Hanumantappa vs Nilappa and Others

Rathnakala, J.—This petition is filed by the complainant to set aside the order passed on 27/10/2014 by the learned Principle District and Sessions Judge, Gadag, in enlarging the accused on bail.

Facts briefly stated, a sue motu complaint was registered by the respondent police in respect of the offences under Sections 143,147, 149, 307, 324, 326, 504,506 of IPC and Section 2(v),3(1)(10) of SC and ST (Prevention of Atrocities) Act, 1989. Totally 18 persons were arrayed as accused persons. The gist of the complaint was, there was an altercation on 26/9/2014, at Balehosur village. The complainant on getting the information, proceeded to that place. On his enquiry with the injured, they came to know that the accused persons in pursuance of the dispute in respect of a landed property assaulted with the lethal weapons. However, the injured submitted that their Advocate will lodge the complaint. The accused persons were arrested on 28/9/2014 and moved the application under Section 439 of Cr.P.C.

After hearing both sides, the learned Judge, vide order dated 22/9/2014, enlarged the accused Nos. 2 to 5, 8 and 11 to 13 and the bail petition came to be allowed.

The learned counsel for the petitioners submits that the learned Sessions Judge, dealt with the bail petition casually without considering the seriousness of the injuries suffered by the accused persons. He has granted bail in a casual way. The injured have suffered fracture injuries. Some of the accused are absconding. The respondent Nos. 1 to 3 after they were enlarged in the present case, have involved in another case, which is registered in Crime No. 179/2014 registered in the same police station. There is every likelihood of the accused tampering the evidence and defeating the very purpose of investigation. The petitioner and other victims apprehend threat to their life. Accused have to be re-arrested and committed to judicial custody.

The learned High Court Government Pleader submits that without taking note of the condition of the injured, the learned Sessions Judge has passed remarks in the body of his order that prima facie case under Section 307 of IPC is not made out. Such remarks shall never passed regardless of its impact upon the investigation, which is still under progress. The learned Sessions Judge is unmindful of the fact that enlarging some of the accused persons even before the other accused persons were traced, would cause hindrance to the investigation, in fact, it was for the prosecution to move for cancellation of the bail order.

Learned counsel for the respondents/accused submit that the dispute between the complainant''s party and the accused party has resulted in case and counter case. The very conduct of the injured in refusing to lodge complaint itself would indicate the improbability of the complaint allegations. They have not violated any of the terms and conditions imposed in the bail order. Under the circumstances, he requests to dismiss the petition.

Having heard the rival submission and on perusing of the impugned order, it occurs to my mind that if the learned Sessions Judge was at loss to peruse the medical records pertaining to the injured, nothing prevented him to call for the medical records, either directly or through the prosecution. It is more transelling his jurisdiction to record his observation at the threshold itself that the case under Section 307 of IPC is not made out. That would demoralize the investigation itself. When it is the settled principle that bail is a rule and jail is a an exemption and the opportunity is always available to the prosecution to move the Court, to seek for cancellation of the bail, if any of the terms either for the changed circumstances or for violation of any of the conditions imposed in the bail order, it can not be said that the order which is vexed in this petition is one of the kind of abusive of process law warranting of extra ordinary jurisdiction 482 of Cr.P.C. Hence, the petition is rejected.