Karnataka High Court
Sahebouda S/O. Siddappa Zunjarwad vs The State Of Karnataka on 24 June, 2021
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24 T H DAY OF JUNE 2021
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION No.100793/2021
BETWEEN:
SAHEBGOUDA S/O. SIDDAPPA ZUNJARWAD,
AGE 43 YEARS, OCC: GOVT. SERVANT,
ACDPO, OFFICE OF THE CDPO MUDHOL,
MUDHOL 587313, TQ. MUDHOL,
DIST. BAGALKOT.
...PETITIONER
(BY SRI. VIJAY S . CHINIWAR, ADVOCATE
FOR SRI . K .S .PATI L, ADVOCAT E F OR PETITIONER)
AND:
THE STATE OF KARNATAKA,
THROUGH PSI, TOWN POLICE STATION,
JAMAKHANDI,
R/BY STATE PUBLIC PROSECUTOR,
AG OFFICE, HIGH COURT OF KARNATAKA,
BENCH AT DHARWAD - 580001
... RES PONDENT
(BY SRI. R. RAVIN DRA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 438 OF CR.P.C., SEEKIN G TO DIRECT THE
RESONDENT TO RELEASE THE PETITIONER IN THE
EVENT OF HIS A RREST BY GRANTING ANTICIPAOTRY
BAIL IN JAMAKHANDI TOWN P.S . CRIME NO.102/2020
REGISTERED FOR THE OFFENSE PUNISHABLE UNDER
SECTIONS 218, 403, 406, 420, 465, 466, 477(A) OF
IPC AND SECTI ONS 3, 7( 2) OF THE ESSENTIA L
COMMODITIES ACT, 1955, PENDIN G ON THE FILE OF
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PRINCIPA L CIVIL JUDGE (JR. DN .) AND JMFC COURT,
JAMKHANDI.
THIS CRIMINAL PETITION COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This petition is filed by the petitioner under Section 438 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.', for brevity) seeking bail in Crime No.102/2020 of Jamkhandi Town Police Station, registered for the offences punishable under Sections 218, 403, 406, 420, 465, 466, 477(A) of The Indian Penal Code (hereinafter referred to as the 'IPC', for brevity) and Sections 3, 7 (2) of Essential Commodities Act, 1955 (hereinafter referred to as the 'EC Act', for brevity).
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2. The case of the prosecution is that on 20.10.2020, the complainant - Child Development Project Officer (CDPO), Jamakhandi Smt. Anuradha Basavant Hadimani filed a complaint stating that while she was in the office at about 10.00 a.m., she received a credible information that (1) Girish Mallappa Teli, (2) Mahadevi Mallappa Teli, in a building belonging to Gopal Teli situated behind Devaraj Urs Hostel at Kunchanur circle of Jamakhandi, have illegally stored milk powder packets supplied by Government for beneficiaries under Kshira Bhagya Yojane, for the purpose of selling in the market. The complainant immediately with the assistance of staff and after informing Assistant Director, Akshara Dasoha Yojane proceeded and filed complaint which came to be registered in Crime 4 No.102/2020 for the offences punishable under Sections 3, 7(2) of EC Act. The police have undertaken investigation and arrested two persons named in the complaint. The police filed requisition praying to add offences punishable under Sections 218, 403, 406, 420, 465, 466, 477(A) of IPC. The investigating Officer on 19.02.2021 has arrested Mahadevappa Isaral, Smt. Nirmala Surapur, Smt. Geeta Guttargimath, who have appeared in response to notice issued under Section 41(A) of Cr.P.C. The Investigating Officer has issued notice under Section 41(A) of Cr.P.C. to the petitioner to appear before him on 04.03.2021 for enquiry in respect of Jamakhandi Town Police Station in Crime No.102/2020. The petitioner apprehending that the Investigating officer may arrest him as the 5 Investigating Officer has arrested accused Nos.8 to 10, when they appeared for enquiry under Section 41(A) of Cr.P.C., on 19.02.2021. The petitioner apprehending his arrest has filed Criminal Miscellaneous No.5047/2021, seeking anticipatory bail and the same came to be rejected by the I Additional District and Sessions Judge, Bagalkot, sitting at Jamakhandi by order dated 18.03.2021. Therefore, the petitioner has approached this Court, seeking anticipatory bail.
3. Heard the arguments of the learned counsel appearing for the petitioner and the learned High Court Government Pleader for the respondent-State.
4. It would be the contention of the learned counsel for the petitioner that, three 6 persons who are arrayed as accused Nos.8 to 10 have appeared before the Investigating officer in compliance of notice issued under Section 41(A) of Cr.P.C. on 19.02.2021 and the Investigating Officer has arrested them on the same day. The petitioner also apprehends that, if he appears before the Investigating Officer in response to the notice issued to him under Section 41(A) of Cr.P.C., the Investigating Officer may arrest him. The petitioner is working as a Assistant CDPO in the Office of CDPO, Mudhol. He would further contend that, the decision of this High Court in the case of Jerry Paul Vs. State of Karnataka, reported in 2021(1) Kar. L.J., 550, is not applicable to the case on hand. He further contends that this Court in the case of Sri. Ramappa @ Ramesh S/o. Dharmanna Madar Vs. State of 7 Karnataka in Criminal Petition No.101022/2021 decided on 22.06.2021 by distinguishing the Jerry Paul's case has elaborately considered the provisions of Section 41 & 41(A) of Cr.P.C. and appending the arrest of the noticee who has received notice under Section 41(A) of Cr.P.C. The offence alleged are not punishable with death or imprisonment for life. The petitioner is a Government Servant and he can be secured easily for investigation and trial. With this, he prayed to allow the petition.
