1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 10

TH

DAY OF FEBRUARY, 2026

BEFORE

THE HON’BLE Mr. JUSTICE SHIVASHANKAR AMARANNAVAR

CRIMINAL PETITION No.7180/2025

BETWEEN :

SMT. BHAGYALAXMI

AGED 65 YEARS

SHIRALAKOPA TOWN

SHIKARIPURA, SHIVAMOGGA

KARNATAKA- 577 428

… PETITIONER

(BY SRI. ASHOK N. NAIK, ADVOCATE)

AND :

1. STATE OF KARNATAKA

BY SHIRALAKOPPA P.S

REP. BY STATE PUBLIC PROSECUTOR

HIGH COURT BUILDING

BENGALURU–560 001

2. KOTESHA @ KOTESHWARA

@ ELUKOTESHWARA

S/O DYAMAPPA

AGED ABOUT 41 YEARS

R/O CHANNAPURA VILLAGE

2

SORABA TALUK

PIN:577 429

… RESPONDENTS

(BY SRI. M.R. PATIL, HCGP FOR R1;

SRI. SYED AKBAR PASHA, ADVOCATE FOR

SRI. PARAMESWARAIAH D.C, ADVOCATE FOR R2)

THIS CRIMINAL PETITION IS FILED UNDER SECTION

439(2) OF THE Cr.P.C PRAYING TO SET ASIDE ORDER

GRANTING BAIL DATED 20.03.2025 PASSED BY THE III

ADDITIONAL DISTRICT AND SESSIONS JUDGE,

SHIVAMOGGA, IN S.C.No.18/2023 FOR OFFENCE

PUNISHABLE UNDER SECTIONS 504, 506, 448, 232, 302,

307, 326 OF I.P.C AND ACCUSED MAY BE DIRECTED TO

SURRENDER BEFORE THE TRIAL COURT.

THIS CRIMINAL PETITION HAVING BEEN HEARD AND

RESERVED FOR ORDERS ON 20.01.2026, THIS DAY,

SHIVASHANKAR AMARANNAVAR J, DELIVERED THE

FOLLOWING;

CORAM:

HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

CAV ORDER

1. This petition is filed by the defacto complainant

under Section 439(2) of Cr.P.C. praying to cancel the b ail

granted by III Additional District and Sessions Judge,

Shivamogga, by order dated 20.03.2025 passed in S.C. No.

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18/2023 and direct the accused to surrender before the trial

Court.

2. Heard learned counsel for petitioner – defacto

complainant and learned counsel for respondent No. 2 –

accused.

3. Learned counsel for petitioner – defacto

complainant would contend that respondent No. 2 – a ccused

was facing trial in S.C. No. 18/2023 on the file of III

Additional District and Sessions Judge, Shivamgga, for offence

under Sections 504, 506, 448, 323, 303, 307, 326 of IPC.

Respondent No. 2 – accused was in judicial custody. Bail

application came to be filed on 30.12.2024 by advan cing the

case. The bail application came to be filed when the trial was

in progress and prosecution had already examined 4

witnesses as P.W.1 to P.W.4. On 05.03.2025, in the c ross-

examination of P.W.6 by the learned Public Prosecutor there

was a suggestion that money had been offered to giv e false

evidence and produced pen drive containing conversatio n.

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The trial Court recorded the same in the order sheet of

05.03.2025 and referred the matter to the concerned CPI ,

Shiralkoppa Police Station along with the said pen driver for

proper investigation and suitable action. Thereafter t he

matter came to be adjourned to 20.03.2025 for examinat ion

of C.W.11 to C.W.12 and passing of order on bail application

of the accused. On 20.03.2025 when the said mater regarding

inducing C.W.6 by offering money to give false evidence was

pending consideration the trial Court has allowed the bail

application and granted bail to respondent No. 2 – accused.

The offence alleged against respondent No. 2 – accus ed is

heinous offence punishable under Section 302 of IPC and also

under Section 307 of IPC. The bail has been granted by

cryptic order only on the ground that the Investigating Officer

did not produce property seized along with the FSL repo rt in

time. As trial could not be commenced on time and al so on

the ground that material witnesses have already been

examined and there is no reason that respondent No. 2 –

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accused may tamper the prosecution witnesses. Respond ent

No. 2 – accused is in judicial custody for more than three

years. Therefore, order passed by the trial Court is perverse,

suffers from serious infirmities resulting in miscarriage of

justice. The trial Court has ignored the relevant mate rials

indicating prima facie involvement of respondent No. 2 –

accused and taken into account irrelevant material, i.e., not

furnishing the material objects and FSL report in time a nd

respondent No. 2 – accused is in judicial custody fo r more

than three years. Learned counsel for petitioner further

submits that as the order has been passed by the Sess ions

Court, the petition seeking cancellation of bail before this

Court is maintainable and on that point he placed reliance on

the following decisions:

A. Puran Vs. Rambilas and another, 2001 (3) SC 860

B. Ansar Ahmad Vs. State of Uttar Pradesh and another,

2023 Supreme (SC)1236

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C. State of Karnataka Vs. Sri. Darshan, 2025 Supreme

(SC) 1201

On these grounds he prayed to allow the petition and

cancel bail granted to respondent No. 2 – accused.

