IN THE HIGH COURT OF KARNATAKA, BENGALURU

DATED THIS THE 22ND DAY OF JULY, 2016

:BEFORE:

THE HON’BLE MR.JUSTICE K.N. PHANEENDRA

CRIMINAL PETITION NO. 4251/2016 C/W.

CRIMINAL PETITION NO. 4325/2016 CRIMINAL PETITION NO. 3834/2016, CRIMINAL PETITION NO. 4407/2016,

CRIMINAL REVISION PETITION NO. 760/2016, CRIMINAL REVISION PETITION NO. 806/2016.

IN CRIMINAL PETITION NO. 4251/2016 BETWEEN:

SRI. M. V. RUDRAPPA, S/O LATE M. V. VEERABADRAPPA, AGED ABOUT 50 YEARS, R/O NO. 68/1, WEST PARK ROAD, 17TH CROSS, MALLESHWARAM, BANGALORE – 560 003. … PETITIONER (BY SRI. SANDEEP S PATIL, ADVOCATE) AND:

STATE OF KARNATAKA, BY MALLESHWARAM POLICE, MALLESHWARAM, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA,

2

BANGALORE – 560 001. ... RESPONDENT (BY SRI. P. M. NAWAZ, SPP-I)

THIS CRIMINAL PETITION IS FILED UNDER

SECTION 439 CR.P.C PRAYING TO ENLARGE THE

PETITIONER ON BAIL IN CR.NO.37/2016 OF

MALLESHWARAM P.S., BANGALORE FOR THE

OFFENCE P/U/S 418, 120B, 420, 201, 381 OF IPC

AND SEC.23, 115 OF KARNATAKA EDUCATION ACT

AND SEC.3 OF KARNATAKA CONTROL OF ORGANIZED

CRIMES ACT. ****

IN CRIMINAL PETITION NO. 4325/2016 BETWEEN: K. S. RANGANATH, S/O LATE K. SHIVAPPA, AGE : 49 YEARS, OCC: ASST. ENGINEER PWD (RECENTLY PROMOTED),

R/O G–A, NAMAN APARTMENT, II CROSS ROAD, IDEAL HOMES, RAJARAJESHWARINAGAR, BENGALURU – 560 098 (NOW IN JUDICIAL CUSTODY). .. PETITIONER (BY SRI. H. S. CHANDRAMOULI, ADVOCATE) AND: THE STATE OF KARNATAKA, BY THE POLICE OF MALLESHWARAM,

POLICE STATION,BENGALURU – 560 001. REP. BY THE S.P.P., HIGH COURT OF KARNATAKA BENGALURU – 560 001. ... RESPONDENT (BY SRI. P. M. NAWAZ, SPP-I)

3

THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.37/2016 OF MALLESHWARAM P.S., BANGALORE FOR THE

OFFENCE P/U/S 418, 420, 381, 201, 120B OF IPC AND SEC.115, 23 OF KARNATAKA EDUCATION ACT AND SEC.3 OF KARNATAKA CONTROL OF ORGANIZED CRIME ACT.

****** IN CRIMINAL PETITION NO. 3834/2016

BETWEEN: OBALARAJU, S/O LATE OBALAIAH, 51 YEARS, OCCUPATION ASSISTANT DIRECTOR IN SMALL SAVINGS AND PENSION DEPARTMENT, GOVT., OF KARNATAKA, AND SPECIAL OFFICER OF MIN. FOR MEDICAL EDUCATION, VIDHANA SOUDHA, BANGALORE. R/AT NO 21, 3RD CROSS, 7TH MAIN, SRIRAMPURAM, BANGALORE – 560 029 (NOW IN JUDICIAL CUSTODY

CENTRAL PRISON, BANGALORE ) … PETITIONER (BY SRI. HASHMATH PASHA, ADVOCATE) AND: STATE OF KARNATAKA, BY MALLESHWARAM POLICE, BANGALORE AND THE C.I.D. POLICE, BANGALORE – 560 003. (REP. BY LEARNED BY S.P.P., HCK, BANGALORE – 560 001.) ... RESPONDENT

(BY SRI. P. M. NAWAZ, SPP-I)

4

THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.37/2016 OF MALLESHWARAM P.S., BANGALORE FOR THE

OFFENCE P/U/S 115 R/W 23 OF KARNATAKA EDUCATION ACT AND SEC.418, 420, 381, 120B, 201 OF IPC AND SEC.3 OF KARNATAKA CONTROL OF ORGANSIED CRIMES ACT.

******

IN CRIMINAL PETITION NO. 4407/2016 BETWEEN: SRI. B. ANIL KUMAR, AGED ABOUT 46 YEARS, S/O SRI.C. BASAVARAJAIAH, R/AT NO.29, PANCHAKSHARAIAH LAYOUT, ULLALU, ULLALU UPANAGARA POST BANGALORE – 560 110. .. PETITIONER (BY SRI. MOHAN S., ADVOCATE)

AND: THE STATE OF KARNATAKA, REP. BY MALLESWARAM POLICE, NOW INVESTIGATED BY CRIMINAL INVESTIGATION BRANCH, BANGALORE – 560 003. REP. BY S.P.P. ... RESPONDENT (BY SRI. P. M. NAWAZ, SPP-I)

THIS CRIMINAL PETITION IS FILED UNDER SECTION 439 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN CR.NO.37/2016 OF MALLESHWARAM P.S., BANGALORE FOR THE OFFENCE P/U/S 418, 420, 381, 201, 120 OF IPC AND

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SEC.115, 23 OF KARANATAKA EDUCATION ACT AND SEC.3 OF KARNATAKA CONTROL OF ORGANIZED CRIME ACT.

