Karnataka High Court
M E Shivalinga Murthy vs Cbi/Acb,Bangalore on 18 September, 2013
Author: N.Ananda
Bench: N.Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF SEPTEMBER 2013
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL PETITION NO.5609/2013
BETWEEN:
M.E.Shivalinga Murthy,
s/o Sri.M.S.Eswaraiah,
Aged 59 years,
No.3504, 14th Main, HAL II Stage,
Bangalore 560 008. ... PETITIONER
(By Sri S.G.Bhagawan, Advocate)
AND:
CBI/ACB, Bangalore,
Bellary road,
Bangalore 560 032. ...RESPONDENT
(By Sri C.H.Jadhav, Senior Counsel)
This Petition is filed u/S 438 Cr.P.C praying to enlarge
the petitioner on Bail in the event of his arrest
CC.No.116/2012 by the court of the XLVI Addl.City Civil and
Sessions Judge and Addl.Spl.Judge for CBI Cases, Bangalore
City for the offence P/U/S 120B, 379, 409, 420, 447, 468,
471, 477A of IPC and u/S 13(2) r/w 13(1)(c) & (d) of P.C.Act,
1988.
This Petition coming on for Orders this day, the Court
made the following:
2
ORDER
The petitioner has been summoned to appear before the trial Court in Special CC.No.116/2012 registered for the offences punishable under Sections 120-B, 420. 379, 409, 447, 468, 471, 477-A of IPC and Section 13(1)(c) and (d) punishable under Section 13(2) of the Prevention of Corruption Act, 1988. The petitioner has sought for anticipatory bail pending consideration of the bail application, made by him and which would come up for hearing before the Special Court on 21.9.2013.
2. I have heard Sri.S.G.Bhagavan, learned Counsel appearing for petitioner and Sri.C.H.Jadhav, learned Senior Counsel appearing for CBI.
3. The learned Counsel for the petitioner has relied upon AIR 2003 SC 4662 (Bharat Chaudhary & Anr., -vs- State of Bihar & Anr.,) to contend that there is no prohibition against grant of anticipatory bail even in cases where cognizance is taken and charge sheet is filed. The learned 3 Counsel would submit that there is no prima facie case against the petitioner. The learned Judge of CBI Court is on other official duty and the learned judge placed in-charge may not be able to decide the application on the same day. In the circumstances, there is apprehension of petitioner being taken to judicial custody.
4. Sri.C.H.Jadhav, learned Counsel appearing for the CBI relied upon the judgment of this Court in Criminal Petition No.4258/2012 and connected matters, disposed off on 1.3.2013, to submit that the petitioner has to exhaust his remedy before the jurisdictional Sessions Judge under Section 438 of Cr.P.C and thereafter, he can approach this Court. The learned Senior Counsel for CBI would submit that there is no prohibition to grant anticipatory bail in non bailable offence even after cognizance to offence is taken provided the facts of the case require the court to do so.
5. In the case on hand, the petitioner has been summoned to appear before the Special Court on 21.9.2013. 4 It is alleged that the petitioner and others have committed the offences punishable under Sections 120-B, 420. 379, 409, 447, 468, 471, 477-A of IPC and Section 13(1)(c) and (d) punishable under Section 13(2) of the Prevention of Corruption Act, 1988. The learned Special Judge has issued the summons. In the instant case, the petitioner cannot have any apprehension of his arrest before he appears before the Special Judge on 21.6.2013. After the appearance of the petitioner before the trial Court, he has to necessarily invoke the provisions of Section 437 or 439 as the case may be. Whether the Special Judge would decide the application for bail on the same day; whether the learned Special Judge would entertain the application for interim bail, if any, filed; whether learned Special Judge would dismiss the application, cannot be speculated by this Court in the instant petition. The apprehension of the learned Counsel for the petitioner that the learned trial Judge who is in- charge of the Court cannot decide the bail petition or the petition for interim bail, cannot be accepted. The judge who 5 is placed in-charge of the Court has powers and jurisdiction to consider urgent interlocutory applications and bail applications. Therefore, I do not find that the facts of this case require this Court to grant the relief under Section 438 Cr.P.C pending appearance of the petitioner before the Special Court.
The petition is dismissed with these observations.
Sd/-
JUDGE nd/-