- 1 - HC-KAR NC: 2025:KHC-D:16487 CRL.P No. 103300 of 2025 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 26TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE S.RACHAIAH CRIMINAL PETITION NO.103300 OF 2025 (439(2)(Cr.PC)/483(3)(BNSS)) BETWEEN: SHRI BHARAMAPPA S/O. SHIVAPPA ASUNDI, AGE: 21 YEARS, OCC. AGRICULTURE, R/O. BASAPUR VILLAGE, BAZAR, TALUK AND DIST. HAVERI. …PETITIONER (BY SRI. PRAKASH R. BADIGER, ADVOCATE) AND: 1. STATE OF KARNATAKA BY PSI HAVERI POLICE STATION, TALUK AND DIST. HAVERI-581104 REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, DHARWAD-580011. 2. SANTHOSH S/O. KARIYALLAPPA TAMBURI, AGE: 23 YEARS, OCC. COOLIE, R/O. BASAPUR VILLAGE, TALUK AND DIST. HAVERI-HANGAL-581 110 …RESPONDENTS (BY SRI. PRAVEENA Y. DEVAREDDIYAVARA, HCGP FOR R1; SRI. L.S. SULLAD, ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED U/SEC. 483(3) OF BNSS- 2023, SEEKING TO CANCEL THE ORDER OF BAIL UNDER SECTION 483(3) OF BNS IN SPECIAL SC AND ST NO. 21/2025 DATED 05.07.2025 PASSED BY THE ADDITIONAL DISTRICT AND SESSION JUDGE, FTST-I, HAVERI AT HAVERI FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 137(2), 64(2)(m) OF BNS, SECTIONS 6 AND 8 OF POCSO ACT 2012 AND SECTIONS 3(1)(w), 3(i), 3(2)(va) OF SC/ST(PA) AMENDED ACT, 2015 AND DIRECT THE CONCERNED POLICE AUTHORITIES TO ARREST THE RESPONDENT NO.2/ACCUSED AND PASS SUCH OTHER ORDER OR DIRECTION IN THE INTEREST OF JUSTICE AND EQUITY. Digitally signed by SAMREEN AYUB DESHNUR Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC-D:16487 CRL.P No. 103300 of 2025 THIS PETITION, COMING ON FOR ORDERS THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE S.RACHAIAH) 1. The petitioner is before this Court seeking for grant of regular bail in Crime No.37/2025 of respondent No.1/Police for the offence under Sections 137(2) and 64(2)(m) of the Bharatiya Nyaya Sanhita, 20231 and Sections 6 and 8 of the Protection of Children From Sexual Offences Act, 20122 and Sections 3(1)(w)(i) and 3(2)(va) of the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Amendment Act, 20153. 2. Heard Sri.Prakash R. Badiger, learned counsel for the petitioner, Sri. Praveen Y. Devareddiyavara, learned High Court Government Pleader for respondent No.1/State and Sri.L. S. Sullad, learned counsel for respondent No.2. 1 For short ‘BNS, 2023’ 2 For short ‘POCSO Act’ 3 For short ‘SC and ST (POA) Act’ - 3 - HC-KAR NC: 2025:KHC-D:16487 CRL.P No. 103300 of 2025 3. The case of the prosecution is that, the complainant filed this petition seeking for cancellation of bail on the ground that the respondent No.2/accused filed an application for grant of bail on 19.06.2025. The notice was ordered to the victim and the matter was posted on 26.06.2025. The complainant was present on that day and objected the said bail application. Again the matter was posted to 02.07.2025 and it was subsequently adjourned to 05.07.2025. On that day, bail was granted to the accused. However, the Trial Court ignored Section 15-A(5) of the SC and ST (POA) Act. Therefore, the bail granted to the petitioner has to be cancelled. 4. Per contra, learned counsel for respondent No.2 vehemently submitted that, the accused has not violated any conditions imposed by the Trial Court, nor the Trial Court granted bail on violation of any statutory provisions. Therefore, it is not appropriate to cancel the bail. 5. Having heard the learned counsel for the respective parties and also on perusal of the averments of - 4 - HC-KAR NC: 2025:KHC-D:16487 CRL.P No. 103300 of 2025 the petition, it is appropriate to refer the judgment of the Hon’ble Supreme Court in the case of Himanshu Sharma Vs. State of Madhya Pradesh4 held in paragraph Nos.10 and 11 which reads as under; “10. While cancelling the bail granted to the appellants, the learned Single Judge referred to this Court's judgment in Abdul Basit [Abdul Basit v. Mohd. Abdul Kadir Chaudhary, (2014) 10 SCC 754 : (2015) 1 SCC (Cri) 257] . However, we are compelled to note that the ratio of the above judgment favours the case of the appellants. That apart, the judgment deals with the powers of the High Court to review its own order within the limited scope of Section 362CrPC. Relevant observations from the above judgment are reproduced below : (Abdul Basit case [Abdul Basit v. Mohd. Abdul Kadir Chaudhary, (2014) 10 SCC 754 : (2015) 1 SCC (Cri) 257] , SCC pp. 761-64, paras 14-21) “14. Under Chapter XXXIII, Section 439(1) empowers the High Court as well as the Court of Session to direct any accused person to be released on bail. Section 439(2) empowers the High Court to direct any person who has been released on bail under Chapter XXXIII of the Code be arrested and committed to custody i.e. the power to cancel the bail granted to an accused person. Generally the grounds for cancellation of bail, broadly, are, (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. 