Karnataka High Court
Sandeep Gururaj vs State Of Karnataka on 15 April, 2024
Author: K.Natarajan
Bench: K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL PETITION NO 1490 OF 2024
BETWEEN:
SANDEEP GURURAJ
S/O GURURAJ VENKAT RAO,
SRINIVAS RAO,
AGED ABOUT 38 YEARS,
R/AT NO.50, (NEW NO.85),
PUTTANNA ROAD, BASAVANAGUDI,
BENGALURU - 560 004.
...PETITIONER
(BY SRI. GAUTAM SHREEDHAR BHARADWAJ, ADVOCATE)
AND:
STATE OF KARNATAKA
BY CUBBON PARK PS,
BENGALURU.
...RESPONDENT
(BY SMT. RASHMI PATEL, HCGP FOR R1;
SRI. A.N.S. NADAKARNI, SENIOR COUNSEL ALONG
WITH;
SRI. SUNIL KUMAR PATEL, ADVOCATE FOR
SRI. S.K. VENKATA REDDY, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
438 OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON
BAIL IN THE EVENT OF HIS ARREST IN CR.NO.137/2019 OF
CUBBON PARK P.S., BENGALURU FOR THE OFFENCE
P/U/S.120-B, 420, 149, 423, 465, 468, 471, 506 OF IPC ON
THE FILE OF THE VIII ACMM IN C.C.NO.23541/2019.
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THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 20.03.2024 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
RESERVED FOR ORDERS ON: 20.03.2024
PRONOUNCED ON : 15.04.2024
ORDER
This petition is filed by the petitioner-accused No.3 under Section 438 of Cr.P.C., for granting anticipatory bail in Crime No.137/2019 registered by Cubbon Park police station, Bengaluru and charge sheeted for the offences punishable under Sections 120B, 420, 149, 423, 465, 468, 471, 506 of IPC, now pending on the file of VIII ACMM, Bangalore in C.C. No.23541/2019.
2. Heard the arguments of learned counsel for the petitioner, learned Senior Counsel for the respondent No.2 and learned High Court Government Pleader for the respondent No.1/State.
3. The case of the prosecution is that, a private complaint was filed by the respondent No.2 in PCR 3 No.9076/2019 before the Magistrate and got it referred to the police under Section 156(3) of Cr.P.C. In turn, the police registered FIR and investigated the matter and filed charge sheet. It is alleged by the complainant that he met accused No.1/Praveen Surendiran, an employee of M/s OPC Assets Solutions Private Limited, Mumbai. The accused No.2 was software developer. The complainant along with accused Nos.1 and 2 launched a software based manpower service and repair centre. Accused No.2 was co-founder of a company by name M/s Norte Technologies India Pvt. Ltd. ('NTI Pvt. Ltd.' for short). The complainant and accused No.2 were 50:50 shareholders and Directors of the company. The complainant also provided loan of Rs.2.5 lakhs to accused No.2. The accused No.1/Praveen Surendrian was helping the complainant and accused No.2 in marketing while working with a Mumbai based company, M/s.OPC Asset Solution Pvt. 4 Ltd., Mumbai. Accused Nos.1 and 2 being close associates of accused no.3, who was working as Assistant General Manager-Finance, at Manipal Education and Manipal Group International Pvt. ltd., at Vittal Mallya Road, Bengaluru. They joined the hands at the office of MEMG, Vittal Mallya Road, Bengaluru. They hatched criminal conspiracy, forged the signature of complainant on certain documents, fabricated the documents to defraud the complainant. It is alleged that they created a false document in the name of complainant, as he had resigned from the post of Director and they said to be Board of Directors of the company. Thereby, they used forged documents as genuine as that of the respondent/ complainant who had resigned from the post. Accused Nos.1 to 5 appointed accused No.7-Nagaraju an Auditor. Accused No.6 was assisting the company for maintaining the books and by using the fake documents, the 50% share 5 of the complainant has been transferred. The complainant had invested huge amount in the company. The complainant also refused to sign such document. Hence, he has demanded his share from the company, but they threatened him with dire consequences and other various allegations in the complaint for taking action for the offences punishable under Sections 420, 120B, 465, 468, 471, 506 of IPC. He has lodged the complaint to the police, as well as higher officers, they have not taken the complaint. Hence, he has approached the Magistrate by filing the complaint.
