9911796707
TMI Blog2002 (1) TMI 1344X X X X Extracts X X X X X X X X Extracts X X X X ..... e hidden gun was available. They recovered 410 Mascot gun tied in a blue plastic bag and 14 bullets, 20 Nobel Zel explosive gelatins, 25 metre length explosive wires and 25 capes. Petitioner had co-operated directly and indirectly with Veerappan to commit several illegal acts. A complaint was lodged with the East police of Chamarajanagar on 23-11-2001 at about 12.30 p.m. and it was registered in Crime No. 192 of 2001 for the offences punishable under Sections 114, 212 and 216-A read with Section 34 of the Indian Penal Code and under Sections 3, 15 and 27 of Arms Act, 1969 and Sections 3, 5, 6 and 9 of the Explosive Substances Act, 1908. 4. Petitioner was unsuccessful in the bail petition filed by him under Section 437 before the Additional Civil Judge, Chamarajanagar. It is in these circumstances the petitioner is before this Court seeking an order under Section 439 of the Code of Criminal Procedure. 5. Notice was issued, pursuant to which the respondent has entered appearance and filed their statement of objections in this Court opposing the grant of bail. It is stated in the objection that the petitioner has volunteered to say that he was a member of the Veerappan gang and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned State Public Prosecutor and Sri P.C. Muddappa, learned Additional State Public Prosecutor. 9. Sri Basavaprabhu Patil, with all vehemence contends before me that the Constitution of India guarantees a fundamental right under Articles 19 and 21. His case is that the petitioner was kidnapped and a false case is foisted against him. Initially a bailable case was filed against him and thereafter during interrogation based on the statement of the petitioner the present case is filed. According to him voluntary statement cannot be made use of by the police to implicate the petitioner in several cases. Counsel took me through the pleadings and material on record to contend that the cherished liberty of an investigative journalist is at stake. Investigative journalists do their job to bring home the truth to the knowledge of the general public and such acts do not amount to any offence in the absence of any factual foundation whatsoever. Counsel also refers to the effective role played by the petitioner during Dr. Rajkumar kidnap episode and about the assurances made by the State Government of Karnataka to the petitioner. He also refers to his co-operation given to police in givi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 439.--(1) A High Court or Court of Sessions may direct- (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in Sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: Provided that the High Court or the Court of Sessions shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Sessions or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice . 15. Section 439 indicates a special power being vested with High Court or Court of Sessions regarding bail. It provides for release of an accused on bail with conditions which are considered necessary for purposes mentioned in that sub-section. The said section has been considered by various Courts in a catena of decisions. The Fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doubtedly be resolved by resort to extraneous aids but words, as wide and explicit as have been used in Section 438, must be given their full effect, especially when to refuse to do so will result in undue impairment of the freedom of the individual and the presumption of innocence... . 18. A Division Bench of Andhra Pradesh High Court in Y. Chandrasekhara Rao v. Y.N. Kamala Kumari, 1993 Cri. L.J. 3508 (AP), ruled in paras 22 and 23 as under: The practice followed by this Court in entertaining revision petition under the old Code of Criminal Procedure, 1898 cannot afford any guidance in the interpretation of Section 438 of the present Code. Which should be more convenient to the affected party cannot be conjectured by the High Court when the Code confers concurrent jurisdiction both on the High Court and the Court of Sessions. If the party who intends to move an application under Section 438 feels that moving the Court of Sessions is more convenient, he may do so. But if he thinks that approaching the High Court is more convenient and less time consuming he shall not be precluded from doing so. Situation may conceivably arise when a person may find it more efficacious to app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udice the trial in the lower Court. Hence, it is only in exceptional circumstances that an application for bail should be made directly to the High Court and in the absence of special circumstances the application should not be entertained by the High Court.. . 