Karnataka High Court
Mahammad Fiaz S/O D. M. Raiz vs The State Of Karnataka on 17 August, 2017
Author: R.B Budihal
Bench: R.B Budihal
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17TH DAY OF AUGUST 2017
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.101659 OF 2017
BETWEEN:
1. MAHAMMAD FIAZ S/O D. M. RAIZ
AGE: 37 YEARS, OCC: GOVT SERVANT,
R/O: KOPPAL, TQ: & DIST: KOPPAL.
2. SMT.SARVAMANGALA URF SAMA JABEEN
MAHAMMAD FIZA, AGE: 32 YEARS,
OCC: GOVT. SERVANT, R/O: KOPPAL,
TQ & DIST: KOPPAL.
NOW AT MYSURU.
... PETITIONERS
(BY SRI.B.C.JNANAYYA SWAMI, ADVOCATE)
AND
THE STATE OF KARNATAKA
(THROUGH ALAWANDI P.S. KOPPAL DIST)
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENCH AT DHARWAD.
... RESPONDENT
(BY SRI.PRAVEEN K. UPPAR, HCGP)
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THIS CRIMINAL PETITION IS FILED UNDER SECTION 438
OF CRIMINAL PROCEDURE CODE SEEKING TO ALLOW THIS
PETITION AND ENLARGE THE PETITIONERS ON ANTICIPATORY
BAIL IN THE EVENT OF THEIR ARREST IN CRI. NO.80 OF 2017
ALAWANDI POLICE STATION KOPPAL DISTRICT FOR THE
OFFENCE 465, 468, 471, 477(A), 409 READ WITH 34 OF
INDINA PENAL CODE PENDING INVESTIGATION AND TRIAL OF
THE CASE.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT, MADE THE FOLLOWING:
ORDER
Learned counsel for the petitioners made the submission that so far as petitioner No.2 Smt.Sarvamangala is concerned, the petition has become infructuous as she has been already arrested. Hence, he submitted that he will not press the bail petition in respect of petitioner No.2.
2. The said submission is placed on record.
3. This petition is to be considered only in respect of petitioner No.1.
4. This petition is filed by the petitioner/accused No.1 under Section 438 of the Criminal Procedure Code :3: seeking anticipatory bail, to direct the respondent Police to release the petitioner on bail in the event of arrest of the petitioner for the alleged offences punishable under Section 465, 468, 471, 477A, 401 read with Section 34 of the Indian Penal Code, registered in respondent/Police Station Crime No.80/2017.
5. Brief facts of the prosecution case as per the complaint averments, the complainant one Ramakrishna, DHO has filed the complaint before the Superintendent of Police Koppal against the petitioner and others alleging that the petitioners have misused the amount of Rs.1,01,86,246/-. After receiving the said complaint the Superintendent of Police Koppal has given direction to the Alwandi P.S. to register a complaint against the petitioners for the offences as mentioned above. It is alleged in the complaint that the petitioner is working as Medical Lab Technologist at Hiresindogi Primary Health Center. The complainant further alleges that there was some allegations are made against the present petitioner that he :4: misused the amount. For that reason the Chief Executive Officer Zilla Panchayat Koppal has appointed two enquiry officers by name Parasappa, Accountant of Zilla Panchayat and also Dr.Ramanjanyya Taluka Medical Officer and after conducting the enquiry they submitted the report and in the said report they have stated that petitioner created the bills of transferred employees and also created the bills in the name of fake employees and encashed the salary amount and thereby he has misappropriated the same and committed the alleged offences. On the basis of the said complaint case came to be registered for the said offences.
6. Heard the arguments of the learned counsel appearing for the petitioner/accused No.1 and also the learned High Court Government Pleader for the respondent/State.
7. Learned counsel for the petitioner made the submission that looking to the complaint averments as well as the report also, there is no prima facie case made out by the prosecution to show the involvement of the present :5: petitioner that he has committed the alleged offence of misappropriation. Learned counsel also made the submission that the present petitioner is only a Lab Technologist and he is not a Drawing Officer. Therefore the question of he committing the alleged offence does not arise at all. Even referring to the report also learned counsel made the submission that it will not make out a case of misappropriation of the amount as alleged by the prosecution. Hence, he submitted by imposing reasonable conditions, petitioner may be admitted to anticipatory bail. It is also his submission that gravity of the offence is not the ground for rejection of the same, Court has to consider, whether there is a prima facie case or not. In this connection learned counsel relied upon the decision of the Hon'ble Apex Court reported in 2015 AIAR (Criminal) 915 in the case of Bhadresh Bipinbhai Sheth Vs. State of Gujarat and another and drew the attention of this Court to the relevant paragraphs i.e. paragraph Nos. 19, 20 and 21 of the said decision and hence he submitted ultimately to allow the petition and to grant the relief as prayed for. :6:
8. Per contra the learned HCGP made the submission that looking to the very Enquiry Report, it prima facie goes to show involvement of the petitioner in committing the alleged offences and in the very report itself at the later part of the report, it is mentioned by the enquiry officers that the amount has been transferred to the individual account of the petitioner and he is the main accused person in the incident. It is also his submission that the investigation is still going on and at this stage the petitioner is not entitled to be granted with anticipatory bail.
9. I have perused the grounds urged in the bail petition, FIR, complaint and also the other materials produced i.e. the report of the Enquiry Officer, so also the decision relied upon by learned counsel for the petitioner which is referred above and the principle enunciated in the said decision. I have also perused the order of the learned Session Judge rejecting the bail application of the petitioner. Looking to the contents of the complaint and :7: the contents of the Enquiry Report submitted at this stage, prima facie there is material placed by the prosecution to show that there is a misappropriation of the amount to the tune of Rs.1,01,86,246/-. The Enquiry Report also prima facie goes to show involvement of the present petitioner in committing the alleged offence. In view of this, custodial interrogation of the present petitioner is required in the case and it is not a case for anticipatory bail. The decision relied upon by the learned counsel for the petitioner will not come to the aid and assistance of the petitioner in getting the anticipatory bail. Hence, petition in respect of petitioner No.1 is hereby rejected and petition in respect of petitioner No.2 is dismissed as not pressed.
Sd/-
JUDGE RHR/-