VIRUPAKSHAPPA GOUDA AND ANOTHER Vs. THE STATE OF KARNATAKA AND ANOTHER

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 601 of 2017, Judgment Date: Mar 28, 2017

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 601 OF 2017
               (Arising out of S.L.P. (Crl.) No. 8781 of 2016)


VIRUPAKSHAPPA GOUDA AND ANOTHER                                  Appellants


                                VERSUS


THE STATE OF KARNATAKA AND                                      Respondents
ANOTHER


                               J U D G M E N T

Dipak Misra, J.

            Leave granted.

2.          The appellants, who have been arraigned as accused  in  sessions
case being S.C.  No.90  of  2015  arising  out  of  Crime  No.118  of  2015,
registered at Raichur Rural  Police  Station  for  the  offences  punishable
under Sections 143, 147, 148, 323, 302, 504, 114 read with  Section  149  of
the Indian Penal Code (IPC) after being taken into custody,  in  the  course
of  investigation  being  aspirant  for  obtaining  liberty,  preferred   an
application under Section 439 of the Code of Criminal  Procedure  (Cr.P.C.),
that is, Criminal Misc. No. 457 of 2015 in the court of  Principal  Sessions
Judge at Raichur, which stood dismissed.

3.          Being grieved by the aforesaid order of rejection for  grant  of
bail,  the  accused-appellants  moved  the  High  Court  of   Karnataka   at
Kalaburagi Bench in Criminal Petition No. 200629 of 2015.   The  High  Court
adverted to the deadly weapons that were carried  by  the  accused  persons,
the nature of injuries sustained on the vital parts by the deceased and  the
allegation of specific overt acts, and rejected the application.

4.          Thereafter, a second application for grant of bail was moved  by
the appellants before the Principal Sessions  Judge  at  Raichur,  that  is,
Criminal Misc. No. 791 of 2015.  It was contended before the  learned  trial
Judge that as, in the meantime, the investigation  had  been  completed  and
the charge-sheet had been filed, there had been  a  change  of  circumstance
and hence, they were entitled to be admitted to bail.  That  apart,  certain
grounds  pertaining  to  ailment  of  some  of  the  accused  persons   were
highlighted.  The learned trial  Judge,  as  is  evident,  referred  to  the
allegations made in the F.I.R.,  the  materials  that  had  come  on  record
during the investigation and  the  postmortem  report  and  considering  all
other relevant aspects, declined to enlarge the appellants on bail.   It  is
worthy to note here that though a ground of parity was  urged  on  the  base
that the accused Nos. 4  to 7 had been released on  anticipatory  bail,  the
same did not impress the court and accordingly the  inevitable  result,  the
dismissal, followed.

5.          The aforesaid order of dismissal constrained the  appellants  to
move the High Court in Criminal Petition  No.  200944  of  2015.   The  High
Court vide its order dated 23rd September,  2015,  after  referring  to  the
nature of alleged assault  by  the  accused  persons,  the  type  of  injury
sustained by the deceased  and  considering  the  pertinent  facts  did  not
accede to the prayer for grant of bail.

6.          Being grieved by the aforesaid order, the  appellants  preferred
Special Leave Petition (Criminal) No. 9858  of  2015,  which  was  dismissed
vide order dated 27th November, 2015.
7.          The aforesaid narration of facts would give one  the  impression
that the attempt of the appellants to be enlarged on bail  was  over  unless
some extraordinary circumstance could usher in which could be considered  as
change of circumstance, but as the  chronology  of  events  would  show  the
indefatigable spirit of the appellants forced them  to  remain  embedded  in
their stance for putting any stand as  a  change  of  circumstance  for  the
purpose of grant of bail.  We do not intend to mean even for a  moment  that
the accused cannot move successive application for grant of bail.   That  is
his right in law.  Our emphasis is on the delineation  by  the  Court.   The
said right invigorated  with  adroit  efforts,  resulted  in  filing  of  an
application in S.C. No. 90 of 2015.  As is  evident  from  the  record,  the
earlier bail applications were rejected by  the  Principal  Sessions  Judge,
Raichur, but the third application was taken up by  the  learned  Additional
Sessions Judge, Raichur.  As the  order  would  reveal,  the  learned  trial
Judge has thought it apposite to deal with the  application  as  if  he  was
dealing with the first application and copiously referred to  the  materials
brought on record, referred to pronouncements in Sanjay Chandra vs.  Central
Bureau of Investigation[1] and Siddharam Satlingappa  Mhetre  vs.  State  of
Maharashtra  and  others[2]  and  commented  on  the  delay  in  trial  and,
eventually, released the appellants on bail on certain conditions.

8.          The enlargement of bail to the accused  persons,  as  it  seems,
did not affect the prosecution.  The State of Karnataka  chose  to  maintain
silence and did not think it appropriate to assail the order.

