Xxx Vs State of Karnataka by — Bail and Remand | Karnataka HC (2024)

Xxx Vs State of Karnataka by — Bail and Remand | Karnataka HC (2024)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 6^TH DAY OF NOVEMBER, 2024

BEFORE

THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY

CRIMINAL PETITION NO.7967 OF 2024

BETWEEN:

XXX

…PETITIONER

(BY SRI NISHIT KUMAR SHETTY, ADVOCATE)

AND:

STATE OF KARNATAKA BY

WOMEN POLICE STATION MANGALORE

REPRESENTED BY STATE PUBLIC PROSECUTOR

HIGH COURT BUILDING

BENGALURU-560 001.

Digitally signed by NANDINI MS Location: High Court of Karnataka

VINOD RAJ S/O. PUNDALEEKA POOJARY AGED ABOUT 29 YEARS R/AT D. NO.2-116, KOPPALA HOUSE SHAMBOOR POST, BANTWAL TALUK D.K. DISTRICT-574 231.

…RESPONDENTS

(BY SRI CHANNAPPA ERAPPA , HCGP, FOR R-1; SRI ASHWIN JOYSTON KUTINHA, ADVOCATE FOR R-2)

THIS CRIMINAL PETITION IS FILED UNDER SECTION 439(2) CR.P.C PRAYING TO CANCEL THE BAIL GRANTED TO THE RESPONDENT NO.2 ON 16.07.2024 IN CRL.MIC.NO.550/2024 BY THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU WHICH IS NOW PENDING BEFORE THE III J.M.F.C., COURT MANGALURU D. K., IN CR.NO.60/2024 MANGALURU WOMEN P.S., FOR THE OFFENCE P/U/S. 417, 376(2)(n), 506 OF IPC.

THIS CRIMINAL PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE S VISHWAJITH SHETTY

ORAL ORDER

Defacto complainant is before this Court under Section 439(2) of Cr.P.C. with a prayer to cancel the bail granted to respondent No.2 by the Court of VI Addl. District & Sessions Judge, Dakshina Kannada, Mangalore in Crl.Misc.No.550/2024 dated 16.07.2024.

Heard learned counsel for the parties.

FIR in Cr.No.60/2024 was registered by

Mangalore Women police station, Mangalore for the offence punishable under sections 417, 376(2) (n) and 506 IPC against respondent No.2 on the basis of the first information dated 06.06.2024 received from the victim who is the petitioner herein. In the said case, the respondent No.2 was arrested on 07.06.2024 and remanded to judicial custody. His bail application filed before the Court of VI Addl. District & Sessions Judge, Dakshina Kannada, Mangalore in Crl.Misc.No.491/2024

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was rejected on 25.06.2024. Thereafter, a fresh bail application was once again filed by respondent No.2 before the very same Court in Crl.Misc.No.550/2024, which was allowed on 16.07.2024. Challenging the same, the defacto complainant is before this Court.

Learned counsel for the petitioner having reiterated the grounds urged in the petition submits that the successive bail application filed by respondent No.2 could not have been allowed by the very same learned Sessions Judge, since there was absolutely no change in circumstance. He submits even before the charge sheet was filed in a case registered for heinous offence, learned Sessions Judge has allowed the successive bail application. The Hon'ble Supreme Court in catena of judgments has held that successive bail application cannot be entertained in the absence of any change in circumstance. Accordingly, he prays to allow the petition.

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Per-contra, learned counsel appearing for

respondent No.2, who has filed his statement of objections has opposed the petition. He submits that the first bail petition of respondent No.2 was rejected, since the learned Sessions Judge was of the impression that respondent No.2 was a married man. Successive bail application was therefore filed and the learned Sessions Judge having appreciated this aspect of the matter has allowed the petition and granted bail to respondent No.2. He submits that respondent No.2 has no criminal antecedents and considering the nature of the allegations found in the first information, it cannot be said that the learned Sessions Judge was not justified in granting regular bail to respondent No.2.