4. Learned counsel for respondent No. 2 – accused

would contend that cancellation of bail can be sought only if

the accused had violated any of the conditions imposed while

granting bail and if there are allegations of tampering the

prosecution witnesses and destroying of evidence. He placed

reliance on the decision of a coordinate Bench of this Court in

the case of Devibai, W/o Channappa Chinnarathod Vs.

The State of Karnataka and another, Crl.P. No.

200940/2025 decided on 24.06.2025. He further

contended that respondent No. 2 – accused was in ju dicial

custody for more than 3 years and all material witnesses were

examined. Delay in trial has been caused as the Investigating

Officer had not produced the material objects and FSL report

in time. Petitioner, if aggrieved by the order granting bail, has

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to challenge the same under Section 482 of Cr.P.C. On these

grounds he prayed to reject the petition.

5. Having heard learned counsel for the parties, this

Court has perused the materials placed on record.

6. Respondent No. 2 – accused is facing trial in S.C.

No. 18/2023 pending on the file of III Additional District and

Sessions Judge, Shivamogga registered for offence under

Sections 504, 506, 448, 323, 303, 307, 326 of IPC. A s per

chargesheet case of the prosecution is that on 27.08.2022, at

about 10.40 am, when deceased Dayanand A.R. and C.W .2

were doing work in Passage Bar Lane, respondent No. 2 –

accused saw the same and thought that if they were allowed

to do the work they will not give money, took a knife kept on

the table in front of Sri. Vijaya Stores, kept it hidden in pant

pocket, at about 10.45 am entered the said Passage B ar

Lane, quarreled with the deceased Dayanand and C.W.2,

abused them, took out the knife kept in the pant pocket and

assaulted with the same on left side chest of C.W.2 and on

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left hand six times and when C.W.2 screamed, the dec eased

Dayanand came to rescue him and at that time responde nt

No. 2 – accused assaulted with the said knife on the stomach

of deceased and pressed his neck with hand and pushe d him

to the ground. Said Dayanand was taken to hospital a nd the

Doctor who examined him told that he was dead.

7. C.W.2 is the injured and eye witness to the

incident. C.W.3 to C.W.5 are eye witnesses to the i ncident.

Respondent No. 2 – accused was in judicial custody since

02.09.2022. Bail order has been passed on 20.03.2025.

8. Cancellation of bail has been sought on the ground

that order passed by the Sessions Court is cryptic, perverse

and pending consideration of the fact of inducing P. W.6 to

give false evidence after receiving money and consid ering

relevant material of delay in commencing the trial for non-

production of material objects and FSL report. Whether the

said grounds can be considered for cancellation of bai l

requires consideration.

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9. The Hon’ble Apex Court in the case of Kanwar

Singh Meena vs. State of Rajasthan and Another , reported in

(2012) 12 SCC 180 has held as under:

10. Thus, Section 439 of the Code confers very wide

powers on the High Court and the Court of Session

regarding bail. But, while granting bail, the High Court

and the Sessions Court are guided by the same

considerations as other courts. That is to say, the

gravity of the crime, the character of the evidence,

position and status of the accused with reference to the

victim and witnesses, the likelihood of the accused

fleeing from justice and repeating the offence, the

possibility of his tampering with the witnesses and

obstructing the course of justice and such other

grounds are required to be taken into consideration.

Each criminal case presents its own peculiar factual

scenario and, therefore, certain grounds peculiar to a

particular case may have to be taken into account by

the court. The court has to only opine as to whether

there is prima facie case against the accused. The court

must not undertake meticulous examination of the

evidence collected by the police and comment on the

same. Such assessment of evidence and premature

comments are likely to deprive the accused of a fair

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trial. While cancelling the bail under Section 439(2) of

the Code, the primary considerations which weigh with

the court are whether the accused is likely to tamper

with the evidence or interfere or attempt to interfere

with the due course of justice or evade the due course

of justice. But, that is not all. The High Court or the

Sessions Court can cancel the bail even in cases where

the order granting bail suffers from serious infirmities

resulting in miscarriage of justice. If the court granting

bail ignores relevant materials indicating prima facie

involvement of the accused or takes into account

irrelevant material, which has no relevance to the

question of grant of bail to the accused, the High Court

or the Sessions Court would be justified in cancelling

the bail. Such orders are against the well-recognised

principles underlying the power to grant bail. Such

orders are legally infirm and vulnerable leading to

miscarriage of justice and absence of supervening

circumstances such as the propensity of the accused to

tamper with the evidence, to flee from justice, etc.

would not deter the court from cancelling the bail. The

High Court or the Sessions Court is bound to cancel

such bail orders particularly when they are passed

releasing the accused involved in heinous crimes

because they ultimately result in weakening the

prosecution case and have adverse impact on the

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society. Needless to say that though the powers of this

Court are much wider, this Court is equally guided by

the above principles in the matter of grant or

cancellation of bail.

