Karnataka High Court
Sri Chandrashekar @ Chandra @ Katayi ... vs State Of Karnataka on 16 July, 2021
Equivalent citations: AIRONLINE 2021 KAR 1421
Author: K.Natarajan
Bench: K. Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JULY, 2021
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL REVISION PETITION No.806/2021
BETWEEN:
SRI CHANDRASHEKAR @ CHANDRA
@ KATAYI CHANDRA
S/O. VENKATESHAPPA
AGED 26 YEARS
RESIDING AT NO.223
8TH CROSS, BASAPPANAKATTE
RAJAGOPALANAGARA
BENGALURU - 560 058
...PETITIONER
(BY SRI PRADEEP C.S., ADVOCATE)
AND:
1. STATE OF KARNATAKA
REP. BY RAJAGOPALANAGAR POLICE
BENGALURU - 560 058
2. THE DEPUTY COMMISSIONER OF POLICE
NORTH DIVISION & SPECIAL EXECUTIVE
MAGISTRATE, BENGALALU - 560 092
3. THE SUPERINTENDENT
CENTRAL PRISON
PARAPPANA AGRAHARA
BENGALURU - 560 100
...RESPONDENTS
(BY SRI. K.NAGESHWARAPPA, HCGP)
2
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W SECTION 401 OF CR.P.C., PRAYING TO
SET ASIDE THE ORDER 19.04.2021 IN
NO.CRM/MAG/187/DCP(NORTH)/BEM.NA/2020 PASSED BY
THE 2ND RESPONDENT A COPY OF WHICH IS PRODUCED AT
ANNEXURE - B.
THIS CRIMINAL REVISION PETITION COMING ON FOR
ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the petitioner under Section 397 read with Section 401 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.' for short) being aggrieved with the order passed by the Deputy Commissioner of Police cum Special Executive Magistrate Bengaluru, dated 19.04.2021 taking the petitioner into custody for violation of condition of bond is said to have executed by petitioner under Section 110 of Cr.P.C. in a report No.19/2020.
2. Heard the arguments of the learned counsel for the petitioner and the learned High Court Government Pleader for the respondents/State. 3
3. The case of the prosecution in nutshell is that the petitioner is said to have apprehended by the Rajagopalanagara Police for keep peace in view of by election of R.R.Nagar Constituency under Sections 108, 109 & 110 of Cr.P.C. in PAR No.19/2020. He was taken before the Deputy Commissioner of Police cum Special Executive Magistrate (hereinafter referred to as the 'Executive Magistrate') and he has released on bond for a sum of Rs.1,00,000/- with a surety bond for a sum of Rs.50,000/- on 15.03.2021 on condition that he shall not involve in any offence for one year as per Section 117 of Cr.P.C. Subsequently, Rajagoplanagar police filed an application before the Executive Magistrate alleging that during enforcement of the bond, the petitioner/accused involved in a criminal offence registered a case in Crime No.20/2021 by the Peenya Police for the offence punishable under Section 392 of IPC. On the application filed by Rajagopalnagar Police, 4 the Executive Magistrate issued a show cause notice to the petitioner on 18.03.2021 for directing him to appear before the Court on or before 05.04.2021. The said notice was duly served on 23.03.2021 but he did not appear before the Magistrate. Subsequently, on 05.04.2021, notice was issued to the surety who is said to be the mother of the petitioner calling upon to show the cause why the bond amount was not forfeited and to appear and answer before him on or before 26.04.2021. In the n meanwhile on 19.04.2021, the petitioner was taken into custody and the impugned order was passed by the Executive Magistrate for violation of bond and he was remanded to judicial custody till 09.10.2021 vide order dated 19.04.2021 and the same is challenged before this Court.
4. Learned counsel for the petitioner seriously argued and contended that though the notice was served on the petitioner and directed to appear before 5 the Executive Magistrate on 05.04.2021. On 05.04.2021, surety notice also issued to answer and appear before the Executive Magistrate on or before 26.04.2021 but in the meanwhile, the petitioner has been arrested and the impugned order has been passed without giving him an opportunity as required under Section 122(3) of Cr.P.C. He further submits that no opportunity was given for hearing the petitioner and without giving him a proper opportunity and without enquiring the petitioner, he has been remanded judicial custody which is against the law and the provision established under Section 122(3) Cr.P.C. Hence, learned counsel for the petitioner prays for set aside the impugned order by allowing this petition.
5. Per contra, learned High Court Government Pleader justifies the order passed by the Executive Magistrate and contended that the petitioner has violated the condition of the bond by involving in a 6 criminal offence punishable under Section 392 of IPC. In spite of serving notice on the petitioner to be appeared on 05.04.2021, but he did not process to appear and the notice was also served to the surety who is the mother of the petitioner. Therefore, the trial Court has rightly passed an order and taken him into judicial custody for violation of the condition of the bond. Hence, he prays for dismissal of the petition.
6. Upon considering the arguments of the learned counsel for the petitioner and the learned High Court Government Pleader for the respondents/State and on perusal of the records, especially, the documents produced by the learned High Court Government Pleader, it reveals that it is not in dispute that the petitioner was executed a bond on 10.10.2020 in respect of PAR No.19/2020 under Section 110 of Cr.P.C. with a condition that he shall not indulge in any offence for a period of one year. It is alleged by the 7 Rajagopalanagar Police by filing an application that the petitioner was indulged in a criminal offence punishable under Section 392 of Cr.P.C. registered by Peenya Police in Crime No.20/2021. Therefore, the learned Executive Magistrate rightly issued notice on 18.03.2020 to be appeared before the Executive Magistrate on or before 05.04.2021 and the notice has been duly served on the petitioner on 23.03.2021. In view of non-appearance of the petitioner, the learned Executive Magistrate issued a notice to the surety, who is the mother of the petitioner. The said notice was also served on 07.04.2021 and the date was given to appear on or before 26.04.2021. But the learned Executive Magistrate committed an error even though given date to appear till 26.04.2021, the impugned order has been passed on 18.04.2021. On the same day, the learned Executive Magistrate has held there is violation of conditions of the bond, in view of the commission of the offence. Therefore, in view of the 8 recovery of bond amount, the petitioner has been taken to the custody and remanded to the jail till 09.10.2021. On perusal of the impugned order, absolutely, the learned Executive Magistrate has not given any opportunity to the petitioner being heard under Section 122(3) of Cr.P.C. Of course, the learned Executive Magistrate has power to remand for non-obedience or failure of the security for upto 3 years, if the learned Executive Magistrate after following the procedure established under Section 122(3) of Cr.P.C. for holding an enquiry and thereafter come to the conclusion after satisfied himself that the accused has committed or violated the condition of bond then he has power to pass any such order. On perusal of the impugned order, it was premature order even without waiting till date given to appear on 26.04.2021, the learned Executive Magistrate hurriedly passed the order by taking the petitioner into custody which is illegal. Therefore, the 9 order liable to be set aside and the petition is accordingly to be allowed. Hence, I pass the following:
ORDER The criminal revision petition is allowed.
The impugned order passed by the Deputy Commissioner of Police, North Division and Special Executive Magistrate in No.CRM/MAG/187/DCP(North) /BEM.Na/2020 dated 19.04.2021 is hereby set aside.
The petitioner is directed to be released forthwith. However, the matter is remanded back to the Executive Magistrate to hold an enquiry and pass an appropriate order in accordance with law.
Office to send the operative portion of the order to the concerned jail to release the petitioner forthwith.
SD/-
JUDGE KTY