Karnataka High Court
T. R. Ananda vs The State Of Karnataka on 3 October, 2018
Equivalent citations: AIRONLINE 2018 KAR 1299
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL PETITION No.5959/2018
c/w.
CRIMINAL PETITION No.5748/2018,
CRIMINAL PETITION No.5764/2018,
CRIMINAL PETITION No.6082/2018,
CRIMINAL PETITION No.5740/2018.
IN CRIMINAL PETITION No.5959/2018:
BETWEEN:
1. T.R. Ananda
S/o Ranganath
Aged about 52 years
R/at No.92, 3rd Cross,
Srirampur,
Bengaluru-560 021.
2. Mahesh Sharma
Aged about 52 years
S/o late Shivashankar Shastri
R/at No.288/51, Parimala Nagara
Harishinakunte, Nelamangala,
Bengaluru Rural-562 123.
... Petitioners
(By Sri Dharanesha, Adv. for
Sri Srikanth M.N., Advocate)
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AND:
The State of Karnataka
By Vidhana Soudha P.S.,
Now C.C.B.,
Rep. by its State Public Prosecutor
High Court of Karnataka Building
Bangalore-560 001.
... Respondent
(By Sri Venkatesh P. Dalwai, Spl. PP)
This Criminal Petition is filed under Section 439 of
Cr.P.C praying to enlarge the petitioners on bail in Crime
No.34/2018 of Vidhana Soudha P.S., Bangalore for the
offences punishable under Sections 505(3), 380, 389,
120B, 384, 420, 408 r/w Section 34 of Indian Penal Code.
IN CRIMINAL PETITION No.5748/2018:
BETWEEN:
K.S. Mruthyunjaya
Aged about 57 years
S/o Sri Shankara Rao
R/a. No.6079, Srirama Nilaya,
Danoji Rao Layout
Subhashnagara, Nelamangala
Bengaluru Rural District-562 123.
... Petitioner
(By Sri D. Aswathappa, Advocate)
AND:
1. The Station House Officer
Vidhana Soudha Police Station
Bengaluru City
Bengaluru-560 001.
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2. State of Karnataka
By Central Crime Branch (CCB)
(W & N Squad) N.T. Pet
Bengaluru-560 002.
... Respondents
(By Sri Venkatesh P. Dalwai, Spl. PP)
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 Crime No.34/2018 of Vidhana Soudha
Police Station, Bangalore City for the offences punishable
under Sections 505(3), 380, 389, 120B, 384, 420, 408 r/w
Section 34 of Indian Penal Code.
IN CRIMINAL PETITION No.5764/2018:
BETWEEN:
B.R. Krishna
S/o late B.S. Rangarao
Aged about 65 years
No.321, 2nd Main, Avalahalli,
New B.D.A. layout
Bengaluru-560 085.
... Petitioner
(By Sri M. Shashidhara, Advocate)
AND:
1. State of Karnataka by
Vidhana Soudha P.S.,
2. State of Karnataka
By CCB (W & N Squad) P.S.
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Both respondents represented
By SPP, High Court of Karnataka
Bengaluru-560 001.
... Respondents
(By Sri Venkatesh P. Dalwai, Spl. PP)
This Criminal Petition is filed under Section 439 of
Cr.P.C praying to enlarge the petitioner on bail in Crime
No.34/2018 of Vidhana Soudha Police Station, Bangalore
for the offences punishable under Sections 380, 384, 389,
408, 420, 505(3), 120(B) r/w Section 34 of Indian Penal
Code.
IN CRIMINAL PETITION No.6082/2018:
BETWEEN:
Sri N.L. Narasimhaiah
Aged about 72 years
S/o late Lakshmipathi
R/at No.321, 2nd Main
New BDA Layout, Avalahalli
Banashankari 3rd Stage
Bengaluru-560 085.
... Petitioner
(By Sri Dinesh Kumar K. Rao, Advocate)
AND:
1. State of Karnataka
By Vidhana Soudha Police Station
Bengaluru-560 001
2. State of Karnataka
By CCB (W & N Squad) Police Station
Bengaluru-560 001.
... Respondents
(By Sri Venkatesh P. Dalwai, Spl. PP)
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This Criminal Petition is filed under Section 439 of
Cr.P.C praying to enlarge the petitioner on bail in Crime
No.34/2018 of Vidhana Soudha Police Station, Bangalore
for the offences punishable under Sections 380, 384, 389,
408, 420, 120(B) r/w Section 34 of Indian Penal Code.
