Karnataka High Court
Shri C P Yogeshwara vs Serious Fraud Investigation Office on 1 March, 2013
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 1ST DAY OF MARCH 2013
BEFORE
THE HON'BLE MR.JUSTICE K.N.KESHAVANARAYANA
CRIMINAL PETITION No.4258/2012
C/W
CRL.P.Nos.4260/12, 4262/12, 4453/12, 3392/12, 3394/12,
3395/12, 3396/12, 4261/12 AND 3397/2012
BETWEEN:
In Crl.P.Nos.3394/12 & 4258/12:
1. Shri.C.P.Yogeshwara,
Aged about 48 years,
S/o. Sri.Puttamadegowda,
Managing Director of
Megacity (Bangalore) Developers
& Builders Ltd.,
464, 1st 'G' Cross, 2nd Phase,
Banashankari 3rd Stage,
Bangalore-560 085.
2. Shri.C.P.Gangadhareshwara,
Aged about 48 years,
S/o. Sri.Puttamadegowda,
Whole Time Director of
Megacity (Bangalore) Developers
& Builders Ltd.,
367,1st 'E' Cross, 2nd Phase,
Banashankari 3rd Stage,
Bangalore-560 085.
3. Shri.P.Mahadevaiah,
Aged about 56 years,
S/o. Sri.Puttegowda,
Director of Megacity
2
(Bangalore) Developers
& Builders Ltd.,
143, 5th Main,
Banashankari 3rd Stage,
Bangalore-560 085.
4. Shri.Ramesh.H.R.,
Aged about 42 years,
Director of Megacity (Bangalore)
Developers & Builders Ltd.,
435, 1st 'G' Cross, 6th Block,
Banashankari 3rd Stage,
Bangalore-560 085. .... Petitioners
(Common in both the Petitions)
[By Sri.Tomy Sebastian, Senior Advocate for
M/s. Tomy Sebastian Associates, Advocates))
In Crl.P.Nos.3395/12 & 4260/12:
Shri.C.P.Yogeshwara,
Aged about 48 years,
S/o. Sri.Puttamadegowda,
Managing Director of
Megacity (Bangalore) Developers
& Builders Ltd.,
464, 1st 'G' Cross, 2nd Phase,
Banashankari 3rd Stage,
Bangalore-560 085. .... Petitioner
(Common in both the Petitions)
[By Sri.Tomy Sebastian, Senior Advocate for
M/s. Tomy Sebastian Associates, Advocates)
In Crl.P.Nos.3397/12 & 4262/12:
1. Shri.C.P.Yogeshwara,
Aged about 48 years,
S/o. Sri.Puttamadegowda,
Managing Director of
Megacity (Bangalore) Developers
& Builders Ltd.,
3
464, 1st 'G' Cross, 2nd Phase,
Banashankari 3rd Stage,
Bangalore-560 085.
2. Mrs.Manju Kumari,
Aged about 42 years,
W/o.C.P.Yogeshwara,
Director of Megacity (Bangalore)
Developers & Builders Ltd.,
No.143, 5th Main, Banashankari
3rd Stage, Bangalore-560 085.
3. Shri.P.Mahadevaiah,
Aged about 58 years,
S/o. Sri.Puttegowda,
Director of Megacity
(Bangalore) Developers
& Builders Ltd., 143, 5th Main,
Banashankari 3rd Stage,
Bangalore-560 085.
4. Shri.C.P.Gangadhareshwara,
Aged about 46 years,
S/o. Sri.Puttamadegowda,
Whole Time Director of
Megacity (Bangalore) Developers
& Builders Ltd., No.367,1st 'E' Cross,
2nd Phase, Banashankari 3rd Stage,
Bangalore-560 085.
5. Shri.Ramesh.H.R.,
Aged about 42 years,
Director of Megacity (Bangalore)
Developers & Builders Ltd.,
No.435, 1st 'G' Cross, 6th Block,
Banashankari 3rd Stage,
Bangalore-560 085. .... Petitioners
(Common in both the Petitions)
[By Sri.Tomy Sebastian, Senior Advocate for
M/s. Tomy Sebastian Associates, Advocates)
4
In Crl.P.Nos.3392/12 & 4453/12:
1. Shri.C.P.Yogeshwara,
Aged about 48 years,
S/o. Sri.Puttamadegowda,
Managing Director of
Megacity (Bangalore) Developers
& Builders Ltd.,
464, 1st 'G' Cross, 2nd Phase,
Banashankari 3rd Stage,
Bangalore-560 085.
