Karnataka High Court
Shivayogigouda vs The State Of Karnatataka, on 8 August, 2016
Author: Aravind Kumar
Bench: Aravind Kumar
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 8TH DAY OF AUGUST, 2016
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
CRIMINAL PETITION NO.100865/2016
BETWEEN:
SHIVAYOGIGOUDA,
S/O HANAMANTAGOUD PATIL,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: ASUNDI,
TQ & DISTRICT: GADAG. ... PETITIONER
(BY SRI S.S.BETURMATH FOR
SRI K.L.PATIL, ADV.)
AND:
THE STATE OF KARNATATAKA,
THROUGH GADAG RURAL PS,
GADAG,
REP BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD. ...RESPONDENT
(BY SRI RAJA RAGHAVENDRA NAIK, HCGP)
THIS CRIMINAL PETITION IS FILED U/S.438 OF CR.P.C.,
PRAYING TO GRANT ANTICIPATORY BAIL TO THE PETITIONER
IN THE EVENT OF HIS ARREST IN CRIME NO.217/2016 OF
GADAG RURAL POLICE STATION, REGISTERED FOR THE
O/P/U/S.430 OF IPC AND SEC.9B & 5 EXPLOSIVE ACT 1884
AND SEC.5 OF EXPLOSIVE SUBSTANCES ACT, 1908.
THIS CRIMINAL PETITION COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
:2:
ORDER
Heard Sri S.S.Beturmath, learned counsel appearing for the petitioner/accused and learned Government Pleader appearing for the State. Perused the records.
2. Petitioner has been arraigned as sole accused in Cr.No.217/2016 registered by Gadag rural police station, for the offence punishable under Sections 430 of IPC, Section 5 of Explosive Substances Act, 1908 (for short 'Substances Act') and Section 9B of the Explosives Act, 1884 (for short Explosive Act).
3. The gist of the prosecution case is that between 20.05.2016 and 21.05.2016, at mid night some unknown persons had exploded the bund which was build to Ichala Halla (stream) near the land of Shivanagoud Patil, a resident of Asundi and thereby Government has sustained loss to an extent of Rs.80,000/- and as such complainant sought for suitable action being taken. On the basis of said complaint, FIR has been registered against petitioner.
4. It is the contention of Sri S.S.Beturmath, learned counsel appearing for the petitioner that application filed :3: by the petitioner for anticipatory bail has been rejected by the Sessions Court, solely on the ground that Section 9B of Explosives Act is punishable upto three years and it is a non-bailable offence and question of granting anticipatory bail does not arise.
5. Learned Government Pleader would oppose the grant of bail contending that petitioner has caused financial loss to the State exchequer and if petitioner is enlarged on bail, he would indulge in similar activities.
6. Having heard learned counsel appearing for the parties and on perusal of the order of rejection passed by the District and Sessions Judge dated 08.07.2016, it would clearly indicate that petition filed seeking anticipatory bail has been rejected by Sessions Court on the ground that for an offence under Section 9B of Explosives Act, 1884, it is punishable upto three years and according to Schedule-II of Cr.P.C., if the offence is punishable with imprisonment for three years and above, it is non-bailable offence and a petition under Section 438 would be maintainable and since the offence alleged against the petitioner is falling :4: under the said category, he would not be entitled for anticipatory bail.
7. When 'Substances Act' and the 'Explosives Act' are read in conjunction with FIR it would clearly indicate that prosecution has not only invoked Section 9B of the Explosives Act, 1884, but also Section 5 of the Explosive Substances Act, 1908. Section 5 of the Substances Act would indicate that imprisonment is for a term which may extend upto 10 years and as such, learned District Judge was in error in rejecting the petition.
8. Having regard to the facts of the present case that the prosecution itself is not aware as to who exploded the bund near the stream and there is no allegation of any specific overt act against the petitioner, this Court is of the considered opinion that the petitioner is entitled for the relief sought. Hence, I proceed to pass the following:
ORDER Criminal petition is hereby allowed. In the event of petitioner being arrested by Gadag Rural police station in :5: Cr.No.217/2016, he is ordered to be enlarged on bail subject to the following conditions:
i) Petitioner shall surrender before the jurisdictional Court within 15 day from today,
ii) Petitioner shall execute a personal bond for a sum of Rs.50,000/- with two solvent sureties for the likesum to the satisfaction of the jurisdictional court,
iii) Petitioner shall appear before the Investigation Officer whenever called,
iv) Petitioner shall not leave the jurisdiction of the Court till the conclusion of the trial,
v) Petitioner shall not tamper or terrorise the prosecution witnesses.
Sd/-
JUDGE Jm/-