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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 27TH DAY OF MARCH, 2019

BEFORE

THE HON’BLE MR.JUSTICE B.A.PATIL

CRIMINAL PETITION NO.9194/2018
c/w
CRIMINAL PETITION NO.9216/2018

IN CRIMINAL PETITION NO.9194/2018:

BETWEEN :

1. Sri Pradeep Raja G.,
Aged about 32 years
S/o Gururaja L.
R/o No.3, Old Madiwala
Opposite to Sandya Theatre
Bengaluru-560 068.

2. Sri Gayathri Devi P.S.
Aged about 52 years
W/o Gururaja L.
R/o No.3, Old Madiwala
Opposite to Sandya Theatre
Bengaluru-560 068.
… Petitioners

(By Smt. Sheetal Soni, Advocate
Sri Koushik Raja, Advocate
Sri Gangadhara B.K., Advocate)
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AND :

1. The State of Karnataka
by Women’s Police Station,
Tumakuru,
Represented by State Public Prosecutor
High Court Building
Bengaluru-560 001.

2. Smt. Kiran Niveditha
Aged about 27 years
Balaji Nivas, 2nd Cross
Sapthagiri Layout
Tumakuru-572 101
… Respondents

(By Smt. Namitha Mahesh B.G., HCGP for R1;
Smt. Kiran Niveditha, Party-in-Person for R2)

This Criminal Petition is filed under Section 438
R/W. Section 482 of Cr.P.C praying to set aside the
order dated 05.12.2018 passed in Crl.Misc.No.322/2018
of the 1st Additional District and Sessions Judge at
Tumakuru, with respect to the petitioners Nos.1 and 2
herein, vide Annexure-A and may be pleased to restore
the anticipatory bail given to petitioners Nos.1 and 2
herein vide order dated 10.04.2018 produced as
Annexure-D.

IN CRIMINAL PETITION NO.9216/2018:

BETWEEN :

Kiran Niveditha
D/o K.B. Thimmaraju
Aged about 27 years
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Residing at Balaji Nivas
Behind Saptagiri College
2nd Cross, Saptagiri Ext.
Tumakuru-572 102.
… Petitioner

(By Smt. Kiran Niveditha, Party-In-Person)

AND :

1. The State of Karnataka
by Women’s Police Station,
Tumakuru,
Represented by State Public Prosecutor
High Court of Karnataka
Bengaluru-560 001.

2. L. Gururaja
S/o H. Lakshman
Aged about 62 years
R/at No.3, Infront of Iyangar Bakery
Near Sandya Theater
Old Madivala Road, BTM Layout,
Bengaluru-560 068.

3. Suresh Babu S/o Veerappa
Aged about 48 years
R/at No.25, EWS Colony
BTM 2nd State
Bangalore-560 068.

4. G. Kowshik S/o L. Gururaja
Aged about 24 years
R/at No.3, In front of Iyangar Bakery
Near Sandya Theater
Old Madivala Road, BTM. Layout,
Bengaluru-560 068.
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5. Jagadeesh
S/o Thyagaraj
Aged about 44 years
R/at No.106/5-B, 1st Floor
Tata Silk Form, 2nd Cross
Bangalore-560 004.
… Respondents

(By Smt. Namitha Mahesh B.G., HCGP for R1;
Smt. Jayna Kothari, Senior Counsel for
Sri Rohan Kothari and Sri Naveen Chandra V.,
Advocates for R2 to R5)

This Criminal Petition is filed under Section 439(2)
of Cr.P.C praying to cancel the bail granted to accused
No.2, accused No.4, accused No.5 and accused No.6 in
Crl.Misc.No.322/2018, Crime No.27/2018 of Women’s
Police Station, Tumakuru, on the file of the 1st Additional
District and Sessions Judge at Tumakuru, for the
offences punishable under Sections 498A, 417, 418, 504,
506, 377 and 354C r/w Section 34 of Indian penal Code
and Sections 3 and 4 of Dowry Prohibition Act.

These Criminal Petitions having been heard and
reserved on 20.02.2019 coming on for pronouncement of
orders this day, the Court made the following:-

ORDER

By the order dated 5.12.2018, the I Additional

District and Sessions Court, Tumakuru in

Crl.Mis.No.322/2018 by partly allowing the application
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filed by the complainant praying for cancellation of

anticipatory bail granted by the said Court to accused

Nos.1 to 6 on 10.4.2018, cancelled the bail granted in

favour of accused Nos.1 and 3. Accused Nos.1 and 3,

being aggrieved by the said cancellation of anticipatory

bail to them, preferred Criminal Petition No.9194/2018,

whereas being aggrieved by non-considering of the

prayer of the complainant for cancellation of anticipatory

bail granted to accused Nos.2, 4, 5 and 6, the

complainant has preferred Criminal Petition

No.9216/2018.