9.          The informant, who has crossed six scores  and  five,  lost  his
son in an unfortunate and brutal  circumstance,  moved  the  High  Court  in
Criminal Petition No. 200768 of 2016 under Section  439(2)  Cr.P.C.  seeking
cancellation of bail.  The High Court while dealing  with  the  application,
adverted to the allegations in the F.I.R.  The nature of allegations,  being
significant, deserves to be adverted by us.  It is  alleged  in  the  F.I.R.
that the accused-appellant No.1, had a daughter named  Basavarajeshwari  who
fell in love with the deceased Anand Sagar, the son of  the  informant,  who
belongs  to  “Uppar”  community  and  the  accused  belongs  to   “Lingayat”
community.  The deceased, Anand Sagar, had eloped with the daughter  of  the
accused No.1  in  the  year  2014  and  at  that  juncture,  an  F.I.R.  was
registered filed by the accused to that  effect.   As  the  narration  would
further unroll, the couple  left  the  village,  entered  into  wedlock  and
thereafter started residing at Bengaluru and later on at Bellary.   On  17th
May, 2015,  the  deceased,  Anand  Sagar,  had  come  to  his  native  place
Yeramarus and had gone to Raichur on the motorbike of his father.   When  he
returned to Yeramarus  at 9.30 p.m. and  reached  near  the  bus  stop,  the
accused persons assaulted him with weapons and he breathed his last  on  the
spot.  After noting the facts and the injuries sustained  by  the  deceased,
the High Court also adverted to the attempts made by the accused persons  to
obtain liberty despite the same having been declined by this Court. It  also
came to hold that the spark of life of the deceased  had  been  extinguished
because he had dared to fall in love and get married to the daughter of  the
accused No.1, and ultimately opined that delineation by  the  learned  trial
Judge with regard to grant of order of bail, was  absolutely  perverse  and,
founded on irrelevant aspects.   In  view  of  the  aforesaid  premises,  it
allowed the application for cancellation of bail and  set  aside  the  order
passed by the learned Additional Sessions Judge,  admitting  the  appellants
to bail.
10.         We have  heard  Mr.  Basava  Prabhu  S.  Patil,  learned  senior
counsel  along  with  Mr.  Anirudh  Sanganeria,  learned  counsel  for   the
appellants and Mr. V.N. Raghupathy,  learned  counsel  for  the  respondent-
State. Despite service of notice, no one has entered  appearance  on  behalf
of the informant.

11.         It is submitted by Mr. Patil, learned  senior  counsel  for  the
appellants that the High Court has erred in cancelling the order of bail  as
the appellants, after  being  enlarged  on  bail,  had  neither  abused  the
freedom nor have they violated the terms and conditions of the  bail  order.
It is urged by him that  there  is  no  allegation  of  tampering  with  the
evidence  or  influencing  any  witnesses  and  therefore,  there   was   no
justification for cancellation of  the  order  of  granting  bail.   Learned
senior counsel would further contend that the analysis made by  the  learned
trial Judge for the purpose of grant of bail cannot be regarded as  perverse
and he has correctly relied upon the pronouncements as  is  noticeable  from
his order.  It is put forth by Mr. Patil that at such distance of  time  not
to admit the appellants on bail and give the stamp of approval to the  order
cancelling the bail by the High Court, would  not  sub-serve  the  cause  of
justice.

12.         Mr. Raghupathy, learned counsel appearing  for  the  State,  per
contra,  would  submit  that  the  learned  trial  Judge  should  not   have
entertained the prayer for bail after this Court has special leave  petition
for the same  relief.   It  is  his  submission  that  the  High  Court  has
correctly opined that there is perversity in the  approach  by  the  learned
trial Judge while dealing with the application  under  Section  439  Cr.P.C.
and hence, it deserved to be set aside.

13.         On a perusal of the order passed by the learned trial Judge,  we
find that he has been swayed by the  factum  that  when  a  charge-sheet  is
filed it amounts to change of circumstance.  Needless to say, filing of  the
charge-sheet does not in any manner  lessen  the  allegations  made  by  the
prosecution.  On the contrary, filing of the charge-sheet  establishes  that
after due investigation the investigating agency,  having  found  materials,
has placed the charge-sheet  for  trial  of  the  accused  persons.   As  is
further demonstrable,  the  learned  trial  Judge  has  remained  absolutely
oblivious of the fact that  the  appellants  had  moved  the  special  leave
petition before  this  Court  for  grant  of  bail  and  the  same  was  not
entertained.  Be it noted, the second bail application was filed before  the
Principal  Sessions  Judge  after  filing  of  the  charge-sheet  which  was
challenged in the High Court and that had travelled to  this  Court.   These
facts, unfortunately, have not been taken  note  of  by  the  learned  trial
Judge.   He  has  been  swayed  by  the  observations  made   in   Siddharam
Satlingappa Mhetre (supra), especially in paragraph 86,  the  relevant  part
of which reads thus:-
“The courts considering the bail application should  try  to  maintain  fine
balance between the  societal  interest  vis-a-vis  personal  liberty  while
adhering to the fundamental principle of  criminal  jurisprudence  that  the
accused is presumed to be innocent till he is found guilty by the  competent
court.”


