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Karnataka High Court
N.Somashekar - Appellant
Versus
State of Karnataka - Respondent
Decided On : 11-18-91
CRIMINAL PETITION : 1050 of 1991
held: This Court has to see in a case like the one on hand what are the considerations to be decided while disposing an application filed under Section 439 Cr. P.C. Starting from the decision in The State v. Captain Jagjit Singh (A.I.R. 1962 S.C. 253) up to this day, factors to be considered on the point are detailed as follows:
(i) nature and seriousness of the of fences;
(ii) character of the evidence;
(iii) circumstances which are peculiar to the accused;
(iv) reasonable probabilities of the presence of the accused not being secured at the trial;
(v) reasonable apprehension of the witnesses being tampered with;
(vi) larger interests of the public or the State and similar other considerations, which arise when a Court is asked to admit accused to bail in a non-bail able offence.
However, emphasis is laid on two important points, viz., likelihood of the accused fleeing from justice and tampering with prosecution evidence. (Para 38)
The Court has to see from the material now available whether a prima facie case has been made out and whether it is possible to believe that the petitioner must have committed an offence as alleged. The participation of the accused in the offence must be prima-facie convincing in nature. (Para 38)
The prosecution made all serious efforts to collect material. In respect of the offence alleged to give any finding on such material before explaining and establishing the circumstances which led for the discrepancy and delay at the time of trial, it is not advisable to comment on such material. From the material produced by both sides, which in fact have been extracted above on the request of both sides and not commented upon by this Court, lest it may prejudice their case or put the trial Court in an embarrassing position, the conclusion will be that it is too early to say that the prosecution has made out a prima-facie case to connect the petitioner to the offence punishable under section 302 I.P.C. Because or the doubt regarding the delay in lodging the complainant, recording the statements of some of the witnesses twice or thrice and the delay in recording the statements of some witnesses though they were available and the conduct of the petitioner and some other witnesses. In these circumstances and for the reasons stated above, the petitioner is entitled for bail. (Para 41)
Held consequently: For the reasons stated above, this petition is allowed and the petitioner is ordered to be released on bail on the following conditions:
(i) The petitioner is directed to furnish a self bond for a sum of Rs. 50,000/- and 2 sureties for the like sum each to the satisfaction of the trial court;
(ii) The movement of the petitioner is confined to Bangalore City;
(iii) The petitioner shall furnish the address where he is likely to stay in Bangalore immediately to the jurisdictional Police and also to the Commissioner of Police, Bangalore City;
(iv) The petitioner shall appear before the Commissioner of Police, Bangalore City, twice a day, i.e., between 10.00 am and 11.00 a.m. and betwecn4.00p.m. and 5.00 p.m. except on the days he has to appear before the Sessions Court, Mysore, in connection with the case and the courts in connection with other cases;
(v) The petitioner shall not make any attempt directly or indirectly to tamper with the prosecution evidence;
(vi) The petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (Para 44)
If the prosecution feels that anyone of the conditions now imposed is violated by the petitioner, the prosecution is at liberty to seek for modification or cancellation of the bail. (Para 45)
In view of the seriousness involved, the trial Court is directed to conclude the trial and dispose of the case on merit by the end of March, 1992. (Para 46)
Key Points: - The judgment discusses factors for bail under Section 439 Cr. P.C., including nature of the offense, evidence, accused's peculiarity, likelihood of presence at trial, witness tampering, public interest, and especially flight risk and tampering with evidence. (!) (!) - It emphasizes prima facie case evaluation for bail, cautioning against detailed evidence appraisal and pre-trial merits, and allowing bail with conditions when prima facie case is not clearly established against the petitioner. (!) (!) - The court sets specific bail conditions (bond, sureties, location restrictions, reporting requirements, and no tampering with witnesses) and directs timely trial. (!) (!) - The decision references relevant Supreme Court and Karnataka cases outlining the discretionary scope of bail, including the principle that bail is not punishment and must balance individual liberty with fair trial and public interest. (!) (!) - It notes that delay, inconsistencies, and potential coercion or threats by the accused are factors affecting bail, but extraordinary circumstances may justify release with stringent conditions. (!) (!) (!)
( 1 ) BEFORE filing charge-sheet a petition under Section 439, Cr. P. C. was filed before the Principal Sessions Judge, Mysore, requesting for the release of the petitioner. But the learned Sessions Judge rejected the same on the grounds that the prosecution has made out a prima facie case against the petitioner to arrive at a conclusion that there are reasonable grounds for believing that the accused is guilty of the offence of murder punishable with death or imprisonment for life and thus refused to grant bail for the following reasons: (a) That the petitioner/accused at the time of investigation threatened the material witness, viz. , the then Investigating Officer; (b) That the petitioner/accused made wild allegations against the then Police commissioner; (c) That, if the petitioner is released on bail, he being a senior Police Officer may tamper with the prosecution evidence; (d) That, since the investigation is in progress, it is not proper to release him on bail. Hence this second petition under Section 439, Cr. P. C. was filed before this court seeking release of the petitioner for the offences punishable under Sections 302,201 and 506,1. P. C. alleged to have been committed by him.
( 2 ) THE practice of this Court in disposing of such petitions is by taking in to consideration whether aprima facie case has been made out either to refuse or to grant bail. This Court suggested both sides time and again not to go for elaborate documentation and not to request to dissect the evidence collected either in favour of or against such petitions. But, unfortunately, in the instant case, unmindful of this normal practice, both sides proceeded to argue the case taking the Court through each and every minute aspect, as when the petition was taken up for hearing the prosecution had filed its charge-sheet and copy of the same was made available to the Court for perusal. As requested by both sides, to see that justice not only is done but also seen to have done, having no other alternative, this Court had to hear both sides at length and to peruse important evidence collected and produced by the prosecution. Both sides argued the case on 5 hearing dates in piece-meal at the rate of l-l hours on every hearing date. In support of their rival contentions, both sides relied upon several decisions of this Court, the Supreme Court and other High courts particularly touching the points to be weighed at the time of considering application for bail. In view of the peculiar circumstances explained, inspite of the procedure being settled, this Court had to hear both sides in detail. Otherwise, the parties may feel that their view points were not considered or the relevant material either in support of or against the application were not considered. When arguments concluded, certain developments took place that the mother of the deceased sent telegrams and letters requesting the Court to transfer the case. As the allegations were vague and were in the nature of clearly interfering with course of justice, after discussing with the learned counsel on both sides, separate order dated 12-11-1991 was passed rejecting the said request.
( 3 ) THE case of the prosecution is as follows: One Ganesh, Police Sub-Inspector of Nazarbad Police Station, Mysore City, registered a case on 7-4-1991 at 5. 15 p. m. in UDR No. 17 of 1991 under Section 174, cr. P. C. on the complaint of Smt. Inderjeet Malik, In-charge General Manager of the Lalitha Mahal Palace Hotel, Mysore. The covering letter of Mrs. Inderjeet malik and the report of the Swimming Pool Life Guard of the Hotel by name P. K. Uthappa read thus: covering letter of Mrs. Inderjeet Malik:"mysore 7 April, 1991. To, the Sub-Inspector of Police (L and O), nazarabad Police Station, mysore. Subject: Report of my Life Guard (Swimming Pool) regarding death of unknown person at the Hotel Swimming Pool. With reference to the above, I am to inform you that around 5 p. m. , I was informed by the
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