Karnataka High Court
Dr. Pratima Mathad vs The State Of Karnataka on 10 September, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL PETITION NO.200728/2020
Between:
Dr. Pratima Mathad
W/o Dr. R. Mathad
Aged about 56 years
Occ: Professor in Department of Botany
Gulbarga University, Kalaburagi - 585 104
... Petitioner
(By Sri Ameet Kumar Deshpande, Advocate)
And:
The State of Karnataka
Through Gulbarga University Police
Represented by Addl. SPP
Kalaburagi Bench - 585 107
... Respondent
(By Sri Sharanabasappa M. Patil, HCGP)
This Criminal Petition is filed under Section 438 of
Code of Criminal Procedure, praying to allow the petition and
to direct the respondent herein to enlarge the accused
No.2/petitioner on bail, in the event of her arrest in Crime
No.108/2020 registered by University Police Station,
Kalaburagi, for the alleged offences punishable under
Sections 341, 323, 355, 353, 504, 506, 448 and 114 r/w
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with Section 34 of IPC, pending on the file of the Principal
Sessions Judge, Kalabuargi, forthwith and to pass any other
appropriate orders.
This petition coming on for orders this day, the Court
made the following:
ORDER
(Through Virtual Court) Learned High Court Government Pleader accepts notice for the respondent-State.
This petition is filed by the petitioner/accused No.2 under Section 438 of Cr. P.C., seeking a direction to the respondent-Police to release her on bail in the event of her arrest.
2. Brief facts of the case as per FIS are that, the complainant is a Professor and HOD of Botany Department at Gulbarga University, Kalaburagi and was Professor for about 35 years and when this being the fact, on 18.08.2020 at about 11.50 p.m. when the complainant was in his Chamber, the petitioner and accused No.1 criminally tress passed into the Chamber of the complainant and it is alleged that accused No.1 3 has raised voices asking the complainant that, why the complainant had asked an undertaking from the son of elder brother of accused No.1 and therefore for this, the complainant has stated that as per the Rules of the University, he had asked it and when this being the conversation, accused No.1 had assaulted the complainant and abused in filthy language and also criminally intimidated the complainant and accused No.2/petitioner herein had instigated accused No.1 to do the quarrel. It is also alleged in the complaint that accused No.1 influenced many rowdy elements in Kalaburagi City and thus, criminally intimidated the complainant. In this line, the complaint is lodged before the respondent-Police. Accordingly, a case is registered in Crime No.108/2020 for the offences punishable under Sections 341, 355, 353, 323, 504, 506, 448, 114 r/w Section 34 of IPC.
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3. Heard the learned counsel for the petitioner and the learned High Court Government Pleader for the respondent-State.
4. The learned counsel for petitioner vehemently submitted that the petitioner is a woman and is working as Professor in Department of Botany, Gulbarga University, Kalaburagi. He further submitted that the petitioner is not involved in any other case and the entire complaint averments are false and exaggerated one and the petitioner being the Professor in Gulbarga University, Kalaburagi, is having deep root in the society and there are no chances of she being absconding and fleeing away from justice and she would co-operate with investigation, if she is released on bail. The only allegation in the complaint against this petitioner is that she has instigated accused No.1, but the overt act is only against accused No.1. Further he submitted that the offences alleged are minor in nature and are not punishable either with capital punishment 5 or with imprisonment for life. He also submitted that accused No.1 has already released on bail by this Court vide order dated 09.09.2020 in Criminal Petition No.200712/2020 and the allegations against this petitioner are also same as that of accused No.1. Therefore, he prays that the benefit of parity may be extend to the petitioner and the petitioner may be enlarged on bail in the event of her arrest.
5. On the other hand, the learned High Court Government Pleader vehement submitted and opposed the bail petition stating that the petitioner being a Professor in Gulbarga University, should not have been done the act as alleged in the complaint, but he had quarreled with the complainant and committed the act of criminal in nature. He further submitted that if the petitioner is released on bail, there are concrete chances of the petitioner being absconded and fleeing away from justice and meddling with the investigation. Therefore, he prays to reject the petition.
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6. 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. 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 7 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 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 8 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 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 9 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.
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;10
(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 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."
7. It is submitted by the learned counsel for the petitioner that the petitioner is a woman and is working as Professor in Department of Botany, Gulbarga University, Kalaburagi and the only allegation in the 11 complaint against this petitioner is that she has instigated accused No.1 to do the alleged crime and the allegations against this petitioner are also same as that of accused No.1. Therefore, considering the factor that the petitioner is a woman and is working as Professor in Department of Botany in Gulbarga University, Kalaburagi and also considering the factor that the only allegation against the petitioner is that she has instigated accused No.1, I find force in the submission of the learned counsel for the petitioner that the allegation made against the petitioner that there is criminal intimidation made by the petitioner is general and vague in nature.
8. Considering the position of the petitioner in the society as discussed above and also the parameters as laid down by the Hon'ble Apex Court as stated above, the chances of absconding and fleeing away from justice is remote. Therefore, considering the apprehension of the prosecution as well as the position of the petitioner 12 in the society as stated above and also considering the individual liberty of the petitioner, by making balancing of these factors, if by imposing conditions, the benefit of anticipatory bail is granted in favour of the petitioner, then that can balance between the two sides. Therefore, considering all these factors, the present petition is liable to be allowed.
Accordingly, the petition is allowed and the respondent-Police are hereby directed to release the petitioner/accused No.2 on bail in the event of her arrest in Crime No.108/2020 of University Police Station, Kalaburagi, registered for the offences punishable under Sections 341, 355, 353, 323, 504, 506, 448 and 114 r/w Section 34 of IPC, pending on the file of the Principal Sessions Judge, Kalaburagi, subject to following:-
CONDITIONS
1. The petitioner/accused No.2 shall execute a personal bond in a sum of 13 Rs.2,00,000/- with two solvent sureties for like sum to the satisfaction of the concerned Court;
2. The petitioner shall mark her attendance before the I.O. on every alternative Sundays between 6.00 a.m. to 5.00 p.m. till filing of charge sheet;
3. The petitioner shall co-operate with the investigating officer for the purpose of investigation as and when called upon;
4. The petitioner 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