Karnataka High Court
Kallappayya vs The State Of Karnataka on 18 January, 2019
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF JANUARY, 2019
BEFORE
THE HON'BLE MR. JUSTICE P.G.M.PATIL
CRIMINAL PETITION NO.200043/2019
BETWEEN:
Kallappayya S/o Basayya
@ Banappa Digambar Math
Age: 30 years, Occ: Social Work
R/o Kolhar, Tq. B. Bagewadi
Dist: Vijayapura
... Petitioner
(By Sri Ashok Mulage, Advocate)
AND:
The State of Karnataka
Through Kolhar P.S.
Tq. B. Bagewadi, Dist: Vijayapura
Through Addl.SPP
High Court of Karnataka
Kalaburagi Bench 585 107
... Respondent
(By Sri Mallikarjun Sahukar, HCGP)
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This Crl.Pet. is filed under Section 438 of Cr.P.C.
praying to allow the petition and direct the respondent
police to release the accused/petitioner on bail, in the
event of his arrest in crime No.154/2018 of Kolhar
Police Station, Tq. Basavana Bagewadi, Dist: Vijayapura
for the offences punishable under Sections 323, 341,
306, 504, 506 read with Section 34 of IPC pending on
the file of JMFC Court, Basavana Bagewadi.
This petition coming on for Orders this day, the
Court made the following:
ORDER
This is a bail petition under Section 438 of Cr.P.C. filed on behalf of petitioner seeking to enlarge him on bail in the event of his arrest in crime No.154/2018 of Kolhar Police Station, Basavana Bagewadi Taluka, Vijayapur district for the offences punishable under Sections 323, 341, 306, 504, 506 read with Section 34 of IPC.
2. Heard learned counsel for the petitioner and the learned High Court Government Pleader. 3
3. It is the case of the prosecution that the complainant is residing in Kolhar village along with her husband and children and was doing household work. Her daughter Bhagyashree was married about 8 years back. She is running Kirana Shop which is looked after by her son namely Basavaraj. The complainant has further stated that her husband's younger brother namely Prabhu S/o Basappa Shirani residing at Vijayapura and her husband's uncle's son namely Ravindra S/o Mallikarjun Shirani/accused No.1 and Rajendra S/o Mallikarjun Shirani were residing in Solapur. They are having lands jointly and there was no partition among them. She has further stated that Ravindra has received a sum of Rs.28,00,000/- from her in advance, stating that the land which has fallen to his share namely 10 acres will be sold in her favour and she has made such payment during the last 7-8 years. The complainant is in possession and cultivating the 4 said land. The complainant further stated that during the last Deepavali festival, Kallappayya S/o Basappa accused No.2 has entered into an agreement of sale of the land belonging to Ravindra without informing them and thereafter herself and her son Basavaraj approached the said Kallappayya Swamy namely brother of accused No.3 the petitioner herein and informed him about the transaction and payment of Rs.28,00,000/- as advance for purchase of said land and they told him that if he wants to purchase the land let accused No.1 repay the amount paid by her and for that the accused No.2 agreed. It is further alleged that Ravindra/accused No.1 told her on enquiry that he is going to sell his land to Kallappayya Swamy/accused No.2 and therefore, she asked him to repay her amount. Further it is alleged that when the complainant and her son approached accused No.2 Kallappayya Swamy for return of the money, himself and his brother Sankappayya Swamy abused and assaulted them. It is 5 also stated that complainant has brought the stay order from the Court that till completion of her money transaction accused No.2 Kallappayya Swamy cannot purchase the land.
4. It is further alleged that on 22.12.2018 at about 10.00 a.m. her son Basavaraj had been to Tahsil Office for the purpose of inquiring about his land and when he returned from Tahsil office he was mentally disturbed and told his mother that Kallappayya Swamy had also come there and threatened him to keep quite and expressed that they lost the land as well as money. Thereafter at about 2.30 p.m. she found that her son Basavaraj had committed suicide by hanging inside the room. She has further alleged that Kallappayya Swamy and his brother Sankappayya were threatening and giving mental torture to her son Basavaraj and because of their harassment her son committed suicide. 6
5. On the basis of the complaint, the respondent police have registered a case against accused No.1 to 3 for the aforesaid offences. The petitioner has stated that he is innocent of the alleged offence and he has been falsely involved in the case at the instance of the complainant and villagers. The petitioner, from 11 years of his age is studying in Shivayoga Mandir and other places and has completed his M.A. in philosophy and after the demise of Swamiji of Digambara Math, the petitioner has been appointed as Peethadipati of the said Digambar Math situated at Kolhar, Taluka Basavana Bagewadi by the devotees. It is the most famous Math in Vijayapura and in surrounding districts and the petitioner being the Peethadipati of the Math has dedicated his entire life to the service to the Math and devotees. He is not the purchaser of the said land but his brother in his personal capacity has entered into an agreement with Ravindra and Rajendra. The contents of the complaint 7 do not make out a case to attract the ingredients of Section 107 of IPC and therefore offence under Section 306 of IPC is not attracted. The dispute between the complainant and Ravindra is civil in nature. If at all they are having any dispute they have to take due process of law. The complainant has created false story by taking undue advantage of death of her son due to their own personal family problems. The petitioner has further stated that complainant has thrown out her husband from the house and he is residing with his daughter born to his first wife at Vijayapura. The petitioner being the Peethadipati of Digambar Math and Trustee of the Math at Kolhar, taluka Basavana Bagewadi is having movable and immovable properties of the Math and hence the question of jumping over the bail does not arise. The petitioner is apprehending his arrest at the hands of respondent police and he is ready to furnish surety and abide by the conditions which may be imposed by the Court.