2. I have heard Smt. Sheetal Soni, learned counsel

appearing for accused Nos.1 and 3-petitioners in Criminal

Petition No.9194/2018; Smt.Jayna Kothari, learned

Senior Counsel for accused-respondents in Criminal

Petition No.9216/2018; Smt.Namitha Mahesh B.G.,

learned HCGP for the respondent-State and the
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complainant/party-in-person, the petitioner in Criminal

Petition No.9216/2018.

3. It is the submission of the learned Senior

Counsel that the order passed by the trial Court

canceling the anticipatory bail granted in favour of

accused Nos.1 and 3 is erroneous. Without considering

the legal position, the trial Court has swayed away by the

submissions made by the complainant and the learned

Public Prosecutor. She further submitted that there is no

breach of any of the conditions imposed while granting

the anticipatory bail. Without any breach of the

conditions by accused Nos.1 and 3, the trial Court ought

not to have cancelled the bail granted to them. She

further submitted that there are no allegations as against

any of the accused to show that they have threatened

the witnesses. It is the counsel who has uttered some

words and the matter was taken to the Police Station by

the complainant, where in the presence of the
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complainant the said complaint was closed. The said

aspect which has been relied upon by the trial Court is

not justifiable. She further submitted that the

Investigating Officers and incharge Officers of the Police

Station have filed their affidavits to the effect that all the

accused persons including accused No.3 used to attend

the Police Station as per the conditions and have marked

their attendance. But in spite of the same, the trial Court

has ventured to compare the signatures with that of

vakalat and has come to a wrong conclusion that the

signature found in the Register is not tallying and as such

accused No.3 has not attended the Police Station. By

referring to Section 73 of the Indian Evidence Act, she

further submitted that the trial Court ought not to have

compared the signature with its eyes and expressed its

opinion. She further submitted that although there is no

legal bar to a judge using bare eyes to compare the

signatures without the aid of the expert, as a matter of

prudence and caution, the judge hesitates to base his
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finding with regard to the identification of the signatures

which forms the sheet-anchor of the prosecution case

solely on comparison made by himself. In order to

substantiate her contention, she relied upon the decision

in the case of State (Delhi Administration) Vs.Pali

Ram, reported in AIR 1979 SC 14. She also relied upon

the decision in the case of O.Bharathan Vs.

K.Sudhakaran another, reported in AIR 1996 SC

1140. She further submitted that during the course of

investigation, if the Investigating Officer has not

apprehended the accused and there is no evidence to

show that the witnesses have hampered the evidence

though they were having best opportunity, these facts

are to be considered while considering the bail

application. After filing of the charge sheet usually the

Court cannot cancel the bail when there is no material to

show that there is tampering of the evidence. In order to

substantiate her contention, she relied upon the decision

in the case of Dataram Singh Vs. State of Uttar
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Pradesh another, reported in AIR 2018 SC 980.

She further submitted that rejection of the bail in a non-

bailable offence is different from cancellation of the bail

so granted. Very cogent overwhelming circumstances are

necessary for an order directing the cancellation of the

bail already granted. Usually the Courts will not interfere

with the bail granted and cancel mechanically without

considering whether any supervening circumstances have

rendered it no longer conducive to a fair trial to cancel

the bail. In order to substantiate her contention, she

relied upon the decision in the case of Dolat Ram

others Vs. State of Haryana, reported in (1995)1 SCC

349. She further submitted that a separate petition is

not maintainable for the purpose of cancellation of bail.

Already the Court which has passed the order becomes

functuous officio to entertain a separate petition. If at all

any application has to be filed, it should be filed in a

same petition. The parameters which are to be taken

into consideration by the Court have been discussed by

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the Hon’ble Apex Court and the said parameters have to

be followed by the Court. In order to substantiate the

said contention, she relied upon the decisions in the case

of State of Haryana Vs. Jagbir Singh another,

reported in AIR 2003 SC 4377 and in the case of

Rajesh Sharma others Vs. State of U.P. another

reported in AIR 2017 SC 3869. She further submitted

that the Court should not go for cancellation of the bail

and such tendency of the parties has to be discouraged.