4 (2024) 4 SCC 222 - 5 - HC-KAR NC: 2025:KHC-D:16487 CRL.P No. 103300 of 2025 These grounds are illustrative and not exhaustive. Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in sixty days after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. However, in the last-mentioned case, one would expect very strong grounds indeed. (Raghubir Singh v. State of Bihar [Raghubir Singh v. State of Bihar, (1986) 4 SCC 481 : 1986 SCC (Cri) 511] ) 15. The scope of this power to the High Court under Section 439(2) has been considered by this Court in Gurcharan Singh v. State (UT of Delhi) [Gurcharan Singh v. State (UT of Delhi), (1978) 1 SCC 118 : 1978 SCC (Cri) 41] 16. In Gurcharan Singh case [Gurcharan Singh v. State (UT of Delhi), (1978) 1 SCC 118 : 1978 SCC (Cri) 41] this Court has succinctly explained the provision regarding cancellation of bail under the Code, culled out the differences from the Code of Criminal Procedure, 1898 (for short “the old Code”) and elucidated the position of law vis-à-vis powers of the courts granting and cancelling the bail. This Court observed as under : (SCC pp. 123- 24, para 16) ‘16. Section 439 of the new Code confers special powers on the High Court or Court of Session regarding bail. This was also the position under Section 498CrPC of the old Code. That is to say, even if a Magistrate refuses to grant bail to an accused person, the High Court or the Court of Session may order for grant of bail in appropriate cases. Similarly, under Section 439(2) of the new Code, the High Court or the Court of Session may direct any person who has been released on bail to be arrested and committed to custody. In the old Code, Section 498(2) was worded in somewhat different language when it said that a High Court or Court of Session may cause - 6 - HC-KAR NC: 2025:KHC-D:16487 CRL.P No. 103300 of 2025 any person who has been admitted to bail under sub-section (1) to be arrested and may commit him to custody. In other words, under Section 498(2) of the old Code, a person who had been admitted to bail by the High Court could be committed to custody only by the High Court. Similarly, if a person was admitted to bail by a Court of Session, it was only the Court of Session that could commit him to custody. This restriction upon the power of entertainment of an application for committing a person, already admitted to bail, to custody, is lifted in the new Code under Section 439(2). Under Section 439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIII by any court including the Court of Session to custody, if it thinks appropriate to do so. It must, however, be made clear that a Court of Session cannot cancel a bail which has already been granted [State (UT of Delhi) v. Gurcharan Singh, 1977 SCC OnLine Del 103] by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court. If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-à-vis the High Court.’ 17. In this context, it is profitable to render reliance upon the decision of this Court in Puran v. Rambilas [Puran v. Rambilas, (2001) 6 SCC 338 : 2001 SCC (Cri) 1124] . In the said case, this Court held (SCC p. 345, - 7 - HC-KAR NC: 2025:KHC-D:16487 CRL.P No. 103300 of 2025 para 11) that the concept of setting aside an unjustified, illegal or perverse order is absolutely different from cancelling an order of bail on the ground that the accused has misconducted himself or because of some supervening circumstances warranting such cancellation. In Narendra K. Amin v. State of Gujarat [Narendra K. Amin v. State of Gujarat, (2008) 13 SCC 584 : (2009) 3 SCC (Cri) 813] , the three-Judge Bench of this Court has reiterated the aforesaid principle and further drawn the distinction between the two in respect of relief available in review or appeal. In this case, the High Court had cancelled [State of Gujarat v. Narendra K. Amin, 2008 SCC OnLine Guj 682] the bail granted to the appellant in exercise of power under Section 439(2) of the Code. In appeal, it was contended before this Court that the High Court had erred by not appreciating the distinction between the parameters for grant of bail and cancellation of bail. The Bench while affirming the principle laid down in Puran case [Puran v. Rambilas, (2001) 6 SCC 338 : 2001 SCC (Cri) 1124] has observed that when irrelevant materials have been taken into consideration by the court granting order of bail, the same makes the said order vulnerable and subject to scrutiny by the appellate court and that no review would lie under Section 362 of the Code. In essence, this Court has opined that if the order of grant of bail is perverse, the same can be set at naught only by the superior court and has left no room for a review by the same court. 