IN CRIMINAL PETITION No.5740/2018:
BETWEEN:
D.N. Suresh
Aged about 45 years
S/o Nagaraja Rao D.K.,
R/a. Chikkarudrappa Building,
Channakeshava Temple Street,
Vijayapura, Devanahalli Taluk
Bengaluru Rural District-562 135.
... Petitioner
(By Sri Amaresha M., Advocate)
AND:
1. The Station House Officer
Vidhana Soudha Police Station
Bengaluru City
Bengaluru-560 001.
2. State of Karnataka
By Central Crime Branch (CCB)
(W & N Squad) N.T. Pet
Bengaluru-560 002.
... Respondents
(By Sri Venkatesh P. Dalwai, Spl. PP)
This Criminal Petition is filed under Section 438 of
Cr.P.C praying to enlarge the petitioner on bail in Crime
No.34/2018 of Vidhana Soudha Police Station, Bangalore
for the offences punishable under Sections 505(3), 380,
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389, 120(B), 384, 420 and 408 r/w Section 34 of Indian
Penal Code.
These Criminal Petitions having been heard and
reserved on 19.09.2018 coming on for pronouncement of
Order, this day, the Court made the following:-
ORDER
Criminal Petition No.5959/2018 is filed by petitioners/accused Nos.3 & 4 under Section 439 of Cr.P.C. Criminal Petition Nos.5748/2018 and 5740/2018 have been filed by petitioners/accused Nos.2 and 5 under Section 438 of Cr.P.C. to release them on anticipatory bail. Criminal Petition 5764/2018 has been preferred by the petitioner/accused No.6 and Criminal Petition No.6082/2018 has been preferred by petitioner/accused No.1 under Section 439 of Cr.P.C. to release them on bail in Crime No.34/2018 of Vidhana Soudha Police, being investigated by CCB police for the offences punishable under Sections 380, 389, 384, 420, 408, 505(3), 120(B) r/w Section 34 of IPC. -7-
Since all these petitions are arising out of the same crime number and facts, in order to avoid the repetition of facts and law they have been taken together for the purpose of disposal with this common order.
2. I have heard the learned counsel Sri Srikanth M.N., Ashwathappa D., M. Shashidhara, Dineshkumar K. Rao and Amaresha M. for the petitioners and I have also heard the learned Special Public Prosecutor Venkatesh P. Dalwai for the respondent/State.
3. Brief facts of the case of the prosecution are that a complaint came to be filed by the Administrator of Srimad Jagadguru Shankaracharya Samsthanam of Shiva Ganga alleging that the accused persons conspired together, hatched a plan to extort an amount of Rs.15 Crores from the complainant Mutt in connection with land dealings. It is further alleged that long back the king of Mysore gifted the land to the Shiva Ganga Mutt which is valued in Crores. It is further alleged that the documents pertaining -8- to the said property were in the custody of the then Peetadhipathi of the Mutt. After the death of Swamiji, the Administrator accused No.1 Narsimhaiah N.L. petitioner in Criminal Petition No.6082/2018 stolen the said documents of the landed property. It is further alleged that in the year 1960 there was a financial crises in the Institution. At that time, the then Peethadhipathi Sri Sachidananda Bharathi Swamiji had sold 208 acres of land to Airforce Employees Association situated at Jodi Lakshmipur village in Devanahalli Taluk by prior permission of the King of Mysore. The Administrator challenged the same by filing a Civil Suit in Devanahalli Court and subsequently Swamiji decided to withdraw the suit as it is not lawful to challenge the property already sold. It is further alleged that even after the withdrawal of the suit by the Mutt, the Airforce Employees Association returned the said land to Mutt. After the alleged incident the residents of Girinagar, Bengaluru, accused No.1 and other accused persons gave threat to the complainant and demanded Rs.15 Crores to -9- return the said documents belonging to the Mutt with a criminal conspiracy and have also filed a false complaint against the Mutt by criminal breach of trust and even they have also sent the message to the general public defaming the sanctity of the Mutt. In that light the complaint was registered in the above said crime number.