14.         The proposition expounded above, has to be accepted,   but  that
has to be applied appositely to the facts of each case.  A bail  application
cannot be allowed solely or exclusively on the ground that  the  fundamental
principle of criminal jurisprudence is that the accused is  presumed  to  be
innocent till he is found guilty by the competent court.  The learned  trial
Judge has also referred to the decision in  Sanjay Chandra (supra),  wherein
a two-Judge Bench while dealing with bail applications, observed thus:-
“21.  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.

22.   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.

23.   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
unconvicted person for the purpose of giving him a taste of imprisonment  as
a lesson.”

15.         Be it noted, though the aforesaid passages have their  relevance
but the same cannot be made applicable in each and every case for  grant  of
bail. In the said case, the  accused-appellant  was  facing  trial  for  the
offences under Sections 420-B, 468, 471 and  109  of  the  IPC  and  Section
13(2) read with Section 13(1)(d) of the Prevention of Corruption Act,  1988.
Thus, the factual matrix was quite different. That apart,  it  depends  upon
the nature of the crime and the manner in which  it  is  committed.  A  bail
application is not to be entertained on the basis  of  certain  observations
made in a different context.  There  has  to  be  application  of  mind  and
appreciation of the factual score and understanding  of  the  pronouncements
in the field.
16.         The court has to keep in mind what has  been  stated  in  Chaman
Lal vs. State of U.P. and another[3].  The requisite factors  are:  (i)  the
nature of accusation and the severity of punishment in  case  of  conviction
and the nature of  supporting  evidence;  (ii)  reasonable  apprehension  of
tampering with the witness or apprehension of  threat  to  the  complainant;
and (iii) prima facie satisfaction of the court in support  of  the  charge.
In Prasanta Kumar Sarkar vs. Ashis Chatterjee and another[4],  it  has  been
opined that while exercising the power for grant of bail, the court  has  to
keep in mind certain circumstances and factors.  We may  usefully  reproduce
the said passage:-
“9....among other circumstances, the factors which are to be borne  in  mind
while considering an application for bail are:

(i)   whether there is any prima facie or reasonable ground to  be  believed
that the accused had committed the offence.

(ii)  nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv)  danger of the accused absconding or fleeing, if released on bail;

(v)   character, behaviour, means, position and standing of the accused;

(vi)  likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii)      danger, of course, of justice being thwarted by grant of bail.”


17.         In Central Bureau of Investigation vs. V.  Vijay  Sai  Reddy[5],
the Court had reiterated the principle by observing thus:-
“While granting bail, the court  has  to  keep  in     mind  the  nature  of
accusation, the nature of evidence in support thereof, the severity  of  the
punishment which conviction will  entail,  the  character  of  the  accused,
circumstances which are peculiar to the accused, reasonable  possibility  of
securing the presence of the accused at the trial,  reasonable  apprehension
of  the  witnesses  being  tampered  with,  the  larger  interests  of   the
public/State and other similar considerations.  It has also to  be  kept  in
mind that for the purpose of granting bail, the  legislature  has  used  the
words reasonable grounds for believing instead of the evidence  which  means
the court dealing with the grant of bail  can  only  satisfy  itself  as  to
whether  there  is  a  genuine  case  against  the  accused  and  that   the
prosecution will be able to produce prima facie evidence in support  of  the
charge.   It  is  not  expected,  at  this  stage,  to  have  the   evidence
establishing the guilt of the accused beyond reasonable doubt.”


