in the high court of karnataka,...
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 22ND DAY OF JULY, 2016
:BEFORE:
THE HON’BLE MR.JUSTICE K.N. PHANEENDRA
CRIMINAL PETITION NO. 4251/2016 C/W.
CRIMINAL PETITION NO. 4325/2016 CRIMINAL PETITION NO. 3834/2016, CRIMINAL PETITION NO. 4407/2016,
CRIMINAL REVISION PETITION NO. 760/2016, CRIMINAL REVISION PETITION NO. 806/2016.
IN CRIMINAL PETITION NO. 4251/2016 BETWEEN:
SRI. M. V. RUDRAPPA, S/O LATE M. V. VEERABADRAPPA, AGED ABOUT 50 YEARS, R/O NO. 68/1, WEST PARK ROAD, 17TH CROSS, MALLESHWARAM, BANGALORE – 560 003. … PETITIONER (BY SRI. SANDEEP S PATIL, ADVOCATE) AND:
STATE OF KARNATAKA, BY MALLESHWARAM POLICE, MALLESHWARAM, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA,
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BANGALORE – 560 001. ... RESPONDENT (BY SRI. P. M. NAWAZ, SPP-I)
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 439 CR.P.C PRAYING TO ENLARGE THE
PETITIONER ON BAIL IN CR.NO.37/2016 OF
MALLESHWARAM P.S., BANGALORE FOR THE
OFFENCE P/U/S 418, 120B, 420, 201, 381 OF IPC
AND SEC.23, 115 OF KARNATAKA EDUCATION ACT
AND SEC.3 OF KARNATAKA CONTROL OF ORGANIZED
CRIMES ACT. ****
IN CRIMINAL PETITION NO. 4325/2016 BETWEEN: K. S. RANGANATH, S/O LATE K. SHIVAPPA, AGE : 49 YEARS, OCC: ASST. ENGINEER PWD (RECENTLY PROMOTED),
R/O G–A, NAMAN APARTMENT, II CROSS ROAD, IDEAL HOMES, RAJARAJESHWARINAGAR, BENGALURU – 560 098 (NOW IN JUDICIAL CUSTODY). .. PETITIONER (BY SRI. H. S. CHANDRAMOULI, ADVOCATE) AND: THE STATE OF KARNATAKA, BY THE POLICE OF MALLESHWARAM,
POLICE STATION,BENGALURU – 560 001. REP. BY THE S.P.P., HIGH COURT OF KARNATAKA BENGALURU – 560 001. ... RESPONDENT (BY SRI. P. M. NAWAZ, SPP-I)
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THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.37/2016 OF MALLESHWARAM P.S., BANGALORE FOR THE
OFFENCE P/U/S 418, 420, 381, 201, 120B OF IPC AND SEC.115, 23 OF KARNATAKA EDUCATION ACT AND SEC.3 OF KARNATAKA CONTROL OF ORGANIZED CRIME ACT.
****** IN CRIMINAL PETITION NO. 3834/2016
BETWEEN: OBALARAJU, S/O LATE OBALAIAH, 51 YEARS, OCCUPATION ASSISTANT DIRECTOR IN SMALL SAVINGS AND PENSION DEPARTMENT, GOVT., OF KARNATAKA, AND SPECIAL OFFICER OF MIN. FOR MEDICAL EDUCATION, VIDHANA SOUDHA, BANGALORE. R/AT NO 21, 3RD CROSS, 7TH MAIN, SRIRAMPURAM, BANGALORE – 560 029 (NOW IN JUDICIAL CUSTODY
CENTRAL PRISON, BANGALORE ) … PETITIONER (BY SRI. HASHMATH PASHA, ADVOCATE) AND: STATE OF KARNATAKA, BY MALLESHWARAM POLICE, BANGALORE AND THE C.I.D. POLICE, BANGALORE – 560 003. (REP. BY LEARNED BY S.P.P., HCK, BANGALORE – 560 001.) ... RESPONDENT
(BY SRI. P. M. NAWAZ, SPP-I)
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THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.37/2016 OF MALLESHWARAM P.S., BANGALORE FOR THE
OFFENCE P/U/S 115 R/W 23 OF KARNATAKA EDUCATION ACT AND SEC.418, 420, 381, 120B, 201 OF IPC AND SEC.3 OF KARNATAKA CONTROL OF ORGANSIED CRIMES ACT.
******
IN CRIMINAL PETITION NO. 4407/2016 BETWEEN: SRI. B. ANIL KUMAR, AGED ABOUT 46 YEARS, S/O SRI.C. BASAVARAJAIAH, R/AT NO.29, PANCHAKSHARAIAH LAYOUT, ULLALU, ULLALU UPANAGARA POST BANGALORE – 560 110. .. PETITIONER (BY SRI. MOHAN S., ADVOCATE)
AND: THE STATE OF KARNATAKA, REP. BY MALLESWARAM POLICE, NOW INVESTIGATED BY CRIMINAL INVESTIGATION BRANCH, BANGALORE – 560 003. REP. BY S.P.P. ... RESPONDENT (BY SRI. P. M. NAWAZ, SPP-I)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.37/2016 OF MALLESHWARAM P.S., BANGALORE FOR THE OFFENCE P/U/S 418, 420, 381, 201, 120 OF IPC AND
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SEC.115, 23 OF KARANATAKA EDUCATION ACT AND SEC.3 OF KARNATAKA CONTROL OF ORGANIZED CRIME ACT.
