Granted Bail For Heinous Offence Before Investigation Concluded: Karnataka HC Directs Addl Session Judge To Undergo Training, Learn Judicial Discretion

A single judge bench of Justice H.P. Sandesh said,

"The Registry is directed to seek appropriate orders from the Hon'ble Chief Justice to post the concerned Judicial Officer to the Judicial Academy for training with regard to applying judicious thought process while exercising judicial discretion before granting bail in heinous offences."

It added, "The Registry is directed to send a copy of this order to the Presiding Officer to make an endeavour to learn, exercising of judicial discretion."

Case Background:

The Court was dealing with an application under Section 439(2) for cancellation of bail of the Respondent, accused in a dowry death case.

In the facts of the case, the deceased wife of the Respondent had purportedly sent voice messages to a neighbour, stating that the accused be held responsible for anything untoward to her. The petitioner, deceased's brother, based on the voice messages lodged a complaint. The police investigated the matter and filed a charge sheet against the accused persons.

However, the V Additional Sessions Judge, Mysuru granted anticipatory bail to the parents of the accused and regular bail to the accused by its order dated 23.03.2021, 05.04.2021 and 17.04.2021.

The court came to the conclusion that none of the offences alleged against the applicant/accused No.2 is exclusively punishable with death or life imprisonment. It is only after the neighbour of the complainant revealed the fact that he has received voice messages from deceased Sunitha, the complainant has lodged a complaint. Whether the said messages were really sent by the deceased Sunitha and whether the mobile phone belongs to Sunitha can be ascertained only at the time of trial.

While granting bail to the husband the court said, "If at all the deceased was subjected to mental and physical cruelty by the applicant and non-applicants in connection with dowry, the said fact would have been disclosed to the complainant and to his parents."

Following which the complainant challenged the order passed by the trial court and sought cancellation of bail granted to the accused and anticipatory bail granted to the parents.

Submissions:

The orders passed by the trial Court exercising discretion under Sections 438 and 439 of Cr.P.C. are bad in law inasmuch as the FIR discloses there is a prima-facie case against the accused. Bearing in mind the facts of the case, the very observation that whether the mobile phone belongs to Sunitha has to be ascertained during trial, is an erroneous order.

The Prosecution also supported the petitioner, stating that in spite of a detailed statement of objections, the trial Court granted anticipatory bail and also regular bail in favour of accused Nos.2 to 4 within a span of two months and nothing has been referred to in the orders with regard to filing of the charge sheet or considering any charge sheet material.

Court findings:

On going through the records the court noted that in the complaint there is specific averments that the messages (voice messages) were sent on 14.02.2021 i.e., on the day when the incident took place and that the same came to the knowledge of the complainant later.

Before the completion of investigation, the trial Court has invoked powers under Section 438 Cr.P.C. and granted bail to accused without even waiting for the investigation period, came to the conclusion that the said messages' truthfulness could be considered during trial.

Holding that the finding of the trial court was erroneous the court said, "The trial Court has lost sight of the heinous offence, that the lady, who was married in the year 2020 has lost her life within one year of her marriage that too by burn injuries and the cruelty meted out to her in the matrimonial home. Hence, the orders passed by the trial court are nothing but perverse and capricious orders."

Further the court opined, "It is not the case of the prosecution that the said mobile belongs to deceased – Sunitha and the same belongs to her husband and the said message also sent through the mobile of her husband to the neighbour of the complainant. But, while exercising powers under Sections 438 and 439 Cr.P.C, the trial Court assigned the reason that whether the said messages were really sent by the deceased-Sunitha and whether that mobile phone belongs to Sunitha can be ascertained only at the time of the trial."

It then held,

"The trial Court ought not to have exercised discretion under Sections 438 as well as 439 of Cr.P.C, prior to conclusion of the investigation itself when a heinous offence of taking away the life of the victim, who was married just one year prior to the incident, wherein the victim herself had sent messages from the mobile phone of her husband - accused No.1 to the neighbour of the complainant before her death, which amounts to a dying declaration. The trial Court ought to have waited till the completion of the investigation and, if no material, would have exercised discretion."

Following which the court set aside the orders passed by the trial court and cancelled the anticipatory bail and regular bail granted to the accused and directed them to be taken into custody forthwith.

Case Title: Sunil Kumar v. State By Periyapatana Police Station

Case No: Criminal Petition No.4234/2021

Citation: 2022 Livelaw (Kar) 50

Date Of Order: 4th Day Of February, 2022

Appearance: Advocate Hemanth Kumar S.R For Petitioner

Advocate Krishna Kumar K.K For Respondent 1.

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