2. Mrs.Manju Kumari,
Aged about 42 years,
W/o.C.P.Yogeshwara,
Director of Megacity (Bangalore)
Developers & Builders Ltd.,
143, 5th Main,
Banashankari 3rd Stage,
Bangalore-560 085. ...Petitioners
(Common in both the Petitions)
[By Sri.Tomy Sebastian, Senior Advocate for
M/s. Tomy Sebastian Associates, Advocates)
In Crl.P.Nos.3396/12 & 4261/12:
1. Shri.C.P.Yogeshwara,
Aged about 48 years,
S/o. Sri.Puttamadegowda,
Managing Director of
Megacity (Bangalore) Developers
& Builders Ltd.,
464, 1st 'G' Cross, 2nd Phase,
Banashankari 3rd Stage,
Bangalore-560 085.
2. Shri.C.P.Gangadhareshwara,
Aged about 48 years,
S/o. Sri.Puttamadegowda,
Whole Time Director of
5
Megacity (Bangalore) Developers
& Builders Ltd., No.367,1st 'E' Cross,
2nd Phase, Banashankari 3rd Stage,
Bangalore-560 085.
.... Petitioners
(Common in both the Petitions)
[By Sri.Tomy Sebastian, Senior Advocate for
M/s. Tomy Sebastian Associates, Advocates)
AND:
Serious Fraud Investigation Office,
Ministry of Corporate Affairs,
Government of India,
2nd Floor, Paryavaran Bhavan,
CGO Complex, Lodhi Road,
New Delhi-110 003,
Represented by Assistant Director.
....Respondent
(Common in all Petitions)
[By Sri. B.P.Puttasiddaiah, Advocate]
Criminal Petition No.4258/12 is filed under Section
438 of the Cr.P.C., praying to enlarge the petitioners on bail
in the event of their arrest in C.C.No.6414/2012 on the file
of the IV Additional Chief Metropolitan Magistrate,
Bangalore, which is registered for the offences punishable
under Sections 403, 405, 409, 418, 120-A & 120-B of IPC
Criminal Petition No.4260/12 is filed under Section
438 of the Cr.P.C., praying to enlarge the petitioner on bail
in the event of his arrest in C.C.No.6415/2012 on the file of
the IV Additional Chief Metropolitan Magistrate, Bangalore,
which is registered for the offences punishable under
Sections 403 and 409 of IPC.
6
Criminal Petition No.4262/12 is filed under Section
438 of the Cr.P.C., praying to enlarge the petitioners on bail
in the event of their arrest in C.C.No.6417/2012 on the file
of the IV Additional Chief Metropolitan Magistrate,
Bangalore, which is registered for the offences punishable
under Sections 404, 405, 409, 463, 464, 468, 465, 120-A
and 120-B of IPC.
Criminal Petition No.4453/12 is filed under Section
438 of the Cr.P.C., praying to enlarge the petitioners on bail
in the event of their arrest in C.C.No.6907/2012 on the file
of the I Additional Chief Metropolitan Magistrate,
Bangalore, which is registered for the offences punishable
under Sections 415, 420, 120-A and 120-B of IPC.
Criminal Petition No.3392/12 is filed under Section
482 of the Cr.P.C., praying to quash the criminal
proceedings in C.C.No.6907/2012 on the file of the I
Additional Chief Metropolitan Magistrate, Bangalore City, in
order dated 27.02.2012 registering the case against the
petitioners for the offences punishable under Sections 415,
420, 120-A and 120-B of IPC.
Criminal Petition No.3394/12 is filed under Section
482 of the Cr.P.C., praying to quash the criminal
proceedings in C.C.No.6414/2012 on the file of the IV
Additional Chief Metropolitan Magistrate, Bangalore City, in
order dated 23.02.2012 registering the case against the
petitioners for the offences punishable under Sections 403,
405, 409, 412 and 120-A and 120-B of IPC.
Criminal Petition No.3395/12 is filed under Section
482 of the Cr.P.C., praying to quash the criminal
proceedings in C.C.No.6415/2012 on the file of the IV
Additional Chief Metropolitan Magistrate, Bangalore City, in
order dated 23.02.2012 registering the case against the
petitioner for the offences punishable under Sections 403
and 409 of IPC.
