Heard the petitioners counsel and HCGP for the respondent.
2. The petitioners who are accused Nos.1 to 3,
5 to 7 and 11 have filed this petition under Section 482 of Cr.P.C. seeking to set-aside the order dated 31.01.2019 passed by the Prl. Civil Judge, Bhatkal in CC No.851/2019 arising out of Bhatkal P.S. Crime No.230/2017 for the offences punishable under Sections 143, 147, 201, 332, 353, 341, 395, 504 read with Section 149 of IPC.
3. Brief facts of the case is that the police have registered a case against these petitioners based on the complaint dated 14.09.2017 making allegation that these petitioners unlawfully restrained the complainant when the complainant was discharging his duty and also assaulted with hand and forcefully extorted his mobile phone who was deployed for protection of the procession in front of Municipality of Bhatkal against the action of Municipality and the same has been registered in Crime No.230/2017 for the offences punishable under Sections 143, 147, 201, 332, 353, 341, 395, 504 read with Section 149 of IPC.
4. These petitioners have approached the Magistrate by filing an application under Section 437(1) of Cr.P.C. to enlarge them on bail and the Court below exercised its discretion and enlarged the petitioners on bail. While granting the bail, the Magistrate has imposed the condition that they shall mark attendance before the concerned Police Station between 11.00 a.m. to 4 p.m. It is the case of the prosecution that the petitioners have violated the conditions and hence, moved an application independently against these petitioners for cancellation of the bail and the Court below has given an opportunity to the petitioners herein and the petitioners have filed common objections before the Magistrate, which is available at page No.123. The Court below allowed the applications filed under Section 437(5) of Cr.P.C. and cancelled the bail and taken the petitioners to custody on the ground that they have violated the condition. Being aggrieved by the order of cancellation of the bail, the petitioners are before this Court.
5. The main contention of the petitioners before this Court is that the prosecution without making an application under Section 439(2) of Cr.P.C. for cancellation of bail which is mandated under the provisions of the Code, has proceeded to cancel the bail order granted in favour of the petitioners. Further, contention is that the prosecution ought to have filed separate miscellaneous cases for cancellation of the bail and same has not been done, hence, the impugned order is erroneous, illegal and mechanically allowed the application filed by the prosecution, which resulted in miscarriage of justice, hence, prayed this Court to set-aside the impugned order.
6. The petitioners counsel reiterates the grounds urged in the petition in support of the contentions, he also relied upon the judgment of this Court passed in Crl.P. No.3119/2016 and brought to my notice paras-4 and 5 with regard to registering the miscellaneous cases and with regard to not giving an opportunity to the petitioner and contends that the prosecution ought to have filed separate miscellaneous cases for cancellation of bail under Section 439(2) of Cr.P.C. and hence, the impugned order is illegal.
7. Per contra, HCGP for the respondent-State contends that the Court below has granted the bail in favour of the petitioners under Section 437 of Cr.P.C. and proviso to Section 437(5) confers the powers to the very same Court to cancel the bail, when the condition has not been complied and no need to file a separate petition as contended by the petitioners and further contended that no need to file separate miscellaneous, if it is granted bail in miscellaneous case then only ought to have filed separate petition.
8. The HCGP in his arguments also contends that the order passed by this Court in Crl.P. No.3119/2016 is arising out of the bail petition filed under miscellaneous case No.161/2015, hence, the separate petition ought to have been filed and in this case, the very same Court was granted bail and no need to file separate petition by invoking Section 439(2) of Cr.P.C. and hence, the said judgment is not applicable to the case on hand.
9. Having heard the petitioners counsel and also learned HCGP for the respondent, this Court has to examine whether the Court below has committed an error in cancellation of the bail.
10. Perusal of the certified copy of the order sheet of the Court below along with this petition discloses that the prosecution has filed separate independent applications under Section 437(5) of Cr.P.C. for cancellation of the bail and in the application, it is specifically mentioned that there is violation of the bail conditions by the petitioners regarding marking of attendance before the concerned police. The petitioners herein have filed common objections before the Court below and in para-3 of the objections, it is mentioned that they have not violated any conditions and the petitioners are regularly visiting the police station within 15 days, but the police did not obtain their signature and they have not given any opportunity and further the police have not filed any charge sheet even after the lapse of eight months. Having considered the objections, except making general denial that they have not violated the conditions, the petitioners have not placed any material before the Court that they have visited the police station and marked the attendance regularly as directed and only denial is that the police have not given any opportunity to make signature. In support of the said contentions, they have not placed any material nor they have filed any representation before the Court below for denying to make the signature in the Station.
11. The Court below while passing the order dated 31.01.2019 thereby allowing the application has given specific reason that accused Nos.1 to 3, 5 to 7 and
11 are involved in similar kind of riot, hence, the said Court has imposed the condition of marking the attendance and the petitioners have violated the conditions imposed by the Court and detailed order has been passed regarding specific violation of the condition. I have already pointed out that except general denial by the petitioners, they have not placed any material for having marked the attendance as directed by the Court below. The other contention that the charge sheet has not been filed by the investigating officer; admittedly, all the accused are on bail and no stipulated time is given for filing the charge sheet. When such being the case, these petitioners have not complied the order of the Court below and also giving an opportunity to all the accused persons, the application is considered on merits. The very contention of the petitioners that the prosecution ought to have filed separate miscellaneous applications for cancellation of the bail cannot be accepted and also the Court below has given reason as to why the separate application is not necessary and the very Court below has cancelled the bail under Section 437(5) of Cr.P.C. when the conditions are not complied by the accused.
12. Having considered the grounds urged by the petitioners and also factual aspects and also reasons assigned by the Magistrate, the very contention of the petitioners cannot be accepted and no need to file separate miscellaneous application. There is clear violation of the conditions of marking attendance by the petitioners before the concerned police. When such being the case, I do not find any illegality committed by the Magistrate in allowing the application filed under Section 437(5) of Cr.P.C. by the prosecution for cancellation of the bail to interfere with the order passed by the Court below. Hence, there is no merit in the petition.
13. In view of the above discussions, I pass the following: ORDER Petition is rejected. Sd/- JUDGE
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