Karnataka High Court
Smt Lalithamma vs The State Of Karnataka on 20 April, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL PETITION No.10637/2022
BETWEEN:
1. SMT. LALITHAMMA
W/O K.G. NARASIMHA MURTHY
AGED ABOUT 54 YEARS
R/AT.NO.872, 17TH WARD
DASARA BEEDHI
T.B. ROAD, DEVANAHALLI
BENGALURU RURAL DISTRICT
PIN: 562 110.
2. MANIKANTA .J
S/O. JAVARE GOWDA
AGED ABOUT 36 YEARS
R/AT.NO.170, NELLURU VILLAGE
MALAVALLI TALUK
MANDYA DISTRICT
PIN:571 430.
...PETITIONERS
(BY SRI. PRASAD .B, ADVOCATE)
AND:
THE STATE OF KARNATAKA BY
VISHVESHWARAPURAM POLICE STATION
BENGALURU
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT COMPLEX
BENGALURU, PIN:560 001.
... RESPONDENT
(BY SRI. KIRAN .S. JAVALI, SPP-I A/W
SRI. H.S. SHANKAR, HCGP;
SRI. VINAY KUATTAPPA K.S., ADVOCATE FOR
IMPLEADING APPLICANT)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION
438 OF CR.P.C, PRAYING TO ENLARGE THE PETITIONERS ON
BAIL IN EVENT OF THEIR ARREST IN CR.NO.104/2022 OF
VISHVESHWARAPURAM P.S., BENGALURU CITY FOR THE FILE
OF THE XXIV A.C.M.M., BENGALURU.
THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 13.04.2023, COMING ON FOR
'PRONOUNCEMENT OF ORDER' THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
The petitioners have filed this petition under Section 438 of Cr.P.C seeking anticipatory bail in the event of their arrest in Cr.No.104/2022 on the file of Vishveshwarapuram Police station, Bengaluru for the offences punishable under Sections 384 and 506 of IPC.
2. For the sake of convenience parties herein are referred to their original ranks occupied by them before the trial Court.
3. The petitioners are arrayed as accused Nos.2 and 3. It is the case of the prosecution that the grandfather of the complainant, Harendranath Singh has applied for grant of agricultural land in Devanahalli Taluka and accordingly in Sy.No.6/333 of Singahalli 3 village, land measuring 8 acres was granted to Harendranath Singh. The name of grandfather of the complainant by name Harendranath singh was mutated in the RTC's extract. According to the prosecution, in the year 2006, the said agricultural land came to be acquired by the KIADB and notice of acquisition was not at all served on the grandfather of the complainant. It is alleged that after getting this information, accused Nos.2 & 3 i.e. the present petitioners hatched a criminal conspiracy to misappropriate and embezzle the compensation amount. Accused No.2 is an advocate practicing in Bangalore and they impersonated accused No.1 in place of original allottee Harendranath Singh and moved the application for payment. It is also alleged that they have also filed a petition in the High Court by playing fraud on the Court by impersonating the original owner for initiating contempt proceedings against the KIADB for non distribution of compensation and later on they have also sought for release of the 4 amount. It is also alleged that they have also received costs imposed on KIADB due to the non-deposit of the compensation amount and subsequently, this fact was brought to the notice of the original owner and he moved an application before KIADB filing objections for the release of the amount. Then, after ascertaining the facts, the complainant has lodged the complaint. On the basis of the complaint, a crime came to be registered in Cr.No.104/2022 for the offences punishable under Sections 506 and 384 of the IPC. It is also alleged that in between, accused Nos.2 and 3 have also approached the complainant and threatened him by demanding Rs.1,50,00,000/- as they have spent huge amount for creating falsification of the documents. Accused No.1 was arrested and the petitioners, who are arrayed as accused Nos.2 and 3 have approached the learned Sessions Judge seeking anticipatory bail. Their bail petition came to be rejected and hence, they have approached this Court. 5
4. Heard the arguments advanced by the learned counsel for the petitioners and learned SPP-I for the respondent-State. Perused the records.
5. The learned counsel for the petitioners would contend that petitioner No.1 is an advocate and her duty is to move applications before the concerned authority or prosecute on behalf of her clients and she does not check the authenticity of the documents produced before her by the clients. It is also asserted that the complaint is initiated with an intention to harass and defame them in order to extract the money. It is further alleged that the complainant is a stranger to them and they are being made a scape goat. It is further asserted that investigation is concluded and charge sheet has been laid down and the present petitioners are no longer required for any further investigation. Hence, prayed for admitting the petitioners on anticipatory bail.
6
6. Per contra, the learned SPP-I would seriously oppose the bail petition contending that the petitioners have played fraud not only on the grandfather of the complainant but they have also played fraud on the Court as well as KIADB and also misappropriated the costs imposed by the Court in the contempt proceedings in the name of the impersonator, i.e., accused No.1. It is also alleged that the impersonator- accused No.1 was planted by the petitioners and they have created all false documents and there is no cooperation from the accused during the course of the investigation. He would also contend that there is an attempt to receive the compensation through an impersonator and such activities cannot be encouraged by granting anticipatory bail. Hence, he would seek for rejection of the bail petition.
7. Having heard the arguments and perusing the records, it is evident that though the initial FIR is lodged for the offences punishable under Sections 506 and 384 of IPC, the charge sheet came to be submitted 7 for the offences punishable under Sections 418, 419, 420, 465, 468, 471, 384, 506 and 120(b) r/w Section 34 of IPC. It is also evident from the records that the present petitioners were granted interim anticipatory bail subject to certain conditions vide order dated 14.12.2022. The condition No.4 reads as under:
"They shall make themselves available to the Investigating Officer for interrogation whenever called for during course of investigation."
