Joseph Johnson N. Maithkuri vs Subrahmanya

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1439 OF 2022 Joseph Johnson N. Maithkuri …Appellant(s)

Versus Subrahmanya & Another …Respondent(s) WITH CRIMINAL APPEAL NO. 1440 OF 2022

Joseph Johnson N. Maithkuri …Appellant(s)

Versus Rajesh & Another …Respondent(s)

JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment(s) and order(s) dated 10.06.2021 & 08.11.2021

passed by the High Court of Karnataka at Dharwad Bench

in Criminal Petition Nos. 101007/2021 & 101621/2021 Signature Not Verified Digitally signed by

respectively, by which the High Court has allowed the said SNEHA Date: 2022.09.09 16:58:52 IST Reason:

criminal petitions preferred by the accused Subrahmanya

1 and Rajesh (respondent No. 1 in the respective appeals)

and has directed to release the accused ­ Subrahmanya

and Rajesh on bail in connection with Case Crime No.

157/2019 of Dharwad Rural Police Station for the offences

punishable under Sections 120(B), 302, 201 read with

Section 34 of the Indian Penal Code and Section 27(3) of

the Arms Act, 1959, the original complainant has preferred

the present appeals.

2. Learned counsel appearing on behalf of the appellant –

complainant has vehemently submitted that while

directing the accused ­ respondent No. 1 in the respective

appeals to be released on bail, the High Court has not at

all considered the gravity of the offences. It is submitted

that the High Court has not at all considered the fact that

in the present case that there are two eye­witnesses and

respondent No. 1 – accused has been identified.

2.1 It is submitted by learned counsel appearing on behalf of

the appellant that in case of co­accused, namely, Umesh

Nagappa URF Sangappa, this Court vide judgment and

order dated 06.01.2022 in Criminal Appeal No. 39/2022

has set aside the similar order passed by the High Court

2 releasing the said co­accused on bail and has

consequently cancelled the bail order.

2.2 Learned counsel appearing on behalf of the State has

supported the appellant.

3. We have heard learned counsel appearing on behalf of the

appellant as well as the State. Though served, none has

appeared on behalf of the accused ­ respondent No. 1 in

the respective appeals. We have perused the impugned

judgment(s) and order(s) passed by the High Court

releasing the accused on bail. Even liberty is reserved to

the State to move for cancellation of bail in the event of

this Court cancelling the bail of accused No. 4 ­ Umesh

Nagappa URF Sangappa.

4. At the outset, it is required to be noted that in the case of

co­accused, namely, Umesh Nagappa URF Sangappa, who

was also released on bail by the High Court, this Court

vide judgment and order in Criminal Appeal No. 39/2022

has set aside the order passed by the High Court and has

consequently cancelled the bail order in favour of the co­

accused. The grounds on which the said co­accused was

3 released on bail and the grounds on which the present

respondent No. 1 – Subrahmanya is released on bail are

same. In paragraph 7, the High Court has observed as

under: ­

“7. As per the charge­sheet, CWs. 18 and 19 are eye­witnesses to the incident. CW­19 who is running tea shop near the spot has identified accused Nos. 1,2 and 4 in Test Identification Parade held on 31.10.2019. The police took accused Nos. 1,2 and 4 on 29.09.2019 to different places like Dandeli, Haliyal and Dharwad and taken their photographs. Therefore, the photographs of accused Nos. 1,2 and 4 were available with the police and there are every chances of the police showing them to the witnesses namely CW­19. CW­18 is another eyewitness, who is the driver of the vehicle of the deceased, who has also identified accused Nos. 1,2 and 4 in the Test Identification Parade and there are also chances of the police showing the photographs of the accused to CW­18 prior to Test Identification Parade. Even if the presence of the petitioner/accused No.5 is taken into consideration, there is no overt act alleged against him. He was sitting on bike and the overt act alleged is against accused No.1, who fired from the pistol to the deceased and went away on the motorcycle along with the accused Nos. 2 and 4. Therefore, there is no specific overt act alleged against the petitioner/accused No.4”

That thereafter this Court has set aside the order

passed by the High Court by observing in paragraphs 6 to

8 as under:

“6. By observing the above, virtually the High Court has acquitted the accused. The observations made by the High Court in para 7 are on surmises and conjectures and the High Court has observed that there might have been the chances of the witnesses showing them the accused before the T.I. Parade. The

4 fact remains that the accused have been identified in a T.I. Parade by CWs. 18 & 19, who are eyewitnesses to the incident.

7. The High Court has not at all considered the gravity of the offence while releasing the respondent No.1­accused on bail. Therefore, the judgment and order passed by the High Court releasing the Respondent No.1 on bail is unsustainable and deserves to be quashed and set aside.

8. In view of the above and for the reasons stated above, the present Appeal succeeds. The impugned order passed by the High Court in releasing the accused on bail in connection with Crime No. 157/2019 of Dharwad Rural Police Station is hereby quashed and set aside. The Respondent No.1 now to surrender before the competent authority/appropriate jail authority within a period of one week from today.

5. In view of the above and for the reasons stated in

judgment and order dated 06.01.2022 passed in Criminal

Appeal No. 39/2022, the impugned judgment(s) and

order(s) passed by the High Court releasing the accused –

Subrahmanya and Rajesh, respondent No. 1 herein in the

respective appeals on bail also deserve to be quashed and

set aside. At this stage, it is required to be noted that while

releasing the accused Rajesh on bail the High Court in the

impugned judgment and order has observed that in case

this Court cancels the bail granted in favour of accused

no. 4 – Umesh Nagappa URF Sangappa it would be open

for the State to move an appropriate application for 5 cancellation of the bail. Therefore, once the bail in favour

of Umesh Nagappa URF Sangappa has been cancelled by

this Court, the bail in the present case also requires to be

cancelled.

6. In view of the above and for the reasons stated above, the

present Appeals succeed. The impugned judgments and

orders passed by the High Court releasing the accused

Subrahmanya and Rajesh, respondent No. 1 in the

respective appeals on bail in connection with Case Crime

No. 157/2019 of Dharwad Rural Police Station for the

offences punishable under Sections 120(B), 302, 201 read

with Section 34 of the Indian Penal Code and Section 27(3)

of the Arms Act, 1959 are hereby quashed and set aside.

Accused Subrahmanya and Rajesh are now directed to

surrender before the competent authority/appropriate jail

authority within a period of two weeks from today. If the

accused Subrahmanya & Rajesh do not surrender within a

period of two weeks from today, the concerned police

authority is directed to arrest the accused Subrahmanya

6 and Rajesh and the learned Trial Court to issue non­

bailable warrant against them.

7. However, it is observed that the learned Trial Court to

decide and dispose of the trial in accordance with law and

on its own merits on the basis of the evidence led before it

and without, in any way, influenced by any of the

observations made by the High Court in the impugned

judgment(s) and order(s) which otherwise are set aside by

the present order.

With this, the present Appeals are allowed.

………………………………….J. [M.R. SHAH]

NEW DELHI; ………………………………….J. SEPTEMBER 09, 2022 [KRISHNA MURARI]

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