Karnataka High Court
Venugopal S/O Jagannath vs The State Of Karnataka on 12 April, 2022
Author: P.N.Desai
Bench: P.N.Desai
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL PETITION NO.100989/2022
BETWEEN:
VENUGOPAL S/O JAGANNATH
AGE. 30 YEARS,
R/O. KADUR
KADUR TALUK
CHIKKAMAGALURU-577548
...PETITIONER
(BY SHRI B.V.SHANKAR NARAYAN RAO, SENIOR COUNSEL, FOR
SHRI RAVIKUMAR K N, ADVOCATE.)
AND:
THE STATE OF KARNATAKA
THROUGH MUDALAGI POLICE STATION
MUDALAGI TALUK-591312
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD.
...RESPONDENT
(BY SMT.GIRIJA HIREMATH, HCGP.)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 438 OF
THE CODE OF CRIMINAL PROCEDURE, 1973, SEEKING TO GRANT
ANTICIPATORY BAIL FOR PETITIONER/ACCUSED NO.17 IN
C.C.NO.296/2014, REGISTERED BY THE MUDALAGI POLICE
STATION, MUDALAGI, FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 419, 420, 109 READ WITH SECTION 34 OF IPC ALONG
WITH SECTION 118 OF KARNATAKA EDUCATION ACT, 1983,
PENDING ON THE JMFC COURT, MUDALAGI, ETC.,.
2
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT PASSED THE FOLLOWING:
ORDER
This petition is filed under section 438 of the Code of Criminal Procedure, 1973, seeking to enlarge the petitioner who is arraigned as accused no.17, on anticipatory bail, in the event of his arrest in C.C.No.296/2014, registered for the offences punishable under sections 419, 420, 109 read with section 34 of the Indian Penal Code, 1860, and section 118 of the Karnataka Education Act, 1983, pending on the file of JMFC Court, Mudalagi.
2. It is alleged by the prosecution that the Head Master of Government High School, Gurlapur, lodged a complaint on 7.6.2013 stating that he was appointed as a main invigilator for KOS examination conducted by the Karnataka Secondary Education Examination Board, Bengaluru and he started to verify the hall tickets after giving the question papers and answer papers to the candidates and he found that the photo of the candidates (petitioner and others) were different and the person 3 sitting for the examination are not tallying and he found that some duplicate candidates are appearing in the examination. Hence, he lodged the complaint. This petitioner is arraigned as accused no.17 in the FIR. Thereafter the police conducted the investigation and filed the charge sheet for the offences punishable under sections 419, 420, 109 read with section 34 of IPC and also under section 118 of Karnataka Education Act, 1983. The petitioner filed anticipatory bail petition and the same came to be rejected by the learned Sessions Judge. Hence the petitioner has filed this petition.
3. Heard Shri B.V.Shankar Narayan Rao, the learned Senior Counsel appearing on behalf of Shri Ravikumar K.M., the learned counsel for the petitioner and Smt.Girija Hiremath, the learned HCGP appearing for the respondent State and perused the material placed on record.
4. The learned Senior Counsel argued that the investigation is already completed and the statements of witnesses indicate that they were all stereo type 4 statements. The alleged offences are not punishable with death or imprisonment for life. His name is mechanically included though the petitioner was not present. The leaned Sessions Judge has not appreciated the fact that the petitioner was falsely implicated. The petitioner was not aware of the pending case, still he is in Kottur remote place and proclamation was issued for his arrest. Hence the learned counsel for the petitioner argued that the petitioner is innocent and there is no prima facie material against the petitioner. He is the permanent resident and ready to abide by any conditions that may be imposed by the Court. Hence the learned counsel for the petitioner argued to grant anticipatory bail to the petitioner in the above case.
5. Against this, the learned HCGP argued that already proclamation is issued and charge sheet is filed against this petitioner long back. It appears that this petitioner is not before the Court and because of the non appearance of the petitioner, the trial Court proceedings is held up though the charge sheet is filed in the year 2014 5 itself. Hence the learned HCGP argued to reject the bail petition as the petitioner being a person against whom proclamation is issued is not entitled for bail.