******

IN CRIMINAL REVISION PETITION NO. 760/2016 BETWEEN: OBALARAJU, S/O LATE OBALAIAH, 51 YEARS, OCCUPATION ASSISTANT

DIRECTOR IN SMALL SAVINGS AND PENSION DEPARTMENT, GOVT., OF KARNATAKA, AND SPECIAL OFFICER OF MIN. FOR MEDICAL EDUCATION, VIDHANA SOUDHA, BANGALORE. R/AT NO 21, 3RD CROSS, 7TH MAIN, SRIRAMPURAM, BANGALORE – 560 029 (NOW IN JUDICIAL CUSTODY CENTRAL PRISON, BANGALORE ) … PETITIONER (BY SRI. HASHMATH PASHA, ADVOCATE)

AND: STATE OF KARNATAKA, BY MALLESHWARAM POLICE, BANGALORE AND THE C.I.D. POLICE, BANGALORE – 560 003. (REP. BY LEARNED BY S.P.P., HCK, BANGALORE – 560 001.) ... RESPONDENT (BY SRI. P. M. NAWAZ, SPP-I)

THIS CRIMINAL REVISION PETITION IS FILED

UNDER SECTION 397 R/W 401 CR.P.C PRAYING TO

SET ASIDE THE ORDER DATED 09.06.2016 PASSED

IN CR.NO.37/2016 OF MALLESHWARAM P.S.,

BANGALORE WHICH IS BEING INVESTIGATED BY THE

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CID POLICE, BANGALORE PENDING ON THE FILE OF

PRL. CITY CIVIL AND S.J., AND DESIGNATED SPL.J.,

UNDER THE KARNATAKA CONTROL OF ORGANISED

CRIMES ACT, 2000, BANGALORE AS ILLEGAL AND

CONSEQUENTLY, ENLARGE HIM ON BAIL ON SUCH

TERMS AND CONDITIONS. ******

IN CRIMINAL REVISION PETITION NO. 806/2016 BETWEEN:

K. S. RANGANATH, S/O. LATE K. SHIVAPPA, AGED ABOUT 49 YEARS, OCC: ASST. ENGINEER, PWD (RECENTLY PROMOTED) R/O. G-A, NAMAN APARTMENT, II CROSS ROAD, IDEAL HOMES, RAJARAJESHWARINAGAR, BENGALURU - 560 098, (NOW IN JUDICIAL CUSTODY) … PETITIONER

(BY SRI. H.S. CHANDRAMOULI, ADVOCATE) AND: THE STATE OF KARNATAKA, BY THE POLICE OF MALLESHWARAM P.S., BENGALURU - 560 001, REP. BY THE S.P.P., H.C.K., BENGALURU - 560 001, (NOW BEING INVESTIGATED BY CID) ... RESPONDENT (BY SRI. P. M. NAWAZ, SPP-I)

THIS CRIMINAL REVISION PETITION IS FILED

UNDER SECTION 397(1) R/W 401 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 15.06.2016 PASSED

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BY THE PRL. CITY CIVIL AND S.J., BENGALURU IN CR.NO.37/2016 REGISTERED ON THE FILE OF MALLESHWARAM P.S., BANGALORE (NOW BEING INVESTIGATED BY CID, BANGALORE) FOR THE

OFFENCES P/U/S 418, 420, 381, 201 AND 120(B) OF IPC AND SEC. 115 AND 23 OF KARNATAKA EDUCATION ACT CONSEQUENTLY ENLARGE THE PETITIONER ON BAIL.

*****

THESE CRIMINAL PETITIONS AND CRIMINAL REVISION PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS AND ADMISSIONS ON 01.07.2016, COMING ON FOR ‘PRONOUNCEMENT OF ORDERS’ THIS DAY, THE COURT MADE THE FOLLOWING:

O R D E R

In these Criminal Petitions, A2, A3, A6 and A7 in

Crime No. 37/16 on the file of Respondent police, have

approached this Court for grant of regular bail u/s.439 of

Cr.P.C. In Criminal Petition No.4251/2016 - A2, in Criminal

Petition No.3834/2016 - A3, in Criminal Petition

No.4325/2016 - A6 and in Criminal Petition No.4407/2016 -

A7, are before this Court, as they failed to get bail

before the trial Court on merits.

2. It is also worth to mention here that A3 –

Obalaraju and A6 K.S. Ranganath have also filed

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applications before the trial Court u/s.167(2) of Cr.P.C.

for grant of statutory bail and their bail petitions were

dismissed. Against that order, A3 and A6 have

preferred Criminal Revision Petitions in Nos. 760 and

806/2016 respectively. All the matters are heard and

taken up together for disposal.

3. Before adverting to the arguments of the

learned counsels for the petitioners and SPP for

respondent – State, it is just and necessary to have the

brief factual matrix of this case.

4. The Joint Director of Pre-University Board,

Bengaluru, has lodged a First Information report on

22.3.2016 making allegations with regard to the leakage

of chemistry question paper pertaining to II PU

Examination, which was scheduled to be held on

21.3.2016. On the basis of such information, a case

was registered in Crime No.37/2016. Initially, the case

has been registered for the offences punishable under

sections 418, 420, 321 of IPC and also under Sections

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115 and 23 of the Karnataka Education Act, 1983.

