IN THE HIGH COURT OF KARNATAKA AT BENGALURU BEFORE. THE HON BLE Mr. JUSTICE L. NARAYANA SWAMY CRIMINAL PETITION NO.5144 OF 2015

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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25 TH DAY OF AUGUST 2015 BEFORE THE HON BLE Mr. JUSTICE L. NARAYANA SWAMY CRIMINAL PETITION NO.5144 OF 2015 BETWEEN: SRI SURENDRA BABU R S/O SRI V RAMAIAH AGED ABOUT 50 YEARS R/AT NO.49, 19TH J CROSS KAGGADASAPURA C V RAMAN NAGAR POST BANGALORE (BY SRI. LEELADHAR H P, ADV.)... PETITIONER AND: STATE OF KARNATAKA BY HEBBAL POLICE BANGALORE CITY (BY SRI.NASRULLA KHAN, HCGP)... RESPONDENT THIS CRL.P. IS FILED U/S.439 CR.P.C PRAYING TO ENLARGE THE PETR. ON BAIL IN CR.NO.247/2012 (C.C.NO.275/2013) OF HEBBAL P.S., BANGALORE CITY AND S.C.NO.572/2013 PENDING ON THE FILE OF XLV ADDL. CITY CIVIL AND S.J., BANGALORE CITY (CCH-46) FOR THE OFFENCE P/U/S 498(A), 302, 201, 118 R/W 34 OF IPC.

2 2 THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING: O R D E R Case was registered in Crime No.247 of 2012 by Hebbal Police Station, Bangalore City for the offence punishable under Sections 498(A), 302, 201, 118 read with 34 of the Indian Penal Code. This petitioner is in judicial custody for more than two and half years. The prime witnesses, viz. PWs.1, 2 and 4, who are parents and sister of the deceased, have turned hostile. 2. The learned senior Counsel appearing for the counsel for the petitioner submits that there is no likelihood of conviction; and further submits that since the petitioner is suffering from ulcer, he needs family atmosphere to heal out and the inordinate delay in conducting trial has caused violation of Article 21 of the Constitution of India. He further submits that out of about 71 witnesses only 25 witnesses have been examined and in order to complete the further examination of witnesses, it will take considerable length of time as it is not possible for prosecution to bring all the witnesses and they cannot be forced also.

3 3 3. The case of the prosecution is that this petitioner has committed the offence by smothering and administering chloroform continuously and with an ulterior motive to kill his wife. The act of the petitioner itself demonstrates that he has taken his wife out of Karnataka only to commit the offence and he has committed the same by smothering with chloroform at Anantpur District in Andhra Pradesh. It is submitted that if he was more concerned about the health of his wife, he could have taken the wife to the nearest hospital. On the contrary, he has taken the deceased to Anantapur and back to Bangalore and taken her to hospital at Hebbal where the Doctor declared, brought dead. The learned counsel for the petitioner has relied upon the judgments of the Hon'ble Supreme Court in the case of DIPAK SHUBHASCHANDRA MEHTA v. CENTRAL BUREAU OF INVESTRIGATION AND ANOTHER reported in (2012)4 SCC 134 and in the case of JAYA SIMHA v. STATE OF KARNATAKA reported in (2007)8 SCC The learned Government Pleader submits to dismiss the petition. He submits that earlier this petitioner approached this

4 4 Court in Criminal Petition No.2454 of 2015 which came to be dismissed on 28 th April 2015 and unless he places changed circumstances, it is not open for him to file present petition and it is impermissible to file succeeding petition and accordingly the petition is liable to be dismissed. He also submits that prosecution has got evidence and materials prima facie to prove its case. It is also to be rejected taking into consideration a heinous offence committed by the petitioner. The learned HCGP submits that this Court instead of releasing the petitioner on bail, a direction may be issued to the Trial Court to complete the trial within 2-3 months. 5. Heard the learned counsel for the parties. The case is of the year The trial has been commenced and 25 witnesses have been examined. It is the case of the prosecution that they have a case to prove the guilt. The petitioner is in judicial custody for the last more than two and half years and it is not in dispute that the petitioner voluntarily surrendered before the Police and co-operated with police in investigation. The materials available to the prosecution as is placed before