She further submitted that the photographs which have

been produced are only to rebut the allegations made as

against the accused and they have been produced in a

judicial proceeding. No prejudice or hardship has been

caused and they have not been produced to defame the

complainant. On these grounds, the learned Senior

Counsel appearing for the respondents in Criminal

Petition No.9216/2018 and the learned counsel appearing

for accused Nos.1 and 3-petitioners in Criminal Petition

No.9194/2018 prayed to allow the petition filed by

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accused Nos.1 and 3 by granting bail to them and

dismiss the petition filed by the complainant.

4. Per contra, the learned HCGP vehemently argued

and submitted that accused No.3 has not followed the

conditions imposed while she was released on bail. She

has not marked her attendance before the Police Station

but the documents have been concocted to show that

actually she has complied with the conditions and

attended the Police Station and as and when she visited

she has signed in the Register. She further submitted

that she is illiterate, the signature which has been put by

her is in English that itself clearly goes to show that

accused No.3 has not visited the Police Station and

marked her attendance. When the documents have been

tampered and there is no compliance of the order of the

bail, then the bail has to be cancelled. By relying upon

the decision in the case of Murari lal Vs. State of

Madhya Pradesh, reported in 1980(1)SCC 704, she

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further submitted that the Court is having every power to

compare the signatures and on comparison if the Court

comes to the conclusion that the signature is not that of

the accused, an adverse inference can be drawn to the

effect that the said accused has not attended the Police

Station and there is a violation of breach of condition.

5. She further submitted that accused No.1 through

his advocate threatened the complainant in the premises

of the Family Court that itself amounts to nothing but

tampering with the prosecution evidence. Though it is

contended by the learned counsel for accused No.1 that

accused No.1 is nothing to do with the act of his

advocate, he was present when his advocate threatened

the complainant. She further submitted that a complaint

was also registered and after recording the statement of

the learned advocate and the complainant the complaint

came to be closed. The trial Court after considering the

said facts, has rightly cancelled the bail granted to

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accused Nos.1 and 3. She further submitted that the

trial Court was wrong in cancelling the bail granted to

accused Nos.1 and 3 alone. The other accused persons

were also present and only at the instigation of the

accused persons, the learned counsel appearing on

behalf of them has threatened the complainant. In that

light, the order passed by the trial Court in not cancelling

the bail to the remaining accused persons is not

sustainable and requires to be interfered with by this

Court in so far as the said aspect is concerned. She

further submitted that if Court finds that there are

grounds of cancellation of bail, the Court is having every

right to cancel the bail. In order to substantiate her said

contention, she relied upon the decision in the case of

Mehboob Dawood Shaikh Vs. State of Maharashtra,

reported in (2004)2 SCC 362. She further submitted

that accused circulated the photographs deliberately to

affect the prestige and privilege of the complainant and

with an intention to defame her. If at all that was the

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defence, they ought to have produced such photographs

at relevant time when the case is posted for evidence.

On these grounds, she prayed to dismiss the petition

filed by accused Nos.1 and 3 and allow the petition filed

by the complainant and to cancel the bail in respect of

other accused persons.

6. Complainant who is a party-in-person is present

before the Court. By supporting the arguments of the

learned HCGP she submitted that the accused have taken

a contradictory objections by suppressing the real facts.

She further submitted that accused have posted obscene

photographs of the complainant and they threatened the

complainant over phone. She further submitted that the

accused persons have produced disseminating

photographs to demolish her prestige. On these

grounds, she also prayed to dismiss the petition filed by

accused Nos.1 and 3 and allow the petition filed by her.

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7. I have carefully and cautiously gone through the

submissions made by the learned counsel appearing for

the parties and the complainant-party-in-person and

perused the records.

8. Several grounds have been urged in both the

petitions. It is contended by the learned senior counsel

for accused Nos.1 and 3 that the trial Court has

committed a serious error in cancelling the bail to

accused Nos.1 and 3. What are the factors to be kept in

mind while considering the bail application relating to

heinous offences have been indicated by the Hon’ble

Apex Court in the case of Prasanta Kumar Sarkar Vs.

Ashis Chaterjee another, reported in (2010)14

SCC 496, wherein by relying on its earlier decisions in

the case of State of U.P. Vs. Amarmani Tripathi,

reported in (2005)8 SCC 21 and in the case of Ram

Govind Upadhyay Vs. Sudarshan Singh reported in

(2002)3 SCC 598, the Hon’ble Apex Court has indicated

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the following factors to be borne in mind while

considering the bail application:-

i) Whether there is any prima facie or
reasonable ground to believe 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.

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9. While granting the bail, the Court should not

grant bail mechanically. Even very recently the Hon’ble

Apex Court in the case of Siddharam Satlingappa

Mhetre Vs. State of Maharashtra and others,

reported in (2011) 1 SCC 694 has observed and

considered as to what are the parameters which the

Court has to keep in mind while considering the bail

application. The main object of imposition of the

conditions is that the accused should not tamper with the

prosecution evidence; he should not abscond or he

should not flee away from justice.

