Karnataka High Court
Channappa S/O Siddappa vs The State & Anr on 28 April, 2017
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF APRIL, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL PETITION No.200552/2017
Between:
Channappa S/o Siddappa
Age: 35 years, Occ: Agriculture
R/o Village K. Irabagar
Tq. Devadurga, Dist. Raichur
... Petitioner
(By Sri Sanjay A. Patil, Advocate for
Sri Ganesh Naik, Advocate)
And:
1. The State through
Devadurga Police Station
Devadurga, Dist. Raichur
2. The Taluka Executive Magistrate
Devadurga, Dist. Raichur
... Respondents
(By Sri Sheshadri Jaishankar M., HCGP)
This Criminal Petition is filed under Section 482 of
Cr.P.C., praying to quash the entire criminal proceedings
initiated against the petitioner by respondent No.1 in Crime
No.61/2017 of Devadurga Police Station, Dist. Raichur, and
proceedings in MAG/17-18 on the file of the Taluka
Executive Magistrate, Devadurga, Dist. Raichur.
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This petition is coming on for Orders this day, the
Court made the following:-
ORDER
This petition is filed by the petitioner/accused No.1 under Section 482 of Cr.P.C., praying this Court to quash the entire criminal proceedings initiated by respondent No.1 in Crime No.61/2017 of Devadurga Police Station for having initiated proceeding under Section 109 of Cr.P.C., in MAG/17-18.
2. Brief facts as per the contention of the petitioner is that respondent No.1 has passed an order under Section 109 of Cr.P.C., and when the petitioner appeared before him, he apprehended the petitioner on the assumption that he has committed some cognizable offence and he is trying to abscond. It is further alleged that since respondent No.1 has no definite information with regard to the alleged offence committed or to be committed, he registered the case in Crime No.61/2017 as against the petitioner and took him into preventive 3 custody as per Section 109 of Cr.P.C. Subsequently, the petitioner was produced before respondent No.2 on 10.04.2017 and at that time, the application for bail was filed for releasing him on bail. Respondent No.2 allowed the bail petition but imposed such condition that he should not full fill the condition to get himself released from the custody. He has imposed condition that petitioner has to furnish personal bond for a sum of Rs.10,00,000/- (Ten Lakhs) and surety of equal sum of two government servants. Since the petitioner was unable to comply with the said order, he was sent to judicial custody on 10.04.2017 and till today, he is in custody. Being aggrieved by the registration of false case under Section 109 of Cr.P.C., the petitioner is before this Court.
3. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondents. 4
4. The main grounds urged by the learned counsel for the petitioner are that, petitioner has not committed any offence and he has been falsely implicated in this case and a false case has been registered under Section 109 of Cr.P.C., only with an intention to harass him. He would also contend that the complaint has been registered without any credible information by invoking Section 109 of Cr.P.C. Even respondent No.1 has not made out any good grounds to attract the provisions of Section 109 of Cr.P.C. He would further contend that respondent No.2 because of his bias has not passed the appropriate order. It is further contended that in Crime No.62/2017 on the same day, he has ordered to release other accused persons in the said crime by executing personal bond for a sum of Rs.1,00,000/- with two sureties for the likesum. But, in the present case, he has directed the petitioner to furnish personal bond for a sum of 5 Rs.10,00,000/- and surety of equal sum from two government servants. Thereby, respondent No.2 has made discrimination between the two accused persons while passing bail orders. He would further contend that the impugned order is not in accordance with law and it is too harsh and as such, the same is liable to be set aside.
5. On the contrary, learned High Court Government Pleader appearing for the respondents has vehemently contended that the learned Tahsildar, Devadurga, has passed a reasoned order. He would also contend that, as per the direction of this Court, he has modified the order on 27.04.2017 and the accused persons have been released on bail. He would further contend that, he has received information that the said order has been passed and the petitioner has been released on bail. On these grounds, he prays for dismissal of the petition.
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6. I have gone through the contents of the petition and the submissions made by the learned counsel for the petitioner as well as the learned High Court Government Pleader.