It is the contention of the learned counsel Srikanth M.N. that the petitioners are innocent and are in no way connected with the alleged incident. There is no overt act and no prima facie material. Under such circumstances the apprehension and detention of accused Nos.3 and 4 is not sustainable. He further submitted that the writ petitions were also came to be filed by the Mutt and the said writ petitions came to be dismissed for non-prosecution. That itself clearly goes to show that the accused/petitioners have not done anything and have not tried to defame the Mutt and extort the money. He further submitted that there is delay in filing the complaint. He further submitted that no previous complaints were registered either for
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holding any documents or extorting the money from the complainant. He further submitted that spreading the news through WhatsApp and face book will not amounts to an offence and that is a matter which has to be considered and appreciated at the time of trial. He further submitted that the alleged offences are not punishable with death or imprisonment for life. They are ready to abide by the conditions imposed by this Court and ready to offer the sureties. On these grounds he prayed to allow the petition.
The learned counsel for the petitioner Sri Ashwathappa D. supporting the arguments of the learned counsel for the petitioners/accused Nos.3 and 4 submitted that accused No.2 apprehend his arrest and there is no overt acts and he is not having any relations with the transactions. The main allegation is only as against accused No.1 alleging that he is in possession of the documents and extorting money. He further submitted that there is no material to connect the accused to the alleged crime. He further submitted that the offences levelled
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against the petitioner are triable by the Court of the Magistrate and are not punishable with death or imprisonment for life. He further submitted that the petitioners/accused No.2 is not necessary for the purpose of investigation and interrogation, as already the charge sheet has been filed in the case. He further submitted that he is ready to co-operate with the investigation and ready to offer the sureties. On these grounds he prayed to allow the petition.
The learned counsel Sri M.Shashidhara vehemently argued and submitted that there were disputes between the Ex-Administrator and the present Administrator and as a counter blast the present complaint has been filed only to save their skin. He further submitted that in the complaint and FIR the name of accused No.6 has not been shown and there is no involvement of the petitioner/accused No.6. He further submitted that if at all there are some documents in possession, at the most it may attract the provisions of Section 411 of IPC nothing more than that as admittedly
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they were not in his possession and there is no breach of trust. He further submitted that the said offence is also triable by the Court of the Magistrate and not punishable with death or imprisonment for life. He further submitted that he is ready to abide by the conditions imposed by this Court and ready to offer the sureties. On these grounds he prayed to allow the petition.
The learned counsel Sri Dineshkumar K. Rao submitted that the complaint contains only vague allegations and no complaints have been registered earlier to the alleged incident. The allegation made in the complaint shows that since 2017 the said offence is committed, but there is in ordinate delay in filing the complaint. He further submitted that the petitioner accused No.1 is aged about 72 years and is suffering with age old ailments and since more than two months he is in judicial custody. Already the investigation has been completed and charge sheet has been filed. The accused/petitioner is not necessary for the purpose of
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further investigation and interrogation. He further submitted that the alleged offences are triable by the Court of the Magistrate. He is ready to abide by the conditions imposed by this Court and ready to offer the sureties. On these grounds he prayed to allow the petition.
The learned counsel Sri Amaresha M. by supporting the arguments of the learned counsel Sri Ashwathappa D. further submitted that the said transactions have not been challenged in any Court and the petitioner/accused No.5 is not involved in the alleged crime and he has been falsely implicated. He further submitted that the accused/petitioner is ready to abide by the conditions imposed by this Court and ready to offer the sureties. On these grounds he prayed to allow the petition and to release the accused/petitioner on bail.
