Divakara Vs State of Karnataka

THIS CRL.P IS FILED U/S 439 CR.PC (FILED U/S 483 BNSS) PRAYING TO PASS AN ORDER GRANTING REGULAR BAIL THEREBY DIRECTING THE RESPONDENT KENGERI POLICE TO RELEASE THE PETITIONER / ACCUSED IN S.C.NO:910/2023 IN CR.NO:71/2023 (KENGERI P.S) PENDING ON THE FILE OF HONBLEXLV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-46) FOR THE ALLEGED OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.

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THIS 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

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NC: 2026:KHC:35220 CRL.P No. 4451 of 2026

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HC-KAR

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ORAL ORDER

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Accused in S.C.No.910 of 2023 pending before the

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Court of XLV Additional City Civil & Sessions Judge, Bengaluru arising out of Crime No.71 of 2023 registered by Kengeri Police Station for offence punishable under Section 302 of IPC is before this Court in the successive petition filed under Section 483 of BNSS, 2023 seeking regular bail.

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Heard the learned counsel for the parties.

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FIR in Crime No.71 of 2023 was registered by Kengeri Police Station, Bengaluru City initially for offences punishable under Sections 302 and 324 of IPC against the petitioner, based on the first information dated 24.02.2023 received from Smt. Sindhurasi, daughter of deceased Smt. Ezhil Arasi. In the said case, petitioner was arrested on 01.03.2023 and remanded to judicial custody. After completing investigation, charge sheet was filed against him for the aforesaid offences. His bail application filed before the Sessions Court was rejected and therefore he had earlier approached

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this Court in Criminal Petition No.9751 of 2023 which was dismissed as withdrawn with liberty to the petitioner to approach this Court after examination of CW.1, 2, 11, 12 and CW.15 is completed. It is under these circumstances, petitioner is before this Court.

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Deceased Smt. Ezhil Arasi is the mother-in-law of the petitioner. It appears that the relationship between the petitioner and his wife Smt. Ezhil Arasi was not cordial and petitioner's wife had filed an application before the jurisdictional Court seeking divorce. There was also a dispute between the parties with regard to the custody of the two minor children. On 20.02.2023 petitioner allegedly took his minor daughter Vruthika along with him without the consent of his wife and her relatives and though his wife and relatives requested him to send back Vruthika, he had refused. Subsequently, petitioner's wife and her relatives came to know that Vruthika was in the house of petitioner's sister at Nagadevanahalli in Bangalore and therefore on 24.02.2023 at about 07.00 p.m, in-laws of the petitioner including his mother-in-law came to his sister’s house at Nagadevanahalli and asked petitioner - Divakara to send

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HC-KAR

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Vruthika with them. Petitioner allegedly refused and started quarrelling with them and all of a sudden he took out a knife and assaulted his mother-in-law. Immediately thereafter, injured Ezhil Arasi was shifted to a hospital where she breathed her last at about 07.50 p.m. It is under these circumstances, FIR was registered against the petitioner for the aforesaid offence.

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CW.1, 2, 11, 12 and CW.15 are said to be the alleged eyewitnesses in the present case. Petitioner's earlier bail application in Criminal Petition No.9751 of 2023 was dismissed as withdrawn before this Court on 30.10.2023 with liberty to approach this Court, afresh, after examination of the aforesaid eyewitnesses is completed before trial Court.

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Learned counsel for the petitioner has brought to the notice of this Court that as on this date only three charge sheet witnesses are examined as PW1 to PW3. He submits that, CW1 and CW2 are the eyewitnesses who are now examined and the other eyewitnesses are not examined, because the prosecution has not kept them present for the last nearly 2

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years. It is not in dispute that petitioner has no other criminal antecedents. Incident in question had taken place after the inlaws of the petitioner made an attempt to take back his minor daughter along with them. Petitioner, who has no other criminal antecedents is in custody for the last more than three years.

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In the case of Javed Gulam Nabi Shaikh v. State of Maharashtra and Another - 2024 SCC OnLine SC 1693 at paragraph No.19, the Hon'ble Supreme Court has observed as follows:-

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" 19 . If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime".

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Considering the background in which the incident in

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question had taken place and also taking into consideration the period of petitioner's incarceration, I am of the view that without expressing any opinion on the merits and demerits of

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HC-KAR

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the case, his prayer for grant of regular bail needs to be answered affirmatively. A ccordingly, the following:

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ORDER

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Criminal petition is allowed.

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The petitioner is directed to be enlarged on bail in S.C.No.910 of 2023 pending before the Court of XLV Additional City Civil & Sessions Judge, Bengaluru arising out of Crime No.71 of 2023 registered by Kengeri Police Station for offence punishable under Section 302 of IPC, subject to the following conditions:

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a) The petitioner shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with two sureties for the likesum, to the satisfaction of the jurisdictional Court;

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b) The petitioner shall appear regularly on all the dates of hearing before the Trial Court unless the Trial Court exempts his appearance for valid reasons;

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c) The petitioner shall not directly or indirectly threaten or tamper with the prosecution witnesses;

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d) The petitioner shall not involve in similar offences in future.

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e) The petitioner shall not leave the jurisdiction of the Trial Court without permission of the said Court until the case registered against him is disposed off.

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Sd/(S VISHWAJITH SHETTY) JUDGE

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NMS

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List No.: 1 Sl No.: 30

Divakara v. State of Karnataka

Case brief

What is this about?

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Divakara v. State of Karnataka

Case brief

What is this about?

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