Karnataka High Court
Shankar Rao Pawar And Ors vs The State Through on 11 September, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL PETITION NO.200562/2020
C/W
CRIMINAL PETITION NO.200673/2020
AND
CRIMINAL PETITION NO.200683/2020
Crl.P.No.200562/2020:
Between:
1. Shankar Rao Pawar S/o Mona Nayak
Age: 60 years, Occ: Teacher
R/o Shivaji Nagar, Kalaburagi - 585 103
2. Dadasab S/o Gadappa Hosur
Age: 54 years, Occ: Teacher
R/o C/o Balabheem Kulkarni
Plot No.11-421/39-B, Dangagar Galli
Brahmpur, Kalaburagi - 585 101
... Petitioners
(By Sri Avinash A. Uplaonkar, Advocate)
And:
The State through
Kalaburagi City (CEN) Police Station
Dist. Kalaburagi, now represented by Addl. SPP
High Court of Karnataka
Kalaburagi Bench - 585 107
... Respondent
(By Sri Sharanabasappa M. Patil, HCGP)
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This criminal petition is filed under Section 438 of the
Code of Criminal Procedure, praying to release the
petitioners on bail in crime No.10/2020 of Kalaburagi City
(CEN) Police Station, Dist. Kalaburagi, in the event of their
arrest for the offences P/U/S.406, 468, 465, 471 & 420 R/W
Sec. 34 of IPC, pending on the file of the I Additional C.J.
(J.D.) & J.M.F.C. Court at Kalaburagi.
Crl.P. No.200673/2020:
Between:
1. Santoshkumar
S/o Bhavanrao Kamanalli
Age: 47 years, Occ: Clerk
R/o H.No.9-993/a
Shahabazar, Kalaburagi
2. Sunilkumar S/o Subhash Chandra
Age: 48 years, Occ: Accountant
R/o Plot.No.3, Sidharameshwar Nagar
Kalaburagi - 585 102
... Petitioners
(By Sri Santosh S. Patil, Advocate)
And:
The State of Karnataka
Through CEN Police Station
Kalaburagi City, Kalaburagi
Represented by Addl. S.P.P.
High Court of Karnataka
Kalaburagi Bench - 585 103
... Respondent
(By Sri Sharanabasappa M. Patil, HCGP)
This criminal petition is filed under Section 438 of the
Code of Criminal Procedure, praying to enlarge the
petitioners on bail in the event of their arrest in Crime
No.10/2020 of Kalaburagi City CEN Police Station for the
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offences P/U/Sec. 406, 468, 465, 471, 420 R/W Sec. 34 of
IPC, pending before learned I Addl. Civil Judge, (Junior
Division) Judicial Magistrate First Class at Kalaburagi.
Crl.P. No.200683/2020:
Between:
Mahadevappa
S/o Gurupadappa Nandyal
Age: 56 years, Occ: Teacher
R/o Swastik Nagar, Sedam Road
Kalaburagi - 585 103
... Petitioner
(By Sri Ashok B. Mulage, Advocate)
And:
State of Karnataka through
Kalaburagi City (CEN) Police Station
Kalaburagi - 585 103
Through S.P.P., High Court of Karnataka
Kalaburagi Bench, Kalaburagi - 585 107
... Respondent
(By Sri Sharanabasappa M. Patil, HCGP)
This criminal petition is filed under Section 438 of the
Code of Criminal Procedure, praying to release the petitioner
in the event of his arrest in Crime No.10/2020 of City
Central Police Station, District Kalaburagi City for the
offences punishable under Section 406, 468, 465, 471, 420
R/W Sec. 34 of IPC, pending before the I Additional C.J. and
JMFC at Kalaburagi.
These petitions coming on for orders, this day, the
Court made the following:
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ORDER
Criminal Petition No.200562/2020 is filed by accused Nos.5 & 6, Criminal Petition No.200673/2020 is filed by accused Nos.3 & 4 and Criminal Petition No.200683/2020 is filed by accused No.7 under Section 438 of Cr.P.C., seeking a direction to the respondent - Police to release them on bail in the event of their arrest.
2. Since all these three petitions are arising out of the same crime and these petitioners are arraigned as accused in the same crime having similar facts and circumstances, they are taken up together for common consideration and disposed of by this common order.
