Karnataka High Court
Shivasharanappa vs The State Of Karnataka on 9 September, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 09TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL PETITION NO.200712/2020
Between:
Shivasharanappa
S/o Parasappa Melkeri,
Age 61 years, Occ. Professor in
Gulbarga University,
R/o A-3, Staff Quarters,
Gulbarga University, Kalaburagi.
... Petitioner
(By Sri R.S.Lagali, Advocate)
And:
The State of Karnataka
Through the SHO,
University P.S., Kalaburagi
Rep. by the Addl. State Public Prosecutor,
High Court of Karnataka,
Kalaburagi Bench.
... Respondent
(By Sri Sharanabasappa M.Patil, HCGP)
This Criminal Petition is filed under Section 438 of
Code of Criminal Procedure praying to allow this anticipatory
bail petition and thereby issue suitable direction to the
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concerned police authorities to release the petitioner on bail
in the event of his arrest in Kalaburagi University PS Crime
No.108/2020 pending on the file of the III Addl. Civil Judge
(Jr.Dn.) and JMFC Court Kalaburagi for the offences
punishable under Sections 341, 355, 353, 323, 504, 506,
448 and 114 read with Section 34 of IPC.
This petition coming on for orders this day, the Court
made the following:
ORDER
(Through Virtual Court) This petition is filed by the petitioner/accused No.1 under Section 438 of Code of Criminal Procedure seeking a direction to the respondent-Police to release him on bail in the event of his arrest.
2. Brief facts of the case as per FIS is as under; The complainant is a Professor and HOD of Botany Department at Gulbarga University, Kalaburagi for about 35 years and when this being the fact on 18.08.2020 at about 11.50 pm when the complainant was in his Chamber wherein the petitioner and accused No.2 criminally tress passed into the Chamber of the complainant and it is alleged that the petitioner has 3 raised voices asking the complainant that why the complainant had asked an undertaking from the son of elder brother of the petitioner 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 the petitioner had assaulted the complainant and abused in filthy language and criminally intimidated and for this the accused No.2 had instigated the petitioner to do the crime and it is also alleged in the complaint that the petitioner is close with many rowdy elements in Kalaburagi City and thus criminally intimidated the complainant. In this line the complaint is lodged before the police. Accordingly a crime is registered as Crime No.108/2020 for the offences punishable under Sections 341, 355, 353, 323, 504, 506, 448, 114 read with Section 34 of IPC.
3. The learned counsel for petitioner vehemently submitted that the petitioner is a responsible person and is Professor in Gulbarga 4 University, Kalaburagi and previously he was in-charge Vice-Chancellor for three months and therefore is having deep root in the society and just because some verbal altercation a false and exaggerated complaint is filed.
4. Further submitted that petitioner is not involved in any other case as alleged in the complaint 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 absconding and fleeing away from justice and he would co-operate with trial for the purpose of investigation if he is released on bail.
5. Further submitted that the offences alleged are minor in nature and are not punishable either with capital punishment or with imprisonment for life and with this minor and trivial quarrel was taken place but 5 such exaggerated complaint is filed. Therefore, prayed to grant anticipatory bail to the petitioner.
6. On the other hand, the learned High Court Government Pleader submitted and opposed with all his vehemence stating that the petitioner is a Professor in Gulbarga University, should not have done the act as alleged in the complaint but had quarreled with the complainant and committed the act of criminal in nature and further submitted that the petitioner is influential person and there are concrete chances that if the petitioner is released on anticipatory bail then there are every chances of absconding and fleeing away from justice and meddling with the investigation considering the influence of the petitioner and accordingly prayed to reject the petition.
7. Heard the learned counsel for the petitioner and the learned High Court Government Pleader for the State.
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8. The learned counsel for the petitioner submitted that the entire dispute is revolving on the aspect that why the complainant has asked undertaking from the son of elder brother of the petitioner. The learned counsel for the petitioner had submitted that already an undertaking in this regard was submitted and copy of the said undertaking is annexed along with this petition on 17.08.23020 itself. Therefore, submitted that there was no reason for the petitioner to take quarrel with the complainant regarding submitting of such undertaking. Further submitted that when on 17.08.2020, itself an undertaking was given, there was no occasion on the next day i.e., 18.08.2020, for taking quarrel with the complainant. Therefore, submitted that the entire complaint averments are false one and are found having exaggerated versions. Whether the genesis of the crime is with regard to submission of undertaking and whether already it was submitted on 17.08.2020, 7 one day prior to the alleged incident, these are all questions to be considered during full-fledged trial.
9. Further more while considering the anticipatory bail petition while exercising the power under Section 438 of Cr.P.C the following factors 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 8 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 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 9 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 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.10
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 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;11
(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;
(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."12
10. Considering the factors alleged in the complaint that the petitioner is facing about 2-3 other cases and in this regard the learned High Court Government Pleader has sought report from the concerned police station and the concerned police have submitted a report that except this there are no cases against the petitioner. Therefore, in this regard the learned High Court Government Pleader had submitted a report from the Police Sub-Inspector, University Police Station, Kalaburagi that as against the petitioner there are no other cases except the present one. Therefore, in order to ascertain the criminal antecedents of the petitioner as alleged in the complaint the learned High Court Government Pleader submitted a report that there are no material showing that the petitioner is having criminal antecedents.
11. Further more the petitioner is a Professor working in Gulbarga University, Kalaburagi, and it is stated that the petitioner has put in service more than 13 35 years as a Professor and considering the offences alleged which are neither punishable with death nor with imprisonment for life but it is a simple quarrel between the petitioner and the complainant and 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 above stated, 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 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 if the anticipatory bail petition is considered by granting the benefit of anticipatory bail in favour of the petitioner then that can balance between the two sides. Accordingly, the petition stands allowed. The respondent-Police is directed to release the petitioner on bail in the event of his arrest in Crime No.108/2020 of 14 Kalaburagi University PS, registered for the offences punishable under Sections 341, 355, 353, 323, 504, 506, 448 and 114 read with Section 34 of IPC pending on the file III Addl. Civil Judge (Jr.Dn.) and JMFC Court Kalaburagi, subject to following:-
CONDITIONS
1. The petitioner shall execute a personal bond for a sum of Rs.2,00,000/- with two solvent sureties for like sum to the satisfaction of the concerned Court;
2. The petitioner shall mark his 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 sn