4. After registering the case, the investigation was under progress, the petitioner was said to be arrested and he was in jail in C.C.No.7559/2019. The police filed an application before the Magistrate in C.C No.23541/2019 for body warrant. Accordingly, the learned Magistrate issued the body warrant to the 6 accused through jail authorities under Section 267 of Cr.P.C. The petitioner was produced in the present case on 02.08.2019 and on the request of the police, the petitioner was given police custody till 14.08.2019. Thereafter, he was produced back before the court and was remanded to judicial custody.
5. It is further contended, subsequently that the petitioner was granted bail by the Hon'ble Supreme Court in the earlier case in C.C No.7559/2019 and he was released on bail. Subsequently, he has moved a memo for recalling the body warrant before the Magistrate. Accordingly, the body warrant has been recalled and the petitioner was released from the jail. Subsequently, recalling the body warrant has been challenged before the Sessions Judge, wherein the Sessions Judge in a Revision Petition No.33/2021 had set aside the order of the Magistrate and stated that the petitioner shall move bail application before the 7 Magistrate. In the meanwhile, the learned Magistrate issued NBW against the petitioner, which is challenged before this court in writ petition, where the coordinate bench of this court has cancelled the NBW and directed to seek bail before the Court. Subsequently, the petitioner moved bail petition under Section 437 of Cr.P.C. before the Magistrate. In the meanwhile, he approached this Court for granting anticipatory bail.
6. Learned counsel submits that the petitioner is apprehending the arrest in the hands of the police and the coordinate bench of this court had directed to obtain bail, though he was in custody in a connected matter, he is not in custody in this matter. Therefore, it is contended that most of the investigation has been completed, additional charge sheet has been filed and he is not required for any interrogation. Hence, prayed for granting anticipatory bail.
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7. Per contra, learned senior counsel for defacto- complainant has seriously objected the petition, mainly on the maintainability of the anticipatory bail contending that, the petitioner was already arrested by the police and investigating the matter by obtaining the body warrant, in this case. Subsequently, he was remanded to judicial custody in this case. Therefore, anticipatory bail application is not maintainable, he has to move regular bail petition before the Magistrate under Section 437 of Cr.P.C., as he has already filed such application, which is kept pending. Therefore, prayed for dismissing the petition.
8. As a reply, learned counsel for the petitioner has relied upon the judgment of the Hon'ble Supreme Court, as well as the coordinate bench of this court, in respect of maintainability of the anticipatory bail under Section 438 of Cr.P.C. The learned counsel for respondent also relied upon the judgment of the 9 Hon'ble Supreme Court in order to show that the petitioner was already arrested and he was in custody. Therefore, the anticipatory bail is not maintainable. Both the learned counsel relied upon the judgments of the Hon'ble Supreme Court and High court.
9. Having heard the arguments of both the counsel, the point that arises for my consideration are;
1) Whether the anticipatory bail under Section 438 of Cr.P.C. is not maintainable, as per the contention of the respondent?
2) Whether the petitioner is entitled for anticipatory bail?
10. Before considering the bail on merits of the case, it is necessary for this court to answer the objection raised by the respondent on the ground, that the anticipatory bail is not maintainable, as the petitioner was already arrested and taken into the custody in this case. It is not in dispute that the 10 petitioner named as accused No.3 in Crime No.137/2019 and later converted in C.C.No.23541/2019 for the offences punishable under Sections 120B, 149, 420, 423, 465, 468, 471, 506 of IPC.
11. It is an admitted fact, that the petitioner was arrested and he was remanded to the judicial custody in C.C.No.7559/2019. Learned Magistrate issued body warrant in C.C.No.23541/2019 under Section 267 of Cr.P.C. on 2.8.2019. Accordingly, the petitioner was produced in C.C.No.23541/2019 from the jail and in C.C.No.7559/2019, he was remanded to the police custody from 2.8.2019 to 14.8.2019.
