The Karnataka High Court has dismissed a petition filed by a rape survivor seeking to cancel the bail granted to the accused on the ground that he is a habitual offender and has similar cases registered against him. Justice HP Sandesh said that "In the absence of any cogent material on record, the liberty of any person as envisaged under Article 21Constitution of India cannot be curtailed on the mere ground of the no. of cases being pending against him. It is well-settled law that Section 439(2) of Code of Criminal Procedure, 1973 has to be invoked in exceptional cases when it causes a 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 wishes for cancellation of bail on the grounds that the accused is a habitual offender and he is employed in criminal, civil and money recovery proceedings listed out the 11 pending cases against him. In 11 pending cases out of which 3 cases show that he is accused of rape charges. It 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."
The Advocate appearing from the side of the accused said that merely because there is a number of cases pending against the accused, the same cannot be ground to come to the conclusion that he is a habitual offender. Habitual offender means if a person has been convicted in more than three cases then he is considered as a habitual offender. The cases listed out on page no. 8 of the petition are pending cases and among them, one is Civil in nature and other cases are pertaining to different offenses.
The accused sides also highlight the point that "Merely because some other cases have been registered and in that light bail is canceled, then automatically it affects the personal liberty of a particular person under Article 21 of Constitution of India, 1950. While dealing with the 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 that "Merely registering of several cases against respondent No.2 is not ground to invoke Section 439(2) of Code of Criminal Procedure, 1973. While exercising the power under Section 439(2) of Code of Criminal Procedure 1973, the Court has to look into the material available on record." Section 439(2)
of Code of Criminal Procedure, 1973
enumerates that a High Court or Court of Session may direct any person who has been released on bail to be arrested and commits him to custody. It added " In the case on hand, no doubt, though 10 cases are listed out, out of which 3 cases are registered for the offenses punishable under Section 376 (punishment for rape),420 ( fraud), 417 ( punishment for cheating) and 506 ( punishment for criminal intimidation ) of Indian Penal Code, 1860. It is important to note that in all the cases he has been enlarged on bail invoking Section 438 (Anticipatory Bail ) and Section 439 ( Special Power of High Court or Court of Session regarding Bail) of Code of Criminal Procedure,1973 and not convicted. Merely because the prosecution has failed to bring the said cases which are pending against him while considering the bail petition, the same cannot be a ground for canceling the same." [READ ORDER]