Thereafter, the jurisdictional Police i.e., Malleshwaran

Police have initiated the investigation. Subsequently,

considering the gravity of the offence and the nature of

the allegations and seriousness of the issue, the

Government of Karnataka has handed over the

investigation to CID. It is also pertinent to note that,

subsequent to the registration of the Crime, the Pre-

University Board re-scheduled the PUC Chemistry

examination to be held on 31.3.2016, as the

Government has cancelled the earlier scheduled date of

examination of Chemistry paper on 21.3.2016.

Shockingly, the Chemistry re-scheduled examination

question paper was also leaked prior to the examination

and in this regard, another case in Crime No.48/2016

was registered on 31.3.2016 for similar offences by

Malleshwaran Police Station, but the said case was also

subsequently transferred to CID for investigation. There

is no dispute that all the petitioners were arrested in

connection with this case and they have been

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languishing in jail from the date of their arrest. A2 and

A3 were arrested on 4.4.2016, A6 & A7 were arrested

on 13.4.2016.

5. It is the case of the prosecution, as could be

seen from the records and objection statement filed by

the SPP in all the cases that the PUC Science stream

question paper has reached the concerned Districts and

Taluks prior to the date scheduled for the examination.

It is alleged that all the accused persons have conspired

and formed into a Syndicate and in furtherance of the

conspiracy, A15 Santosh Agasimani and A-14

Kumaraswamy have gained access to the strong room of

the Sub Registrar’s office and opened the chemistry

question paper (technical bundle) and took the

photographs and put the bundles back intact. Later,

the print out copies of the question papers were taken

using laptop with the help of A1-Manjunath and

thereafter, the copies were distributed and also allowed

to be taken down by the conspirators for several lakhs

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of rupees. It is further alleged that A-1 Manjunath

handed over those question papers to the other accused

persons. Thereafter all the other accused persons have

assembled in the house of A-13 Narayana copied the

question paper facilitated the other accused persons to

have the question paper. It is alleged that A2 Rudrappa

passed on the handwritten question paper to A6

Ranganath and in turn the said A6 Ranganath has

passed on the contents of the question paper to

particularly other petitioners herein ie; A3 Obalaraju

and A7 Anil Kumar and they in-turn, provided the

question paper to their children, who were studying in

the PUC in order to facilitate their children to write

PUC Chemistry examination on the day scheduled.

6. Looking to the above said factual aspects, the

main allegations made against the above said

petitioners are that they have acquired Chemistry

question paper from A1 and then, distributed the said

question paper amongst themselves in order to facilitate

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their children to write the examination. It is also alleged

that the petitioners have actually purchased the

question paper by paying lot of money to A1.

7. The factual matrix also discloses that A2 – M.V.

Rudrappa is an Office Superintendent in PWD

Department, Bengaluru. His daughter was studying in

PUC. A3 – Obalaraj has been working as Assistant

Director in Small Savings and Pension department and

as on the date of the alleged offence he was working as

Special Officer to Minister for Medical Education

Karnataka. It is alleged that his son has taken the PUC

examination during that time. A6 – K.S. Ranganath is

the Asst. Engineer in PWD and his son has taken the

PUC examination during that time. A-7 B. Anil Kumar

is not a public servant but he is a person who was in

politics and his son has taken the II PUC Examination

during that time. The main allegations against these

accused persons, as could be seen from the objection

statement that they have secured the question paper

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from A1 and in-turn, A1 has secured from the main

accused persons. For the purpose of providing the

question papers to their children, the petitioners herein

have indulged in such activity.

8. It is also worth to note here, during the course

of the investigation, CID police have also invoked the

provisions i.e., Section 3 of KCOCA Act. i.e., Karnataka

Control of Organised Crime Act, 2000, after taking the

permission from the competent authority. Being

aggrieved by the said invocation of the KCOCO Act, all

the petitioners have approached this Court by way of

Writ petitions and this Court on different dates, has

passed a detailed order after hearing both the parties

and stayed the invocation of the provisions of Section 3

of the KCOCO Act. The above said factual aspects are

not in dispute.

9. In this background, now let me see the

submissions made by the learned counsel for the

petitioners and the learned SPP.

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10. Sri H.S. Chandramouli, learned counsel

appearing for A6, Sri Hashmath Pasha, learned counsel

appearing for A3, Sri Sandeep S. Patil, learned counsel

appearing for A2, Sri Sri Mohan S, learned counsel

appearing for A7 have submitted before the Court that

there is absolutely no allegations against the petitioners

that they were in any manner involved in any other case

earlier to the present one and there is no material to

show the connection between the main accused persons

and these petitioners.

11. It is further contended that, the trial Court

has dismissed the bail petition only on the ground that

Section 3 of the KCOCO Act is punishable with

imprisonment for life, without properly appreciating that

the said provision is not at all attracted so far as these

petitioners are concerned. The petitioners are law

abiding citizens and some of them are public servants

and they are working in different departments since

more than 22 to 25 years with un-blemished service

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record. From the date of their arrest i.e., from 4.4.2016

and 13.4.2016 no charge sheet has been filed within 60

days and even the trial Court has not properly

appreciated with regard to their entitlement for bail

u/s.167(2) of Cr.P.C. Only taking into consideration the

societal impact of the alleged offences against the

petitioners herein rejected the bail petition. The

allegations against the petitioners herein prima -facie

establish that they are not the main culprits. However,

they got the question paper from A1, who in-turn got

the question paper from the main accused. The

petitioners have distributed the same amongst their

children and i.e., the mistake they have committed.