12. Subsequently, the petitioner said to be released on bail in C.C.No.7559/2019 and thereafter the petitioner filed an application for recalling the body warrant in C.C.No.23541/2019. Learned Magistrate 11 recalled the body warrant and petitioner was released from the jail. Subsequently, the complainant challenged the order of recalling the body warrant by filing the revision petition before the Sessions judge in Revision Petition No.33/2021 and the Sessions judge set aside the order. However, the same was challenged by the accused before the High Court in Crl.P.No.10125/2021. In the meanwhile, NBW was issued by the learned Magistrate against this petitioner, the petitioner also moved an application under Section 437 of Cr.P.C. Subsequently, in view of the cancelling the NBW by the coordinate bench of the High court, directing the petitioner to approach the court for granting bail/anticipatory bail. Accordingly, the petitioner once again before this court for grant of anticipatory bail, which is under challenge on the ground of maintainability.
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13. Now the custody of the accused in C.C.No.7559/2019 and the accused was brought to the court under production of warrant under Section 267 of Cr.P.C. and was produced in C.C.No.23541/2019 and remanding to judicial custody amounts to custody of the petitioner in this case or the custody is only in the main case and not in the present case. If the petitioner was considered as custody in the present case in Crime No.137/2019 with respect to C.C.No.22543/2019, then anticipatory bail is not maintainable. On the other hand, if custody of the petitioner is not considered as custody in the present case, as he was only brought from the other case or main case in C.C.No.7559/2019 under Section 267 of Cr.P.C., cannot be considered as custody in this case, then anticipatory bail is maintainable.
14. In this regard, the learned counsel for the petitioner relied upon the judgment of the coordinate 13 bench reported in 2022 SCC OnLine Kar 1823:ILR 2023 Kar 2081 in the case of M.Shashidhara and Anr., V State of Karnataka by Jayanagar Police, wherein the coordinate bench of this court by considering various judgments and considering 267 of Cr.P.C., has held at paragraph 26, 27, 28, 29 as under:-
"26. Having said thus, the prosecution expressed few apprehensions. It is common experience that the Learned Trial Judges, often use the expression that "
body warrant extended". In some cases, "
re- issue body warrant and judicial custody extended". It is pertinent to note that while exercising the power under Section 267 Cr. P.C., the Court before whom a person who has already in custody is produced before the Court which has issued order u/s. 267 Cr. P.C., will not have any authority to extend the body warrant or give him to the custody in the said case. If his presence is required further, fresh order is to be issued.
27. As could be seen from the contents of Forms supra, when once the purpose is served for a particular day/days, the order passed under Section 267 Cr. P.C., seized to exist and the accused, who has been produced before the Court or before the Investigating Agency as the case may be will have to return the accused to the judicial custody, wherein he is originally remanded by the orders of the Court in the original case. Therefore, it is crystal clear 14 that the Learned Magistrate and the district judges as the case may be will not have the power to order for " body warrant extended/ judicial custody extended" in case where an accused is produced before that Court under the orders passed under Section 267 Cr. P.C., and such practice needs to be discontinued henceforth.
28. It is the further apprehension of the prosecution that an accused is custody may be necessary for investigation in several other cases especially when the accused is a known criminal. When he is enlarged on bail in one case, apprehending the very same accused again in respect of other cases/s would be a herculean task and therefore, the State machinery would be put to un-necessary hardship. Needless to emphasize that a suitable mechanism needs to be evolved by the Home Department to protect their interest to meet such contingency.
29. It is to be noted that an web application is developed by NIC (National Information Centre) called E-prisons It is always open for the Home Department to make necessary and suitable module in the said web application to track an accused who is already in custody in one case, number of body warrants issued against him and number of cases, where he is required for investigation. All those features can be made available in the said web application whereby there would be a proper mechanism by which, State machinery would be made known about release of an accused in a given case. It would probably sufficient enough to safeguard the apprehension expressed by the prosecution Department. It is to be clarified at any rate, such apprehensions would not permit the Jail Authorities to detain a person who has the benefit of grant or bail by a duly constituted Court 15 even for a minute under the pretext of body warrant issued in another case."