10. The Hon’ble Apex Court in the case of Dolat

Ram others Vs. State of Haryana, (cited supra),

has reiterated that rejection of bail in a non-bailable case

at the initial stage and cancellation of bail already

granted have to be considered and dealt with in different

basis. It is further held that very cogent and

overwhelming circumstances are necessary for directing

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cancellation of bail already granted. The said decision

has been followed by the Hon’ble Apex Court, in two

subsequent decisions in the case of Subhendu Mishra

Vs. Subrat Kumar Mishra another, reported in AIR

1999 SC 3026 and in the case of Samarendra Nath

Bhattacharjee Vs. State of West Bengal another,

reported in AIR 2004 SC 4207. In Dolat Ram’s Case

at paragraph-4 it is held as under:-

“4. Rejection of bail in a non-bailable case
at the initial stage and the cancellation of
bail so granted, have to be considered and
dealt with on different basis. Very cogent
and overwhelming circumstances are
necessary for an order directing the
cancellation of the bail, already granted.

Generally speaking, the grounds for
cancellation of bail, broadly (illustrative and
not exhaustive) are: interference or attempt
to interfere with the due course of
administration of justice, or evasion or
attempt to evade the due course of justice
or abuse of the concession granted to the

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accused in any manner. The satisfaction of
the court, on the basis of material placed on
the record of the possibility of the accused
absconding is yet another reason justifying
the cancellation of bail. However, bail once
granted should not be cancelled in a
mechanical manner without considering
whether any supervening circumstances
have rendered it no longer conducive to a
fair trial to allow the accused to retain his
freedom by enjoying the concession of bail
during the trial. These principles, it appears,
were lost sight of by the High Court when it
decided to cancel the bail, already granted.
The High Court it appears to us overlooked
the distinction of the factors relevant for
rejecting bail in a non-bailable case in the
first instance and the cancellation of bail
already granted.”

11. It is true that the accused persons in the

present case have been enjoying the benefit of bail

granted to them by the trial Court. However, it is the

contention of the learned Senior Counsel that there is no

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violation of the bail conditions. But it is the contention of

the learned HCGP and the complainant-party-in-person

that there is violation of bail condition, tampering with

the prosecution evidence by disseminating the

photographs and giving threat to the complainant.

12. In that light, let me consider the case on hand.

The first and foremost aspect is that by producing the

photographs in the case before the Court below, the

accused persons are tampering the case of the

prosecution evidence. But it is the case of the accused

Nos.1 and 3 that in order to defend themselves from the

allegation made against accused No.1, the production of

said documents was as a rebuttal to the allegation made

in the case. I have carefully and cautiously gone through

the submissions of the parties and perused the entire

records. No doubt some photographs have been

produced in the said case before the Court below. As to

how and in what manner it is going to tamper the

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prosecution evidence is not forthcoming. The said

documents are in the form of photographs. If at all the

said documents are defaming or affecting the prestige

and privilege of the complainant, then under such

circumstances she has to establish the said fact only for

the purpose of claiming the damages. Even she has to

prove as to how those documents produced in the case

are noticed and published in the public, that too when

they have been produced in judicial proceedings. In that

light, the said contention taken up by the complainant is

not acceptable.

13. The second contention is that the learned

counsel appearing on behalf of accused No.1 has

threatened the complainant and in this behalf a

complaint was registered by the jurisdictional police. On

going through the said records, there is an allegation to

the effect that the learned counsel while going out of the

Court has threatened the complainant. But subsequently,

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the Investigating Officer called both the parties and after

recording their statements the complaint came to be

closed. With the consent of both the parties, when the

complaint has been closed on the basis of the

undertaking given by the parties and the advocates, then

under such circumstance, it will not be a ground to cancel

the bail. In that light, the said contention is also not

acceptable.

14. The third aspect which has been dealt in by the

complainant is that accused No.3 has not appeared

before the Police Station and has not marked her

attendance and the one which has been marked does not

belong to her and the signature found in the Register are

not belonging to her and as such there is a breach of

condition. The trial Court after considering the said facts

and comparing the signature, has come to the conclusion

that the said signature does not tally with that of the

signature of accused No.3. Though during the course of

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arguments, the learned counsel appearing for the parties

have strenuously by referring to Section 73 of the Indian

Evidence Act, have contended that the Court is having a

power to compare the signature with bare eyes and form

an opinion. Whereas, the learned Senior Counsel for the

accused by relying upon the decision of the Hon’ble Apex

Court submitted that the Court cannot compare the

specimen signature and comparison of such signature in

a proceeding by the Court with bare eyes is not

advisable. But that is not the real issue before the Court.

