- 1 - NC: 2025:KHC:5330 CRL.A No. 2273 of 2024 C/W CRL.A No. 50 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL No. 2273 OF 2024 C/W CRIMINAL APPEAL No. 50 OF 2025 IN CRL.A No. 2273/2024 BETWEEN: KANTHARAJU S S/O SHANKARAPPA AGED ABOUT 27 YEARS R/AT No.77/1, TERMIS WORLD SCHOOL KYALASANAHALLI, JIGANI, BANGALORE. …APPELLANT (BY SRI VEERANNA G TIGADI, ADVOCATE) AND: 1. STATE OF KARNATAKA REP BY HOSKOTE POLICE STATION REP BY SPP HIGH COURT OF KARNATAKA BANGALORE - 560 001. Digitally signed by HEMAVATHY GANGABYRAPPA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:5330 CRL.A No. 2273 of 2024 C/W CRL.A No. 50 of 2025 2. CHANNAKESHAVA S/O NAGARAJU AGED ABOUT 31 YEARS, RESIDING AT GANGAPURA VILLAGE NANDAGUDI HOBLI HOSAKOTE TALUK BANGALORE RURAL DISTRICT - 562 114. …RESPONDENTS (BY SMT. N ANITHA GIRISH, HCGP FOR R1 R2 IS SERVED AND UNREPRESENTED) THIS CRL.A IS FILED UNDER SECTION 14(A) (2) OF SC/ST (POA) ACT PRAYING TO SET ASIDE THE ORDER DTD 20.11.2024 PASSED BY THE HONBLE II ADDL. DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT BENGALURU IN CRL.MISC.No.2306/2024 AND ENLARGE APPELLANT ON BAIL IN SPL.C.No.910/2024 (CR.No.197/2024), FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 302, 307 R/W 34 OF IPC, SECTION 3(2) OF SC/ST (POA) ACT, 1989, ON THE FILE OF THE HOSAKOTE P.S., PENDING BEOFRE THE HONBEL II ADDITIONAL DISTRICT AND SESSION JUDGE, BANGALORE RURAL DISTRICT, BANGLAORE AND ETC., - 3 - NC: 2025:KHC:5330 CRL.A No. 2273 of 2024 C/W CRL.A No. 50 of 2025 IN CRL.A No. 50/2025: BETWEEN: KANTHARAJU S S/O SHANKARAPPA AGED ABOUT 27 YEARS R/AT No.77/1, TERMIS WORLD SCHOOL KYALASANAHALI, JIGANI, BANGAOLROE. ...APPELLANT (BY SRI VEERANNA G TIGADI, ADVOCATE) AND: 1. STATE BY KARNATAKA REP BY HOSKOTE POLICE STATION REP BY SPP, HIGH COURT OF KARANTAKA BANGAORE - 560 001. 2. CHANNAKESHVA S/O NAGARAJU AGED ABOUT 31 YEARS GANGAPURA VILLAGE NANDAGUDI HOBLI , HOSAKOTE TALUK BANGAOLRE RURAL DISTRICT – 562 114. ...RESPONDENTS (BY SMT. N ANITHA GIRISH, HCGP FOR R1 R2 IS SERVED AND UNREPRESENTED) - 4 - NC: 2025:KHC:5330 CRL.A No. 2273 of 2024 C/W CRL.A No. 50 of 2025 THIS CRL.A IS FILED UNDER SECTION 14(A)(2) OF SC/ST (POA) ACT PRAYING TO SET ASIDE THE ORDER DATED 08.11.2024 PASSED BY THE HON’BLE II ADDL. DISTRICT AND SESSIONS JUDGE AND SPECIAL COURT, BENGLAURU RURAL DISTRICT, BENGALURU IN CR.No.197/2024 AND ENLARGE THE APPELLANT ON BAIL IN SPL.C.No.910/2024 (CR.No.197/2024) FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 302, 307, 109, 114, 120(B) R/W 34 OF IPC, SEC.3(2)(v) OF SC/ST (POA) ACT, 1989, ON THE FILE OF THE HOSAKOTE P.S., PENDING BEFORE THE HONBLE II ADDITIONAL DISTRICT AND SESSION JUDGE, BANGALORE RURAL DISTRICT, BANGALORE AND ETC., THESE APPEALS COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR ORAL JUDGMENT Crl.A.No.2273/2024 is filed by accused No.6 praying to set aside the order dated 20.11.2024 passed by the II Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru in Crl.Misc.No.2306/2024, whereunder the bail petition of the appellant - accused No.6 sought in - 5 - NC: 2025:KHC:5330 CRL.A No. 2273 of 2024 C/W CRL.A No. 50 of 2025 respect of Crime No.197/2024 pending in Spl.C.No.910/2024 registered for offences under Sections 302, 307, 109, 114 and 120B read with Section 34 of the IPC and Sections 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 came to be rejected. 2. Crl.A.No.50/2025 is filed by accused No.6 praying to set aside the order dated 08.11.2024 passed by the II Additional District and Sessions Judge and Special Court, Bengaluru Rural District, Bengaluru in Crime No.197/2024, whereunder the application of the appellant - accused No.6 filed under Section 167(2) of Cr.P.C., seeking grant of statutory bail in respect of Crime No.197/2024 of Hosakote Police Station came to be rejected. 