Karnataka High Court
Deepaxi D/O Mallappa Janaki vs The State Of Karnataka on 20 July, 2021
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20 T H DAY OF JULY 2021
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION No.101280/2021
BETWEEN:
DEEPAXI D/O MALLAPPA JANAKI
AGE. 38 YEARS , OCC. CD PO,
R/O. BASAVAN BA GEWADI,
DIST. VIJAYAPUR- 586203
...PETITIONER
(BY SRI.K L PATIL, ADVOCATE)
AND
THE STATE OF KARNATAKA
THROUGH JAMAKHANDI TOWN P.S .
R/BY STATE PUBLI C PROSECUTOR
HIGH COURT OF K ARNATAKA
DHARWAD BEN CH- 580011
... RES PONDENT
(BY SRI.RAMESH CHIGARI, HCGP)
THIS CRIMINAL PETITION IS FILED U/S 438 OF
CR.P.C., SEEKING TO ALLOW THE CRIMINAL PETITION
AND ENLARGE PETITIONER ON ANTI CIPATORY BAI L IN
CONNECTI ON WITH JAMAKHANDI TOWN P.S.
CR.N O.102/ 2020 FILED FOR OFF ENCE PUNISHABLE
UNDER SECTION 3 AND 7 OF E.C. ACT, 1955, AND
SEC.218, 403, 406, 420, 465, 466, 477A IPC ON THE
FILE OF PRL. CIVI L JUD GE AND JMF C, JAMKHANDI.
THIS CRIMINAL PETITION COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:
2
ORDER
This petition is filed by the accused under Section 438 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.', for brevity) seeking anticipatory bail in Crime No.102/2020 of Jamkhandi Town Police Station, registered for the offences punishable under Sections 3 and & 7 of Essential Commodities Act, 1955 and Sections 218, 403, 406, 420, 465, 466, 477(A) of The Indian Penal Code (hereinafter referred to as the 'IPC', for brevity).
2. It is the case of the prosecution that one Smt.Anuradha Basavant Hadimani, CDPO Jamkhandi, had filed the complaint stating that on 20.10.2020 at about 10.00 a.m., when she was in her office, she received an information that near Devaraj Aras residential building at 3 Kunchanur Circle Jamkhandi in a building belongs to Gopal Teli, the accused Nos.1 and 2 had illegally stored the milk powder packets which have to be distributed by the Government under Ksheer Bhagya Scheme to the beneficiaries. After the said information, a complaint came to be registered against accused Nos.1 and 2 before the Jamkhandi Police authorities and the same is registered as Crime No.102/2020 for the aforesaid offences. The Investigating Officer took investigation and raided the said building, wherein they found milk powder packets and weighed with the help of weighing machine and found 12601 Kg approximately valued at Rs.34,02,270/-. The Investigating Authorities included Sections 218, 403, 406, 420, 465, 466, 477(A) of IPC. During the course of investigation, the police 4 authorities arrested nearly 9 to 10 persons. The Jamkhandi police have issued noticed dated 08.02.2021 under Section 41(A) of Cr.P.C. to the petitioner calling upon her to appear before them for investigation in the aforesaid crime. The petitioner apprehending her arrest has filed Crl.Misc.No.5034/2021 seeking anticipatory bail and the same came to be dismissed by the I Addl. District and Sessions Judge, Bagalkot, (sitting at Jamkhandi), by order dated 18.03.2021. Therefore, the petitioner is before this Court seeking anticipatory bail.
3. Heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader for the respondent-State. 5
4. It is the contention of the learned counsel for the petitioner that the petitioner who has received notice under Section 41(A) of Cr.P.C. dated 08.02.2021 in Crime No.102/2020, apprehends her arrest. He contends that the Sessions Judge relying on a decision reported in 2021(1) Kar.L.J 550, has wrongly held that there is no apprehension for a person who has received notice under Section 41(A) of Cr.P.C. He further contends that as per decision of this Court in the case of Sri Ramappa @ Ramesh Vs State of Karnataka, in Crl.P.No.101022/2021 decided on 22.06.2021, even there is an apprehension of arrest to the person who appears before the police authorities in compliance of notice issued under Section 41(A) of Cr.P.C. He contends that the petitioner is a Government 6 Servant working as CDPO in Basavan Bagewadi of Vijayapur District, she is ready to cooperate with the police in the investigation. The offences alleged are even though non-bailable they are not punishable with death or imprisonment for life. With this, he prayed for allowing the petition.
5. Per contra, learned High Court Government Pleader contended that the petitioner who has received notice under Section 41(A) of Cr.P.C. dated 08.02.2021, has not appeared before the Investigating Officer and there is no threat of arrest of the petitioner, if she appears before the Investigating Officer in compliance of Section 41(A) of Cr.P.C. With this, he prayed to dismiss the petition.
7
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 FIR, complaint, notice issued under Section 41(A) of Cr.P.C. and order passed by the Sessions Court.
7. The case came to be registered in Crime No.102/2020 for the offences under Sections 3 & 7 of Essential Commodities Act, 1955. Subsequently, the Investigating Officer included the offences under Sections 218, 403, 406, 420, 465, 466, 477(A) of IPC. Even though the FIR is registered against three persons, the Investigating Officer has arrested 9 to 10 persons. The Investigating Officer has arrested the accused Nos.4, 8 to 10, who appeared before him in compliance of notice 8 issued under Section 41(A) of Cr.P.C. If a person who receives notice under Section 41(A) of Cr.P.C., is there any apprehension of his arrest by the Investigating Officer has been considered by this Court in the decision of this Court in the case of Ramappa @ Ramesh's case supra, wherein it is held 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 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 9 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 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 10 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 case, the notice under Section 41-A of Cr.P.C. has been issued after filing the charge 11 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 12 Officer may collect evidence and record reasons against the petitioner and may arrest 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. Therefore, there is an apprehension for the petitioner, if she appears before the Investigating Officer in compliance of notice issued under Section 41(A) of Cr.P.C. The offences alleged are not punishable with death or imprisonment for life. The petitioner is a lady working as CDPO in Basavan Bagewadi and her presence can be secured easily for the investigation and trial. Considering, all these aspects the petitioner is entitled for grant of anticipatory bail. The main objection of the prosecution is that in the event of granting 13 anticipatory bail, the petitioner is likely not to appear before the Investigating Officer in compliance of Section 41(A) of Cr.P.C. and flee from justice, may be set right by imposing stringent conditions
9. In the facts and circumstances of the case and submission of the counsel, this Court 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:14
i. The 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/jurisdictional Court. ii. The petitioner shall appear before the Investigating Officer within fifteen days from today and execute personal bond.
iii. The petitioner shall co-operate with the investigation and make herself available for interrogation whenever required.
iv. The petitioner shall not directly or indirectly make any inducement, threat or promise to any witness acquainted 15 with the facts of the case so as to dissuade her 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 RM