18.         From the aforesaid principles, it is quite clear that  an  order
of bail cannot be granted in an  arbitrary  or  fanciful  manner.   In  this
context, we may, with profit, reproduce  a  passage  from  Neeru  Yadav  vs.
State of Uttar Pradesh and another[6], wherein the Court  setting  aside  an
order granting bail observed:-
“The issue that is presented before us is whether this Court can  annul  the
order passed  by  the  High  Court  and  curtail  the  liberty  of  the  2nd
respondent. We are  not  oblivious  of  the  fact  that  the  liberty  is  a
priceless treasure for a human being. It is  founded  on  the  bed  rock  of
constitutional right and accentuated further on human rights  principle.  It
is basically a natural right. In fact, some regard  it  as  the  grammar  of
life. No one would like to lose his liberty or barter it for all the  wealth
of the world. People from centuries have fought for liberty, for absence  of
liberty causes sense of emptiness. The sanctity of liberty  is  the  fulcrum
of any civilized society. It is a cardinal value on which  the  civilisation
rests. It cannot be allowed to be paralysed and immobilized. Deprivation  of
liberty of a person has enormous impact on his  mind  as  well  as  body.  A
democratic body polity which is wedded to  rule  of  law,  anxiously  guards
liberty. But, a pregnant and significant one, the liberty of  an  individual
is not absolute. The society by its collective  wisdom  through  process  of
law can withdraw the liberty that it has sanctioned to  an  individual  when
an individual becomes a danger to the collective and to the societal  order.
Accent on individual liberty cannot be pyramided to that extent which  would
bring chaos and anarchy to a society. A society expects  responsibility  and
accountability from the member, and it  desires  that  the  citizens  should
obey the law, respecting it as a cherished social norm.  No  individual  can
make an attempt to create a concavity in the stem of social  stream.  It  is
impermissible. Therefore, when an  individual  behaves  in  a  disharmonious
manner ushering in disorderly things  which  the  society  disapproves,  the
legal consequences are bound to follow. At  that  stage,  the  Court  has  a
duty. It cannot abandon its sacrosanct obligation and pass an order  at  its
own whim or caprice. It has to be guided by the  established  parameters  of
law.”

19.         In this context what has been stated by a three-Judge  bench  in
Dinesh M.N. (S.P.) v. State of Gujarat[7] is quite instructive. In the  said
case, the Court has held that where the Court admits the accused to bail  by
taking  into  consideration  irrelevant  materials  and   keeping   out   of
consideration the relevant materials the order becomes vulnerable  and  such
vulnerability warrants annulment of the order.
20.         In the instant case,  as  is  demonstrable,  the  learned  trial
Judge has not been guided by the established parameters for grant  of  bail.
He has not kept himself alive to the fact that twice the  bail  applications
had been rejected and the matter had travelled to  this  Court.   Once  this
Court has declined to enlarge the appellants on bail, endevours  to  project
same  factual  score  should  not  have  been  allowed.   It   is   absolute
impropriety and that impropriety call for axing of the order.
21.         That apart, as we find from the narration  of  allegations  from
the order of the High Court, it is not a case where the  trial  court  could
have entertained a bail application by elaborate  dissection  of  facts  and
appreciation of statements recorded under Section 161 Cr.P.C.   The  gravity
of the crime should have been taken note of  by  the  learned  trial  Judge.
The deceased and his wife (the daughter of the accused-appellant No.1)  were
staying in peace away from the acrimonious community, but due to  some  kind
of “misconceived class honour”, the vengeance reigned and awe for  law  went
on a holiday.  They thought that their perception mattered and  as  alleged,
they put an end to the life spark of the  young  man.   The  choice  of  the
daughter was allowed no space.  Her identity was crushed  and  her  thinking
was crucified by parental dominance  which  has  roots  in  an  unfathomable
sense of community honour.  Though the lovers  became  fugitive,  the  anger
founded on anachronistic values prompted the accused persons  to  annihilate
the life of a young man.  In such a situation, the factors  that  have  been
highlighted by this Court from time to time were required to be adverted  to
and the accused persons should not have been granted liberty on the  grounds
that have  been  thought  appropriate  by  the  learned  trial  Judge.   The
perversity of approach by the learned Additional  Sessions  Judge,  who  has
enlarged the appellants on bail, is totally unacceptable. It  is  reflective
of sanctuary of errors.  In such a situation, we are obligated to  say  that
the High Court has performed its legal duty by lancinating the order  passed
by the learned trial Judge.
22.         Consequently, the appeal, being sans  merit,  stands  dismissed.
As we have dismissed the appeal, the appellants shall surrender  to  custody
forthwith and it will be the duty of the trial Judge to see  that  they  are
taken into custody.  Needless  to  say,  whatever  we  have  stated  in  the
present judgment, is only confined to the defensibility of the order  passed
by the High Court cancelling the bail  granted  by  the  learned  Additional
Sessions Judge and shall not weigh in the mind of the  learned  trial  Judge
for the purpose of the trial as  that  shall  depend  upon  evidence  to  be
adduced during the trial.



                                            ..............................J.
                                                              (Dipak Misra)




                                           ...............................J.
                                                          (A.M. Khanwilkar)

New Delhi
March 28, 2017.
-----------------------
[1]   (2012) 1 SCC 40
[2]   (2011) 1 SCC 694
[3]   (2004) 7 SCC 525
[4]   (2010) 14 SCC 496
[5]   (2013) 7 SCC 452
[6]   (2014)  16 SCC 508
[7]    (2008) 5 SCC 66