3. Heard the learned counsel for the appellant and learned HCGP for respondent No.1 - State. Inspite of service of notice, respondent No.2 remained absent and unrepresented. - 6 - NC: 2025:KHC:5330 CRL.A No. 2273 of 2024 C/W CRL.A No. 50 of 2025 4. The case of the prosecution as per column No.17 of the charge sheet is that there was rivalry in the vegetable business between accused No.1 and the deceased Sri.Naveen Kumar and in that regard there were quarrels between them. The appellant – accused No.1 contacted accused No.2 and told him that a lesson has to be taught to the deceased Sri.Naveen Kumar. Accused No.2 has contacted accused Nos.3 and 4 and all accused Nos.1 to 4 have held talks to finish the deceased Sri.Naveen Kumar and in that regard, accused No.1 agreed to spend a sum of Rs.10,00,000/-. In furtherance of the same, accused No.1 had paid Rs.50,000/- to accused No.2 as advance. In furtherance of the conspiracy, accused Nos.3 to 6 agreed to kill the said deceased Sri.Naveen Kumar. On 15.06.2024, when the deceased was returning from the market, accused Nos.3 to 6 in a Maruthi Zen Car bearing No.KA-04-Z-8991 stopped their car in front of the car of the deceased and the deceased Sri.Naveen Kumar started quarrelling with them. At that time, accused Nos.3 to 6 took iron rods kept in their - 7 - NC: 2025:KHC:5330 CRL.A No. 2273 of 2024 C/W CRL.A No. 50 of 2025 car and all the four accused assaulted the deceased on his head and chest, and the deceased succumbed to injuries on the spot. At that time, they also threatened CW1 who was with the deceased. Charge sheet has been filed against the appellant – accused No.1 and the other accused for the offences under Sections 302, 307, 109, 114, 120B r/w Section 34 of IPC and Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The appellant - accused No.6 is in judicial custody since 08.07.2024. The appellant - accused No.6 filed a bail petition in Crl.Misc.No.2306/2024 seeking bail in respect of Crime No.197/2024 of Hosakote Police Station and it came to be rejected by impugned order dated 20.11.2024. The said order has been challenged in Crl.A.No.2273/2024. The appellant - accused No.6 had also filed an application under Section 167(2) Cr.P.C., seeking grant of statutory bail and the same came to be rejected by impugned order dated 08.11.2024. The said order is challenged by appellant - accused No.6 in Crl.A.No.50/2025. - 8 - NC: 2025:KHC:5330 CRL.A No. 2273 of 2024 C/W CRL.A No. 50 of 2025 5. Learned counsel for the appellant in both appeals would contend that the appellant - accused No.6 who was in judicial custody has not been produced before the trial Court either physically or through video conference and therefore, he was not aware of his statutory right to file application under Section 167(2) of Cr.P.C. The learned Special Judge has not informed the appellant - accused No.6 of his indefeasible right to apply for statutory bail under Section 167(2) of the Cr.P.C. The learned Special Judge has a duty to inform the appellant - accused No.6 of his indefeasible right, as held by the Hon'ble Apex Court in the case of Hussainara Khatoon and Others (V) vs. Home Secretary, State of Bihar, Patna reported in (1980) 1 SCC 108. 6. He further contends that if indefeasible right was informed by the Special Court to the appellant - accused No.6, he ought to have filed his application under Section 167(2) of Cr.P.C. Without considering this aspect, the - 9 - NC: 2025:KHC:5330 CRL.A No. 2273 of 2024 C/W CRL.A No. 50 of 2025 learned Special Judge has rejected the application filed by the appellant - accused No.6 under Section 167(2) of Cr.P.C, on the ground that the charge sheet has already been filed prior to filing of the said application. 7. Learned counsel for the appellant contended that the alleged incident has taken place at 4.50 a.m. on 16.06.2024 and eyewitness to the said incident is CW.No.1/complainant and he has not stated/identified the name of assailants in his statement. The Investigating Officer has not conducted test identification parade after arrest of the accused persons. The accused persons have been identified by CW.1 in police station. So what was the basis for arrest of this appellant and other accused is not forthcoming from records of the prosecution. There is no motive for appellant - accused No.6 to commit murder of deceased Sri.Naveen Kumar. Accused No.1 has been granted bail by this Court in Crl.A.No.1912/2024, against him there is a specific motive of business rivalry between the deceased and accused No.1. Accused No.2 has also been granted bail by the trial Court. - 10 - NC: 2025:KHC:5330 CRL.A No. 2273 of 2024 C/W CRL.A No. 50 of 2025 Accused Nos.4 and 5 have also been granted statutory bail by the trial Court. Considering all these aspects, appellant - accused No.6 is entitled for grant of bail. Thus, he prayed to allow the appeals and grant a bail to the appellant - accused No.6. 