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TMI Blog2018 (6) TMI 1784X X X X Extracts X X X X X X X X Extracts X X X X ..... o seek bail. Therefore, it was not proper on the part of the learned Sessions Judge to deny bail to the petitioner on the purported ground that the petitioner was in a position to use power and influence, in case, he was released on bail. The records indicate that the charge under section 307 Indian Penal Code came to be inserted at a later stage after recording the statement of the injured witness. There is inordinate delay in recording the statement of CW-2. Though the medical records indicate that CW-2 was in a fit condition to give his statement on 26.02.2018, his statement came to be recorded only on 03.03.2018. The statement made by CW-2 imputing allegation that the petitioner forced him to fall to his feet and on account of his refusal to heed to the demand of the petitioner, he was slapped and assaulted by the accused does not find place in the complaint lodged by CW-1 at the earliest point of time. All these circumstances indicate that a deliberate attempt has been made to improve the case of the prosecution from stage to stage to bolster up the charges, solely with a view to deny bail to the petitioner. None of the parties had any intention or motive to harm or inju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight of 17.02.2018, the petitioner alongwith other accused persons had gone to Fergy Caf , a Bar and Restaurant, situate in the second floor, U.B. City, within the jurisdiction of Cubbon Park Police Station, Bengaluru. At about 10.30 p.m., the petitioner and CW-2-Vidvat. L picked up a quarrel when the leg of CW-2 touched the petitioner. According to the prosecution, the petitioner asked CW-2 to apologize saying I am son of local M.L.A. N.A. Haris, you are not at all equal to my shoe, you say sorry and kiss my foot, bloody asshole. When CW-2 did not budge, he slapped CW-2 on his face. By then accused Nos. 2 to 9 surrounded CW-2 and assaulted him with glass bottles and ice bucket. He was kicked and assaulted causing grievous injuries on his face, head, chest, face and limbs. The petitioner and other accused persons did not heed to the request of the bouncers and when the bouncers managed to take CW-2 to the first floor, accused Nos. 8 and his associates followed him and pounced blows on him in the elevator. 5. Further case of the prosecution is that CW-2 was taken to nearby Mallya Hospital, but the petitioner and the other accused persons followed the injured to the hospital and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ief and hence he preferred a Special Leave Petition before the Hon'ble Supreme Court. The said Special Leave Petition was dismissed on 27.11.2015. The distinguishing fact is that even after the dismissal of the Special Leave Petition, a third application filed by the accused for bail was taken up by the learned Addl. Sessions Judge, Raichur as if it was the first application and he copiously referred to the material brought on record and allowed the application. It is this approach of the learned Addl. Sessions Judge was denounced by the Hon'ble Supreme Court and in this context, it was observed that filing of the charge sheet does not in any manner lessen the allegations made by the prosecution . This has been wrongly extracted by the learned Sessions Judge to mean 'filing of the charge sheet does not amount to change of circumstances'. Infact, paragraph 12 of the aforesaid judgment reported in (2017) 5 SCC 406 which contains the above observation reads as under:- 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, fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the exercise of the discretion conferred by section 439 and that the only principle which was established was that the discretion should be exercised judiciously. The dominant criteria is whether there is any change of circumstance and the change should be substantial and not merely cosmetic. Under section 207 of Criminal Procedure Code, an accused gets documents relied upon by the prosecution as of right. He is thus better equipped to address the Court and invite the Court to examine the evidence after filing of the charge sheet from his point of view and to point out lacunas, if any, in the investigation, which could be fatal to the prosecution or sufficient enough to convince the Court that there exists reasonable grounds for, prima facie, believing that the applicant has not been guilty of an offence punishable with death or imprisonment for life. Until filing of the charge sheet, one of the important fact that weigh on the mind of a Judge is the continuity of investigation and whether the investigation will be hampered if the accused is set at large. However, after filing of the charge sheet, this approach changes and the Court, apart from merits of the case, requires to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stant case, the learned Sessions Judge has thrown to winds these well established parameters and in disregard of the order passed in favour of the co-accused, has proceeded to reject the bail application solely relying on the observations made by this Court in Crl. P. No. 1764/2018. 13. Undeniably, the order in Crl. P. No. 1764/2018 was passed by this Court during crime stage. At that stage, there was scant material before the court and hence this Court found it necessary to look into the CCTV footages and observe that the incident was horrifying and terrifying. But when the second application of the petitioner came up for consideration before the learned Sessions Judge, the learned Sessions Judge was posted with all the material which the prosecution had relied on in support of the charges levelled against the petitioner. Though the trial court was not required to assess and analyse the said evidence with a view to establish the guilt of the accused, but it was incumbent upon the court to consider the said material so as to satisfy itself as to whether there was genuine case for bail or not. Even if the learned Sessions Judge was to go by the CCTV footage relied on by this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a position to use power and influence, in case, he was released on bail. 16. The presumption of innocence is a human right. As observed by the Hon'ble Supreme Court in DR. SUBHASH KASHINATH MAHAJAN vs. THE STATE OF MAHARASHTRA AND ANOTHER, AIR 2018 SC 1498, there cannot be presumption of guilt so as to deprive a person of his liberty without an opportunity before an independent forum or Court. Merely on the basis of the argument advanced at the Bar, this Court cannot prejudge the issue. It is observed in SANJAY CHANDRA vs. CENTRAL BUREAU OF INVESTIGATION reported in (2012) 1 SCC 4: The grant or refusal of grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner. It is not the case of the prosecution that any of the accused were armed with any weapons. The facts suggest that bottles and ice bucket found in the bar and restaurant were used as weapons. The circumstances indicate that there was no premeditation or any motive on the part of any of the accused persons to kill or injure CW-2. The injuries sustained by CW-2 are not sufficient in the ordinary course of nature to cause death. 21. When the learned Spl. Public Prosecutor was pointedly asked as to what was the intention or motive of the accused persons to attack and assault CW-2, the quick reply by learned Special Public Prosecutor was that it was show of power . It is rightly so. The circumstances indicate that with a view to compel CW-2 to fall to the feet of the petitioner, CW-2 was bet and wounded but not with the intention to cause his death or to cause such injury which in the ordinary course of the nature would lead to his death. Therefore, viewed from any angle, the acts alleged against the petitioner do not attract the ingredients of offence under section 307 Indian Penal Code. 22. The records indicate that the charge under section 307 Indian Penal Code ..... 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