7
Criminal Petition No.3396/12 is filed under Section
482 of the Cr.P.C., praying to quash the criminal
proceedings in C.C.No.6416/2012 on the file of the IV
Additional Chief Metropolitan Magistrate, Bangalore City, in
order dated 23.02.2012 registering the case against the
petitioners for the offences punishable under Sections 403,
405, 406 and 409 of IPC.
Criminal Petition No.4261/12 is filed under Section
438 of the Cr.P.C., praying to enlarge the petitioners on bail
in the event of their arrest in C.C.No.6416/2012 on the file
of the IV Additional Chief Metropolitan Magistrate,
Bangalore, which is registered for the offences punishable
under Sections 403, 405, 406 and 409 of IPC.
Criminal Petition No.3397/12 is filed under Section
482 of the Cr.P.C., praying to quash the criminal
proceedings in C.C.No.6417/2012 on the file of the IV
Additional Chief Metropolitan Magistrate, Bangalore City, in
order dated 23.02.2012 registering the case against the
petitioners for the offences punishable under Sections 404,
405, 409, 463, 464, 468, 465, 120-A and 120-B of IPC.
Reserved on : 12.02.2013
Pronounced on : 01.03.2013
These Criminal Petitions having been heard and
reserved for orders, coming on for pronouncement of order
this day, the Court made the following:
8
ORDER
Criminal Petition Nos. 3392/2012, 3394/2012, 3395/2012, 3396/2012 and 3397/2012 are filed under Section 482 of Cr.P.C. seeking quashing of the prosecutions launched against the respective petitioners in C.C. No. 6907/2012 on the file of the I-Additional C.M.M., Bangalore, and C.C. Nos. 6414/2012, 6415/2012, 6416/2012 and 6417/2012 on the file of IV-Additional C.M.M., Bangalore City, whereas Criminal Petition Nos.4453/2012, 4258/2012, 4260/2012, 4261/2012, 4262/2012 are filed under Section 438 of Cr.P.C. seeking the relief of anticipatory bail, apprehending arrest in connection with the aforesaid criminal cases.
2) The 1st petitioner in all these petitions namely C.P. Yogeshwar is the common accused (A-1) in all the aforesaid criminal cases. His wife Manjukumari is Accused No.2 in C.C. No.6907/2012 and C.C. No.6417/2012. One Arun Charanthimath and his wife Sujatha Charanthimath are Accused Nos. 3 & 4 in C.C. No.6907/2012. C.P. 9 Gangadhareshwar, brother of Accused No.1, is Accused No.2 in C.C. Nos. 6414/2012, 6416/2012 and Accused No.3 in C.C.No.6417/2012. P.Mahadevaiah and H.R.Ramesh are arraigned as accused Nos.3 & 4 in C.C.No.6907/2012 and Accused Nos.4 & 5 in C.C.No.6417/2012. One Sambashiv Rao is Accused No.6 in C.C. No.6417/2012. In each of these cases, the accused persons are alleged to have committed various offences under Indian Penal Code. The details of the offences and other particulars are as noted in the table below:-
Provisions Criminal under Petition which C.C.Nos. Name of Offences Nos. Criminal the Accused Alleged Petition is filed 4258/2012 438 C.P.Yogeshwar 403, 405, 6414/2012 C.P.Gangadareshwar 409, 418, 3394/2012 482 P.Mahadevaiah 120-A & H.R.Ramesh 120-B of IPC 4260/2012 438 403 & 409 6415/2012 C.P.Yogeshwara of IPC 3395/2012 482 10 4262/2012 438 C.P.Yogeshwara 404, 405, 6417/2012 Manjukumari 409, 463, 3397/2012 482 P.Mahadevaiah 464, 468, C.P.Gangadhareshwar 465, 120-A H.R.Ramesh & 120-B of Sambashiv Rao IPC 4453/2012 438 C.P.Yogeshwara 415, 420, 6907/2012 Manjukumari 120-A & 3392/2012 482 Arun Charanthimath 120-B of Sujatha Charanthimath IPC 3396/2012 482 C.P.Yogeshwar 403, 405, 6416/2012 406 & 409 4261/2012 438 C.P.Gangadareshwar of IPC
3) The offences alleged against these petitioners in all these criminal cases registered against them relate to a housing project named Vajragiri Township launched by a company called Megacity (Bangalore) Developers and Builders Limited ( for short, 'MDBL'), of which these petitioners are stated to be functionaries. The factual matrix leading to launching of the prosecutions against these petitioners, as alleged by the prosecution, are as under:-11
4) The MDBL was incorporated as a Private Limited Company on 11.08.1994 having its registered and corporate office in Mega Tower, No.210, Kengal Hanumanthaiah Road, Bangalore-560 027. The said company was promoted by Accused No.1-C.P. Yogeshwar, his wife Manjukumari, Arun Charanthimath and his wife Sujatha Charanthimath as Directors with initial paid up capital of Rs.5,00,000/-. As per the Memorandum of Association, the object of MDBL is to carry on the business to develop, construct, furnish, let-out, sell, deal in and to carry on all or any of the functions of proprietors of land, flats, maisonettes, dwelling houses, shops, offices, commercial complexes, factory shed and buildings and accommodation of all kinds etc.