******
IN CRIMINAL REVISION PETITION NO. 760/2016 BETWEEN: OBALARAJU, S/O LATE OBALAIAH, 51 YEARS, OCCUPATION ASSISTANT
DIRECTOR IN SMALL SAVINGS AND PENSION DEPARTMENT, GOVT., OF KARNATAKA, AND SPECIAL OFFICER OF MIN. FOR MEDICAL EDUCATION, VIDHANA SOUDHA, BANGALORE. R/AT NO 21, 3RD CROSS, 7TH MAIN, SRIRAMPURAM, BANGALORE – 560 029 (NOW IN JUDICIAL CUSTODY CENTRAL PRISON, BANGALORE ) … PETITIONER (BY SRI. HASHMATH PASHA, ADVOCATE)
AND: STATE OF KARNATAKA, BY MALLESHWARAM POLICE, BANGALORE AND THE C.I.D. POLICE, BANGALORE – 560 003. (REP. BY LEARNED BY S.P.P., HCK, BANGALORE – 560 001.) ... RESPONDENT (BY SRI. P. M. NAWAZ, SPP-I)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 R/W 401 CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED 09.06.2016 PASSED
IN CR.NO.37/2016 OF MALLESHWARAM P.S.,
BANGALORE WHICH IS BEING INVESTIGATED BY THE
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CID POLICE, BANGALORE PENDING ON THE FILE OF
PRL. CITY CIVIL AND S.J., AND DESIGNATED SPL.J.,
UNDER THE KARNATAKA CONTROL OF ORGANISED
CRIMES ACT, 2000, BANGALORE AS ILLEGAL AND
CONSEQUENTLY, ENLARGE HIM ON BAIL ON SUCH
TERMS AND CONDITIONS. ******
IN CRIMINAL REVISION PETITION NO. 806/2016 BETWEEN:
K. S. RANGANATH, S/O. LATE K. SHIVAPPA, AGED ABOUT 49 YEARS, OCC: ASST. ENGINEER, PWD (RECENTLY PROMOTED) R/O. G-A, NAMAN APARTMENT, II CROSS ROAD, IDEAL HOMES, RAJARAJESHWARINAGAR, BENGALURU - 560 098, (NOW IN JUDICIAL CUSTODY) … PETITIONER
(BY SRI. H.S. CHANDRAMOULI, ADVOCATE) AND: THE STATE OF KARNATAKA, BY THE POLICE OF MALLESHWARAM P.S., BENGALURU - 560 001, REP. BY THE S.P.P., H.C.K., BENGALURU - 560 001, (NOW BEING INVESTIGATED BY CID) ... RESPONDENT (BY SRI. P. M. NAWAZ, SPP-I)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397(1) R/W 401 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 15.06.2016 PASSED
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BY THE PRL. CITY CIVIL AND S.J., BENGALURU IN CR.NO.37/2016 REGISTERED ON THE FILE OF MALLESHWARAM P.S., BANGALORE (NOW BEING INVESTIGATED BY CID, BANGALORE) FOR THE
OFFENCES P/U/S 418, 420, 381, 201 AND 120(B) OF IPC AND SEC. 115 AND 23 OF KARNATAKA EDUCATION ACT CONSEQUENTLY ENLARGE THE PETITIONER ON BAIL.
*****
THESE CRIMINAL PETITIONS AND CRIMINAL REVISION PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS AND ADMISSIONS ON 01.07.2016, COMING ON FOR ‘PRONOUNCEMENT OF ORDERS’ THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R
In these Criminal Petitions, A2, A3, A6 and A7 in
Crime No. 37/16 on the file of Respondent police, have
approached this Court for grant of regular bail u/s.439 of
Cr.P.C. In Criminal Petition No.4251/2016 - A2, in Criminal
Petition No.3834/2016 - A3, in Criminal Petition
No.4325/2016 - A6 and in Criminal Petition No.4407/2016 -
A7, are before this Court, as they failed to get bail
before the trial Court on merits.
2. It is also worth to mention here that A3 –
Obalaraju and A6 K.S. Ranganath have also filed
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applications before the trial Court u/s.167(2) of Cr.P.C.
for grant of statutory bail and their bail petitions were
dismissed. Against that order, A3 and A6 have
preferred Criminal Revision Petitions in Nos. 760 and
806/2016 respectively. All the matters are heard and
taken up together for disposal.
3. Before adverting to the arguments of the
learned counsels for the petitioners and SPP for
respondent – State, it is just and necessary to have the
brief factual matrix of this case.
4. The Joint Director of Pre-University Board,
Bengaluru, has lodged a First Information report on
22.3.2016 making allegations with regard to the leakage
of chemistry question paper pertaining to II PU
Examination, which was scheduled to be held on
21.3.2016. On the basis of such information, a case
was registered in Crime No.37/2016. Initially, the case
has been registered for the offences punishable under
sections 418, 420, 321 of IPC and also under Sections
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115 and 23 of the Karnataka Education Act, 1983.
Thereafter, the jurisdictional Police i.e., Malleshwaran
Police have initiated the investigation. Subsequently,
considering the gravity of the offence and the nature of
the allegations and seriousness of the issue, the
Government of Karnataka has handed over the
investigation to CID. It is also pertinent to note that,
subsequent to the registration of the Crime, the Pre-
University Board re-scheduled the PUC Chemistry
examination to be held on 31.3.2016, as the
Government has cancelled the earlier scheduled date of
examination of Chemistry paper on 21.3.2016.