8. No allegations have been made against the present petitioners that they have violated any of these conditions imposed by this Court while granting interim anticipatory bail. Further, the records also disclose that the Investigating Officer has also recorded the confessional statements of the present petitioners, which were part of the records. Hence, it is evident that the petitioners all along co-operated with the investigating agency.
9. The allegations of the prosecution are in respect of impersonating the original owner by accused 8 No.1 and he is being planted by the present petitioners. In this context, the learned SPP has placed reliance on Section 164 Cr.P.C. statement of accused No.1 said to have been recorded by the VIII Additional ACMM, Bengaluru on 19.12.2022. On perusal of the said statement, it is evident that the said statement is a confessional statement pertaining to the accused. There are certain guidelines laid down for recording the confessional statement of an accused which are required to be followed scrupulously. Further, a breathing opportunity is required to be given to the accused and he should be made clear that he is not bound to make such a statement. Apart from that, the accused should be given certain reflexing/relaxing time and in this period he should not be in police custody, but on perusal of the statement relied by the prosecution said to have been given by accused No.1 under Section 164 of Cr.P.C., it is evident that accused No.1 was produced by the PSI and he was not given any time to relax/reflex and he was not made known of 9 the fact that he is legally not bound to make such a confessional statement, which may be used against him. The records disclose that when he was produced straight away his confessional statement was recorded, which violates the provisions/guidelines issued for recording such statement of accused.
10. Apart from that, all along it is alleged that accused No.1 has forged the signature of the original owner and signed in the name of original owner by forging his signature. It presupposes that accused No.1 is a literate person, but on the contrary, on perusal of this 164 Cr.P.C statement relied by prosecution, it is evident that it bears only the alleged LTM of accused No.1. Interestingly, the LTM is also not identified by any of the officials. Looking into these lacunas, this 164 Cr.P.C statement cannot be considered at this juncture as a material piece of evidence against the present petitioners. The learned Magistrate has not followed due procedure as contemplated under Section 164 of Cr.P.C. before 10 recording the confessional statement of accused No.1. Apart from that, the offences alleged are not exclusively punishable with death or life imprisonment. Further, investigation is already concluded and charge sheet has been laid down. Learned SPP-I in this context has placed reliance on the decision reported in 2022 LiveLaw (SC) 870 and argued that mere custodial enquiry itself is not a ground for rejection of anticipatory bail. There is no dispute regarding the proposition of law laid down in the above cited decision, but it is to be noted here that the accused were granted interim anticipatory bail and no allegations have been forthcoming regarding non- cooperation during the course of the investigation or attempting to tamper with the prosecution witnesses. It is also submitted that further investigation under 173(8) of Cr.P.C. is in progress. No doubt submission of the charge sheet will not prevent the Investigating Officer from proceeding with the further investigation if he finds any material in this regard, but any how the 11 offences alleged are not exclusively punishable with death or life imprisonment. The evidence is required to be tested during the course of the trial and the complainant is required to identify the accused regarding offence under Section 506 as well as the impersonation. Merely because the further investigation is under progress, it is not a ground to deny the bail. Further petitioner No.1 is a lady and falls under exception.
11. The Learned SPP-I has also placed reliance on the judgment of the Co-ordinate Bench of this Court in Crl.P.No.1976/2023 (SRI. K. MADAL VIRUPAKSHAPPA vs. THE STATE OF KARNATAKA) dated 27.03.2023, wherein interim bail was granted, but the main petition came to be rejected. But in the said case subsequently the Investigating Officer collected sufficient material and custodial interrogation was held necessary to answer certain questions and hence, the main petition for anticipatory bail came to be rejected, though the accused therein was granted interim bail. The facts and 12 circumstances of the case are entirely different. In instant case, investigation is concluded and no recovery was forthcoming from the custody of the present petitioners. Looking to these facts and circumstances, the principles in the above cited Judgments referred supra will not assist the prosecution in any way. Further, the investigation is already concluded and charge sheet is laid down and during the course of the investigation, the petitioners being on interim bail, have cooperated with the Investigating Agency. Further, though confessional statement was recorded by Investigating Officer and the condition of custodial interrogation was also imposed, that was not availed by Investigating Officer. Under such circumstances, now question of rejection of the anticipatory bail does not arise at all.
12. Looking to these facts and circumstances, I do not find any impediment for admitting the petitioners on anticipatory bail. The other apprehensions raised by the learned SPP-I can be 13 meted out by imposing certain conditions. Hence, petition needs to be allowed and accordingly, I proceed to pass the following:
ORDER
1. Petition is allowed.
2. The petitioners are ordered to be enlarged on anticipatory bail in the event of their arrest in Cr.No.104/2022 Vishveshwarapuram Police Station, Bengaluru, on each of them executing the personal bond in a sum of Rs.2,00,000/-
with two sureties for likesum subject to the following conditions:
i) The petitioners shall surrender before the concerned jurisdictional Court within ten days from the date of receipt of the certified copy of this order and in the event of their surrender, the concerned Court shall release them on bail as directed above.
ii) They shall not directly or indirectly tamper with any of the prosecution witnesses.
iii) They shall not indulge in any similar activities.14
iv) They shall make themselves available to the Investigating Officer for the purpose of interrogation during course of further investigation if required by the Investigating Officer.
v) They shall not leave the jurisdiction of the trial Court without prior permission of the Court.
vi) They shall cooperate with the Court in speedy disposal of the matter.
Sd/-
JUDGE DS