10. The Hon’ble Apex Court in the case of Abdul Basit

vs. Mohd. Abdul Kadir Chaudhary, (2014) 10 SCC 754

has

held as under:

“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 Co de

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,

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etc. 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 [(1986) 4 SCC 481 : 1986 SCC (Cri) 511 : 1987 Cri

LJ 157].)

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 (Delhi Admn.) [(1978) 1 SCC

118 : 1978 SCC (Cri) 41] .

16. In Gurcharan Singh case [(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)

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“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 498 Cr.P.C 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 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

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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 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

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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.”

(emphasis supplied)

17. In this context, it is profitable to render reliance

upon the decision of this Court

in Puran v. Rambilas [(2001) 6 SCC 338 : 2001 SCC (C ri)

1124] . In the said case, this Court held (SCC p. 345,

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 [(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 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 [(2001) 6 SCC 338 : 2001 SCC (Cri) 1124 ]

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has observed that when irrelevant materials have been

taken into consideration by the court granting order o f

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.”

11. The judgment relied on by learned counsel for

petitioner in the case of Puran Vs. Rambilas reported in

(2001) 6 SCC 338 has been considered in the aforesaid

judgment at paragraph No. 17.

12. Learned counsel for petitioner has placed reliance

on the judgment of the Hon’ble Apex Court in the case of

Ansar Ahmad vs . State of Uttar Pradesh and Another 2023

Supreme(SC) 1236 has held as under:

“15. We are not at all impressed by the aforesaid

submission of Mr.Basant as it is well settled position of

law that cancellation of bail is not limited to the

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occurrence of any supervening circumstances. In Ash

Mohammad vs. Shivraj Singh @ Lalla Babu and Another.

(2012) 9 SCC 446, this Court has observed that there is

no defined universal rule that applies in every single case.

Hence, it is not the, law that once bail is granted to the

accused, it can only be cancelled on the ground of

likelihood of an abuse of bail. The Court before whom the

order of grant of bail is challenged is empowered to

critically analyse the soundness of the bail order. The

Court must be wary of a plea for cancellation of bail order

vs. a plea challenging the order for grant of bail. Although

on the face of it, both situations seem to be the same

yet, the grounds of contention for both are completely

different. Let's understand the different conditions in both

the situations.

16. In an application for cancellation of bail, the court

ordinarily looks for supervening circumstances as

discussed above. Whereas in an application challenging

the order for grant of bail, the ground of contention is

with the very order of the Court. The illegality of due

process is questioned on account of improper or arbitrary

exercise of discretion by the court while granting bail.

So, the crux of the matter is that once bail is granted, the

person aggrieved with such order can approach the

competent court to quash the decision of grant of bail if

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there is any illegality in the order, or can apply fo r

cancellation of bail if there is no illegality in the order but

a question of misuse of bail by the accused. In Puran vs.

Rambilas and Another, 2001 (6) SCC 338, this Court ha s

observed "the concept of setting aside as unjustified,

illegal or perverse order is totally different from the

canceling an order of bail on the ground that the accused

had mis-conducted himself, are because of some

supervening circumstances warranting such cancellation.”

13. Considering the above decisions this Court can

cancel the bail granted to the accused if the order of grant of

bail is perverse; the order granting bail suffers from serious

infirmities resulting in miscarriage of justice; when irrelevant

materials have been taken into consideration by the Court for

granting bail.

14. The co-ordinate Bench of this Court in Devibai

(supra) in the petition filed under Section 483(3) of BNSS

seeking cancellation of bail has dismissed the said petition as

not maintainable. The co-ordinate Bench has observed as

under:

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11. As a general rule, application seeking cancellation of

the bail is to be filed before the Court, which granted bail,

inasmuch as, it is that Court which is exclusive knowledge

of facts for grant of bail or rejection thereof.

12. Even though concurrent powers vested in this Court

along with the Special Court or the Sessions Court to grant

or cancel the bail, the application seeking cancellation of

bail shall not be construed as if it is an appeal over the

order of grant of bail.

13. Scheme of the statute does not provide for such an

eventuality. Even in BNSS, 2023, no such provision is

carved out by the legislature so as to vest the power of

either revision or appeal over the discretionary order of

grant of bail.