Shockingly, the Chemistry re-scheduled examination
question paper was also leaked prior to the examination
and in this regard, another case in Crime No.48/2016
was registered on 31.3.2016 for similar offences by
Malleshwaran Police Station, but the said case was also
subsequently transferred to CID for investigation. There
is no dispute that all the petitioners were arrested in
connection with this case and they have been
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languishing in jail from the date of their arrest. A2 and
A3 were arrested on 4.4.2016, A6 & A7 were arrested
on 13.4.2016.
5. It is the case of the prosecution, as could be
seen from the records and objection statement filed by
the SPP in all the cases that the PUC Science stream
question paper has reached the concerned Districts and
Taluks prior to the date scheduled for the examination.
It is alleged that all the accused persons have conspired
and formed into a Syndicate and in furtherance of the
conspiracy, A15 Santosh Agasimani and A-14
Kumaraswamy have gained access to the strong room of
the Sub Registrar’s office and opened the chemistry
question paper (technical bundle) and took the
photographs and put the bundles back intact. Later,
the print out copies of the question papers were taken
using laptop with the help of A1-Manjunath and
thereafter, the copies were distributed and also allowed
to be taken down by the conspirators for several lakhs
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of rupees. It is further alleged that A-1 Manjunath
handed over those question papers to the other accused
persons. Thereafter all the other accused persons have
assembled in the house of A-13 Narayana copied the
question paper facilitated the other accused persons to
have the question paper. It is alleged that A2 Rudrappa
passed on the handwritten question paper to A6
Ranganath and in turn the said A6 Ranganath has
passed on the contents of the question paper to
particularly other petitioners herein ie; A3 Obalaraju
and A7 Anil Kumar and they in-turn, provided the
question paper to their children, who were studying in
the PUC in order to facilitate their children to write
PUC Chemistry examination on the day scheduled.
6. Looking to the above said factual aspects, the
main allegations made against the above said
petitioners are that they have acquired Chemistry
question paper from A1 and then, distributed the said
question paper amongst themselves in order to facilitate
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their children to write the examination. It is also alleged
that the petitioners have actually purchased the
question paper by paying lot of money to A1.
7. The factual matrix also discloses that A2 – M.V.
Rudrappa is an Office Superintendent in PWD
Department, Bengaluru. His daughter was studying in
PUC. A3 – Obalaraj has been working as Assistant
Director in Small Savings and Pension department and
as on the date of the alleged offence he was working as
Special Officer to Minister for Medical Education
Karnataka. It is alleged that his son has taken the PUC
examination during that time. A6 – K.S. Ranganath is
the Asst. Engineer in PWD and his son has taken the
PUC examination during that time. A-7 B. Anil Kumar
is not a public servant but he is a person who was in
politics and his son has taken the II PUC Examination
during that time. The main allegations against these
accused persons, as could be seen from the objection
statement that they have secured the question paper
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from A1 and in-turn, A1 has secured from the main
accused persons. For the purpose of providing the
question papers to their children, the petitioners herein
have indulged in such activity.
8. It is also worth to note here, during the course
of the investigation, CID police have also invoked the
provisions i.e., Section 3 of KCOCA Act. i.e., Karnataka
Control of Organised Crime Act, 2000, after taking the
permission from the competent authority. Being
aggrieved by the said invocation of the KCOCO Act, all
the petitioners have approached this Court by way of
Writ petitions and this Court on different dates, has
passed a detailed order after hearing both the parties
and stayed the invocation of the provisions of Section 3
of the KCOCO Act. The above said factual aspects are
not in dispute.
9. In this background, now let me see the
submissions made by the learned counsel for the
petitioners and the learned SPP.
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10. Sri H.S. Chandramouli, learned counsel
appearing for A6, Sri Hashmath Pasha, learned counsel
appearing for A3, Sri Sandeep S. Patil, learned counsel
appearing for A2, Sri Sri Mohan S, learned counsel
appearing for A7 have submitted before the Court that
there is absolutely no allegations against the petitioners
that they were in any manner involved in any other case
earlier to the present one and there is no material to
show the connection between the main accused persons
and these petitioners.
11. It is further contended that, the trial Court
has dismissed the bail petition only on the ground that
Section 3 of the KCOCO Act is punishable with
imprisonment for life, without properly appreciating that
the said provision is not at all attracted so far as these
petitioners are concerned. The petitioners are law
abiding citizens and some of them are public servants
and they are working in different departments since
more than 22 to 25 years with un-blemished service
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record. From the date of their arrest i.e., from 4.4.2016
and 13.4.2016 no charge sheet has been filed within 60
days and even the trial Court has not properly
appreciated with regard to their entitlement for bail
u/s.167(2) of Cr.P.C. Only taking into consideration the
societal impact of the alleged offences against the
petitioners herein rejected the bail petition. The
allegations against the petitioners herein prima -facie
establish that they are not the main culprits. However,
they got the question paper from A1, who in-turn got
the question paper from the main accused. The
petitioners have distributed the same amongst their
children and i.e., the mistake they have committed.
There are absolutely no previous bad antecedents
alleged against the petitioners herein.