5) On 04.03.1996, Arun Charanthimath and his wife Sujatha Charanthimath, submitted their resignations and C.P. Gangadhareshwar was inducted as Director in the year 1997. The MDBL became Public Limited Company in 1998 and the paid-up capital was raised to Rs.6,00,000/- 12
and some of the family members of C.P. Yogeshwar were inducted as Directors of the company.
6) In the year 1994-95, the MDBL launched a Residential Township Scheme called Vajragiri Township on Bangalore-Mysore Road, about to 20 to 25 Kms. from Bangalore City. At the time of launching the said project, MDBL published broachers/pamphlets highlighting the projects and all the four Promoters/Directors of the Company had signed the broachers/pamphlets of Vajragiri Township project. Two schemes were introduced and as per the schemes, members were given option to take 60 month or 66 month installments for the plot in Vajragiri Township. Pursuant to the wide publicity given by MDBL about Vajragiri Township project through brochures, pamphlets, etc., inviting the interested persons to enroll themselves as members to any one of the schemes, several hundreds of persons enrolled themselves as members and paid the initial deposits and also continued to pay the monthly installments. In that regard, the company 13 between 31.03.1995 to 31.03.2003 received amount to the tune of Rs.59,11,30,194/- as shown in the balance sheet of the company during that period.
7) Accused No.1- C.P. Yogeshwar through his affidavit confirmed about the company collecting approximately 60 crores from the members over a period of 6 to 7 years under the two schemes pertaining to Vajragiri Township project. From out of the said amount so collected from the members of the scheme, an amount to the tune of 37,22,28,802/- was shown towards Sundry Debtors in the balance sheet for the year 2005-06 and this payment was described as payments made to the formers for purchase of land for Vajragiri Township project and agreements were shown to have been executed by the owners of the land with the company. However, since no progress in the execution of the Vajragiri Township project was found in spite of members paying huge sums, the members of the scheme started demanding the accused either to allot the plots or to refund the amounts so 14 received. As no proper response was received in that regard, the persons who had enrolled as members of the aforesaid schemes, formed a Welfare Association and suspecting the bona fides of the functionaries of MDBL, lodged a report before the P.S.I., Sampangiramanagara Police Station on 16.11.2006, inter alia alleging that, C.P.Yogeshwar, C.P. Gangadhareshwar, P. Mahadevaiah, H.R. Ramesh, as Directors of MDBL, by promising the public that they would provide sites in and around Sheshagirihalli, Talguppa, Manchanayakanahalli, Hampapura, Kenchankuppa, Hejjala, etc., along the Bangalore-Mysore road, in which they are intended to form Vajragiri Township, have collected crores of rupees from the general public between 1995-2000 and have failed to provide the sites and thereby they have cheated and deceived the general public. On the basis of the said report, the case in Crime No.255/2006 for the offences punishable under Sections 409, 420, 120(B) r/w. 34 of IPC came to be registered against C.P. Yogeshwar, C.P. 15 Gandhareshwar, P. Mahadevaiah, H.R. Ramesh and investigation was taken-up.
8) When the investigation in Crime No.255/2006 of Sampangiramanagar Police Station was in progress, the illegalities and irregularities alleged to have been committed by the functionaries of MDBL were brought to the notice of the Ministry of Corporate Affairs, Government of India, New Delhi. The Ministry of Corporate Affairs, Government of India, taking note of the serious allegations of illegalities and irregularities said to have been committed by MDBL, directed the Serious Fraud Investigation office attached to the Ministry, to conduct investigation into the affairs of MDBL.