There are absolutely no previous bad antecedents

alleged against the petitioners herein.

12. It is further contended that the High Court

has stayed the very invocation of KCOCO Act after

hearing the State in detail, as the invocation itself is

stayed and other offences are not punishable with death

16

or imprisonment for life but maximum punishment does

not exceed 7 years. Therefore, as a matter of right, the

petitioners are entitled to be enlarged on bail. Of

course, the Court has also responsibility to look into the

societal impact, but it does not mean to say for

uncertain period, the petitioners have to be

incarcerated. The petitioners are law abiding citizens

and they are in public domain and public servants, and

they are ready and willing to offer substantial surety

and abide by any of the conditions that may be imposed

by the Court. Therefore, it is prayed that their bail

petitions deserve to be allowed.

13. Per contra, learned SPP Sri P.M. Nawaz,

appearing for the State, strenuously contends that

though the invocation of KCOCO Act is stayed, it is

stayed only for a limited period of eight weeks. There is

every chance of vacating of the stay order. In this

context, the investigating agency would get 180 days

with permission of the Court to investigate the matter

17

under the KCOCA Act. Considering the seriousness of

the offences and gravity and nature of the allegations

made against the petitioners, thorough and detailed

investigation has to be conducted. The records reveal

that large number of accused persons are involved in

the Syndicate and they have committed the offences

under the KCOCO Act also. When the petitioners

having knowledge that the question paper has been

leaked, their duty as dutiful citizens of the country is to

inform the police. But, in this regard, they have

utilized the same for their personal advantage.

Therefore, they are not entitled to be enlarged on bail at

this stage. A1, A9 A14 and A15 are the main accused

persons who have at the initial stages gave the question

paper and thereafter they were distributed. There are 5

cases against A9 Shivakumar, and there are three

cases against A-14. In view of the conspiracy amongst

all the accused, the petitioners are not entitled to be

enlarged on bail. On these grounds, learned SPP sought

for rejection of the above said bail petitions.

18

14. I have heard the detail arguments with

regard to the bail petitions on merits and also Criminal

Revision Petitions. It is worth to note here that if the

petitioners are entitled to be enlarged on bail on merits

of their case, the Revision Petitions preferred by A2 and

A6 will become automatically in fructuous. Therefore, I

would like to consider the bail petitions first and then

consider their Revision Petitions.

15. On the basis of the above said facts and

materials on record, the point that would arise for

consideration of this Court is that:

(1) Whether the petitioners have made out

substantial ground for grant of bail

u/s.439 of Cr.P.C.?

(2) What order?

16. The general principles of bail u/s.438 and

439 of Cr.P.C. are not applicable in the event if the

Court come to the conclusion that, if KCOCO Act is

made applicable to the case on hand. There are certain

19

riders put by the statute i.e., under Section 22 of the

KCOCO Act, which excludes the application of Section

438 of Cr.P.C. if the accusation of having committed an

offence under the said act. So far as Section 439 of

Cr.P.C. is concerned, the Court has to give an

opportunity to the learned Public Prosecutor (P.P) to

oppose the application and that if the learned P.P

opposes the application, the Court has to satisfy itself

that there are reasonable grounds for believing that the

accused are not guilty of such offence and that they are

not likely to commit any offence while on bail then only

bail can be granted. Further, the accused also shall not

be granted with bail, if it can be visualized by the Court

that, while they were on bail, commit any offence under

this Act or under any other Act for the time being in

force. The limitations of granting of bail are specified, in

addition to the limitations under Cr.P.C. or under any

other law for the time being in force for granting of bail.

20

17. Therefore, on plain reading of the above said

provision, it is not that merely because the accused is in

custody, they are automatically entitled to be enlarged

on bail. The offences u/s.3 of the KCOCO Act, is

punishable with death or imprisonment for life. The

abetment of the crime specifically alleged against the

petitioners in this case, falls u/s.3(2) of KCOCO Act

and it is punishable with imprisonment for a term

which shall not be less than 5 years which may extend

to imprisonment for life and shall also be liable to fine,

which shall not be less than Rs.5 lakhs. Considering

the seriousness of the offence under the KCOCO Act,

stringent provisions have been introduced inthe special

Act. Therefore, the Court must be very careful in

dealing with the offenders under the said enactment.

18. In this background, first let me consider

whether KCOCO Act is applicable so far as the

petitioners are concerned at present. It is an

undisputed fact that all the petitioners have approached

21

the High Court in WP No.28987/2016, 29943/2016,

33145/2016 and 35424/2016 respectively challenging

the invocation of the KCOCO Act against them. This

Court after providing opportunity to the State and after

hearing in detail, has come to the conclusion that the

invocation of Section 3 of the KCOCO Act against the

petitioners is not proper and it needs to be considered

by the Court in detail. Therefore, the Court has passed

the orders in the following manner –

"In the circumstances, invoking the

privision of section 3 of KCOCA against the

petitioner A 3 is stayed for a period of 8

weeks. However it is made clear that the

investigation can go on. What is stayed is

only invoking of section 3 of KCOCA Against

the petitioner i.e. A3".

Order passed in W.P. No.28987/2016 dated 6-6-2016

is only extracted and similar orders were passed in all

the writ petitions on different dates, which fact is not in

dispute.