12. It is further contended that the High Court
has stayed the very invocation of KCOCO Act after
hearing the State in detail, as the invocation itself is
stayed and other offences are not punishable with death
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or imprisonment for life but maximum punishment does
not exceed 7 years. Therefore, as a matter of right, the
petitioners are entitled to be enlarged on bail. Of
course, the Court has also responsibility to look into the
societal impact, but it does not mean to say for
uncertain period, the petitioners have to be
incarcerated. The petitioners are law abiding citizens
and they are in public domain and public servants, and
they are ready and willing to offer substantial surety
and abide by any of the conditions that may be imposed
by the Court. Therefore, it is prayed that their bail
petitions deserve to be allowed.
13. Per contra, learned SPP Sri P.M. Nawaz,
appearing for the State, strenuously contends that
though the invocation of KCOCO Act is stayed, it is
stayed only for a limited period of eight weeks. There is
every chance of vacating of the stay order. In this
context, the investigating agency would get 180 days
with permission of the Court to investigate the matter
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under the KCOCA Act. Considering the seriousness of
the offences and gravity and nature of the allegations
made against the petitioners, thorough and detailed
investigation has to be conducted. The records reveal
that large number of accused persons are involved in
the Syndicate and they have committed the offences
under the KCOCO Act also. When the petitioners
having knowledge that the question paper has been
leaked, their duty as dutiful citizens of the country is to
inform the police. But, in this regard, they have
utilized the same for their personal advantage.
Therefore, they are not entitled to be enlarged on bail at
this stage. A1, A9 A14 and A15 are the main accused
persons who have at the initial stages gave the question
paper and thereafter they were distributed. There are 5
cases against A9 Shivakumar, and there are three
cases against A-14. In view of the conspiracy amongst
all the accused, the petitioners are not entitled to be
enlarged on bail. On these grounds, learned SPP sought
for rejection of the above said bail petitions.
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14. I have heard the detail arguments with
regard to the bail petitions on merits and also Criminal
Revision Petitions. It is worth to note here that if the
petitioners are entitled to be enlarged on bail on merits
of their case, the Revision Petitions preferred by A2 and
A6 will become automatically in fructuous. Therefore, I
would like to consider the bail petitions first and then
consider their Revision Petitions.
15. On the basis of the above said facts and
materials on record, the point that would arise for
consideration of this Court is that:
(1) Whether the petitioners have made out
substantial ground for grant of bail
u/s.439 of Cr.P.C.?
(2) What order?
16. The general principles of bail u/s.438 and
439 of Cr.P.C. are not applicable in the event if the
Court come to the conclusion that, if KCOCO Act is
made applicable to the case on hand. There are certain
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riders put by the statute i.e., under Section 22 of the
KCOCO Act, which excludes the application of Section
438 of Cr.P.C. if the accusation of having committed an
offence under the said act. So far as Section 439 of
Cr.P.C. is concerned, the Court has to give an
opportunity to the learned Public Prosecutor (P.P) to
oppose the application and that if the learned P.P
opposes the application, the Court has to satisfy itself
that there are reasonable grounds for believing that the
accused are not guilty of such offence and that they are
not likely to commit any offence while on bail then only
bail can be granted. Further, the accused also shall not
be granted with bail, if it can be visualized by the Court
that, while they were on bail, commit any offence under
this Act or under any other Act for the time being in
force. The limitations of granting of bail are specified, in
addition to the limitations under Cr.P.C. or under any
other law for the time being in force for granting of bail.
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17. Therefore, on plain reading of the above said
provision, it is not that merely because the accused is in
custody, they are automatically entitled to be enlarged
on bail. The offences u/s.3 of the KCOCO Act, is
punishable with death or imprisonment for life. The
abetment of the crime specifically alleged against the
petitioners in this case, falls u/s.3(2) of KCOCO Act
and it is punishable with imprisonment for a term
which shall not be less than 5 years which may extend
to imprisonment for life and shall also be liable to fine,
which shall not be less than Rs.5 lakhs. Considering
the seriousness of the offence under the KCOCO Act,
stringent provisions have been introduced inthe special
Act. Therefore, the Court must be very careful in
dealing with the offenders under the said enactment.
18. In this background, first let me consider
whether KCOCO Act is applicable so far as the
petitioners are concerned at present. It is an
undisputed fact that all the petitioners have approached
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the High Court in WP No.28987/2016, 29943/2016,
33145/2016 and 35424/2016 respectively challenging
the invocation of the KCOCO Act against them. This
Court after providing opportunity to the State and after
hearing in detail, has come to the conclusion that the
invocation of Section 3 of the KCOCO Act against the
petitioners is not proper and it needs to be considered
by the Court in detail. Therefore, the Court has passed
the orders in the following manner –
"In the circumstances, invoking the
privision of section 3 of KCOCA against the
petitioner A 3 is stayed for a period of 8
weeks. However it is made clear that the
investigation can go on. What is stayed is
only invoking of section 3 of KCOCA Against
the petitioner i.e. A3".
Order passed in W.P. No.28987/2016 dated 6-6-2016
is only extracted and similar orders were passed in all
the writ petitions on different dates, which fact is not in
dispute.
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19. This order clearly indicates that, so far as
the invocation of the provisions of Section 3 of the
KCOCO Act has been stayed. Further, the investigation
so far as other offences are concerned is permitted to be
continued. It goes without saying that, by virtue of the
above said stay order, the investigating agency can go
on with the investigation so far as other offences are
concerned, but not under the KCOCO Act for the time
being so far as Petitioners are concerned. However, the
order also discloses that during the course of further
investigation, if the respondent police find any material
and that the KCOCO Act has to be invoked once again
or for any changed circumstance, the police are entitled
to invoke the KCOCO Act, they can do so in view of the
above said order of the writ Court.