9) During investigation, the investigators examined the various records pertaining to MDBL in relation to its functioning and also in relation to the Vajragiri Township project and found violations of various provisions of the Companies Act, Income-tax Act and also the offences punishable under the provisions of Indian Penal Code 16 regarding forgery, misappropriation, cheating, etc. The investigation revealed that several agreements of sale said to have been entered into between the purported land owners and the functionaries of the company are all forged and there was siphoning of huge money to an extent of 37 and add crores. The investigators also found that Sambashiv Rao (Accused No.6) in C.C. No.6417/2012, who had been posted as Statutory Auditor during the period 1996-97 to 2003-2004, and who had been regularly signed the balance sheet and other documents, never objected to the mal-practices being adopted by the Directors. The investigators found that all the accused, as functionaries of MDBL and the Statutory Auditor, hatched a conspiracy and in furtherance of the said conspiracy, have committed various offences.
10) After completing investigation, the Serious Fraud Investigating Officer, in respect of the violations under the Companies Act, filed several independent complaints against the company and its functionaries 17 before the Special Court for Economic Offences, Bangalore. At the same time, in respect of the offences under the Indian Penal Code, five complaints came to be filed by the Serious Fraud Investigation Officer initially before the Special Court for economic offences, Bangalore City, which came to be registered as C.C. Nos. 6907/2012, 6414/2012, 6415/2012, 6416/2012 and 6417/2012. In the Meanwhile, the Dy.S.P., Economic Offences Squad, COD, Bangalore, who had taken over the investigation of case registered by Sampangiramanagar Police in Crime No.255/2006, on completion of investigation, laid the charge sheet, for the offences punishable under Sections 418 & 420 r/w. 34 of IPC against C.P. Yogeshwar, C.P. Gangadharaiah, P. Mahadevaiah, H.R. Ramesh as Accused Nos. 1 to 4 and the same came to be registered as C.C. No.10389/2010 on the file of the I-ACMM, Bangalore.
11) The five complaints filed before the Special Court for economic offences, Bangalore City, were returned for presentation before the jurisdictional Court on the 18 ground that the offences alleged therein are not triable by the Special Court as they do not involve any economic offences. Thereafter, those complaints were presented before the I-ACMM. However, I-ACMM by retaining one case registered in C.C.No.6907/2012, on his file, transferred the other four cases to the court of IV-ACMM. In all the cases, the learned Magistrate took cognizance of the offences alleged, dispensed with the recording of the sworn statement, as the complainant is a public servant and ordered issue of summons to the accused persons.
12) On coming to know of the registration of the criminal cases and ordering summons, the petitioners presented petitions under Section 482 of Cr.P.C. seeking to quash the prosecutions launched against them.
13) Apprehending their arrest in connection with the aforesaid criminal cases, pursuant to the process issued, the petitioners have also filed petitions under Section 438 of Cr.P.C. seeking the relief of anticipatory bail. 19
14) I have heard Sri. Tomy Sebastian, learned Senior Counsel appearing for the petitioners in all these petitions and Sri. B.P. Puttasiddaiah, learned counsel appearing for the common respondent.
15) Let me first deal with the cases filed under Section 482 of Cr.P.C. seeking to quash the prosecutions launched. Though several grounds and contentions have been raised in support of the prayer for quashing the prosecutions, during the course of the argument, learned senior counsel did not press any one of them. He only submitted that having regard to the fact that the prosecution launched on the basis of the five complaints lodged by the respondent relate to one and the same project launched by MDBL and the facts alleged in all these cases are inter-linked, and though for the convenience of the prosecution, five different complaints have been filed by categorizing the offences, the prosecutions relate to the alleged acts relating to the project launched, therefore, it is just and necessary that all the cases should be tried by the 20 same Presiding Officer, as such, the cases which are now pending before the IV-ACMM be transferred to Court of the I-ACMM, where one of the complaints filed by the respondent in C.C. No.6907/12 and the charge sheet filed by the COD, Bangalore, in C.C. No.10389/2010 are pending, so that all the cases could be tried and disposed of by the said Court simultaneously. This according to the learned senior counsel would avoid any prejudice that may be caused to the petitioners and also it would avoid the possibility of any conflicting decisions, since the basic facts of the offences alleged in all these cases are one and the same. In this regard, he also placed reliance on the provisions of Section 210 of Cr.P.C. Learned counsel appearing for the respondent has no serious objections for transfer of the cases to one court and for one Presiding Officer trying all the cases.