21. After noticing various case-laws it is clear to me that there is no statutory prohibition for this Court to accept a direct bail petition under Section 439 of the Criminal Procedure Code. In fact the section is clear enough to show that it is nothing but a concurrent jurisdiction vested with the High Court as well as Sessions Court. The party has right to choose his forum. In fact if a party directly approaches the High Court he is the loser inasmuch as he loses one berth in terms of the provision. Therefore, as rightly pointed out by Mr. Basavaprabhu Patil, that this Court can certainly entertain a petition under Section 439 of the Criminal Procedure Code, in terms of these various decisions. Even the judgments cited by learned Prosecutor in the case of K.C. Iyya v State of Karnataka, 1983(2) Kar. L.J. 8, this Court has not stated anywhere that this Court is totally prohibited from accepting such petition. This Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India before the establishment of guilt. The law of bail has grown in the light of the different situations by way of several decisions of the Apex Court. Article 21 is the heart of the Constitution and is a cherished fundamental right having a special place in a democratic set up. Liberty in a democratic society has to be valued, cherished and protected by Courts of law. But at the same time Courts have to be cautious enough to arrest that liberty in a given case in the larger interest to maintain public safety from notorious criminals. 26. The Supreme Court in the case of Bhagirathsinh Judeja v. State of Gujarat, , has ruled: In our opinion, the learned Judge appears to have misdirected himself while examining the question of directing cancellation of bail by interfering with a discretionary order made by the learned Sessions Judge. One could have appreciated the anxiety of the learned Judge of the High Court that in the circumstances found by him that the victim attacked was a social and political worker and therefore the accused should not be granted bail but we fail to appreciate how that circumstance should be considered so overriding as to permit interference with a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report to the authority etc., to thwart the course of justice. 31. The Supreme Court again in the case of State of Maharashtra v. Nainwal Punjaji and Ors., 1970 SCC (Cri.) 170, considered a case of appellants in that case for alleged act of illegal transactions in foreign goods such as gold, textile, watches etc. The Supreme Court ruled as under: While we are impressed with the extraordinary nature of the facts of this case and that the investigation should proceed fairly and efficiently, it is impossible to say that no bail should be granted to the respondents during the pendency of the whole of the investigation. There must be absolute certainty of leaving the country before a Court would detain an accused indefinitely during the whole period of investigation. If this consideration is kept aside, the only consideration would be the reasonable apprehension that evidence would be tampered with. No material has been placed before us to a show that we should come to a finding different from that of the High Court . 32. In the light of the principles laid down by the Apex Court let me see as to whether a case is made out by the petitioner for bail. Material facts reveal that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cie petitioner has contravened the provisions of the Act. Section 9 is not at all available under the Explosive substances Act. At this stage it is not possible for this Court to hold with the materials made available and the subsequent investigation a prima facie case as such is made out to deny the bail. Moreover it has to be noticed in the case on hand that the petitioner has acted as a Government emissary in Dr. Rajkumar kidnap episode and he was granted certain concessions by the Government. 34. Taking into consideration an overall view of the matter it cannot be said that at this stage a case of no bail is made out. It is necessary for me to notice what the Apex Court has stated in Bhagirathsinh Judeja's case, supra. The. Court ruled that even if prima facie case is established the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused is readily available for further trial or that he is likely to abuse discretion granted in his favour by tampering the evidences. Therefore, at this stage what is required to be considered is as to whether the grant of bail would in any way affec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain activities in Tamil Nadu also. In the circumstances I deem it proper to impose a condition of the petitioner not leaving Mysore city with a further condition of daily attendance between 4 p.m. and 5 p.m. before the Commissioner of Police of Mysore and in his absence the next police officer in charge of the city of Mysore. I also deem it proper to impose a condition of providing bail of one solvent surety to the satisfaction of the Court. 40. At this stage I must also notice one more facet of one more argument of the petitioner with regard to ill-treatment of the petitioner. Petitioner complains that no proper food as such is given to him. Petitioner also says that Article 23 is not to be violated during his custody in the case on hand. Petitioner's Counsel fairly submits that the petitioner is permitted to meet his child and wife and his lawyer. The same is taken on record. 41. In the result this petition is allowed. Petitioner is ordered to be released on bail on his executing a bond for Rs. One lakh with one solvent surety in the like sum to the satisfaction of the learned Magistrate, Chamarajanagar, with the following conditions: (a) Petitioner shall not leav ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