20. On the basis of the above said Stay Order
granted by the Court, the learned counsels for the
petitioners strenuously contend that when KCOCO Act
itself is not made applicable and invocation is stayed,
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the other provisions under the IPC and Education Act
are not punishable with imprisonment for life but to the
maximum extent, they are punishable for a period of
seven years. Therefore, the petitioners are entitled to be
enlarged on bail.
21. In this background, it is worth to mention
here the rulings of the Hon'ble Apex Court, in a decision
reported in AIR 1997 SC 2575 between Chandraswami
and another Vs. CBI, wherein the Hon'ble Apex Court
has observed that –
“Ordinarily a person who is suspected
of having committed an offence u/s.120-B
read with Section 420 of IPC would be
entitled to bail; of course the paramount
consideration would always be to ensure that
the enlargement of such persons on bail will
not jeopardize the prosecution case.”
22. In another ruling reported in (2005) 5 SCC
294 between Ranjitsing Brahmajeetsing Sharma Vs.
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State of Maharashtra and another, the Hon'ble Apex
Court has also observed that –
“It should also be kept in mind that the
Act does not differentiate between offences
entailing life imprisonment and those
entailing only one or two years’
imprisonment, that some acts of commission
or omission on the part of a public servant
may attract disciplinary proceedings but not
penal provisions and that merely because
some allegations have been made against a
high-ranking officer which cannot be brushed
aside, but it is by itself not sufficient to deny
him bail.
Dealing with KCOCO Act, the Hon'ble Apex Court has
further observed that –
“The Act should be so construed so as to
maintain a delicate balance between
judgment of acquittal and conviction and an
order granting bail much before
commencement of trial – Further held,
satisfaction of Court as regards applicant’s
likelihood of not committing an offence while
25
on bail must be construed to mean an offence
under the Act and not any offence
whatsoever, be it a minor or major offence.”
23. In another ruling reported in (2012) 1 SCC
40 (CRL) between Sanjay Chandra Vs. Central Bureau
of investigation, the Hon'ble Apex Court has observed
that:
“Relevant considerations in granting
such conditional bail u/s.437 and 439 of
Cr.P.C., gravity of alleged offence, severity of
punishment prescribed in law, both
parameters, held, ought to be taken into
consideration simultaneously. Gravity alone
cannot be decisive ground to deny bail.
Competing factors to be balanced by Court
while exercising its discretion – Protection of
personal liberty against securing attendance
of accused at trial – presumed innocence till a
person is convicted – Hardship caused to
individual on account of detention before
conviction – Unnecessary burden on State to
keep a person who is yet to be proved guilty.
Constitutionally protected liberty must be
respected unless detention becomes a
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necessity. Bail is the rule and jail is an
exception. Each case however to be decided
on its own merits. Apprehended tampering of
evidence and other criteria have to be
considered. Taking into account all the
circumstances, balanced approach has to be
adopted by the Court in granting bail subject
to certain strenuous conditions and also
giving liberty to the State for cancellation or
modification of bail , if the parties violate the
conditions imposed upon them.”
24. Though the learned counsels for the
petitioners have cited many number of rulings so far as
it relates to the offences under the KCOCO Act is
concerned, in my opinion, it may not be proper on the
part of this Court, to give any finding as to whether the
allegations attract the KCOCO Act against the
petitioners or not?. The only question which the Court
has to consider is whether the Stay granted staying the
invocation of the provisions of the KCOCO Act itself is
sufficient to grant bail to the petitioners or what is the
effect of such stay order ?. Further, if any observation
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made by this Court with regard to attraction of the
KCOCO Act and the application of the provisions of the
KCOCO Act to the petitioners, it may contradict the
decision that may be rendered by the Court under
Article 226 of Constitution read with section 482 of
Cr.P.C. In this background, the Court has to maintain
self restraint but only consider the effect of the Stay
Order granted by the Writ Court while exercising powers
u/s.482 of Cr.P.C.
25. Be that as it may, the factual allegations
against the petitioners are also bare some important
aspects so far as this case is concerned. The conduct of
the accused as contended by the learned SPP and
damage occurred to the State and also the necessity of
continuing custody of the petitioners till the filing of the
charge sheet, reasonable apprehension of hampering
the investigation or tampering the witnesses and
securing of the accused for trial etc., are the important
factors that has to be considered by this Court.
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26. It is worth to mention here and as could be
seen from the entire objection statement filed by the
State before this Court as well as before the trial Court
which divulges the exact allegations of the investigating
agency that, A9 – Shivakumaraiah @ Shivakumar is the
leader of the organized crime Syndicate and having
formed the syndicate, has committed more than one
offence which are punishable with imprisonment for
three years and more. A9 is the king pin and active
member of the organized crime syndicate. The master
mind behind the conspiracy is A9, who has calculated
to obtain the original question paper by illegal means for
wrongful gain. The petitioners however are the
beneficiaries in getting the question paper of Chemistry
for their children. In this background, it is alleged that
A1 received an amount of Rs.13 lakhs from A-13
Narayana. A4 and A5 have obtained Rs.50,000/- from
A1 for having cooperated in the alleged crime. It is the
further case that A9 circulated the question paper
through A10 and A11 for undue pecuniary gain. A9 has
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been involved in the commission of the offence for the
past ten years and various cases have been pending
against him. A14 is also involved in various cases, and
some cases are also pending against A-16.