15. The coordinate bench relied upon the judgment of Hon'ble Supreme Court in the case of Arun Krishna Sail Vs State of Karnataka (in WPHC.No.243/2014 dated 26.12.2014) wherein the Division bench has held that "this court after discussing the fact and law on the point directed that concerned person should be set at free if there is no order passed by any court against the said person directing him to be in judicial custody". In the said case the judgment reported in 1987 SUPP SCC 143 where the apex court observed that detention of the concerned person in jail is illegal in as much as there was no warrant for detaining him in jail after his acquittal in two Criminal matters, merely because of issuance of production warrant by any other Criminal court, the said person cannot be continued in prison, without there being specific order relating to his arrest and the coordinate 16 bench has held that the production warrant in the present case from some other case cannot be deemed to be a remand in the present case with the police custody.
16. Learned counsel for the petitioner has contended that when the warrant was issued by the court under Section 267 of Cr.P.C. and accordingly the petitioner was produced in C.C.No.23541/2019 i.e., in Crime No.137/2019 he was given to the police custody and later he was remanded to the judicial custody in the present case. Therefore, it is not the case of the petitioner, that he was not in custody in this case and he was only brought under body warrant. In support of his contention learned counsel for the petitioner relied upon the judgment of State of Haryana and Ors Vs Dinesh Kumar in (2008) 3 SCC 222. On the other hand, learned counsel for the petitioner contended that while passing the order, the coordinate bench has not 17 considered the judgment of the Hon'ble Supreme Court reported in CBI Vs Anupam Kulkarni case reported in (1992) 3 SCC 141 and the Hon'ble Supreme Court has held in the said case as under;-
" 2. An important question that arises for consideration is whether a person arrested and produced before the nearest Magistrate as required under Section 167(1) Code of Criminal Procedure can still be remanded to police custody after the expiry of the initial period of 15 days. We propose to consider the issue elaborately as there is no judgment of this Court on this point. The facts giving rise to this question may briefly be stated. A case relating to abduction of four Bombay based diamond merchants and one Shri Kulkarni was registered at Police Station Tughlak Road, New Delhi, on September 16, 1991 and the investigation was entrusted to C.B.I. During investigation it was disclosed that not only the four diamond merchants but also Shri Kulkarni, who is the respondent before us and one driver Babulal were kidnapped between September 14 and 15, 1991 from two Hotels at Delhi. It emerged during investigation that the said Shri Kulkarni was one of the associates of the accused one Shri. R. Chaudhary responsible for the said kidnapping of the diamond merchants. On the basis of some available material Shri. Kulkarni was arrested on October 4, 1991 and was produced before the Chief Metropolitan Magistrate, Delhi on October 5, 1991. On the request of the C.B.I. Shri Kulkarni was remanded to judicial custody till 18 October 11, 1991. On October 10, 1991 a test identification parade was arranged but Shri Kulkarni refused to co-operate and his refusal was recorded by the Munsif Magistrate concerned. On October 11, 1991 an application was moved by the investigating office seeking police custody of Shri Kulkarni pretended to be indisposed and he was taken to the Hospital the same evening where he remained confined on the ground of illness up to October 21,1991 and then he was referred to Cardiac Out-patient Department of G.B. Pant Hospital. Up to October 29, 1991 Shri Kulkarni was again remanded to judicial custody by the Magistrate and thereafter was sent to Jail. In view of the fact that the Police could not take him into police custody all these days the investigating officer again applied to the court of Chief Metropolitian Magistrate for police custody of Shri Kulkarni. The Chief Metropolitan Magistrate relying on a judgment of the Delhi High Court in State (Delhi Admn.) v Dharam Pal refused police remand. Questioning the same a revision was filed before that High Court of Delhi. The learned Single Judge in the first instance considered whether there was material to make out a case of kidnapping or abduction against Shri Kulkarni and observed that even the abducted persons namely the four diamond merchants do not point an accusing finger against Shri Kulkarni and that at any rate Shri Kulkarni himself has been interrogated in jail for almost seven days by the C.B.I. and nothing has been divulged by him, therefore it is not desirable to confine him in jail and in the view of the matter he granted him bail. The High Court, however, did not decide the question whether or not after the expiry of the initial period of 15 days a person can still be remanded to police custody by the Magistrate before whom he 19 was produced. The said order is challenged in these appeals."