14. Section 483(3) of BNSS, 2023 is retained in verbatim

of Section 439(2) of Cr.P.C. If at all the legislature is of the

opinion that even in case of a discretionary order, if no

proper discretion is exercised by a Court, then such orders

could also be subject matter of either revision or appeal,

necessarily the legislature would have carved out such

power in the higher Courts namely, the High Court as

against the Sessions Court or the Special Court.

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15. In the absence of any such power being vested in the

higher Courts either under Section 483(3) of BNSS, 20 23

or any other provision of BNSS, 2023 and no such powe r

being carved out in the POCSO Act as well, this Court is of

the considered opinion that bail once granted cannot be

cancelled just for asking.

16. No doubt, if there is a grave and serious error that has

been committed by the Court while granting the bail, same

can be questioned under the supervisory power under

Article 227 of the Constitution of India and by invok ing

inherent power of this Court under Section 482 of Cr.P.C.

17. Reserving such liberty for the petitioner/complainant,

the present petition in the considered opinion of this Court

is not maintainable.

15. The co-ordinate Bench has not considered the

judgments of the Hon’ble Apex Court referred to supra. T he

said judgments of the Hon’ble Apex Court have not been cited

before the co-ordinate Bench. Considering the judgments of

the Hon’ble Apex Court, the petition filed under Sect ion

439(2)/483(3) of BNSS is maintainable only on the g rounds

mentioned in para 13 supra.

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16. The Sessions Court while granting bail to

respondent No. 2 – accused has observed as under:

“9. As could be seen from the records, the accused is

in judicial custody from 02.09.2022. It cannot be disputed

that the accused is allegedly involved in heinous offence

namely the offence punishable under section 302 of IPC

along with other penal provisions. Since the Investigating

Officer did not produce the property seized in this matter

along with FSL report, the trial could not be commenced

on time. Finally the trial was commenced on 18.09.2024.

This Court has already examined the material witnesses

and now there is no reason that the accused may tamper

the prosecution witnesses. The accused is in judicial

custody from more than 3 years. The accused is said to

be the permanent resident of Soraba and he has

undertaken to abide by any condition that may be

imposed by this Court at the time of granting bail and he

is ready to offer surety to the satisfaction of this Court.

Therefore, it is the considered view of this Court that bail

may be granted to accused and the apprehension of the

prosecution is that if the applicant is released on bail, he

may abscond and tamper the prosecution witnesses. Such

apprehensions could be meted out by imposing certain

stringent conditions. With these observations, the point

No.1 is answered in the Affirmative.”

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17. Considering the above aspect bail has been

granted to respondent No. 2 – accused on the followin g

grounds:

a) Investigating officer did not produce property seized

along with the FSL report and therefore trial could not

be commenced on time and it commenced on

18.09.2024.

b) Prosecution has already examined material witnesses

and therefore there is no apprehension of respondent

No. 2 – accused tampering the prosecution witnesses.

c) Respondent No. 2 – accused is in judicial custody for

more than three years.

18. C.W.1 –complainant, C.W.2 – injured, C.W.3 to

C.W.5 are eye witnesses to the incident. Said witnesses are

examined as P.W.1, P.W.2, P.W.6, P.W.4, P.W.3 respectivel y.

Said witnesses are material witnesses and they are examined

as on the date of grant of bail by the trial Court. In the

chargesheet there are totally 31 witnesses and out of them,

23

the prosecution has already examined 12 witnesses.

Remaining witnesses, C.W.13 to C.W.31 are formal, off icial

witnesses and Investigating Officers.

19. Chargesheet itself indicate that respondent No. 2 –

accused was arrested on 02.09.2022 and he was in jud icial

custody since then. Charge has been framed on 18.06. 2024.

The Investigating Officer has submitted FSL report on

23.07.2024 and on the same day itself the Court has issued

summons to C.W.1 and C.W.2 and trial has commenced o n

18.09.2024.

20. Considering the above aspects it cannot be said

that bail has been granted by cryptic order or by taking into

consideration irrelevant material.

21. Even though pen-drive has been produced

regarding inducing P.W.6 to give false evidence by off ering

money, same is under consideration before the Investig ating

Officer as on the date of passing of the bail order b y the

Sessions Court. If anything is found by the report of the

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Investigating Officer after examining the pen-drive the Court

can suo motu take the matter regarding cancellation of bail

granted or the defacto complainant can also make an

application for cancellation of bail.

22. There are no allegations against respondent No. 2

– accused of he violating any conditions of bail.

23. Considering the above aspects there are no

grounds made out for cancellation of bail as sought.

In the result, petition is dismissed.

Sd/-

(SHIVASHANKAR AMARANNAVAR)

JUDGE

LRS