3. Brief facts of the case are that, one Sri Mahesh Hugar stated to be the President of Gulbarga Taluka Teachers Co-operative Society, Kalaburagi has lodged a complaint before the police making various allegations of misappropriation of fund and siphoning of 5 amount and has alleged that during the period between 04.04.2015 to 01.04.2020, these petitioners and other accused working in various capacities in the society have committed misappropriation of funds of the said society to the tune of more than Rs.3 crore and when the complainant has assumed charge as President of the said Society, these petitioners and other accused without furnishing the documents and without giving co-operation have committed the act of this misappropriation and other offences and had started to give harassment and torture to him. Thus, the petitioners have committed the alleged offences of cheating, forgery and fabrication of document. Therefore, with all these allegations explained in detail in the complaint, the complainant has lodged a complaint as against the petitioners and other accused. Accordingly, FIR is registered in Crime No. 10/2020 for the offences punishable under Sections 406, 468, 465, 471, 420 r/w Section 34 of IPC.
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4. Learned counsel for the petitioners in Criminal Petition No.200562/2020 has filed a memo for withdrawal of the petition in respect of petitioner No.2/accused No.6 is concerned. Accordingly, by placing the memo on record, the petition in respect of petitioner No.2 is dismissed as withdrawn. Therefore, the petition is taken up for consideration only in respect of petitioner No.1 is concerned.
5. Learned counsel for the petitioner/accused No.5 in Criminal Petition No.200562/2020 submitted that the petitioner has not committed the offence as alleged and he is Ex-President of the Society and he had completed service blemish less and he has been falsely implicated into the crime. Further he submitted that the entire investigation is to be conducted through documentary evidence and these are very much available in the office of the Society. Therefore, the physical interrogation of the petitioner is not required. 7 He further submitted that the petitioner is a retired Teacher and old age person and he would co-operate with the Investigating Officer for the purpose of investigation. Therefore, he prays to grant he benefit of anticipatory bail.
6. Further, the learned counsel for the petitioners/accused Nos.3 and 4 in Criminal Petition No.200673/2020 submitted that the petitioners have not committed any offence as alleged and they are the Clerk and Accountant in the Society and they have no role in the affairs of the Society and that is to be done entirely by the Governing Body of the Society and these petitioners have been falsely implicated into the crime. He further submitted that the investigation is to be done through documentary evidence substantially. Therefore, he prays to release the petitioners on bail in the event of their arrest.
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7. Further, learned counsel for the petitioner/accused No.7 in Criminal Petition No.200683/2020 submitted that the petitioner is a Teacher by profession and on earlier occasion, he himself has submitted a complaint to the President of the Society and in this regard report is called for and when this being fact, the petitioner himself had come forward to safeguard the interest of the Society, but now as against this petitioner only a false complaint is filed. He further submitted that upon considering the nature of allegation in the complaint, the substantial part of investigation is to be carried out through documentary evidence. Further he submitted that the offences are triable by the Court of Magistrate and the alleged offences are not punishable either with death or imprisonment for life. Further he submitted that the petitioner being a Teacher is having deep root in the society and he would co-operate with the investigation. 9 Therefore, he prays to grant anticipatory bail to the petitioner.
8. Per contra, learned High Court Government Pleader appearing for the respondent-State vehemently argued and submitted that the petitioners and other accused have siphoned off the amount of the Society to the tune of more than Rs.3 crore and the role of each of the petitioners is to be investigated and if the petitioners are granted benefit of anticipatory bail, then there would be chances of they being absconded and threatening the complainant and in such an event fair investigation and fair trial would not be possible. Therefore, he prays to dismiss the petitions.
9. While considering the anticipatory bail petition by exercising the power under Section 438 of Cr.P.C., the following materials are to be considered as per the principle of law laid down by the Hon'ble Apex Court in the case of BHADRESH BIPINBHAI SHETH vs. 10 STATE OF GUJARAT AND ANOTHER reported in (2016) 1 SCC 152, para 25, which are reproduced as under:
"25. The principles which can be culled out, for the purposes of the instant case, can be stated as under:
25.1. The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law.
25.2. The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.
25.3. It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view 11 that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.