7. Before considering the facts of the present case, I want to extract Section 109 of Cr.P.C., which reads as under:
"109. Security for good behaviour from suspected persons.- When 1[an Executive Magistrate] receives information that there is within his local jurisdiction a person taking precautions to conceal his presence and that there is reason to believe that he is doing so with a view to committing a cognizable offence, the Magistrate may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for his good behaviour for such period, not exceeding one year, as the Magistrate thinks fit."7
8. In order to initiate the proceedings under the above provision of law, two conditions precedent must co-exist. The first one is, the person concerned must be taking precautions to conceal his presence and the second one is, there should be reason to believe that such person is taking such precautions with a view to commit offence. The learned Magistrate only after satisfying himself can initiate proceedings under Section 109 of Cr.P.C. The word concealing his presence means not only concealing physical and bodily presence but when the person tries to impersonate another person, he undoubtedly conceals his own identity and tries to make the people believe as some other person.
9. On going through the records, it would indicate that complaint was registered by respondent No.1 in Crime No.61/2017 on 10.04.2017 and on the same day, the petitioner was produced before respondent No.2 and respondent No.2 passed the order for release of the 8 petitioner by imposing the condition that, 'the petitioner has to execute personal bond for a sum of Rs.10,00,000/- with two sureties from government servants for the likesum by undertaking to maintain good behaviour, peace and tranquility in the society for a period of six months. Since the accused did not produce surety as nobody has come forward to give surety, the petitioner was remanded to judicial custody. At this juncture, the learned High Court Government Pleader would bring to my notice the subsequent order dated 27.04.2017 passed by respondent No.2 wherein the order dated 10.04.2017 has been modified and the petitioner has been ordered to be released on bail on the conditions that he should execute personal bond for a sum of Rs.5,00,000/- as contemplated under Section 109 of Cr.P.C., and he has to give surety of two respectable members for the likesum. The said order has been produced. At this juncture, learned counsel for the petitioner would submit that though the order has 9 been passed on 27.04.2017 but till date the accused- petitioner has not been released even in spite of furnishing the sureties of one Malayya and Rangappa along with the property extract.
10. On going through the records, it indicates that the learned Taluka Executive Magistrate has passed the impugned order following legal procedure as contemplated under the law. Even records also indicate that the accused-petitioner has filed the bail application and produced the sureties and he has not released and even the order also indicates that he has asked to give two government sureties which is very strange, harsh and surprise. But in another case he has asked to give a personal bond for a sum of Rs.1,00,000/- and two sureties for the likesum. The said act of respondent No.2 itself indicates that he is biased and only with an intention to harass the accused, he has passed such order. If any proceedings have been initiated under 10 Section 109 and if conditions as stated supra if they have been satisfied, under such circumstances, the Magistrate is required to order to execute a bond with or without sureties for his good behaviour for such period not exceeding one year. When that is the purport of the law, under such circumstances, instead of asking them to execute the bond as contemplated under the law, he has asked very harshly to execute a personal bond for a sum of Rs.10,00,000/- and two government sureties for the likesum. When subsequently it has been brought to the notice of this Court to rectify the act and consider it reasonably, even then again the said Taluka Magistrate has passed the order to execute a personal bond for a sum of Rs.5,00,000/- with reasonable sureties for the likesum. This attitude of respondent No.2 is not acceptable. Though this petition has been filed for quashing the proceedings, but there are no grounds made out for the purpose of quashing the proceedings, but the only contention which has been raised in this 11 petition is in respect of non releasing of the accused- petitioner on bail. Under such circumstances, the entire proceedings cannot be quashed. As such, the following order has been passed.
Respondent No.2 is hereby directed to pass an appropriate order to release the accused-petitioner forthwith by taking a bond for a sum of Rs.1,00,000/- with two sureties for the likesum and also taking appropriate bond as contemplated under Section 109.
However, conduct of respondent No.2 appears to be not fair and not justifiable. Under such circumstances, Registry is directed to send the copy of the order to the jurisdictional Deputy Commissioner and request him to investigate the said aspect in detail and to take appropriate legal steps in accordance with law against respondent No.2.
Accordingly, the petition is disposed of.
Sd/-
JUDGE NB*/sdu