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19. This order clearly indicates that, so far as

the invocation of the provisions of Section 3 of the

KCOCO Act has been stayed. Further, the investigation

so far as other offences are concerned is permitted to be

continued. It goes without saying that, by virtue of the

above said stay order, the investigating agency can go

on with the investigation so far as other offences are

concerned, but not under the KCOCO Act for the time

being so far as Petitioners are concerned. However, the

order also discloses that during the course of further

investigation, if the respondent police find any material

and that the KCOCO Act has to be invoked once again

or for any changed circumstance, the police are entitled

to invoke the KCOCO Act, they can do so in view of the

above said order of the writ Court.

20. On the basis of the above said Stay Order

granted by the Court, the learned counsels for the

petitioners strenuously contend that when KCOCO Act

itself is not made applicable and invocation is stayed,

23

the other provisions under the IPC and Education Act

are not punishable with imprisonment for life but to the

maximum extent, they are punishable for a period of

seven years. Therefore, the petitioners are entitled to be

enlarged on bail.

21. In this background, it is worth to mention

here the rulings of the Hon'ble Apex Court, in a decision

reported in AIR 1997 SC 2575 between Chandraswami

and another Vs. CBI, wherein the Hon'ble Apex Court

has observed that –

“Ordinarily a person who is suspected

of having committed an offence u/s.120-B

read with Section 420 of IPC would be

entitled to bail; of course the paramount

consideration would always be to ensure that

the enlargement of such persons on bail will

not jeopardize the prosecution case.”

22. In another ruling reported in (2005) 5 SCC

294 between Ranjitsing Brahmajeetsing Sharma Vs.

24

State of Maharashtra and another, the Hon'ble Apex

Court has also observed that –

“It should also be kept in mind that the

Act does not differentiate between offences

entailing life imprisonment and those

entailing only one or two years’

imprisonment, that some acts of commission

or omission on the part of a public servant

may attract disciplinary proceedings but not

penal provisions and that merely because

some allegations have been made against a

high-ranking officer which cannot be brushed

aside, but it is by itself not sufficient to deny

him bail.

Dealing with KCOCO Act, the Hon'ble Apex Court has

further observed that –

“The Act should be so construed so as to

maintain a delicate balance between

judgment of acquittal and conviction and an

order granting bail much before

commencement of trial – Further held,

satisfaction of Court as regards applicant’s

likelihood of not committing an offence while

25

on bail must be construed to mean an offence

under the Act and not any offence

whatsoever, be it a minor or major offence.”

23. In another ruling reported in (2012) 1 SCC

40 (CRL) between Sanjay Chandra Vs. Central Bureau

of investigation, the Hon'ble Apex Court has observed

that:

“Relevant considerations in granting

such conditional bail u/s.437 and 439 of

Cr.P.C., gravity of alleged offence, severity of

punishment prescribed in law, both

parameters, held, ought to be taken into

consideration simultaneously. Gravity alone

cannot be decisive ground to deny bail.

Competing factors to be balanced by Court

while exercising its discretion – Protection of

personal liberty against securing attendance

of accused at trial – presumed innocence till a

person is convicted – Hardship caused to

individual on account of detention before

conviction – Unnecessary burden on State to

keep a person who is yet to be proved guilty.

Constitutionally protected liberty must be

respected unless detention becomes a

26

necessity. Bail is the rule and jail is an

exception. Each case however to be decided

on its own merits. Apprehended tampering of

evidence and other criteria have to be

considered. Taking into account all the

circumstances, balanced approach has to be

adopted by the Court in granting bail subject

to certain strenuous conditions and also

giving liberty to the State for cancellation or

modification of bail , if the parties violate the

conditions imposed upon them.”

24. Though the learned counsels for the

petitioners have cited many number of rulings so far as

it relates to the offences under the KCOCO Act is

concerned, in my opinion, it may not be proper on the

part of this Court, to give any finding as to whether the

allegations attract the KCOCO Act against the

petitioners or not?. The only question which the Court

has to consider is whether the Stay granted staying the

invocation of the provisions of the KCOCO Act itself is

sufficient to grant bail to the petitioners or what is the

effect of such stay order ?. Further, if any observation

27

made by this Court with regard to attraction of the

KCOCO Act and the application of the provisions of the

KCOCO Act to the petitioners, it may contradict the

decision that may be rendered by the Court under

Article 226 of Constitution read with section 482 of

Cr.P.C. In this background, the Court has to maintain

self restraint but only consider the effect of the Stay

Order granted by the Writ Court while exercising powers

u/s.482 of Cr.P.C.

25. Be that as it may, the factual allegations

against the petitioners are also bare some important

aspects so far as this case is concerned. The conduct of

the accused as contended by the learned SPP and

damage occurred to the State and also the necessity of

continuing custody of the petitioners till the filing of the

charge sheet, reasonable apprehension of hampering

the investigation or tampering the witnesses and

securing of the accused for trial etc., are the important

factors that has to be considered by this Court.

28

26. It is worth to mention here and as could be

seen from the entire objection statement filed by the

State before this Court as well as before the trial Court

which divulges the exact allegations of the investigating

agency that, A9 – Shivakumaraiah @ Shivakumar is the

leader of the organized crime Syndicate and having

formed the syndicate, has committed more than one

offence which are punishable with imprisonment for

three years and more. A9 is the king pin and active

member of the organized crime syndicate. The master

mind behind the conspiracy is A9, who has calculated

to obtain the original question paper by illegal means for

wrongful gain. The petitioners however are the

beneficiaries in getting the question paper of Chemistry

for their children. In this background, it is alleged that

A1 received an amount of Rs.13 lakhs from A-13

Narayana. A4 and A5 have obtained Rs.50,000/- from

A1 for having cooperated in the alleged crime. It is the

further case that A9 circulated the question paper

through A10 and A11 for undue pecuniary gain. A9 has

29

been involved in the commission of the offence for the

past ten years and various cases have been pending

against him. A14 is also involved in various cases, and

some cases are also pending against A-16.

