In a fresh and significant development, the Karnataka High Court just recently on November 5, 2020 in a latest, landmark and laudable judgment titled Ms X vs. State of Karnataka in Criminal Petition No. 4598/2020 dismissed a petition filed by a rape survivor seeking to cancel bail granted to the accused on the ground that he is a habitual offender and has similar cases registered against him. Justice HP Sandesh who delivered this notable judgment minced no words to convey it unequivocally that mere registration of multiple cases is not a ground to cancel bail. Very rightly so!
To start with, it is first and foremost observed in para 1 that, “This petition is filed under Section 439(2) of Cr.P.C. praying this Court to cancel the bail granted in favour of respondent No. 2 in Criminal Petition No. 4023/2020 in respect of Crime No. 58/2020 on the file of the Vivek Nagar Police Station, Bengaluru City for the offences punishable under Sections 376, 420 and 506 of I.P.C.”
While dwelling on the facts of the case, it is then unfolded in para 3 that, “The factual matrix of the case is that a case has been registered against the respondent No. 2 in Crime No. 58/2020 for the above said offences on the allegation that the accused/respondent No. 2 came in contact with the complainant through a matrimonial website application in the name and style of ‘tinder’. The application facilitates two people to establish contact, enable romantic relationship and could result in marriage as well. The accused lured and trapped the complainant into a romantic relationship thereby promising marriage on the pretext that he was an extremely successful businessman with multiple business establishments in India and abroad.”
While elaborating further, it is then spelled out in para 4 that, “Furthermore, the accused confessed and expressed his love for the complainant with the promise of marriage. Trusting his intentions to be pure and being impressed with his charismatic approach, the complainant began a romantic relationship with the accused herein. The accused expressed his desire to get married to the complainant. Subsequently, the accused started demanding the complainant to engage in sexual intercourse with him. Despite her emphatic resistance to the same, the accused tried to establish physical and sexual relationship with her. In this regard the accused made an unequivocal promise to the complainant that they shall get married and also asked her to presume that they were already a married couple. The accused had taken the complainant into his confidence by portraying himself to be a genuine person and tendering false assurances, he started demanding for payments of money from her to the tune of Rs. 31,88,500/- and subsequently, the complainant came to know that the accused was already married for almost ten years and has a child from the said marriage. Since he cheated the complainant by promising that he would marry her, the complaint was lodged.”
To be sure, it is then pointed out in para 15 that, “Per contra, learned counsel appearing for the accused/respondent No. 2 would contend that merely because there are number of cases pending against the accused, the same cannot be a ground to come to the conclusion that he is a habitual offender. The definition of a habitual offender is clear that if he has been convicted in more than three cases then he may be considered as a habitual offender. The cases listed out in page No. 8 of the petition are pending cases and among them one is Civil in nature and other cases are pertaining to different offences. It is not the case of the petitioner that the respondent No. 2 has violated the order of this Court or coming in the way of trial which he is facing.”
To put things in perspective, it is then put across in para 16 that, “This Court, considering the merits of the case and the ingredients of the offences alleged against the respondent No. 2 exercised its discretion while passing the order on bail. Hence, no circumstances are made out to invoke Section 439(2) of Cr.P.C. and cancel the bail granted to respondent No. 2. In support of the said contention, learned counsel also relied upon the judgment of this Court passed in Criminal Petition No. 1364/2019. Referring to the said judgment, learned counsel would submit that, in order to invoke Section 439(2) of Cr.P.C., there must be a breach or violation of the conditions of the bail granted by this Court. It is observed in the said judgment that even the material facts indicate that the accused has been granted anticipatory bail and thereafter he has appeared before the Court and he is regularly attending the Court and already many more witnesses have been examined and when there is no hurdle or misuse of the liberty granted by the accused in the said case, wherein the bail has been granted, merely because some other cases have been registered and in that light if the bail is cancelled, then automatically it affects the personal liberty of a particular person under Article 21 of the Constitution of India. While dealing with personal liberty of a person, the Court has to keep in mind the overall facts and then consider the petition.”
While talking about the moot question, it is then asked in para 17 that, “Having heard the arguments of the learned counsel for the petitioner, learned High Court Government Pleader appearing for the State and learned counsel appearing for respondent No. 2, the point that would arise for the consideration of this Court is whether the powers conferred under Section 439(2) of Cr.P.C. can be exercised by this Court in cancelling the bail granted to respondent No. 2 in Criminal Petition No. 4023/2020 dated 3.09.2020.”