17. Learned counsel also relied upon the judgment of the Madras high court in the case of State Vs K.N.Nehru, 2011 SCC OnLine a Division Bench of Madras High Court by relying upon the Anupam Kulkarni's case stated supra has held at para 42 as under:-
"42. From the above discussions the following conclusions emerge:
• 1) When an Accused is involved in more than one case and has been remanded to judicial custody in connection with one case, there is no legal compulsion for the Investigating Officer in the other case to effect a formal arrest of the Accused. He has got discretion either to arrest or not to arrest the Accused in the latter case. The Police Officer shall not arrest the Accused in a mechanical fashion. He can resort to arrest only if there are grounds and need to arrest.
• 2) If the Investigating Officer in the latter case decides to arrest the Accused, he can go over to the prison where the Accused is already in judicial remand in connection with some other case and effect a formal arrest as held in Anupam Kulkarni 20 case. Therefore, there is no legal compulsion for the production of the Accused before the Magistrate within 24 hours from the said formal arrest.
• 3) For the production of the Accused before the Court after such formal arrest, the Police Officer shall make an Application before the Jurisdictional Magistrate for issuance of P.T. Warrant without delay. If the conditions required in Section 267 of the Code of Criminal Procedure are satisfied, the Magistrate shall issue P.T. Warrant for the production of the Accused on or before a specified date before the Magistrate. When the Accused is so transmitted from prison and produced before the Jurisdictional Magistrate in pursuance of the P.T. Warrant, it will be lawful for the Police officer to make a request to the learned Magistrate for authorising the detention of the Accused either in Police custody or in judicial custody. • 4) After considering the said request, the representation of the Accused and after perusing the case diary and other relevant materials, the learned Magistrate shall pass appropriate orders under Section 167(1) of the Code of Criminal Procedures.
• 5) If the Police officer decides not to effect formal arrest, it will be lawful for him to straightaway make an Application to the Jurisdictional Magistrate for issuance of P.T. Warrant for transmitting the Accused form prison before him for the purpose of remand. On such request, if the Magistrate finds that the requirements of Section 267 of 21 the Code of Criminal Procedure are satisfied, he shall issue P.T. Warrant for the production of the Accused on or before a specified date.
• 6) When the Accused is so transmitted and produced before the Magistrate in pursuance of the P.T. Warrant from prison, the Police Officer will be entitled to make a request to the Magistrate for authorising the detention of the Accused either in Police custody or in judicial custody. On such request, after following the procedure indicated above, the Magistrate Shall pass appropriate orders either remanding the Accused either to judicial custody or Police custody under Section 167(1) of the Code of Criminal Procedure or dismissing the request after recording the reasons. • 7) Before the Accused is transmitted and produced before the Court in pursuance of a P.T. Warrant in connection with a latter case, if he has been ordered to be released in connection with the former case, the Jail Authority shall set him at liberty and return the P.T. Warrant to the Magistrate making necessary endorsement and if only the Accused continues to be in judicial custody, in connection with the former case, he can be transmitted in pursuance of P.T. Warrant in connection with the latter case."