27. It is further submitted that the petitioners, in
order to secure distinction to their children in
Chemistry paper without merit in an indirect and
immoral way, obtained question paper of the
examination by paying amount to the persons who got
leaked the question paper and handed over the same to
their children. There are no other allegations that, the
petitioners have actually sold the question paper for
making wrongful gain for themselves, as alleged against
some other accused.
28. The learned counsel for the petitioners
pointing out the distinction between the other accused
persons with that of the petitioners as noted above, has
relied upon a decision reported in (2015) 7 SCC 440
between Prasad Shrikant Purohit Vs. State of
30
Maharashtra and another, wherein the Hon'ble Apex
Court dealing with the Maharashtra Control of
Organised Crime Act, has discussed with regard to the
role of A7 and other accused in that case. It is observed
by the Hon'ble Apex Court in the said case in the
following manner:
“Insofar as A-7 is concerned, he has
been charge-sheeted in Parbhani, Jalna as
well as Malegaon bomb blasts – Materials
available on record disclose that he had a
nexus with member of an “organized crime
syndicate” and also had every nexus with
“organized crime” of the two earlier cases,
namely, Parbhani and Jalna bomb blasts and
also had direct involvement in the present
bomb blast at Malegaon – Hence, insofar as
A-7 is concerned, commission of “continuing
unlawful activity” of an “organized crime” on
behalf of an “organized crime syndicate” by
A-7 is satisfactorily shown – Hence, bar
against bail under S. 21(4) attracted against
A-7 – However, involvement of the remaining
appellants cannot be ascertained either by
way of their nexus with any accused who is a
31
member of an “organized crime syndicate” or
such nexus with “organized crime” which
pertains to Parbhani and Jalna bomb blasts –
But possibility of evidence in support of such
nexus coming to light later cannot be ruled out
as investigation is continuing – It, therefore,
cannot be declared that MCOCA was not
attracted and, therefore, they should be
discharged – But, bar under S. 21(4) not
attracted against them based on materials
currently on record.”
29. Based on the above said decision, it can be
visualized that, the allegations against the other
accused persons who have actually committed the
offence and indulged themselves in leaking out the
question paper are distinct and separate compared to
the petitioners. However, the conduct of the accused
persons as argued by learned SPP., in giving the
question paper to their children is inhuman and it
virtually amounts pronouncing death knell so far as the
other students who have worked hard and who have
burnt their mid night oil for the purpose of getting
32
distinction on merit in the examination. That what
exactly the petitioners have done. Their eyes were blind
folded due to the love and affection towards their
children, ignoring the interest of other students in the
State. However, at this stage, as observed by the writ
Court while granting the Stay Order, the allegations
against these petitioners falls short of attracting the
provisions under the KCOCO Act. As could be seen
from the entire materials on record, there is no
allegations whatsoever either in the objection statement
filed before this Court or before the trial Court that,
earlier to the present incident or with reference to the
other cases, there is no allegations that the petitioners
are the members of the Syndicate in order to commit
any offence earlier to the present one. Though the
distinction is available, but this Court is not on the
basis of such distinction can grant bail, it goes without
saying that, whether they are the members of the
Syndicate or not?, whether they have committed the
offence under the KCOCO Act or not has to be thrashed
33
out as rightly argued by the learned SPP only after Writ
Court gives its finding and completion of the entire
investigation. But the question now arises before this
Court is how long the petitioners have to wait for
completion of the investigation. As it is evident that
since more than 90 days, the petitioners have been
languishing in Judicial Custody, no allegations have
been made that, while in jail they have made any
attempts to tamper with the witnesses including their
own children. There is no allegations that these
petitioners were involved in any other offences prior to
the present one and there is no allegations that there
was any previous bad antecedents. Even the learned
SPP has not argued on any aspect that the petitioners
have committed any illegality or any offence while
discharging their duties as public servants, and any
departmental enquiry or proceedings are pending.
Therefore from isolated one case, the petitioners cannot
be doubted as anti social elements.
34
30. In this background, the Court has got
responsibility of looking at the case in three dimensions.
The Court has to bear in mind the interest of the victim
and the interest of the accused with regard to the right
of liberty guaranteed under the Constitution of India
and also the societal impact of the alleged offences.
31. In this context learned SPP relied upon a
decision of the Delhi High Court in W.P. (Crl)
1555/2011 and Crl.M.A No.17832/2011(Stay) dated
21.5. 2012, wherein the court has observed thus:
As held in Burrakur Coal Co.
Ltd.(supra), here the language used by the
parliament is too general, the preamble of the
enactment may be resorted to explain it. As
per the aims and object of MCOCA, it was
enacted to curb organized crime which has
posed a very serious threat to our society.
The activities mentioned therein range from
killing, extortion, smuggling, terrorism, illegal
trade in narcotics, money laundering etc. The
list is not exhaustive. Further, one of the
essential considerations is also the activities
35
covered under the money laundering. As per
the Schedule, offences of forgery and cheating
by personation etc. are also covered in the
Prevention of Money Laundering Act, 2002.
In view of the aims and objects of MCOCA
though cases of simplicitor cheating and
forgery may not come under the “unlawful
means” however, if the same are committed
in manner as an organized crime, particularly
effecting the results of the examination, thus,
de-stabilizing the education system, the said
activity would certainly fall within the ambit
of “unlawful means” as required in
“organized crimes”. The said “unlawful
activity” has some semblance to coercion,
intimidation etc. as the same is performed by
manipulation at an extensive level.”
