The Karnataka High Court has 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 H P Sandesh said "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 the 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 invoked and the same has to be exercised sparingly and not mere asking of the cancellation of bail."
The victim had sought cancellation of bail on the grounds that the accused is a habitual offender and he is employed in criminal, civil and money recovery proceedings and listed out the 11 pending cases against him. Among the pending cases in three cases it was shown that he is accused of rape charges and was argued that "The accused has a modus operandi of deceiving the women victims by indulging in sexual acts by promising marriage and dishonestly inducing them to deliver their money."
Advocate RENY SEBASTIAN appearing for the respondent/accused argued 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 was also submitted that "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."
The prosecution supported the petition by stating that several cases have been filed against the accused and the same has been suppressed and obtained the order of bail.
The court observed "Merely registering of several cases against respondent No.2 is not a ground to invoke Section 439(2) of Cr.P.C. While exercising the power under Section 439 (2) of Cr.P.C., the Court has to look into the material available on record."
It added "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 canceling the same."
Case Details: MS. X. And STATE OF KARNATAKA
Case No: CRIMINAL PETITION No.4598/2020
Date Of Order: 5TH DAY OF NOVEMBER, 2020
Coram: Justice JUSTICE H.P. SANDESH
Appearance: Advocate ASIM MALIK for petitioner
Advocate DIWAKAR MADDUR, FOR R1
Advocate RENY SEBASTIAN, FOR R2