6. I have perused the material placed on record, contents of the complaint, FIR and petition averments. It is evident that the alleged offence took place on 7.6.2013. The police after completing the investigation filed the charge sheet against 31 persons. This petitioner is arraigned as accused no.17. It is also evident that the charge sheet is filed in the year 2014 itself. Of course the order sheet of trial Court is not forthcoming. It is evident that proclamation came to be issued against the petitioner. Of course at this stage the merits of the case cannot be considered. However since the proclamation is issued against the petitioner, then it is evident that the Court might have issued summons first and he has not appeared and might have issued NBW and also the Court has issued proclamation against the petitioner. Of course the nature of allegations against the accused are to be gone into at the time of trial. However at this stage the petitioner 6 cannot seek anticipatory bail as there is already NBW and proclamation issued against this petitioner.
7. The co-ordinate Bench of this Court in Dr.A.Ebenezer vs. State of Karnataka, by the SHO Cubbonpark PS House Officer, reported in ILR 2002 Karnataka 5003 at paragraph no.9 observed as follows:
9. In the backdrop of the object and purpose of the provisions of anticipatory bail, it does not really warrant to make the provision of Section 438 Cr.P.C. applicable after filing of a final report and grant of anticipatory bail in such a situation is only a redundant effort. The accused who comes to know the issuance of NBW in a Court of law without the aid of Section 438 Cr.P.C. has a relief of seeking recall of the NBW under Sub-section (2) of Section 70 by showing proper reasons and simultaneously make a regular bail application.
Sometimes it is cynically argued that the Trial Court would not be liberal in granting bail in non-bailable offences when NBW is issued and the voluntary surrender/appearance before the Court would only make the accused suffer detention for a day or two pending disposal of the bail application on merits. The provisions of anticipatory is not meant to curtail the lawful jurisdiction to the Magistrate or the Trial Court. A bail application under Section 437/439 Cr.P.C. has to be disposed of by the competent Court in accordance with law. In that context, granting anticipatory bail in respect of NBW issued by a Court of law would only serve to strengthen the cynical arguments. In that view 7 of the matter, I find no merit in the contention of the Counsel for the petitioner that the provisions of Section 438 could be invoked in respect of NBW issued by a Court of law after filing of charge sheet.
8. Here also it is identical situation. It appears none of the offences are heinous offences or punishable with death of imprisonment for life. Even the punishment is also not severe in respect of the offences alleged. The co-ordinate Bench of this Court in Balaji S.N. vs. State of Karnataka, in Crl.P.No.2194/2018 by order dated 27.6.2018, observed at paragraph nos.5 and 6 and directed the petitioner to approach the trial Court and seek regular bail, which reads as follows.
5. The learned High Court Government Pleader, has brought to my notice that in view of the continuous absence of the petitioner, NBW was issued against him on 01.10.2015 and proclamation has been issued on 13.09.2017. The warrant as well as the proclamation are pending against the petitioner and hence, he cannot be admitted to bail.
8
The Hon'ble Supreme Court in Lavesh vs. State (NCT of Delhi) reported in (2012) 8 - S.C.C. 730 has held:
"Normally, when the
accused is "absconding" and
declared as a "proclaimed
offender", there is no
question of granting
anticipatory bail. We reiterate
that when a person against
whom a warrant had been
issued and is absconding or
concealing himself in order to
avoid execution of warrant and
declared as a proclaimed
offender in terms of Section 82
of the Code he is not entitled
to the relief of anticipatory
bail."
6. In view of the above ratio,
petition is liable to be rejected. However,
since the petitioner had the benefit of the
earlier order passed by the Sessions Court under Section 438 of Cr.P.C., the trial Court may consider the application for bail moved by the petitioner on the same day of his appearance before the Court.
9. Keeping in mind the facts and circumstances of the case and in the light of the discussion made above, in my considered view the petition for anticipatory bail under 9 section 438 of Cr.P.C. is not maintainable. However the petitioner shall appear before the trial Court and urge his inability to appear before the Court during Covid-19 pandemic and state the reasons for his non appearance when the summons was issued. He can seek bail and recall of NBW by filing appropriate application in accordance with law. If such bail application is moved and any application for recalling of such NBW is filed, the same shall be considered and disposed of by the trial Court on the same day of his appearance before the Court, in accordance with law.
With this observation, this criminal petition is disposed of.
SD/-
JUDGE Mrk/-