27. It is further submitted that the petitioners, in

order to secure distinction to their children in

Chemistry paper without merit in an indirect and

immoral way, obtained question paper of the

examination by paying amount to the persons who got

leaked the question paper and handed over the same to

their children. There are no other allegations that, the

petitioners have actually sold the question paper for

making wrongful gain for themselves, as alleged against

some other accused.

28. The learned counsel for the petitioners

pointing out the distinction between the other accused

persons with that of the petitioners as noted above, has

relied upon a decision reported in (2015) 7 SCC 440

between Prasad Shrikant Purohit Vs. State of

30

Maharashtra and another, wherein the Hon'ble Apex

Court dealing with the Maharashtra Control of

Organised Crime Act, has discussed with regard to the

role of A7 and other accused in that case. It is observed

by the Hon'ble Apex Court in the said case in the

following manner:

“Insofar as A-7 is concerned, he has

been charge-sheeted in Parbhani, Jalna as

well as Malegaon bomb blasts – Materials

available on record disclose that he had a

nexus with member of an “organized crime

syndicate” and also had every nexus with

“organized crime” of the two earlier cases,

namely, Parbhani and Jalna bomb blasts and

also had direct involvement in the present

bomb blast at Malegaon – Hence, insofar as

A-7 is concerned, commission of “continuing

unlawful activity” of an “organized crime” on

behalf of an “organized crime syndicate” by

A-7 is satisfactorily shown – Hence, bar

against bail under S. 21(4) attracted against

A-7 – However, involvement of the remaining

appellants cannot be ascertained either by

way of their nexus with any accused who is a

31

member of an “organized crime syndicate” or

such nexus with “organized crime” which

pertains to Parbhani and Jalna bomb blasts –

But possibility of evidence in support of such

nexus coming to light later cannot be ruled out

as investigation is continuing – It, therefore,

cannot be declared that MCOCA was not

attracted and, therefore, they should be

discharged – But, bar under S. 21(4) not

attracted against them based on materials

currently on record.”

29. Based on the above said decision, it can be

visualized that, the allegations against the other

accused persons who have actually committed the

offence and indulged themselves in leaking out the

question paper are distinct and separate compared to

the petitioners. However, the conduct of the accused

persons as argued by learned SPP., in giving the

question paper to their children is inhuman and it

virtually amounts pronouncing death knell so far as the

other students who have worked hard and who have

burnt their mid night oil for the purpose of getting

32

distinction on merit in the examination. That what

exactly the petitioners have done. Their eyes were blind

folded due to the love and affection towards their

children, ignoring the interest of other students in the

State. However, at this stage, as observed by the writ

Court while granting the Stay Order, the allegations

against these petitioners falls short of attracting the

provisions under the KCOCO Act. As could be seen

from the entire materials on record, there is no

allegations whatsoever either in the objection statement

filed before this Court or before the trial Court that,

earlier to the present incident or with reference to the

other cases, there is no allegations that the petitioners

are the members of the Syndicate in order to commit

any offence earlier to the present one. Though the

distinction is available, but this Court is not on the

basis of such distinction can grant bail, it goes without

saying that, whether they are the members of the

Syndicate or not?, whether they have committed the

offence under the KCOCO Act or not has to be thrashed

33

out as rightly argued by the learned SPP only after Writ

Court gives its finding and completion of the entire

investigation. But the question now arises before this

Court is how long the petitioners have to wait for

completion of the investigation. As it is evident that

since more than 90 days, the petitioners have been

languishing in Judicial Custody, no allegations have

been made that, while in jail they have made any

attempts to tamper with the witnesses including their

own children. There is no allegations that these

petitioners were involved in any other offences prior to

the present one and there is no allegations that there

was any previous bad antecedents. Even the learned

SPP has not argued on any aspect that the petitioners

have committed any illegality or any offence while

discharging their duties as public servants, and any

departmental enquiry or proceedings are pending.

Therefore from isolated one case, the petitioners cannot

be doubted as anti social elements.

34

30. In this background, the Court has got

responsibility of looking at the case in three dimensions.

The Court has to bear in mind the interest of the victim

and the interest of the accused with regard to the right

of liberty guaranteed under the Constitution of India

and also the societal impact of the alleged offences.

31. In this context learned SPP relied upon a

decision of the Delhi High Court in W.P. (Crl)

1555/2011 and Crl.M.A No.17832/2011(Stay) dated

21.5. 2012, wherein the court has observed thus:

As held in Burrakur Coal Co.

Ltd.(supra), here the language used by the

parliament is too general, the preamble of the

enactment may be resorted to explain it. As

per the aims and object of MCOCA, it was

enacted to curb organized crime which has

posed a very serious threat to our society.

The activities mentioned therein range from

killing, extortion, smuggling, terrorism, illegal

trade in narcotics, money laundering etc. The

list is not exhaustive. Further, one of the

essential considerations is also the activities

35

covered under the money laundering. As per

the Schedule, offences of forgery and cheating

by personation etc. are also covered in the

Prevention of Money Laundering Act, 2002.

