SHIVARAME GOWDA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) (i) Whether pre-trial detention for years even in a murder case does not offend Art. 21 of the Constitution of India (COI)?

(2.) Two brothers by name Kenge Gowda and Govinde Gowda who were working as Mandal Panchayat Pradhan and President, Ksheerasagara respectively were residents of a village called Karimuddanahalli in Hunsur taluk, Mysore District. It is alleged that they were fatally assaulted by a group of persons belonging to the opposite camp inside Karimuddanahalli village at two separate places sometime between 5-30 and 6 p.m. on 2-5-89 and both of them succumbed to the injuries within a couple of hours of assault when they were being shifted to K. R. Hospital for treatment of the injuries they had sustained. The said assault incidents were promptly reported at Hunsur Police Station (for short 'the police station' alleging that the petitioners had assaulted them out of political vendetta. Thereupon, Crime No. 93/89 was registered at the Police station against 29 persons including 22 petitioners in these three Criminal Petitions for offences u/Ss. 143, 144,147,148,341,324,326 and 307 read with S.149. IPC in the first instance. Later, S.302 IPC was substituted in place of S.307 IPC after the death reports of Kenge Gowda and Govinde Gowda were received. Some time after registration of Crime No.93/89 these 22 petitioners and 7 others in all 29 persons were arrested on 2-5-89 itself and they were got remanded to judicial custody. Certain incriminating weapons which were said to have been used for assaulting the deceased were also said to have been recovered by the Police on the basis of voluntary statements said to have been made by some of the petitioners. All the 29 accused filed a joint petition u/S. 439, Cr. P.C. before the Sessions Judge, Mysore. It was contended before the learned Sessions Judge that a combined reading of 2 FIRs would go to show that the names of petitioners 23 to 29 were not at all mentioned and, therefore, they were entitled to be enlarged on bail at the outset. It was also alternatively argued that the statement of K. D. Nagaraju recorded at the time of inquest proceedings over the dead body of Kenge Gowda contains the names of petitioners 1 to 5,8,14 and 29 only as deceased Kenge Gowda appears to have mentioned their names only in the course of dying declaration said to have been made by him before K. D. Nagaraju and, therefore, the rest of the petitioners are entitled to be released on bail even if any reliance could be placed on the statement of K. D. Nagaraju. It was further contended that a reading of the statement of K. B. Nagaraju recorded at the time of inquest proceedings over the dead body of Govinde Gowda would eliminate most of the petitioners as K. B. Nagaraju has stated in the course of his statement that Govinde Gowda had mentioned before him the names of only those persons named by him. The learned Principal Sessions Judge having accepted the contention of the learned counsel for the petitioners that two FIRs do not contain the names of accused Nos. 23 to 29 thought that since the names of those 7 accused are mentioned by two eye-witnesses by name Kenche Gowda and Smt. Lakshmamma in the course of their statements recorded on the same day, it would not be proper to release even those 7 accused on bail at the preliminary stage and that the evidentiary value of the two dying declarations is a matter that has to be considered at the trial and not at the preliminary stage of considering the civil petition. In that view of the matter, he declined bail to all the 29 petitioners-accused. Therefore, all the 29 accused filed a fresh bail petition before this Court u/S.439, Cr. P.C. in Criminal Petition No. 1098/89.

(3.) At the time of arguments, Sri. L. Srikantaiah, learned counsel for all the 29 petitioners in that case, submitted that he would not press bail petition in respect of petitioners I to 22 at that stage and he would confine it in respect of petitioners 23 to 29 only as their names are not found in any of the two FIRs and the possibility of their names being included at the stage of recording statements of so-called eye-witnesses cannot be ruled out in view of the admitted fact that Karimuddanahalli is a faction ridden village. Even that limited prayer was opposed by the respondent-State. However by order dated 6-11-89, this Court allowed the petition in part in respect of petitioners 23 to 29 only and ordered their release on bail by imposing certain conditions on them in order to ensure their appearance at the time of further investigation and their eventual trial and also to deter them from tampering the prosecution evidence in any manner. They were also directed not to go out of the jurisdiction of the Mysore District without the prior express permission of the Sessions Judge, Mysore before whom the case may be posted for trial till the Sessions case was decided. Pursuant to that order, the said 7 accused (Accused Nos. 23 to 29) are released on bail and the State has not made any complaint against them so far alleging that they had violated any of the bail conditions.