How the non-appearing of accused No.3 before the

concerned Police Station and marking the attendance is

going to affect the case of the prosecution or the

complainant has to be looked into. Records also indicate

the fact that the police officials who were working in the

said Police Station have filed their affidavit to the effect

that accused No.3 has appeared before the Police Station

and she has marked her attendance. But the Court by

comparing the signature has come to the conclusion that

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accused No.3 has not appeared before the Police Station

and the signatures in the Register are not that of accused

No.3. But the real point has been missed by both the

parties. The said conditions imposed by the Court is only

with an intention to see that accused persons should not

abscond and they must be available for trial by retaining

the freedom of enjoying their rights during the trial. This

aspect of the matter has been lost by the trial Court.

When it has decided to cancel the bail already granted, it

appears that it overlooked the distinction of factors

relevant for rejecting the bail or cancellation of the bail in

a non-bailable case, which has already been granted. No

material has been produced to show that there are very

cogent and overwhelming circumstances with the

abovesaid facts for cancellation of the bail. Non-marking

of the attendance and production of the documents in a

case are not the criteria which the Court has to keep in

mind for cancellation of bail.

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15. Usually in the matrimonial cases it is but

natural that each of the spouse making different

allegations only with an intention to see that by one or

the other way, one of the spouse should be put to

inconvenience and he or she should be harassed. It is

also necessary to see that whether the act of the accused

pressurizes the witnesses and manipulates the evidence

of either of the parties to the proceedings. Granting of

bail and imposition of conditions is to regulate and check

the manipulation of the evidence by either of the parties

to the proceedings. It is enforcing authority who has to

look into the matter, whether any such situations are

existing, then they can file an application for cancellation

of the bail. In the instant case, the Investigating Officers

have filed their affidavit contending that accused No.3

has appeared before the Police Station and marked her

attendance. But the Court below has stepped into the

shoes of the Investigating Authority and gone into

comparing the signatures as if it is a full proof for the

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purpose of deciding a case and has wrongly come to the

conclusion without keeping in view the object and

purpose of imposition of conditions and has cancelled the

bail in respect of accused No.3 without there being any

discussion. Even if she has not marked her attendance,

how it is going to prejudice the case of the complainant.

That itself clearly goes to show that the complainant is

only intending to harass accused No.3. If really the

complainant is serious about breach of condition,

definitely she ought not to have compromised when

advocate gave a threat to her and a complaint was

registered. But after compromising, filing of petition for

cancellation of bail itself shows that subsequently on

deliberation and discussion only with mala fide intention

such an application has been filed. From this angle, the

Court below was not justified in cancelling the bail

granted to accused Nos.1 and 3. As held in the case of

Dolat Ram others Vs. State of Haryana (cited

supra), it has been observed that for the purpose of

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cancellation of bail which has already been granted, very

cogent and overwhelming circumstances are necessary

and if no such circumstances are existing or there are no

interference or attempt to interfere with the due course

of administration of justice or evasion or attempt of

evade the due course of justice or abuse of the

concession granted to the accused in any manner. The

Court after satisfying itself has to cancel the bail. The

technicalities should be kept in mind by the Court. In

that light, the Court below has lost sight of and

proceeded to cancel the bail which has already been

granted. It appears that the Court below overlooked the

distinction of the factors relevant for rejecting the bail in

a non-bailable case and passed the impugned order.

Looking from any angle, the order of the trial Court

appears to be perverse and not in accordance with law.

In that light, it requires interference by this Court.

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Taking into consideration the aforesaid facts and

circumstances, Criminal Petition No.9194/2018 filed by

accused Nos.1 and 3 is allowed. Impugned Order dated

5.12.2018, passed by the I Additional District and

Sessions Court, Tumakuru in Crl.Mis.No.322/2018, to the

extent of cancellation of bail in respect of accused Nos.1

and 3 is set aside and the earlier bail granted to them is

restored.

Accused Nos.1 and 3, i.e., petitioners in Criminal

Petition No.9194/2018 shall execute a fresh bail bond in

terms of the earlier order. It is made clear that accused

Nos.1 and 3 shall not further involve in such activities so

as to hamper or interfere with the trial of the case.

Criminal Petition No.9216/2018 filed by the

complainant is dismissed as devoid of merits.

Consequently, I.A.No.1/2018 filed in Criminal

Petition No.9194/2018 stands dismissed.

Sd/-

*ck/- JUDGE