4. Per contra, the learned Special Public Prosecutor Sri Venkatesh P.Dalwai vehemently argued and submitted that the investigation is still under process, only
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preliminary charge sheet has been filed. Still with permission of the Court after further investigation full charge sheet is going to be filed. He further submitted that he filed the suit in O.S.No.198/2009 at Devanahalli alleging that the sale deed dated 16.11.1968 in favour of Air Force Officers was bogus and without the consent of the Mutt and subsequently the present complainant after coming to know the fact that the said suit is a fraudulent suit and decided to settle and a settlement was also drawn and the same has been accepted by the Court on 17.5.2017 in terms of the settlement. He further submitted that accused Nos.2 to 6 are interested persons, they started spreading false news in print and electronic media and also in papers to defame the Swamiji and the Administrator with false acquisition. He further submitted that accused/petitioners are demanding for share in the sale of land by the Mutt and in order to give the original documents which were in the hands of accused Nos.1 and 2, Mutt agreed to see that the said documents are not
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destroyed and thereafter, after getting some documents a complaint was filed, as such there is no delay in filing the complaint. He further submitted that there is a serious conspiracy as against the Mutt by the accused persons. He further submitted that the accused/petitioners are involved in a serious offences, though the preliminary charge sheet has been filed, the Investigating Officer has requested the Court to file additional charge sheet after further investigation. He further submitted that the accused/petitioners are highly influential persons and their interrogation is very much necessary for the purpose of ascertaining the involvement of many other persons and also to ascertain the properties which have been fraudulently transferred. He also by drawing my attention to the charge sheet material submitted that there are conversations between the accused and the concerned authority of the Mutt for having conspired and they have tried to extort the money by fraudulent means and even they have come in the vehicle belonging to accused No.3 to
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discuss about the matter. He further submitted that there is prima facie case as against the accused/petitioners. He further submitted that for the purpose of further investigation and to submit the additional charge sheet, two months time is required, till then the accused/petitioners should not be released on bail. If they are released on bail they may tamper with the prosecution evidence and they may destroy the documents pertaining to Mutt and even it is impossible for the investigating agency to ascertain about the involvement of the other accused persons. He further submitted that there is no delay in filing the complaint. Only in order to protect the interest of the Mutt and to secure the documents from the possession of the accused, the time has been consumed and thereafter the case was registered as against the accused/petitioners. He further submitted that accused Nos.2 and 5 are absconding and they have conspired with the other accused persons. For the purpose of recovery of the documents and other information, the custodial
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interrogation of the accused/petitioners is very much essential. He further submitted that the accused/ petitioners are involved in serious offences wherein the property worth crores of rupees has been involved and has been misappropriated. If they are released on anticipatory bail there will not be any fair investigation, recovery of documents and the accused/petitioners will be having wide contacts, they may tamper with the prosecution evidence.
By relying upon the decision in the case of State of Orissa Vs. Mahimananda Mishra in Criminal Appeal No.1175/2018 the Court must not go into deep into merits of the matter while considering the application for bail. If it is established from the record that there exists a prima facie case against the accused, then the bail application has to be rejected. He further submitted by relying upon the above said decision, the conspiracy cannot be proved as there will not be any direct evidence. In order to collect the material about the conspiracy the accused/petitioners
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are necessary for the custodial interrogation. On these grounds he prayed to dismiss the petitions.
5. I have carefully and cautiously gone through the contents of the petitions and the grounds urged during the course of arguments.
6. It is the contention of the learned Special Public Prosecutor that the power conferred by Section 438 is of an extraordinary character and must be exercised sparingly in exceptional cases only. But in the case of Shri. Gurbaksh Singh Sibbia and Others Vs. State of Punjab reported in (1980) 2 SCC 565 the Hon'ble Apex Court has observed that all discretions has to be exercised with care and circumspection, depending on the circumstances justifying its exercise. It is unnecessary to travel beyond it and subject the wide power conferred by the legislature to rigorous code of self imposed limitations. For the purpose of brevity, I quote paragraph 22 which reads as under:
22. By proposition No. 1 the High Court says that the power conferred by Section 438
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is "of an extraordinary character and must be exercised sparingly in exceptional cases only". It may perhaps be right to describe the power as of an extraordinary character because ordinarily the bail is applied for under Section 437 or Section 439. These Sections deal with the power to grant or refuse bail to a person who is in the custody of the police and that is the ordinary situation in which bail is generally applied for. But this does not justify the conclusion that the power must be exercised in exceptional cases only, because it is of an extraordinary character. We will really be saying once too often that all discretion has to be exercised with care and circumspection depending on circumstances justifying its exercise. It is unnecessary to travel beyond it and subject the wide power conferred by the legislature to a rigorous code of self-imposed limitations.
By going through the above paragraph it indicates that while exercising the power under Section 438 of Cr.P.C. the Court has to keep in mind the facts and
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circumstances of the case and then it has to exercise its power.
7. It is also the dictum of the Hon'ble Apex Court that the presumption of an innocence is a human right and there cannot be presumption of guilt so as to deprive a person of his liberty without an opportunity before an independent forum or Court. It is further observed that merely on the basis of the argument advanced at the Bar this Court cannot prejudge the issues. This has been observed by the Hon'ble Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation reported in (2012) 1 SCC 40. For the purpose of brevity, I quote paragraph 40 which reads as under:
40. "The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are
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to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required."