5. Per contra, learned High Court Government Pleader submitted that the accused have misused the milk-powder meant for supply to the poor class of the society under Kshira Bhagya Yojane by selling them in the market. He further contends that the 8 petitioner has been served with notice to appear before the Investigating Officer for enquiry and there is no threat of any arrest. Therefore, the petition seeking anticipatory bail is not maintainable. With this, he prayed to reject the petition.
6. Having regard to the submission made by the learned counsel for the petitioner and the learned High Court Government Pleader, this Court has gone through the records.
7. The petitioner has received notice under Section 41(A) of Cr.P.C., issued by Additional Superintendent of Police on 01.03.2021 to appear before him for enquiry for the offences registered in Crime No.102/2020 for the offences 3, 7(2) of 9 E.C.Act, 1955 and Sections 218, 403, 406, 420, 465, 466, 477(A) of IPC and he was directed to appear on 04.03.2021. This Court in the case of Ramappa @ Ramesh S/o. Dharmanna Madar Vs. State of Karnataka (supra) has elaborately considered Section 41 and 41(A) of Cr.P.C., regarding apprehension of arrest of the noticee who appears for enquiry and held that, the noticee who appears in compliance of notice before the Investigating Officer has apprehension of his arrest and can maintain a petition under Section 438 of Cr.P.C. It is necessary to quote the relevant paragraphs of the said decision. The same are extracted as under:
22. Hence, a person gets apprehension of being arrested in two situations:- firstly when a 'Notice' is issued to him under Section 41A (1) of 10 the Code and secondly, after complying the terms of 'Notice' the police officer forms an opinion that such person ought to be arrested or in a situation, such person fails to comply the terms of 'Notice' or is unwilling to 'identify' himself.
23. In all the above three situations such person can maintain an anticipatory bail application as Section 41A of the Code does not stipulate the specific condition of notice of appearance.
24. Section 41A of the Code operates in a situation where there is no arrest and prescribes the course of option to be adopted by a police officer in case he decides not to arrest any person. Till the time any person is not arrested, he is entitled to maintain an application for grant of anticipatory bail subject to, of course, the applicability of any other law to the contrary.
25. Section 41A of the Cr.P.C.
defers the arrest until and unless 11 sufficient evidence is collected, so as to produce or forward the accused to the custody of the court. The apprehension of arrest, thus, does not completely vanish away on the issuance of notice of appearance under Section 41A of the Cr.P.C., and hence, the question being raised in maintainability of an application under Section 438 Cr.P.C., during the pendency of notice being issued under Section 41A Cr.P.C. or during the compliance of the terms of such notice, is completely unwarranted and is not in tune with the provisions of law. The apprehension of arrest always does exist even after issuance of notice of appearance under Section 41A Cr.P.C. and under such circumstance the Courts cannot evade to entertain an application under Section 438 Cr.P.C.
26. In Jerry Paul's case (supra), the co-ordinate bench of this Court has held that once notice has been issued under Section 41-A of Cr.P.C., that itself makes it clear that arrest of the petitioner is not required. In the said 12 case, the notice under Section 41-A of Cr.P.C. has been issued after filing the charge sheet. The Investigating Officer even had not obtained permission for further investigation under Section 173(8) of Cr.P.C. In that circumstances, it is held that there is no threat of arrest of the noticee, who has received notice under Section 41-A of the Act. In the case on hand, the investigation is still in progress and petitioner has been issued with notice under Section 41-A of Cr.P.C., for enquiry with regard to Banahatti ROR Crime No.33/2020-21, for offences under Section 80, 84, 86 and 87 of Karnataka Forest Act, 1963 and Section 379 of IPC, whereunder, the motorcycle and two sandalwood billets have been seized. The offences under Section 86 and 87 of the Karnataka Forest Act, 1963, are punishable with imprisonment for 10 years. Therefore, there is an apprehension of arrest of the petitioner since the Investigating Officer may collect evidence and record reasons against the petitioner and may arrest 13 him. More so the petitioner has not complied notice issued under Section 41A. Therefore, the petitioner is entitled for grant of anticipatory bail with conditions.
8. More so, the Investigating Officer has arrested three noticees (A8 to A10), who appeared before him in compliance of notice issued under Section 41(A) of Cr.P.C. on 19.02.2021. Therefore, the petitioner apprehends his arrest, if he appears before the Investigating officer in compliance of Section 41(A) of Cr.P.C. The offences alleged are not punishable with death or imprisonment for life. The petitioner is a Government Servant and his presence can be secured easily for the purpose of investigation and trial.
9. In the facts and circumstances of the case and submission of the counsel, this Court 14 is of the view that there are valid grounds for grant of anticipatory bail subject to certain terms and conditions. Hence, I pass the following:
ORDER Criminal petition filed under Section 438 of Cr.P.C. is allowed. In the event of arrest, petitioner is ordered to be released on bail in connection with Crime No.102/2020 of Jamkhandi Town Police Station with the following conditions:
i. Petitioner shall execute a personal bond for a sum of Rs.1,00,000/-
(Rupees One Lakh Only) with one
surety for the like sum to the
satisfaction of the Investigating
Officer.
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ii. Petitioner shall surrender before the Investigating Officer within fifteen days from today.
iii. The petitioner shall co-operate with the investigation and make himself available for interrogation whenever required.
iv. The petitioner shall not directly or indirectly make any inducement, threat or promise to any witness acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police Officer.
v. The petitioner shall not obstruct or hamper the Police investigation and not to play mischief with the evidence collected or yet be collected by the Police.
Sd/-
JUDGE * S vh / -