18. Learned counsel for the respondent has contended that while considering the petition by 22 coordinate bench of this court in Shashidhara's case not considered the case of Anupam kulkarni's case of the Hon'ble Supreme Court. On perusal of the order of the coordinate bench in Shashidhar's case, where the accused was brought on the body warrant for answer the charges in a particular case and sent back to the same custody of the previous case, where the accused was in custody and it is pertinent to note while referring the judgment of the Division Bench of the High Court in Shashidhara's case, where the Division Bench has held until there was an arrest or order of remand in a present case and directing the petitioner to be in judicial custody, otherwise the accused cannot be in custody in the present case, as he has to be sent back in the previous case or earlier case. But the fact of case, in Shashidara's case is altogether different from this case on hand. Wherein the body warrant has been issued by the Magistrate in Crime No.137/2019 under 23 Section 267 of Cr.P.C. issuing the body warrant to the jail authorities where the petitioner was in custody in C.C.No.7559/2019 and admittedly the accused/petitioner produced before the court in C.C.No.23541/2019 on 2.8.2019 and he was remanded to the police custody till 14.8.2019. Thereafter, the petitioner was produced before the Magistrate in Crime No.137/2019 in C.C.No.23541/2019 and he was remanded to judicial custody in the present case. It is not the order of sending back the accused in the original case, but the Magistrate took the custody of the petitioner in this case in crime No.137/2019 and given police custody and subsequently remanded to judicial custody on 14.8.2019. Therefore, it cannot be said that the petitioner was not taken to custody in the present case. Subsequently, the petitioner was granted bail by the Hon'ble Supreme Court in the earlier case, however, the petitioner was deemed to be in custody in 24 the present case in Crime No. no.137/2019. Therefore, the petitioner is required to seek bail under Section 437 of Cr.P.C. before the Magistrate instead of seeking bail, he has filed memo for cancelling the body warrant and accordingly the learned Magistrate recalled the body warrant and without obtaining bail, the accused was set free in the criminal case in Crime no.137/2019. Therefore, the complainant approached the Sessions Judge for cancelling the order of the Magistrate and the learned Sessions Judge rightly set aside the order of the Magistrate and directed to secure the presence of the accused. Hence, the NBW was issued by the Magistrate but ultimately the NBW has been cancelled by the coordinate bench of this court. However, the coordinate bench of this court, while cancelling the NBW directed the petitioner to approach the court for grant of bail/anticipatory bail in WP.No.1530/2024 in case of Sandep Gururaj Vs The Station House 25 officer and Anr is as below, "Order Hence, I proceed to pass the following order;-
1. This petition allowed in part
2. The order dated 10.1.2024 passed in C.C.No.23541/2019 by 8th ACMM, Bangalore stands obliterated.
3. Petitioner is at liberty to either revive the application pending seeking enlargement on bail/anticipatory bail or file fresh appliation for anticipatory bail/bail.
19. On perusal of the order of the coordinate bench, the coordinate bench has not stated whether the petitioner approached the court for anticipatory bail under Section 438 of Cr.P.C. or regular bail under Section 437/439 of Cr.P.C. Therefore, it is incumbent on this court to consider whether the petitioner can approach the court for anticipatory bail or regular bail. 26
20. Considering all these facts above, I am of the view that once the accused was secured under body warrant from the original case, in C.C.No.7559/2019 and taken to custody in C.C.No.23541/2019 and he was given to the police custody and in pursuance of the police custody the police interrogated and seized some incriminating evidence at the instance of accused and later on 14.8.2019 he was produced before the court and inturn he was remanded to judicial custody in C.C.No.23541/2019 in Crime No.137/2019. Therefore, I am of the view that the petitioner was taken to custody on 2.8.2019 through the body warrant under Section 267 of Cr.P.C. and he was remanded to police custody on 14.8.2019 to judicial custody. Therefore, for all practical purposes the petitioner was in custody or deemed to be in judicial custody in this case from 14.8.2019. Therefore, it is the petitioner who is required to approach the court for seeking regular bail, 27 though the petitioner rightly filed application under Section 437 of Cr.P.C., to the Magistrate, but it was kept in abeyance and filed anticipatory bail. The sessions judge rightly set aside the order of recalling the body warrant without granting bail by the Magistrate in a serious offence where the money laundering activities are said to be involved by the petitioner. Therefore, once the petitioner was in custody and jailed in the present case, he has to seek regular bail under Section 437 Cr.P.C. and thereafter 439 of Cr.P.C. and he cannot seek anticipatory bail under Section 438 of Cr.P.C. .
Therefore in my view, the anticipatory bail under Section 438 of Cr.P.C. is not maintainable and therefore considering the case on merits for granting anticipatory bail, does not arise. The petition under Section 438 of Cr.P.C. is liable to be dismissed as not maintainable.
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21. Accordingly, I proceed to pass the following order:
The petition filed by the petitioner/accused under Section 438 of Cr.P.C. is hereby dismissed as not maintainable.
Sd/-
JUDGE AKV CT:SK