25.4. There is no justification for reading into Section 438 CrPC the limitations mentioned in Section 437 CrPC. The plentitude of Section 438 must be given its full play. There is no requirement that the accused must make out a "special case" for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 CrPC to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.
25.5. The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and accusations available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor, the court may either reject the anticipatory bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same court for 12 cancellation or modifying the conditions of anticipatory bail at any time if liberty granted by the court is misused. The anticipatory bail granted by the court should ordinarily be continued till the trial of the case.
25.6. It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant, on finding new material or circumstances at any point of time.
25.7. In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail.
25.8. Discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations.
25.9. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case.13
25.10. We shall also reproduce para 112 of the judgment in Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, wherein the Court delineated the following factors and parameters that need to be taken into consideration while dealing with anticipatory bail:
(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(c) The possibility of the applicant to flee from justice;
(d) The possibility of the accused's likelihood to repeat similar or other offences;
(e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because overimplication in the cases is a matter of common knowledge and concern;
(h) While considering the prayer for grant of anticipatory bail, a balance has to be struck 14 between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(i) The court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
10. Upon considering the materials available at this stage, it is alleged that there is misappropriation of amount occurred in the Society for more than Rs.3 crore and it was siphoned off by all the petitioners and other accused. It is alleged that the said act was committed during the period from 04.04.2015 to 01.04.2020. The petitioners herein are Teachers, Clerk and Accountants. Upon considering the nature of allegations made in the complaint, the complainant had made as many as 41 allegations of misappropriation of funds by stating that without permission of the 15 President the amount was withdrawn through cheque and further considering this allegation, at some instances without approval of the Governing Body of the Society the accused had availed loan from the Bank, but it was used for private purpose. Further there are some examples in the said complaint that duplicate receipts were prepared and some of the finance transactions were not mentioned in the concerned register. Therefore with all these allegations complaint is lodged. Therefore, upon considering the nature of allegations as stated in the complaint, the substantial part of investigation is to be carried out through documentary evidence. The records pertaining to the transaction of the Society may be available in the office of the Society. Where an allegation is made that there is forgery of document and some transactions were not entered in the concerned register and duplicate receipts are created, for all these offences the investigation is to be done through documentary evidence. Furthermore, 16 two petitioners herein are Teachers and one among them is retired Teacher. Therefore, considering the nature of allegations made in the complaint and also considering the profession and position of the petitioners in the Society and further the offences alleged are not punishable with death or imprisonment for life, if by imposing some stringent conditions the petitioners are enlarged on bail keeping the apprehension of the prosecution as well as keeping the individual liberty of the petitioners, without expressing any opinion on the merits of the case, it would be the appropriate way for considering the present petitions.
11. The observations made above are only prima facie observations to consider the bail petitions. Therefore, with these observations, I am of the opinion that the petitioners are entitled for the benefit of anticipatory bail.
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12. Accordingly, all the three petitions are allowed. The respondent-Police are hereby directed to release all the petitioners/accused Nos.3, 4, 5 and 7 on bail in the event of their arrest in Crime No.10/2020 of Kalaburagi City Police Station, Kalaburagi, registered for the offences punishable under Sections 13(1)(a) read with Section 13(2) of Prevention of Corruption Act and Sections 406, 468, 465, 471, 420 r/w Section 34 of IPC pending on the file of Ist Addl. CJ (J.D) & JMFC, Gulbarga subject to the following:-
CONDITIONS
1. The petitioners/accused Nos.3, 4, 5 and 7 shall execute personal bonds in a sum of Rs.2,00,000/- each with two solvent sureties each for the like sum to the satisfaction of the concerned Court;
2. The petitioners shall mark their attendance before the I.O. on every alternative Sundays between 6.00 a.m. and 5.00 p.m. till filing of charge sheet;
3. The petitioners shall co-operate with the investigating officer for the purpose of investigation as and when called upon;18
4. The petitioners shall attend the Court regularly on all the dates of hearing, without fail and shall co-operate for speedy disposal of the case;
5. If the petitioner fails to appear before the court on two consecutive dates of hearing, then it may entail cancellation of liberty granted by this order.
Sd/-
JUDGE LG