16) As noticed supra, the basic facts which have led to launching of these prosecutions by the respondent are one and the same. All the offences alleged in these cases 21 relate to a housing project launched by MDBL namely, Vajragiri Township and the allegations of these petitioners having cheated various persons, siphoning of the amount, fabrication of documents and forgery, criminal breach of trust, misappropriation etc., are all in relation to the schemes launched in respect of the aforesaid Vajragiri Township.
17) As noticed supra, in respect of these very allegations relating to the same project, a report was lodged before Sampangiramanagar police, based on which case in Crime No.255/2006, came to be registered and investigation was taken-up, which was later handed-over to COD. In respect of the very same matter, the Ministry of Corporate Affairs, Government of India, directed investigation by Serious Fraud Investigation Office attached to the said Ministry and on completion of investigation by both the agencies, charge sheet came to be filed by the COD while five complaints were lodged by Serious Fraud Investigation Office.
22
18) Section 210 deals with the procedure to be followed when there is a complaint case and police investigation in respect of the same offence.
19) As per sub-section (1) of Section 210 Cr.P.C., if it is made to appear to a Magistrate during the course of an inquiry or trial held by him in a complaint case that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him in such complaint case, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. As per Sub-section (2), if a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. According to Sub-section (3), if the police 23 report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of the Code.
20) As noticed supra, the subject matter of the
investigation in Crime No.255/2006 of
Sampangiramanagara Police, which was investigated by COD, Bangalore, and the subject matter of the complaints lodged by the respondent based on the investigation conducted pursuant to the direction of Ministry of Corporate Affairs, Government of India, is one and the same. Some persons accused of such offences in both the investigations are one and the same. However, by the time the complaints by the respondent herein came to be presented, the investigation by COD, Bangalore, in Crime No.255/2006 of Sampangiramanagara Police Station, had been completed and Dy.S.P., COD, had already filed the final report under Section 173 of Cr.P.C. Therefore, there 24 was no occasion for the Magistrate to stay the proceedings in the complaint cases. Nevertheless, in view of the fact that a final report under Section 173 of Cr.P.C. has been filed by COD, Bangalore, in respect of the case in Crime No.255/2006 of Sampangiramanagara Police Station, the prosecution launched on the basis of the final report lodged by COD as well as the prosecutions launched by the respondent on the basis of five complaints, required to be tried together by the Magistrate, as contemplated by sub- section (2) of Section 210 of Cr.P.C..
21) As noticed supra, one out of the five complaints lodged by the respondent is pending before the I-ACMM in C.C. No.6907/2012 while other four complaints are pending before the IV -ACMM, Bangalore. The charge sheet filed by COD registered as C.C. No.10389/2010 is also pending before the I-ACMM, Bangalore.
22) Having regard to the above discussions, I am of the considered opinion that the submission made by the learned senior counsel that the cases pending before the 25 IV-ACMM are required to be transferred to I-ACMM, Bangalore, deserves to be accepted. This course would avoid any possible prejudice that may be caused to the accused. This would also help the prosecution in effectively prosecuting the cases. This would also avoid possibility of any conflicting decisions. In this view of the matter, in exercise of power under Section 407 of Cr.P.C., it is just and proper to transfer all the four cases pending before the IV-ACMM, Bangalore, in C.C. Nos. 6414/2012, 6415/2012, 6416/2012, 6417/2012 to the court of I-ACMM.
Re: Petitions filed under Section 438 of Cr.P.C.
23) The petitioners in each of these petitions apprehending their arrest, pursuant to the process issued in the aforesaid cases, have sought for the relief of anticipatory bail. It is noticed that the petitioners have directly approached the High Court under Section 438 of Cr.P.C. without approaching the Sessions Court. The objection raised by the respondent is that these petitions are not maintainable since the petitioners have not 26 approached the Sessions Court and have not exhausted that remedy. However, on the other hand, the learned senior counsel submitted that there is no bar for the petitioners to directly approach this Court under Section 438 of Cr.P.C. as both this court and the sessions court have concurrent jurisdiction under Section 438 Cr.P.C.. Therefore, the petitions cannot be termed as not maintainable.