Needless to say, it is then observed in para 18 that, “Having heard the arguments of the learned counsel for the petitioner, learned High Court Government Pleader and learned counsel for respondent No. 2 and so also on perusal of the material available on record, it is clear that the case has been registered against respondent No. 2 for the commission of offences punishable under Sections 376, 420 and 506 of IPC. This Court, while passing the order on bail, considered the material available on record as observed in para No. 8 in relation to the facts of the contents of complaint, age of the complainant and also the fact that the complainant herself went and stayed with respondent No. 2. It is also observed that the fact as to whether respondent No. 2 took the consent of the complainant at the guise of marrying her has to be tested during trial and thus, exercised discretion by granting bail.”
As it turned out, it is then conceded in para 20 that, “No doubt, the State while considering the earlier bail petition did not bring it to the notice of this Court about the pendency of several cases against this petitioner. Merely registering of several cases against respondent No. 2 is not a ground to invoke Section 439(2) of Cr.P.C., the Court has to look into the material available on record.”
Going a step ahead, it is then also conceded in para 21 that, “On perusal of the material placed before the Court, except listing out the cases registered against the accused, no other material is placed before the Court to show that he has been convicted for the commission of any offences in any other cases and in order to substantiate that he is a habitual offender, no material is placed before the Court.”
Be it noted, what is then stated in para 22 is that, “It is clear from reading of the Section 439(2) that the High Court or Court of Sessions may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. In the case on hand, there is not any allegations against respondent No. 2 that he has violated the order of bail granted in his favour except alleging that there are number of cases registered against him. No doubt, the Apex Court in Neeru Yadav’s case (stated supra), while allowing the bail, has taken note of the cases registered against the accused as stated in para No. 8 and observed that respondent No. 2 was a history sheeter and involved in heinous crimes. Having stated the facts and noting the nature of involvement of the accused in the crimes in question, there can be no scintilla of doubt to name him a ‘history-sheeter’. The question, therefore, arises whether in these circumstances, should the High Court have enlarged him on bail on the foundation of parity. It is to be noted in para No. 8 of the said judgment that, the criminal cases are listed out particularly for the offences punishable under Sections 302, 392, 398, 401, 307, 364 and 201 of I.P.C. and he has been involved in the serious offences of murder, dacoity and other offences. Observing that he was a history-sheeter and the crimes alleged against him are serious in nature, the Court has exercised the powers conferred under Section 439(2) of Cr.P.C.”
Truth be told, it cannot be lightly dismissed that it is then observed in para 23 that, “In the case on hand, no doubt, though 10 cases are listed out, out of which 3 cases are registered for the offences punishable under Sections 376, 420, 417 and 506 of I.P.C. It is important to note that in all the cases he has been enlarged on bail invoking Sections 438 and 439 of Cr.P.C. and not convicted. Merely because the prosecution has failed to bring out the said cases which are pending against him while considering the bail petition, the same cannot be a ground for cancelling the same. The Apex Court, in Neeru Yadav’s case taking note of the fact that he was a history-sheeter and involved in murder and dacoity case, has invoked Section 439(2) of Cr.P.C.”
To put it forthright, it is then observed in para 24 that, “To invoke Section 439(2) of Cr.P.C., there must be material before the Court to show that there is violation of conditions of the bail order granted or the accused is coming in the way of trial. Mere filing of cases is not a ground to come to the conclusion that he is a habitual offender and he has to be tried and found material that he is having criminal antecedents and having considered the nature of cases registered against him and the offences invoked against him, it requires full fledged trial to ascertain the truth. The judgments of Chandrakeshwar Prasad and Shahabuddin cases do not assist the case of the petitioner to invoke Section 439(2) of Cr.P.C. When no such circumstances have been made out in the case on hand, this Court is not inclined to exercise powers conferred under Section 439(2) of Cr.P.C.”
Finally and far most importantly, it is then observed in para 25 that, “Having considered the material available on record and the grounds urged in the petition, in the absence of any material to show that he has violated the order of the Court or coming in the way of the trial and when this Court has considered the bail petition on merits, as observed in para No. 8 of the order, the question of cancelling the bail does not arise at all. In the absence of any cogent material on record, the liberty of any person as envisaged under Article 21 of the Constitution of India cannot be curtailed on the mere ground of number of cases being pending against him. It is settled law that Section 439(2) of Cr.P.C. has to be invoked in exceptional cases when it causes miscarriage of justice, if it is not invoke`d and the same has to be exercised sparingly and not mere asking of the cancellation of bail. Hence, I do not find any merits in the petition to exercise powers conferred under Section 439(2) of Cr.P.C. and cancel the bail which was granted by this Court vide order dated 03.09.2020 in favour of respondent No. 2 only on the ground that several cases are registered against him.”
To conclude, we thus see that the criminal petition is hereby dismissed as pointed out in para 26. The reason for it is quite palpable: Mere registration of multiple cases is not a ground to cancel bail. The cases must be tried and the accused must be convicted in multiple cases. Just registration alone of multiple cases can never be a ground for cancellation of bail!