In view of the aims and objects of MCOCA

though cases of simplicitor cheating and

forgery may not come under the “unlawful

means” however, if the same are committed

in manner as an organized crime, particularly

effecting the results of the examination, thus,

de-stabilizing the education system, the said

activity would certainly fall within the ambit

of “unlawful means” as required in

“organized crimes”. The said “unlawful

activity” has some semblance to coercion,

intimidation etc. as the same is performed by

manipulation at an extensive level.”

32. Of course, the learned SPP is right in

contending that much damage has been occurred to the

State in postponing the examination twice and

conducting the examination later. In my opinion, it is

the damage occurred to the State. If the offences are

proved, such damage can very well be recovered from

the accused persons by levying heavy fine. That itself is

36

not sufficient to reject the bail petition so far as the

petitioners are concerned, considering their distinct

involvement in the crime. Of course, the petitioners

have not conducted themselves as dutiful citizens of the

country. They have treated their children not on par

with the other students who have taken the

examination. But one thing is clear that the

Government has taken a wise decision at right point of

time in postponing the examination, twice. Therefore,

no much damage has been occurred even to the

students because they have written the examination

subsequently and their merit and distinction is not

jeopardized but the same is protected by taking timely

decision. But it must have caused great inconvenience

to the students who have to further study hard and

take the examination. Though the conduct of the

accused as argued by SPP may be inhuman and

unacceptable but that sole circumstance is not

sufficient to reject the bail. For the isolated wrong

committed by them in their life, they have already paid

37

some penalty as they have been in Judicial Custody for

more than 90 days, and also suffered humiliation

amongst their relatives and friends.

33. In view of the stay granted by the writ Court,

as I have already expressed, the investigation so far as

the KCOCO Act is concerned and invocation of the

provisions under the KCOCO Act is concerned the

investigation under that Act with respect to the

petitioner is deferred with uncertainty. The respondent

has not filed any charge sheet so far as the other

offences under the IPC and Education Act is concerned

within 60 days. Though the stay order has been

granted by the High Court, no permission granted for

further investigation into the crime, under KCOCA Act

against the petitioners unless it is again invoked. Until

and unless stay order granted by the writ Court,

staying the operation and invocation of the KCOCO Act

is vacated or those petitions are dismissed, the police

cannot proceed with the investigation and file any report

38

to the Court so far as the KCOCO Act is concerned

without invoking the act on changed circumstances.

Therefore, at this stage, when the Stay Order is

operating, the Court has to presume that currently no

KCOCO Act is invoked by the police so far as these

petitioners are concerned.

34. In view of the Stay Order, the investigation

and invocation of the KCOCO Act is indefinitely

deferred. In this background, right of liberty of a person

as guaranteed under the constitution play a dominant

role. When uncertainty is glaring on the face of the

records, the Court should exercise its judicious

discretion in order to safeguard the interest of the

accused also. As I have already narrated though some

damage has been occurred to the State and to the

students who have taken the examination of II PU

during the said period, but the same has been solved by

the Government by conducting the examination afresh

later. Under the above said peculiar circumstances of

39

the cases, the petitioners in my opinion, are entitled to

be enlarged on bail with certain stringent conditions.

35. The interest of the State should also be

safeguarded by mentioning here that if for any reason,

the stay order granted by the writ Court is not

continued or vacated and the police start the further

investigation into the KCOCO Act, or if the petitioners

violate any of the conditions imposed by this Court,

then they can very well approach the Court for

cancellation of the bail.

36. The learned State Public Prosecutor

seriously contends before the Court that the petitioners

who are high profile officers working in different

departments, if they are released on bail, there are

chances of they tampering with the prosecution

witnesses. Therefore, atleast till the filing of the final

report their bail petition deserves to be rejected. Thus,

the Court has to consider the reasonable likelihood of

the applicant interfering with the witnesses for the

40

prosecution or otherwise polluting the process of

justice. It is not only traditional, but rational. In this

context the Court has to enquire into the antecedents of

a man who is applying for bail to find out whether he

has a bad record. Particularly a record which suggests

that he is likely to commit serious offence while on bail.

It is part of criminological history that a thoughtless bail

order may enable the bailee to exploit the opportunity to

inflict further crimes on the members of the society.

Therefore, the Court should be very careful while

exercising the discretion, but the discretion should be

on the basis of the materials on record. It is significant

to note in this regard that even in the objection

statement or in the records available, there is absolutely

no allegations whatsoever so far it relates to these

petitioners are concerned that their antecedents are not

good and at any point of time, they were involved in any

criminal activities and also they have earned bad

antecedent in their professional career as such.

Without there being any such materials on record, the

41

Court cannot at this stage, imagine or jump to a

conclusion that if they are released on bail, they will use

their power, to tamper with the prosecution witnesses or

tamper the further investigation if any in future. This

has to be tested by providing an opportunity to the

petitioners. If they indulge in hampering the

investigation if any in future, the State Government is at

liberty to move the Court for cancellation of bail by

furnishing sufficient materials to the satisfaction of the

Court. Therefore, that ground at present is not

available to the State.

37. Looking to the above said facts and

circumstances of the case, considering the uncertainty

in the investigation and filing of the final report,

considering the valuable right of liberty of the

petitioners and also providing remedy to the State to file

application for cancellation of bail in future, I am of the

opinion that the petitioners are entitled to be enlarged

on bail.

