granting bail to the respondent, has resulted in total

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miscarriage of justice. Under the circumstances, I am of the opinion that the order impugned granting regular bail to the respondent, does not call for interference. Accordingly, the petition is dismissed.

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Considering the fact that accused Nos. 1 to 3 are in custody from 12.07.2023 onwards, trial court is requested to expedite the trial and make endeavors to dispose of the case at the earliest.

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Sd/(S VISHWAJITH SHETTY) JUDGE

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State of Karnataka v. Sri Arun Kumar C.

Case brief

What is this about?

What did the court decide?

State of Karnataka v. Sri Arun Kumar C.

Case brief

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