First information was submitted by the petitioner herein with allegation that respondent No.2 had sexual intercourse with her, with a promise to marry her. Subsequently, he had refused to marry her and he allegedly had demanded dowry from her for the purpose of

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marrying her. FIR in Cr.No.60/2024 was registered against respondent No.2 on the basis of the first information received from the petitioner on 06.06.2024. Respondent No.2 was arrested in the said case on 07.06.2024. His bail application filed in Crl.Misc.No.491/2024 was rejected by the learned Sessions Judge on 25.06.2024. On 28.06.2024, the second bail application in

Crl.Misc.No.550/2024 was filed by respondent No.2 herein before the very same learned Sessions Judge, and vide order impugned, said application was allowed.

From the perusal of the order passed by learned Sessions Judge in Crl.Misc.No.491/2024 and also Crl.Misc.No.550/2024, it is found that, there was absolutely no change in circumstance of the case and inspite of the same, the learned Sessions Judge has allowed the successive bail application filed by respondent No.2.

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It is trite that successive bail application can be entertained only if there is change in circumstance, which warrants consideration of successive bail application. In the present case, the alleged offence is punishable with life imprisonment. Even before the charge sheet is filed, successive bail petition of respondent No.2 has been allowed by the learned Sessions Judge, in the absence of any material change in circumstance, which has a bearing on merits of the case. The first bail petition filed by respondent No.2 was rejected by the very same learned Sessions Judge on 25.06.2024 and the second petition, which was filed by respondent No.2 after a lapse of three days from the said date was entertained by learned Sessions Judge and respondent No.2 has been granted bail in the successive bail application.

In the case of STATE OF MAHARASHTRA VS CAPTAIN BUDDHIKOTA SUBHA RAO - 1990 SCC (Cri)

126 , in paragraph 7, the Hon'ble Supreme Court has observed that, " when we speak of change, we mean a

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substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. Between the two orders there was a gap of only two days and it is nobody's case that during these two days drastic changes had taken place necessitating the release of the respondent on bail ".

In the case of KALYAN CHANDRA SARKAR VS RAJESH RANJAN ALIAS PAPPU YADAV & ANOTHER - (2004)7 SCC 528 , in paragraph 20, the Hon'ble Supreme Court has observed as under:

"20. Before concluding, we must note that though an accused has a right to make successive applications for grant of bail the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record what are the fresh grounds which persuade it to take a view different from the one taken in the earlier applications. In the impugned order we do not see any such fresh ground recorded by the High Court while granting bail. ……"

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In the case of KALYAN CHANDRA SARKAR VS

RAJESH RANJAN ALIAS PAPPU YADAV & ANOTHER -

(2005)2 SCC 42 , in paragraph 20, the Hon'ble Supreme Court as under:

"20. The decisions given by a superior forum, undoubtedly, are binding on the subordinate forum on the same issue even in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Therefore, we are not in agreement with the argument of learned counsel for the accused that in view of the guarantee conferred on a person under Article 21 of the Constitution, it is open to the aggrieved person to make successive bail applications even on a ground already rejected by the courts earlier, including the Apex Court of the country."

In the background of the aforesaid judgments, if

the order impugned passed by the learned Sessions Judge is examined, it is very clear that the respondent-accused

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had not made out any change in circumstance in the successive bail application filed by him after a lapse of three days from the date of rejection of his earlier bail application. Therefore, the impugned order cannot be sustained. Accordingly, the following order:

The petition is allowed . The order dated 16.07.2024 passed in Crl.Misc.No.550/2024 is set-aside and the bail granted to respondent No.2 in Cr.No.60/2024 registered by Mangalore Women Police Station for the offences punishable under Sections 417, 376(2)(n) and 506 IPC is set-aside, with liberty to respondent No.2 to file a fresh petition before the jurisdictional Sessions Judge, after charge sheet is filed. Respondent No.2 is granted three(03) days' time to surrender before the trial Court, from the date of receipt of certified copy of this order.

SD/(S VISHWAJITH SHETTY) JUDGE

MN

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