By going through the above paragraph it makes it clear that an accused cannot be detained in custody with the object of punishing him on the assumption of his guilt or to give him a taste of punishment. The learned counsel appearing on behalf of the respondent/State submitted that the public property is involved and the said issue is attracted the attention of the public as well as the media and the matter involved is a serious one, but it is settled principle that the Court should not be carried out by the opinions and the sentiments expressed by the public or by the media, but the bail application must be considered keeping in mind the law and well established principles applicable to the facts of the case on hand. This
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proposition of law has been laid down by the Hon'ble Apex Court in the case of Sandeep Kumar Bhavna Vs. State of Maharashtra and another reported in (2014) 16 SCC 623.
8. What are the parameters which are to be considered while considering or dealing with the anticipatory bail has been elaborately discussed by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others reported in (2011) 1 SCC 694, at paragraphs 11 and 12 it reads as under:
11. The Law Commission in para 31 of its 48th Report (July, 1972) made the following comments on the aforesaid clause:
"31. Provision for grant of anticipatory bail. - The Bill introduces a provision for the grant of anticipatory bail. This is substantially in accordance with the recommendation made by the previous Commission. We agree that this would be a useful addition, though we must add that it is in very exceptional cases that such a power should be exercised.
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We are further of the view that in order to ensure that the provision is not put to abuse at the instance of unscrupulous petitioners, the final order should be made only after notice to the Public Prosecutor. The initial order should only be an interim one. Further, the relevant section should make it clear that the direction can be issued only for reasons to be recorded, and if the court is satisfied that such a direction is necessary in the interests of justice.
It will also be convenient to provide that notice of the interim order as well as of the final orders will be given to the Superintendent of Police forthwith."
12. Police custody is an inevitable concomitant of arrest for non-bailable offences. The concept of anticipatory bail is that a person who apprehends his arrest in a non-bailable case can apply for grant of bail to the Court of Sessions or to the High Court before the arrest. Keeping in view the above said aspects, let me consider the contentions taken up by the learned counsels appearing for the petitioners and the respondent/State.
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9. Though it is alleged in the complaint that accused Nos.1 to 6 conspired and were in custody of certain documents and by keeping such document the accused/petitioners are extorting the money from the complainant Mutt, the records indicate that accused No.2 has also filed complaint against the complainant with reference to similar allegations. Admittedly, the charge sheet has been filed and accused No.3, 4, 1, 6 are in custody since more than two months. At this juncture the learned Special Public Prosecutor submitted that the investigating agency has taken up further investigation to unearth larger conspiracy and prays not to release the accused/petitioners and further submitted that the additional charge sheet is going to be filed within two months, but that factor cannot be considered at this juncture. While considering the bail application under Section 439 of Cr.P.C. the Court has to keep in mind i) The nature of acquisition and severity of punishment in case of conviction and the nature of supporting evidence. ii)
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Reasonable apprehension of tampering witness on apprehension of threat to the complainant. iii) Prima facie satisfaction of Court in support of charge.
10. During the course of argument it is submitted that the call details are there regarding the conversation of the accused with the authority of the Mutt and even there is publication of the news through WhatsApp and face book. That material is not going to be tampered since the said material has been already collected by the Investigating Agency and even the same would be available if they have been saved in the modern technology, then the apprehension of the learned Public Prosecutor that the accused/petitioners if they are released, it is going to affect for further investigation and there is likelihood of tampering with the prosecution evidence is not acceptable. Even as per the say of the learned SPP already 37 documents have been recovered from accused Nos.1, 3, 4 and 6 and till today they are in custody for a period of more than two months. In that light, the custodial continuation
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will definitely amounts to nothing but pre-conviction. Accused cannot be detained in custody with the object of punishing him on the assumption of the guilt of the accused. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Yet another important facet of criminal jurisprudence is that the grant of a bail is the general rule and putting a person in jail or in a prison or in a correction home is an exception. While so introspecting amongst the factors that need to be considered is whether the accused was arrested during the investigations when that person perhaps has the best opportunity to tamper with the evidence or influenced witnesses. Whether the accused was participating in the investigation to the satisfaction of the Investigating Office or not absconding or not appearing when required by the Investigating Officer are some of the aspects which are to be considered at the time of consideration of bail application. It is also necessary for the
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judge to consider whether the accused is a first time offender or has been accused of other offences and the general conduct of the accused. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Dataram Singh Vs. State of Uttar Pradesh and another reported in (2018) 3 SCC 22 for the purpose of brevity I quote paragraphs 1 to 3 which reads as under:
1. Leave granted. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these
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basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.
2. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.
3. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made
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out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973."
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Keeping in view the above proposition of law, on perusal of the order of the trial Court it has observed that the accused persons with a criminal conspiracy caused threat of documents and demanded to return the documents and filed a false case against the Mutt with an intention to extort money and to cause criminal breach of trust and misuse the documents and also have given a wrong message to the public about the place of worship. Already the main accused No.1-Narasimhaiah and Ananda, Mahesh Sharma and Krishna are in custody and 36 documents have been seized, most of them are original documents. How the said documents have been in possession of the accused is a matter which has to be considered and appreciated at the time of trial. Merely because they are in possession of the original documents it cannot be inferred that they have committed an offence by possessing the said documents. Admittedly, one of the accused is also a former Administrator of the said Mutt.
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Keeping in view the fact that already the charge sheet has been filed and the apprehension of the prosecution that the petitioners may abscond or hamper the trial or they may fly away to foreign countries, can be taken care of by imposing stringent condition. Even no material has also been produced to show that they were having a criminal background and previously they have been convicted in any criminal cases. In that light, I am of the considered opinion that the petitioners in Criminal Petition Nos.5959/2018, 5764/2018 and 6082/2018 are entitled to be released on bail by imposing some stringent conditions.
11. Insofar as the petitions in respect petitioners/accused Nos.2 and 5 are concerned they have filed anticipatory bail applications. While considering the application for grant of anticipatory bail, the Court has to consider the following aspects. It has been held by the Hon'ble Apex Court in the case of Bhadresh Bipinbhai Sheth Vs. State of Gujarath and another reported in (2016) 1 SCC 152 in paragraph 25 which reads as under:
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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 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
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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 Cr.P.C. the limitations
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mentioned in Section 437 Cr.P.C. 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 Cr.P.C to a dead letter. A person seeking anticipatory bail 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
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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.
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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 Siddarama Satlingappa case wherein the Court delineated the following factors and parameters that need to
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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;
(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
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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 in entitled to an order of bail.
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Keeping in view the above said proposition of law it is imperative of the Court to carefully and meticulously evaluate the facts and of the case and thereafter the discretion has to be exercised on the basis of the available material. In that light accused Nos.2 and 5 were not available for the investigation and interrogation and even during the course of argument it is submitted that the accused were absconding and was not available for the purpose of investigation. Under such circumstances, I feel that the discretionary power vested with this Court under Section 438 of Cr.P.C. cannot be exercised. While granting the anticipatory bail the Court has to keep in mind the public interest and the gravity of the offence.
12. It is the contention of the learned SPP that some documents are to be recovered at the instance of petitioners/accused Nos.2 and 5. It is well settled principle that bail is a matter concerning the liberty of a person who is detained in the prison; pre-conviction detention is discourage. But the Hon'ble Apex Court while dealing with
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the said aspect in the case of Neeru Yadav Vs. State of Uttar Pradesh and another reported in (2016) 15 SCC 422 it has been observed as below. For the purpose of brevity, I quote paragraph Nos.13, 14 and 16 which reads as under:
13. We will be failing in our duty if we do not take note of the concept of liberty and its curtailment by law. It is an established fact that a crime though committed against an individual, in all cases it does not retain an individual character. It, on occasions and in certain offences, accentuates and causes harm to the society. The victim may be an individual, but in the ultimate eventuate, it is the society which is the victim. A crime, as is understood, creates a dent in the law and order situation.
In a civilised society, a crime disturbs orderliness. It affects the peaceful life of the society. An individual can enjoy his liberty which is definitely of paramount value but he cannot be a law unto himself. He cannot cause harm to others. He cannot be a nuisance to the collective. He cannot be a terror to the society; and that is why Edmund Burke, the great
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English thinker, almost two centuries and a decade back eloquently spoke thus:
"Men are qualified for civil liberty, in exact proportion to their disposition to put moral chains upon their own appetites; in proportion as their love to justice is above their rapacity; in proportion as their soundness and sobriety of understanding is above their vanity and presumption; in proportion as they are more disposed to listen to the counsel of the wise and good, in preference to the flattery of knaves. Society cannot exist unless a controlling power upon will and appetite be placed somewhere; and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things that men of intemperate minds cannot be free. Their passions forge their fetters."