32. Of course, the learned SPP is right in
contending that much damage has been occurred to the
State in postponing the examination twice and
conducting the examination later. In my opinion, it is
the damage occurred to the State. If the offences are
proved, such damage can very well be recovered from
the accused persons by levying heavy fine. That itself is
36
not sufficient to reject the bail petition so far as the
petitioners are concerned, considering their distinct
involvement in the crime. Of course, the petitioners
have not conducted themselves as dutiful citizens of the
country. They have treated their children not on par
with the other students who have taken the
examination. But one thing is clear that the
Government has taken a wise decision at right point of
time in postponing the examination, twice. Therefore,
no much damage has been occurred even to the
students because they have written the examination
subsequently and their merit and distinction is not
jeopardized but the same is protected by taking timely
decision. But it must have caused great inconvenience
to the students who have to further study hard and
take the examination. Though the conduct of the
accused as argued by SPP may be inhuman and
unacceptable but that sole circumstance is not
sufficient to reject the bail. For the isolated wrong
committed by them in their life, they have already paid
37
some penalty as they have been in Judicial Custody for
more than 90 days, and also suffered humiliation
amongst their relatives and friends.
33. In view of the stay granted by the writ Court,
as I have already expressed, the investigation so far as
the KCOCO Act is concerned and invocation of the
provisions under the KCOCO Act is concerned the
investigation under that Act with respect to the
petitioner is deferred with uncertainty. The respondent
has not filed any charge sheet so far as the other
offences under the IPC and Education Act is concerned
within 60 days. Though the stay order has been
granted by the High Court, no permission granted for
further investigation into the crime, under KCOCA Act
against the petitioners unless it is again invoked. Until
and unless stay order granted by the writ Court,
staying the operation and invocation of the KCOCO Act
is vacated or those petitions are dismissed, the police
cannot proceed with the investigation and file any report
38
to the Court so far as the KCOCO Act is concerned
without invoking the act on changed circumstances.
Therefore, at this stage, when the Stay Order is
operating, the Court has to presume that currently no
KCOCO Act is invoked by the police so far as these
petitioners are concerned.
34. In view of the Stay Order, the investigation
and invocation of the KCOCO Act is indefinitely
deferred. In this background, right of liberty of a person
as guaranteed under the constitution play a dominant
role. When uncertainty is glaring on the face of the
records, the Court should exercise its judicious
discretion in order to safeguard the interest of the
accused also. As I have already narrated though some
damage has been occurred to the State and to the
students who have taken the examination of II PU
during the said period, but the same has been solved by
the Government by conducting the examination afresh
later. Under the above said peculiar circumstances of
39
the cases, the petitioners in my opinion, are entitled to
be enlarged on bail with certain stringent conditions.
35. The interest of the State should also be
safeguarded by mentioning here that if for any reason,
the stay order granted by the writ Court is not
continued or vacated and the police start the further
investigation into the KCOCO Act, or if the petitioners
violate any of the conditions imposed by this Court,
then they can very well approach the Court for
cancellation of the bail.
36. The learned State Public Prosecutor
seriously contends before the Court that the petitioners
who are high profile officers working in different
departments, if they are released on bail, there are
chances of they tampering with the prosecution
witnesses. Therefore, atleast till the filing of the final
report their bail petition deserves to be rejected. Thus,
the Court has to consider the reasonable likelihood of
the applicant interfering with the witnesses for the
40
prosecution or otherwise polluting the process of
justice. It is not only traditional, but rational. In this
context the Court has to enquire into the antecedents of
a man who is applying for bail to find out whether he
has a bad record. Particularly a record which suggests
that he is likely to commit serious offence while on bail.
It is part of criminological history that a thoughtless bail
order may enable the bailee to exploit the opportunity to
inflict further crimes on the members of the society.
Therefore, the Court should be very careful while
exercising the discretion, but the discretion should be
on the basis of the materials on record. It is significant
to note in this regard that even in the objection
statement or in the records available, there is absolutely
no allegations whatsoever so far it relates to these
petitioners are concerned that their antecedents are not
good and at any point of time, they were involved in any
criminal activities and also they have earned bad
antecedent in their professional career as such.
Without there being any such materials on record, the
41
Court cannot at this stage, imagine or jump to a
conclusion that if they are released on bail, they will use
their power, to tamper with the prosecution witnesses or
tamper the further investigation if any in future. This
has to be tested by providing an opportunity to the
petitioners. If they indulge in hampering the
investigation if any in future, the State Government is at
liberty to move the Court for cancellation of bail by
furnishing sufficient materials to the satisfaction of the
Court. Therefore, that ground at present is not
available to the State.
37. Looking to the above said facts and
circumstances of the case, considering the uncertainty
in the investigation and filing of the final report,
considering the valuable right of liberty of the
petitioners and also providing remedy to the State to file
application for cancellation of bail in future, I am of the
opinion that the petitioners are entitled to be enlarged
on bail.
