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2020 Supreme(Kar) 82
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
John Michael Cunha, J.
K Lenin @ Sri Nithya Dharmananda - Petitioner
Versus
Nithyananda Swamy @ A Rajashekaran Nithyanand Dhyanapeeta Kallugopahalli Village Bidadi Hobli & Ors. - Respondents
Criminal Petition No.594 of 2020
Decided On : 05-02-2020
For the Petitioner:Sri. Ashwin Vaish, Advocate
For the Respondent: Sri. V.S. Hegde, Sppii
Headnote:
Indian Penal Code - Sections 295A, 376, 377, 420, 506(1) & 120B – Criminal Procedure Code - Section 273, 317 – Anticipatory bail - Jurisdictional court - Whether presence of accused No.1 is necessary for trial surprisingly learned SPP submitted that presence of accused No.1 is not immediately necessary for trial - Whether High Court has inherent powers under section 439(2) of Criminal Procedure Code to cancel bail granted to accused No.1/respondent No.1 who has run to a foreign country to escape trial and is unavailable to face trial - Petitioner before this Court is first informant who set law in motion leading to prosecution of respondent No.1/accused No.1 and others for above offences - He has moved instant petition under section 439(2) of Criminal Procedure Code seeking cancellation of bail granted to respondent No.1/accused No.1 in Criminal Petition on following grounds - That continued absence of Respondent No.1/accused No.1 is proof of his unavailability to face trial and face judgment of court below - Concession of bail was granted by this Court on assurance of Respondent No.1’s availability to face trial - His continued absence and fact that he has managed to leave country despite his passport having lapsed/cancelled is proof of fact that he has successfully evaded due course of justice and abused concession of bail granted to him - That bail granted to accused no.1 deserves to be cancelled on additional ground that during period of release on bail not only he used his proxies to execute counter complaints against Petitioner and other witnesses but has been accused of perpetrating further crimes of similar nature involving minors – Held, It is now well that once bail has been granted it cannot be cancelled unless there is evidence to show that conditions of bail are being infringed - It has been laid down that rejection of bail in a non-bailable case at initial stage and cancellation of bail already granted have to be considered and dealt with on different basis - It has been held that very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail already granted - Grounds for cancellation of bail broadly are interference or attempt to interfere with due course of administration of justice or evasion or attempt to evade due course of justice or abuse of concession granted to accused in any manner - In instant case by his conduct accused has put entire trial in jeopardy - Even though he was exempted from personal appearance on account of his alleged engagement in generally is observed from July to October - If in fact reason assigned by respondent No.1/accused No.1 was genuine after completion he should have appeared before Court instead he filed exemption after exemption applications stating that he is required to discharge his duties bestowed upon him by Almighty in propagation of Hindu Dharma by addressing congregations not only within this country but also beyond bounds of this Country - But statements made in her affidavit goes to show that his whereabouts itself are not known - As such reasons put forward by him before Trial Court to seek exemption from appearance are proved to be false - Court do not think that Courts are so helpless and arm of law is so weak that it has to sacrifice interest of justice so as to secure liberty of an undeserving under trial - No doubt cancellation of bail should not be resorted lightly but that does not mean that court cannot ordinarily cancel bail especially when trial is in jeopardy - Object underlying cancellation of bail is to protect fair trial and secure justice being done to society by preventing the accused who is set at liberty by bail order from tampering with evidence in heinous crime - In instant case circumstances discussed above clearly establish that accused has successfully hoodwinked and misled court to believe that he is engaged in propagation of Hindu religion but facts and circumstances discussed above clearly indicate that he is not available in India and his whereabouts are not known either to prosecution or to persons close to him - Petition is allowed.
ORDER :
Respondent No.1 Nithyananda Swamy @ A Rajashekaran is being tried for the offences punishable under sections 295A, 376, 377, 420, 506(1) & 120B IPC before the III Additional District and Sessions Judge, Ramanagara in S.C.No.86/2014. He was admitted to bail by orders of this Court in Criminal Petition No.2328/2010 c/w. Criminal Petition Nos.2344/2010 and 2329/2010 dated 11.06.2010, and was ordered to be released subject to the following conditions:
(i) Petitioner shall execute a personal bond for a sum of Rs.1,00,000/and two local solvent sureties for the like sum to the satisfaction of the court;
(ii) He shall not leave the jurisdiction without the permission of the jurisdictional court;
(iii) He shall mark his attendance once in 15 days before the jurisdictional Police;
(iv) He shall also not undertake any preaching or classes except performing yoga till the investigation is completed and
(v) He shall not tamper with the prosecution witnesses or the material evidence.
2. Subsequently condition Nos.2 and 3 were relaxed by orders of this Court in Criminal Petition No.2328/2010. Though copy of this order is not produced either by the petitioner or by the respondents, yet, in the order passed by the Trial Court in S.C.No.86/2014 on the application filed by respondent No.1 under section 273 read with section 317 Cr.P.C., dated 09.12.2019, it is observed that, I.A.No.3/2011 was moved by accused No.1 in Criminal Petition No.2328/2010 before the High Court of Karnataka and the same was allowed by order dated 16.12.2011, thereby relaxing condition Nos.2 and 3 which dealt with prohibition of accused No.1 leaving jurisdiction of the Trial Court without the permission and to mark his personal attendance once in 15 days before the jurisdictional police.
3. Petitioner before this Court is the first informant who set the law in motion, leading to the prosecution of respondent No.1/accused No.1 and others for the above offences. He has moved the instant petition under section 439(2) of Cr.P.C., seeking cancellation of the bail granted to respondent No.1/accused No.1 in Criminal Petition No.2328/2010 on the following grounds:
35. That the continued absence of Respondent No.1/accused No.1 is proof of his unavailability to face trial and face the judgment of the court below. The concession of bail was granted by this Court on the assurance of the Respondent No.1’s availability to face trial. His continued absence and the fact that he has managed to leave the country despite his passport having lapsed/cancelled, is proof of the fact that he has successfully evaded due course of justice and abused the concession of bail granted to him.
36. That the bail granted to the accused no.1 deserves to be cancelled on the additional ground that during the period of release on bail, not only he used his proxies to execute counter complaints against the Petitioner and other witnesses, but has been accused of perpetrating further crimes of similar nature involving minors.
37. That while his exemption from personal appearance is allowed by the trial Court on the purported ground of his alleged ‘austerity’ being performed in the Himalayas, it is reliably learnt by the Petitioner and confirmed by the prosecution that the Accused No.1 has run away from India to escape the trial and is presently in hiding with an expired Indian passport and is traveling using a passport from Belize.
38. The presence of Accused no.1 is necessary for continuing with the Trial since the Trial would be farce if it is conducted in his absence. Hence, bail granted to the Accused No.1 must be cancelled and his presence must be secured for the Trial to proceed.
4. Notice of the petition was ordered to respondent No.1/accused No.1 with a direction to the Investigating Officer to serve the same and to submit his report before the Court. In response, Sri.Balaraju. B, Deputy Superintendent of Police, Special Enquiries, CID, Bengaluru submitted his report to the effect that the notice of the petiti
