E.S. Prasanna vs State of Karnataka

Subhash B. Adi

Petitioner is accused No. I in Crime No.212/2011 registered by Madikeri Rural Police, Kodagu District, for the offences punishable under Sections 295A, 506 read with Section. 34 of I.P.C.

The complainant is one Rajesh. He has alleged that accused No.1 with two other accused i.e., accused Nos.2 and 3 are involved in compelling innocent, downtrodden and poor people to convert themselves into another religion by showing some monetary benefit and also indulging in anti-canvassing the other religion and thereby, hurting the religious feelings of the people of other faith. It is in pursuance of the said complaint, crime has been registered and the matter is under investigation. This petitioner was arrested on the very clay when the complaint was filed and he has been in judicial custody from 06.12.2011.

The main offence alleged against the petitioner is for an offence u/s 295A of IPC, which is punishable with three years imprisonment.

Sri Avi Singh, learned counsel appearing for the petitioner submits that, even the averments made in the complaint do not make out a case for an offence punishable u/s 295A of IPC. He further submitted that the petitioner has been in judicial custody for the last 45 days. Offence u/s 295A IPC is punishable with only three years imprisonment. Petitioner''s liberty cannot be curtailed as there is no reason to keep him in judicial custody. The object of detention is neither punitive nor preventative, but it is only precautionary. The petitioner will not either tamper the prosecution evidence or will be involved in other crime as the allegations against the accused is that they induced the complainant and others to convert themselves into another religion and such statement is already recorded. He has also relied upon the recent judgement of the Hon''ble Supreme Court reported in 2011 (4) RCR (Cri) 898 in the matter of Sanjay Chandra Vs. CBI and submitted that the Apex Court, while considering the claims for grant of bail at para 14 has held thus :

14) In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, necessity'' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.

He further submitted that there are two cases against the petitioner, one for the offence punishable u/s 506 of IPC and which ended in imprisoning the petitioner for one month and another crime registered in Crime No.64/2011 for the offence punishable u/s 295-A IPC and other offences. He submitted that merely because the petitioner has been convicted with one month imprisonment, which is now pending in appeal, he cannot be termed as a habitual offender. He also submitted that there are complaints filed by the petitioner against the persons shown in the present complaint and chargesheet has been filed against the said persons. This complaint is an counterblast to the complaint filed by the petitioner.

On the other hand, the learned State Public Prosecutor submits that the petitioner is indulging in hurting the religious feelings of people of other faith and taking undue advantage of innocence and poverty of people belonging to weaker sections of the Society, they are forcing people to convert themselves into another religion and the same is a serious offence. ''The said conduct of the petitioner creates communal disharmony and thereby, if the accused is enlarged on bail, it may aggravate the situation. The petitioner is none other than one who was working as Constable in the Police Department. Petitioner has been convicted for offence punishable u/s 506 of IPC. Though the offence u/s 295-A of I.P.C., is punishable with three years imprisonment considering the antecedents of the petitioner, he is not entitled for bail.

The allegation in the complaint reveals that the petitioner and two others tried to induce people to convert themselves into another faith. If averments made in the complaint are looked into, the accused are two ladies and one petitioner herein. As against them, it is alleged that they tried to hurt the feelings of complainant and five others. Accused are one male person and two female persons, as against them complaint discloses that the complainant and five persons were there, and it is alleged that the petitioner and two ladies forced the six persons (male).

Apart from this, from the date of complaint., 45 days have lapsed and the period of completion of investigation is 60 days. Petitioner has been in judicial custody since then. Till today, the chargesheet has not been filed. Even the crime registered u/s 295-A of IPC is punishable with imprisonment for three years. Merely because there is a crime registered against the accused that itself would not disentitle him from enlarging on bail unless there is an imminent need or is likely to be from justice or likely to tamper the evidence or is not likely to co-operate with the investigation, In my opinion, the petitioner is in judicial custody for 45 days and he could be granted bail. However, the allegation against him being one affecting the religious feelings and sentiment of the general public, he could be enlarged on bail subject to certain conditions.

Accordingly, the petition is allowed. Petitioner is enlarged on bail subject to the following conditions:

(i) The petitioner shall execute a personal bond for Rs. 1,00,000/- with two solvent sureties for the likesum to the satisfaction of the Trial Court.

(ii) He shall co-operate with the investigation and he shall make appearance before the Investigation Officer once in a week preferably on every Sunday.

(iii) He shall regularly attend the Court on hearing dates.

(iv) He shall not tamper with the prosecution witnesses.

(v) He shall not indulge in committing any other crime.

(vi.) If any one of the above conditions is violated by the petitioner, the prosecution is at liberty to seek for cancellation of bail.