8. Learned HCGP for respondent No.1 - State would contend that application under Section 167(2) of Cr.P.C., has been filed after filing of the charge sheet and considering the same, the learned Special Judge has rightly rejected the said application. After filing of the charge sheet, the accused has no right to seek grant of statutory bail under Section 167(2) of Cr.P.C. He further contended that offence alleged against appellant - accused No.6 is a serious offence punishable with death or imprisonment for life and the assault by the appellant and other accused on the deceased is with deadly weapon. CW.1/complainant is the eyewitness and he has identified appellant - accused No.6 and other accused and his further statement has been recorded. The charge sheet material shows prima facie - 11 - NC: 2025:KHC:5330 CRL.A No. 2273 of 2024 C/W CRL.A No. 50 of 2025 against appellant - accused No.6. Considering all these aspects, the learned Special Judge has rightly rejected the bail petition. With this, she prayed for dismissal of both the appeals. 9. Having heard the learned counsels, the Court has perused the impugned orders and the charge sheet material placed on record. 10. The appellant - accused No.6 is in judicial custody since 08.07.2024. On perusal of the record, it indicates that charge sheet has been filed on 07.10.2024. The trial Court, while passing order on application filed by accused Nos.4 and 5 under Section 167(2) of Cr.P.C., has observed that as accused are in judicial custody from 08.07.2024, the statutory period of 90 days expires on 05.10.2024. The present appellant - accused No.6 is also in judicial custody since 08.07.2024. The certified copy of the order sheet produced by the learned counsel for the appellant indicates that the appellant has not been produced either physically or - 12 - NC: 2025:KHC:5330 CRL.A No. 2273 of 2024 C/W CRL.A No. 50 of 2025 through video conference before the Special Court on the dates of hearing. The appellant - accused No.6 has filed an application under Section 167(2) of Cr.P.C. On the ground that application filed by accused No.6 is after filing of the charge sheet, the learned Special Judge has rejected the application filed by appellant - accused No.6 under Section 167(2) of Cr.P.C. The Hon'ble Apex Court in the case of Hussainara Khatoon (Supra) has observed thus: "It is apparent from these charts that some of the petitioners and other undertrial prisoners referred to in these charts have been produced numerous times before the Magistrates and the Magistrates have been continually making orders of remand to judicial custody. It is difficult to believe that on each of the countless occasions on which these undertrial prisoners were produced the Magistrates and the Magistrates made orders of remand, they must have applied their mind to the necessity of remanding those undertrial prisoners to judicial custody. We are also very doubtful whether on the expiry of 90 days or 60 days, as the case may be, from the date of arrest, the attention of the undertrial prisoners was drawn to the fact that they were entitled to be released on bail under proviso (a) of sub-section (2) - 13 - NC: 2025:KHC:5330 CRL.A No. 2273 of 2024 C/W CRL.A No. 50 of 2025 of Section 167. When an undertrial prisoner is produced before a Magistrate and he has been in detention for 90 days or 60 days, as the case may be, the Magistrate must, before making an order of further remand to judicial custody, point out to the undertrial prisoner that he is entitled to be released on bail." 11. The Hon'ble Apex Court in the case of M.Ravindran vs. Directorate of Revenur Intelligence reported in (2021) 2 SCC 485 has observed thus: "We agree with the view expressed in Rakesh Kumar Paul (supra) that as a cautionary measure, the counsel for the accused as well as the magistrate ought to inform the accused of the availability of the indefeasible right under Section 167(2) once it accrues to him, without any delay. This is especially where the accused is from an underprivileged section of society and is unlikely to have access to information about his legal rights. Such knowledgesharing by magistrates will thwart any dilatory tactics by the prosecution and also ensure that the obligations spelled out under Article 21 of the Constitution and the Statement of Objects and Reasons of the CrPC are upheld.” - 14 - NC: 2025:KHC:5330 CRL.A No. 2273 of 2024 C/W CRL.A No. 50 of 2025 12. Considering the said decisions of the Hon'ble Apex Court, it is a duty on the learned Magistrate to inform the accused of the