42

38. Orders on Revision petitions:

Sofar as it relates to Crl.R.P. 760/2016 and

806/2016 are concerned, the petitioners by name

Obalaraju and K.S. Ranganath have in fact filed

application under Section 167(2) of Cr.P.C. for grant of

statutory bail before the trial Court in Cr. No. 37/2015

on the ground that the KCOCA Act invoked by the

Investigating Agency has been stayed by the High Court

and therefore, the other offences which are invoked by

the Investigating Agency are not punishable with death

or imprisonment for life or for the imprisonment which

may extend to 10 years, but, the offences invoked under

the Indian Penal Code and under Karnataka Education

Act are to the maximum extent punishable for a period

of seven years. Therefore, the charge sheet ought to

have been filed within 60 days and as the charge sheet

has not been filed within that period, the petitioners are

entitled for statutory bail under Section 167(2) of

Cr.P.C.

43

39. The above said arguments of the learned

counsel Sri. Hashmath Pasha and Sri. Chandramouli

appearing for the petitioners appears to be attractive,

but in fact the said argument, in my opinion, is not

sound enough to grant statutory bail in favour of the

petitioners. The trial Court in fact, has considered

Section 167 of Cr.P.C. and also Section 22(2) of KCOCA

Act. Section 22(2) of the KCOCA Act empowers the

Investigating Agency that, if the KCOCA Act is invoked

and if the filing of the charge sheet is not possible

within 90 days, then, on the report of the Public

Prosecutor indicating the progress of the investigation

and the specific reasons for detention of the accused

beyond the period of 90 days, the Special Court can

extend the said period upto 180 days. The trial Court

has concluded that, 90 days has not been completed

and as only 60 days have been completed from the date

of remand of the said petitioners, they are not entitled

for grant of bail under Section 167(2) of Cr.P.C., in view

of the invocation of KCOCA Act.

44

40. As I have already noted, in Writ Petition

No.28987/2016 sofar as the petitioner-Obalaraju is

concerned and in Writ Petition No.27943/2016 sofar as

the petitioner K.S. Ranganath is concerned, this Court

has granted stay sofar as KCOCA Act is concerned for a

period of 08 weeks. The Court has also clarified that,

whether invocation of the provision of Section-3 of

KCOCA Act is proper or not, needs to be considered by

the Court, therefore, stay was granted for 08 weeks.

41. The argument of the learned counsel that, as

the KCOCA Act has been stayed by this Court, the

charge sheet ought to have been filed sofar as the other

offences under Indian Penal Code and Education Act

are concerned, within 60 days from the date of remand

of the accused persons, otherwise, the bail should be

automatic. The said argument of the learned counsel,

in my opinion, is not acceptable for the simple reason

that, invocation of the KCOCA Act is only stayed for a

limited period of 08 weeks.

45

42. This Court cannot imagine as to what order

the Court may pass sofar as the said cases are

concerned. If for any reason the Court permits the

police to investigate the matter under the KCOCA Act

and other provisions by vacating the stay order or by

dismissing the petition, in that eventuality, the

Investigating Agency would get an opportunity to

investigate the matter. It is only a suspended period

during the operation of the stay order granted by the

Court, if for any reason, the writ petitions are allowed

and invocation of the KCOCA Act itself said to be

invalid, then the petitioners may be entitled for bail

under the said provision. However, at this stage,

though it is uncertain with regard to the invocation of

KCOCA Act, but nevertheless, the KCOCA Act has

already been invoked by the police, they can revive their

power of investigation subject to further order in the

writ petitions. Therefore, I am of the opinion that, it

cannot be said that the police ought to have filed charge

46

sheet in part within 60 days and infact within 180 days

as the case may be with the permission of trial Court.

Therefore, the above said argument of the learned

counsels cannot be accepted.

43. Considering the stay order passed in the writ

petitions and also considering the other material on

record and also considering the long incarceration of the

petitioners for more than 90 days, this Court has taken

a view that the petitioners are entitled to be enlarged on

bail, particularly under Section 439 of Cr.P.C. As the

petitioners in the Criminal Petitions are ordered to be

enlarged on bail, the present Revision Petitions

becomes infructuous.

44. With these observations, I am of the opinion

that the Revision Petitions are liable to be dismissed.

Further, I am of the opinion, that if conditional bail is

granted in favour of the petitioners, it would meet the

ends of justice.

47

45. For the above said reasons, the following

order is passed.

O R D E R

Crl.R.P. No.760/2016 and Crl.R.P.

No.806/2016 are hereby dismissed.

The Crl. P. Nos. 4251/2016,

4325/2016, 3834/2016 and 4407/2016 are

hereby allowed. Consequently, the

petitioners shall be released on bail in

connection with Crime No.37/2016 on the

file of the respondent Police on the following

conditions:

(1) The petitioners shall execute their

personal bonds for a sum of Rs.2 lakhs with

two solvent sureties for the likesum to the

satisfaction of the jurisdictional Court.

(2) The petitioners shall not indulge in

tampering the prosecution witnesses or

hampering the investigation.

(3) The petitioners shall not leave the

jurisdiction of the trial Court without prior

permission till the case registered against

them is disposed of.

48

(4) The petitioners shall appear before

the Court on all the future hearing dates

unless exempted by the Court for any

genuine reason.

(5) The petitioners shall also mark their

attendance once in a week before the

respondent – Police on every Sunday

between 10.00 am to 5.00 p.m., till the filing

of the final report, or for a period of Three

months which ever is earlier.

(6) It is made clear that State is at

liberty to move the Court for cancellation of

bail in case of violation of any of the above

conditions noted above or if the respondent –

Police, invoke the provisions under the

KCOCO Act in future on any changed

circumstance as referred to in the body of

this order.

Sd/-

JUDGE PL*