5 5 this Court is that the petitioner has taken his wife outside Bangalore and smothered her by administering chloroform and murdered her. This opinion of the Doctor in post-mortem report and also the materials produced, cannot be disputed. Though some witnesses have turned hostile, the other materials are against this petitioner. A person is said to be innocent, till he is proved guilty. Unless that is proved, he remains as innocent person. When such being the legal position, the continuation of petitioner for indefinite period in custody till the completion of trial hampers the right of liberty and also fundamental right of the petitioner. But these things must be considered in the light of the strong material and the heinous offence committed by the accused and the question of tampering witnesses and documents are to be taken note of before granting bail. Hence, taking note of what has been held by the Hon'ble Supreme Court in the case of DIPAK SHUBHASCHANDRA MEHTA (supra) at paragraph 31 of the judgment that this Court has taken the view that when there is delay in the trial, bail should be granted to the accused (vide BABBA v. STATE OF MAHARASHTRA reported in (2005)11 SCC 569; and VIVEK KUMAR v. STATE OF U.P. (2000)9 SCC

6 It is further observed that But the same should not be applied to all cases mechanically. Each case has to be examined on its own on the basis of merits, material evidences and the factors which are narrated by the Hon'ble Supreme Court. Further in paragraph 32 of the judgment it is observed that, the court granting bail should exercise its direction in a judicious manner and not as a matter of course. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly, where the accused is charged of having committed a serious offence. 6. Though the submission made by the petitioner that the prime witnesses, viz. parents and sister of the deceased have turned hostile and not supported the prosecution, though it is for this Court to consider or reconsider, but it cannot turn deaf for the submissions and also evidences hitherto since it is a matter of trial. In the case of JAYA SIMHA (supra) in the course of its

7 7 judgment at paragraph 8 it has been held that having regard to the nature of involvement alleged and the role attributed to the appellant, and the period already spent by the appellant in jail, we find it a fit case for grant of bail to the appellant. 7. The judgments referred above are examined in the light of facts and circumstances of the present case. The submission made by the learned senior counsel is that the petitioner is in custody for more than two and half years; charge sheet is filed; prime witnesses have turned hostile; 25 witnesses have been examined and at this juncture the learned Government Pleader submits that in the cases of this nature granting of bail is not appropriate and at the most what could be done is to direct the Trial Court to complete the trial in a time-frame. If at all it calls for such a direction, liberty has to be given to the petitioner to make a necessary application before this Court to consider such application. I am restrained to exercise such power in a petition under Section 439 of Cr.PC since it is for the Trial Court to decide its case on the basis of evidence and materials. In the light of the judgments referred to above, I have to consider the

8 8 case of the petitioner. Personal liberty granted under Article 21 of the Constitution and public interest which is a paramount, both have to be weighed while dealing with the question of granting bail. This petitioner is alleged to have committed a heinous offence. In order to prove the same, whether the complainant, parents or sister of the deceased have turned hostile itself will not be a ground. However, it is for the prosecution to rely on the materials and it is to be believed that they would do their duty before the Trial Court. When these evidences are available for this Court, what has to be considered is about the likelihood of conviction or acquittal. In spite of such state of affairs, it is to be held by granting benefit of doubt, and the continuation of petitioner in judicial custody till the completion of trial, directly affects his fundamental right and the public interest also needs to be considered. In the light of the fact that the complainant and the prime witnesses hither to turned hostile, and also considering the time spent by the petitioner in custody, it is a fit case for grant of bail to the petitioner. Accordingly, the petition under Section 439 of Cr.P.C.

9 9 is allowed and the petitioner is granted bail subject to the following conditions: 1) Petitioner shall execute a bond for a sum of Rs.1,00,000/- with one surety for the like sum to the satisfaction of the jurisdictional court; 2) Petitioner shall not hold out threat to prosecution witnesses or tamper with evidence; 3) Petitioner shall attend the court on all dates of hearing, except under unavoidable circumstances; 4) If the petitioner violates any of the above conditions, prosecution will be at liberty to seek cancellation of bail. lnn Sd/- JUDGE