18. Reverberating the aforesaid principle, this Court in the recent decision in Ranjit Singh v. State of M.P. [Ranjit Singh v. State of M.P., (2013) 16 SCC 797 : (2014) 6 SCC (Cri) 405] has observed that : (SCC p. 806, para 19) ‘19. … There is also a distinction between the concept of setting aside an unjustified, illegal or perverse order and cancellation of an order of bail on the ground that the accused has misconducted himself or certain supervening - 8 - HC-KAR NC: 2025:KHC-D:16487 CRL.P No. 103300 of 2025 circumstances warrant such cancellation. If the order granting bail is a perverse one or passed on irrelevant materials, it can be annulled by the superior court.’ 19. Therefore, the concept of setting aside an unjustified, illegal or perverse order is different from the concept of cancellation of a bail on the ground of accused's misconduct or new adverse facts having surfaced after the grant of bail which require such cancellation and a perusal of the aforesaid decisions would present before us that an order granting bail can only be set aside on grounds of being illegal or contrary to law by the court superior to the court which granted the bail and not by the same court. 20. In the instant case, the respondents herein had filed the criminal miscellaneous petition before the High Court seeking cancellation of bail on grounds that the bail was obtained by the petitioners herein by gross misrepresentation of facts, misleading the court and indulging in fraud. Thus, the petition challenged the legality of the grant of bail and required the bail order to be set aside on ground of it being perverse in law. Such determination would entail eventual cancellation of bail. The circumstances brought on record did not reflect any situation where the bail was misused by the petitioner-accused. Therefore, the High Court could not have entertained the said petition and cancelled the bail on grounds of it being perverse in law. 21. It is an accepted principle of law that when a matter has been finally disposed of by a court, the court is, in the absence of a direct statutory provision, functus officio and cannot entertain a fresh prayer for relief in the matter unless and until the previous order of final disposal has been set aside or modified to that extent. It is also settled law that the judgment and order granting bail cannot be reviewed by the court passing such judgment and order in the absence of any express provision in the Code for the same. Section 362 of the Code - 9 - HC-KAR NC: 2025:KHC-D:16487 CRL.P No. 103300 of 2025 operates as a bar to any alteration or review of the cases disposed of by the court. The singular exception to the said statutory bar is correction of clerical or arithmetical error by the court.” 11. Law is well settled by a catena of judgments rendered by this Court that the considerations for grant of bail and cancellation thereof are entirely different. Bail granted to an accused can only be cancelled if the Court is satisfied that after being released on bail: (a) the accused has misused the liberty granted to him; (b) flouted the conditions of bail order; (c) that the bail was granted in ignorance of statutory provisions restricting the powers of the Court to grant bail; (d) or that the bail was procured by misrepresentation or fraud. In the present case, none of these situations existed.” 6. On careful reading of the judgment of the Hon’ble Supreme Court, the bail can be cancelled, if the Court satisfied that, after releasing the accused on bail, the following points are to be fulfilled; a) That the accused must have misused the liberty granted to him. b) That he must have flouted the conditions of the bail order. - 10 - HC-KAR NC: 2025:KHC-D:16487 CRL.P No. 103300 of 2025 c) That the bail was granted in ignorance of statutory provisions restricting the powers of the Court to grant bail. d) That the bail was procured by misrepresentation or fraud. 7. In the present case, no such grounds are made out to cancel the bail. Hence, the petition stands rejected. Ordered accordingly. Sd/- (S.RACHAIAH) JUDGE PJ/CT:PA List No.: 1 Sl No.: 13