14. E. Barrett Prettyman, a retired Chief Judge of US Court of Appeals had to state thus:
"In an ordered society of mankind there is no such thing as unrestricted liberty, either of nations or of individuals. Liberty itself is the product of restraints; it is inherently a composite of restraints; it dies when restraints
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are withdrawn. Freedom, I say, is not an absence of restraints; it is a composite of restraints. There is no liberty without order. There is no order without systematised restraint. Restraints are the substance without which liberty does not exist. They are the essence of liberty. The great problem of the democratic process is not to strip men of restraints merely because they are restraints. The great problem is to design a system of restraints which will nurture the maximum development of man's capabilities, not in a massive globe of faceless animations but as a perfect realisation, of each separate human mind, soul and body; not in mute, motionless meditation but in flashing, thrashing activity.
15. xxx xxx xxx xxx
16. In this regard, we may profitably reproduce a few significant lines from Benjamin Disraeli:
"I repeat ... that all power is a trust-that we are accountable for its exercise- that, from the people and for the people, all springs, and all must exist."
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By going through the above proposition of law protection of society from criminals is also an essential curtailment of liberty of the offender. No doubt in the connected cases this Court has already taken the view that accused Nos.1, 3, 4 and 6 are entitled to be released on bail on the ground that already the said accused persons have been interrogated and some of the documents have been recovered at the instance of accused No.1. It is the specific case of the learned Special Public Prosecutor that accused Nos.2 and 5 were absconding and were not available for the purpose of investigation and interrogation and it is the allegation of the prosecution that the accused persons conspired with each other at the time of commission of the offence. It is common knowledge that generally direct evidence may not be available to prove conspiracy inasmuch as the conspiracy takes place secretly, it is only the conspirators would be having the knowledge about such conspiracy. In that light, the Court
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has to take into consideration these aspects while exercising the power under Section 438 of Cr.P.C. to grant anticipatory bail. It is well settled principle of law that the Court should not go into the merits of the matter in deep while considering the bail application. But while considering the application the Court must take into account certain factors such as existence of prima facie case against the accused, the gravity of the allegations, position and status of the accused, the likelihood of accused fleeing from justice and repeating the offence, the possibility of tampering with the prosecution witnesses and likely to abscond. Keeping in view the said aspects into consideration, I feel that it is not a fit case to exercise the discretion in this behalf and to release the petitioners accused Nos.2 and 5 on anticipatory bail.
13. Keeping in view the above said facts and circumstances the Criminal Petition Nos.5748/2018 and 5740/2018 filed by petitioners/accused Nos.2 and 5 are liable to be dismissed and accordingly they are dismissed.
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In view of dismissal of Criminal Petition Nos.5748/2018 and 5740/2018, applications in IA No.1/2018 filed in both the petitions do not survive for consideration and the same are accordingly dismissed.
14. Criminal Petition Nos.5959/2018, 5764/2018 and 6082/2018 filed by petitioners/accused Nos.3, 4, 6 and 1 are allowed and the accused/petitioners have been released on bail in Crime No.34/2018 of Vidhana Soudha Police Station for the offences punishable under Sections 505(3), 380, 389, 120B, 384, 420, 408 r/w Section 34 of IPC subject to following conditions:
(i) Each of the petitioners/accused Nos.3, 4, 6 and 1 i.e. T.R.Ananda(A3), Mahesh Sharma(A4), B.K.Krishna(A6) and N.L.Narasimhaiah(A1) shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties for the likesum to the satisfaction of the trial Court.
(ii) They shall not directly or indirectly tamper with the prosecution evidence in any manner.
(iii) They shall surrender their passport before release to the jurisdictional Court, if they have not been already seized and produced before the Court.
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(iv) They shall not leave the jurisdiction of the Court without prior permission till the trial is concluded.
(v) They should not transact directly or indirectly in respect of any of the immovable properties except their personal properties.
(vi) They should not interfere and indulge in the activities of the complainant-Mutt in any manner.
(vii) They should not indulge in similar type of offences.
Sd/-
JUDGE *AP/-