availability of indefeasible right under Section 167(2) of Cr.P.C once it accrues to him, without any delay. The Hon'ble Apex Court has not dealt with, as to, if this duty of the learned Magistrate is not performed whether the accused who has not filed application under Section 167(2) Cr.P.C., is entitled for grant of statutory bail. 13. Therefore, it cannot be said that merely because the Special Judge has not informed the indefeasible right under Section 167(2) Cr.P.C., to the accused, he is entitled for grant of statutory bail if he makes an application subsequent to filing of charge sheet. The learned Special Judge considering the aspect that the application filed by appellant - accused No.1 is after filing of the charge sheet has rightly rejected the application filed by the appellant - accused No.6 under Section 167(2) of Cr.P.C. - 15 - NC: 2025:KHC:5330 CRL.A No. 2273 of 2024 C/W CRL.A No. 50 of 2025 14. There was no motive for this appellant - accused No.6 to commit the murder of the deceased Sri.Naveen Kumar. The motive was against accused No.1, as he has having business rivalry with the deceased Sri.Naveen Kumar. It is the case of the prosecution that accused Nos.1 and 2 have engaged accused Nos.3 to 6 to commit the murder of the deceased Sri.Naveen Kumar. In furtherance of the same, accused Nos.3 to 6 alleged to have assaulted the deceased with deadly weapon and committed his murder. CW.1 - the complainant is only eyewitness to the alleged incident. CW.1 who has filed the complaint did not identify the assailants at the time of incident, as they were not acquainted with him. What is stated by CW.1 in his complaint is that four persons came in a car and they assaulted the deceased Sri.Naveen Kumar with iron rod and the said four persons are unknown to him. Accused Nos.3 to 6 have been arrested on 08.07.2024 and they were shown to CW.1 in police station, wherein he has identified them as assailants. As the assailants were not the persons acquainted with the complainant - CW.1, the Investigating - 16 - NC: 2025:KHC:5330 CRL.A No. 2273 of 2024 C/W CRL.A No. 50 of 2025 Officer ought to have held test identification parade. As to what was the basis for arrest of accused persons is not forthcoming in the charge sheet records. CW.1 in his further statement recorded on 08.07.2024 has stated that he has been shown four persons in police station and he identified them as assailants. He further stated that he came to known their names through police. After considering the fact that accused No.1, who had motive to commit murder of deceased - Sri.Naveen Kumar has been granted bail and accused Nos.4 and 5, who are alleged to be assailants with appellant - accused No.6 have also been granted statutory bail. This appellant - accused No.6 is also entitled for grant of bail. Without considering this aspect, the learned Special Court has erred in rejecting his bail petition filed under Section 439 of Cr.P.C. The appellant - accused No.6 has made out grounds for setting aside the impugned order dated 20.11.2024 and grant of bail in Crime No.197/2024 of Hosakote Police Station with conditions. In the result, the following: - 17 - NC: 2025:KHC:5330 CRL.A No. 2273 of 2024 C/W CRL.A No. 50 of 2025 ORDER The Crl.A.No.50/2025 is dismissed. Crl.A.No.2273/2024 is allowed and the impugned order dated 20.11.2024 passed by the II Additional District and Sessions Judge, Bengarluru Rural, Bengaluru in Crl.Misc.No.2306/2024 is set aside. The appellant - accused No.6 is granted bail in Crime No.197/2024 of Hosakote Police Station pending in Spl.Case No.910/2024 on the file of the II Additional District and Sessions Judge, Bengalruru Rural District, Bengaluru, subject to the following conditions: i) The appellant - accused No.6 shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees One lakh only/-) with one surety for the likesum to the satisfaction of the Trial Court; ii) The appellant - accused No.6 shall not tamper the prosecution witnesses; iii) The appellant - accused No.6 shall appear before the Trial Court on all dates of hearing, unless exempted and co-operate in speedy disposal of the case; and - 18 - NC: 2025:KHC:5330 CRL.A No. 2273 of 2024 C/W CRL.A No. 50 of 2025 iv) The appellant - accused No.6 shall not involve in commission of any offence during the pendency of the case registered against him. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE KG List No.: 1 Sl No.: 17