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6. Learned counsel for the petitioner submits that the complainant has not produced any document before the police to show that during the last 7-8 years, she has paid an amount of Rs.28,00,000/- to accused No.1 to purchase his land and there is no agreement of sale between them, only because accused No.3, the brother of petitioner/accused No.2 has entered into an agreement of sale with accused No.1, the complainant has involved the petitioner in the case. Learned counsel further submits that accused No.2 has no role in the alleged incident nor he instigated or persuaded the deceased to commit suicide and therefore he may be enlarged on bail.
7. Per contra, learned High Court Government Pleader opposes the bail petition and submits that investigation is in progress and at this stage anticipatory bail petition may be rejected. 9
8. Learned counsel for the petitioner referred to the allegations made in the complaint and submitted that absolutely, there is no case of instigation or aiding by the petitioner for the commission of the suicide by the deceased. Learned counsel relying on the decision of this Court in Criminal Petition No.6310/2015 dated 30.09.2015, between T. V. Prakruthi vs. State of Karnataka, submitted that on the similar allegations, the petitioner therein was enlarged on anticipatory bail. The petitioner in the said case was arrayed as accused for the offences punishable under Sections 306 of IPC, being brother of accused No.1, who was staying away from accused No.1. Further learned counsel for the petitioner relied on the judgment in the case of Sanju @ Sanjay Singh Sengar vs. State of M.P. reported in (2002) 5 SCC 371, submitted that " Presence of mens rea is the necessary concomitant for instigation and that the words uttered in a quarrel or on the spur of 10 moment, such as ' to go and die' cannot be taken to be uttered with mens rea"
9. In the present case, it is made out that the petitioner who is arrayed as accused No.2 is functioning as Peethadipati of Digambar Math at Kolhar village, Basavana Bagewadi Taluka and he never entered into agreement with accused No.1 to purchase his land. On the other hand, the brother of the petitioner namely Sankappayya accused No.3 entered into an agreement of sale with accused No.1 on 05.09.2018, the copy of which is made available before this Court. It is also not disputed that accused No.1 is the owner of the said land. Though the complainant has stated that she has made payment of Rs.28,00,000/- to accused No.1 in the last 7-8 years in order to purchase the said land, it appears, at this stage, that she has not produced any material before the police in support of her contention that she has made payment of Rs.28,00,000/-. It is 11 stated that the complainant's occupation is household work. At this stage, this Court need not go into the merits of the case, so far as alleged transaction is concerned. The complainant has stated in her complaint that she approached accused No.2 and requested him to ask accused No.1 to refund the amount paid by her. Therefore, the complainant approached accused No.2 for some settlement and there is no allegation that, on that day the son of the complainant had accompanied her and he was threatened by the petitioner or accused No.3. The complainant has also stated in the complaint that she has filed a civil suit and has obtained an order of injunction from alienating the land by accused No.1. In that case, the question of purchasing the land from accused No.1 by the petitioner or his brother does not arise until the order of injunction is vacated. It is only an agreement of sale entered into between accused No.3 and 1.12
10. At this stage, absolutely, there is no material to show that deceased committed suicide at the instigation of the petitioner or petitioner aided the deceased to commit suicide. It is only stated in the complaint that on 22.12.2018 her son had been to Tahsil Office and there the petitioner met him and threatened him with life if he did not keep quite. This is the only allegation made against petitioner in order to show that the deceased was instigated or forced to commit suicide. This allegation in the complaint cannot be held as instigation given by the petitioner at the most it amounts to giving criminal intimidation, which is punishable under Section 506 of IPC. It is not disputed that the petitioner is Peethadipathi of Digambar Math at Kolhar village, Taluka Basavana Bagewadi. He is permanently staying there and as such there is no chance of absconding. The presence of the petitioner 13 could be secured for the purpose of investigation or trial by imposing necessary conditions.
11. Under these circumstances, I hold that it is a fit case in which the benefit of anticipatory bail can be extended to the petitioner. Accordingly, I proceed to pass the following:
ORDER The petition under Section 438 of Cr.P.C. is allowed. The petitioner is ordered to be enlarged on bail in the event of his arrest in crime No.154/2018 of Kolhar Police Station, Basavana Bagewadi Taluka for the offences punishable under Sections 323, 341, 306, 504, 506 read with Section 34 of IPC on his executing a personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with a surety for the likesum to the satisfaction of the Investigating Officer on following conditions:14
1. The petitioner is directed to appear before the Investigating Officer within 15 days from today.
2. The petitioner shall be available for investigation and shall co-operate with the Investigating Officer in conducting investigation.
3. The petitioner shall not threaten or allure the prosecution witnesses in any manner.
Sd/-
JUDGE VNR