42
38. Orders on Revision petitions:
Sofar as it relates to Crl.R.P. 760/2016 and
806/2016 are concerned, the petitioners by name
Obalaraju and K.S. Ranganath have in fact filed
application under Section 167(2) of Cr.P.C. for grant of
statutory bail before the trial Court in Cr. No. 37/2015
on the ground that the KCOCA Act invoked by the
Investigating Agency has been stayed by the High Court
and therefore, the other offences which are invoked by
the Investigating Agency are not punishable with death
or imprisonment for life or for the imprisonment which
may extend to 10 years, but, the offences invoked under
the Indian Penal Code and under Karnataka Education
Act are to the maximum extent punishable for a period
of seven years. Therefore, the charge sheet ought to
have been filed within 60 days and as the charge sheet
has not been filed within that period, the petitioners are
entitled for statutory bail under Section 167(2) of
Cr.P.C.
43
39. The above said arguments of the learned
counsel Sri. Hashmath Pasha and Sri. Chandramouli
appearing for the petitioners appears to be attractive,
but in fact the said argument, in my opinion, is not
sound enough to grant statutory bail in favour of the
petitioners. The trial Court in fact, has considered
Section 167 of Cr.P.C. and also Section 22(2) of KCOCA
Act. Section 22(2) of the KCOCA Act empowers the
Investigating Agency that, if the KCOCA Act is invoked
and if the filing of the charge sheet is not possible
within 90 days, then, on the report of the Public
Prosecutor indicating the progress of the investigation
and the specific reasons for detention of the accused
beyond the period of 90 days, the Special Court can
extend the said period upto 180 days. The trial Court
has concluded that, 90 days has not been completed
and as only 60 days have been completed from the date
of remand of the said petitioners, they are not entitled
for grant of bail under Section 167(2) of Cr.P.C., in view
of the invocation of KCOCA Act.
44
40. As I have already noted, in Writ Petition
No.28987/2016 sofar as the petitioner-Obalaraju is
concerned and in Writ Petition No.27943/2016 sofar as
the petitioner K.S. Ranganath is concerned, this Court
has granted stay sofar as KCOCA Act is concerned for a
period of 08 weeks. The Court has also clarified that,
whether invocation of the provision of Section-3 of
KCOCA Act is proper or not, needs to be considered by
the Court, therefore, stay was granted for 08 weeks.
41. The argument of the learned counsel that, as
the KCOCA Act has been stayed by this Court, the
charge sheet ought to have been filed sofar as the other
offences under Indian Penal Code and Education Act
are concerned, within 60 days from the date of remand
of the accused persons, otherwise, the bail should be
automatic. The said argument of the learned counsel,
in my opinion, is not acceptable for the simple reason
that, invocation of the KCOCA Act is only stayed for a
limited period of 08 weeks.
45
42. This Court cannot imagine as to what order
the Court may pass sofar as the said cases are
concerned. If for any reason the Court permits the
police to investigate the matter under the KCOCA Act
and other provisions by vacating the stay order or by
dismissing the petition, in that eventuality, the
Investigating Agency would get an opportunity to
investigate the matter. It is only a suspended period
during the operation of the stay order granted by the
Court, if for any reason, the writ petitions are allowed
and invocation of the KCOCA Act itself said to be
invalid, then the petitioners may be entitled for bail
under the said provision. However, at this stage,
though it is uncertain with regard to the invocation of
KCOCA Act, but nevertheless, the KCOCA Act has
already been invoked by the police, they can revive their
power of investigation subject to further order in the
writ petitions. Therefore, I am of the opinion that, it
cannot be said that the police ought to have filed charge
46
sheet in part within 60 days and infact within 180 days
as the case may be with the permission of trial Court.
Therefore, the above said argument of the learned
counsels cannot be accepted.
43. Considering the stay order passed in the writ
petitions and also considering the other material on
record and also considering the long incarceration of the
petitioners for more than 90 days, this Court has taken
a view that the petitioners are entitled to be enlarged on
bail, particularly under Section 439 of Cr.P.C. As the
petitioners in the Criminal Petitions are ordered to be
enlarged on bail, the present Revision Petitions
becomes infructuous.
44. With these observations, I am of the opinion
that the Revision Petitions are liable to be dismissed.
Further, I am of the opinion, that if conditional bail is
granted in favour of the petitioners, it would meet the
ends of justice.
47
45. For the above said reasons, the following
order is passed.
O R D E R
Crl.R.P. No.760/2016 and Crl.R.P.
No.806/2016 are hereby dismissed.
The Crl. P. Nos. 4251/2016,
4325/2016, 3834/2016 and 4407/2016 are
hereby allowed. Consequently, the
petitioners shall be released on bail in
connection with Crime No.37/2016 on the
file of the respondent Police on the following
conditions:
(1) The petitioners shall execute their
personal bonds for a sum of Rs.2 lakhs with
two solvent sureties for the likesum to the
satisfaction of the jurisdictional Court.
(2) The petitioners shall not indulge in
tampering the prosecution witnesses or
hampering the investigation.
(3) The petitioners shall not leave the
jurisdiction of the trial Court without prior
permission till the case registered against
them is disposed of.
48
(4) The petitioners shall appear before
the Court on all the future hearing dates
unless exempted by the Court for any
genuine reason.
(5) The petitioners shall also mark their
attendance once in a week before the
respondent – Police on every Sunday
between 10.00 am to 5.00 p.m., till the filing
of the final report, or for a period of Three
months which ever is earlier.
(6) It is made clear that State is at
liberty to move the Court for cancellation of
bail in case of violation of any of the above
conditions noted above or if the respondent –
Police, invoke the provisions under the
KCOCO Act in future on any changed
circumstance as referred to in the body of
this order.
Sd/-
JUDGE PL*