24) This Court consistently has taken a view that it would be a sound exercise of judicial discretion not to entertain each and every bail application directly by the High Court bye-passing the court of sessions. In K.C.Iyya- Vs-State of Karnataka [1985 Crl.L.J.214], this court has held thus in para.7:-
"7. Since both the courts-Court of Session and this Court-have concurrent powers in the matter, it appears desirable for more than one reason, that Court should be approached first in the matter."27
25) After referring to some of the decisions it was concluded thus in Para 19:-
"19. After carefully considering all aspects of the matter, I am of the view that normally a person seeking anticipatory bail under Section 438 of the Code should approach the Court of Session in the first instance. This would serve the ends of justice, public interest and also the administration of justice. There may be cases with special reasons or involving special circumstances necessitating the person concerned to approach this Court at the first instance. If the reasons assigned by him to approach this Court at the first instance are found genuine, such an application may be considered by this Court. As Parthak C.J., puts it in Sher Singh's Case (1972) Cri L.J. 1607) (Him Pra) "the rule must then give way to the interests of justice."
26) In Smt. Savitri Samson Vs. State of Karnataka [ILR 2001 KAR 4080] this Court has held
that by looking into analogues provision in the Code it is 28 normally to be presumed that the Court of Sessions would be first approached for grant of bail under Section 438 of Cr.P.C., unless an adequate case for not approaching that Court has been made-out.
27) In the case of Shivasubramanyam Vs. State of Karnataka and Another [ 2002 Crl.L.J 1998], this court, after referring to the above two decisions, has held that, application under Section 438 of Cr.P.C. filed directly in High Court, under exceptional and special circumstances, is maintainable.
28) In Chandra Errappa Vs. State of Karnataka [ILR 1989 KAR 2882], a Division Bench of this Court had an occasion to consider the provisions of Section 438 of Cr.P.C. and the concurrent jurisdiction conferred on both the High Court and the Sessions Court. In that case, it was argued by the learned Advocate General that if the party chooses one of the two Forums mentioned in Section 438 of Cr.P.C. and takes a decision before one Form, cannot have the same relief by approaching the other 29 Forum. However, the Division Bench in the light of conspicuous absence of a provision in Section 438 of Cr.P.C. similar to Sub-section (3) of Section 397 of Cr.P.C.
held that, such argument cannot be upheld. However, having regard to the hierarchy of the courts and since the court of sessions is subordinate to the High Court, it was held in that decision that a party, who makes application under Section 438 of the Code before the sessions court, could approach the High Court, if his application had been rejected by the court of sessions and not vice-versa. Thus, from the said decision, it is clear that if a party chooses to file application under Section 438 of Cr.P.C. before the High Court and if it is rejected, he cannot thereafter approach the court of sessions under the same provision and on the same grounds. In Chandra Erappa's case, question as to whether a person apprehending arrest on an accusation of committing non-bailable offence could approach the High Court directly under Section 438 of Cr.P.C., did not arise for consideration. On the other hand, one of the questions that arose for consideration was whether a petition under 30 Section 438 of Cr.P.C., is not maintainable before the High Court if a similar application has been made and rejected by the Court of Sessions. In this background, consistent view held by this court that a party generally should first approach the sessions court under Section 438 of Cr.P.C. and after exhausting the said remedy, if necessary, he should approach the High Court stands to reasoning. As held in Savitri Samson's case referred to supra, the sessions court is nearer and easily accessible to the accused and in such case, the High Court will also have the benefits of the reasons given by the Sessions Court. Therefore, I respectfully concur with the view expressed in the aforesaid decisions.
29) In the cases on hand, the petitioners have not pleaded any special circumstances or reasons for directly approaching this Court. I do not find any special or adequate reasons for the petitioners directly approaching this Court bye-passing the court of sessions. Therefore, having regard to the facts and circumstances of the case, 31 the petitioners may approach the sessions court first and, if necessary, thereafter to approach this court.
30) In view of the above discussions, all the Criminal Petitions are disposed off. C.C. Nos. 6414/12, 6415/12, 6416/12 and 6417/12, pending before the IV-ACMM, Bangalore, are directed to be transferred to I- ACMM, Bangalore, for trial and disposal along with C.C. Nos. 10389/2010 and 6907/2012 pending therein. Petitioners may approach the Sessions Court under Section 438 Cr.P.C., seeking relief of anticipatory bail.
Sd/-
JUDGE KGR*