Karnataka High Court
Sri Dharmendra A N vs The State Of Karnataka on 23 March, 2022
Author: V. Srishananda
Bench: V. Srishananda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF MARCH 2022
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL PETITION NO. 1606/2022
BETWEEN
SRI DHARMENDRA A N
S/O NAGARAJ A P @ NAGAPPA
AGED ABOUT 50 YEARS
R/AT #20, YASHODA KRUPA
GANAPATHI TEMPLE ROAD,
P AND T COLONY, VINAYAKA NAGAR
HASSAN - 573 201
...PETITIONER
(BY SRI JAYAKUMAR S. PATIL, SR. COUNSEL FOR
SRI DAYANAND S. PATIL, ADVOCATE)
AND
THE STATE OF KARNATAKA
BY THE POLICE OF
SHESHADRIPURAM POLICE STATION,
BANGALORE CITY
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE - 560001
...RESPONDENT
(BY SRI S.VISHWAMURTHY, HCGP;
SRI P.P.HEGDE, SR. ADVOCATE FOR STATE
SRI VENKATESH SOMAREDDY, ADVOCATE FOR
COMPLAINANT)
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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.8/2021 OF
SESHADRIPURAM P.S., BENGALURU CITY FOR THE OFFENCE
P/U/S.120-B, 406, 420, 465, 468, 471 R/W SEC.34 OF IPC
ON THE FILE OF THE LXVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-68) IN
CRL.MISC.NO.2873/2021.
THIS CRIMINAL PETITION COMING ON FOR ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri Jayakumar S. Patil, learned Senior Counsel for the petitioner and Sri Vishwamurthy, learned High Court Government Pleader for the respondent-State and perused the records.
2. The present petition is filed under Section 438 Cr.P.C., with the following prayer:
"WHEREFORE, the Petitioner humbly prays that this Hon'ble Court be pleased to grant anticipatory bail to the Petitioner and direct the Respondent police to release him on bail in the event of his arrest in Crime No.8/2021 of Sheshadripuram Police Station, Bangalore City, for the alleged offences punishable under section 120B, 406, 420, 465, 468 471 r/w sec 34 of IPC, against the order dated 3 28/09/2021 passed by LXVII Addl. City Civil & Sessions Judge, Bangalore (CCH68) in Crl.Misc.No.2873/2021 to meet the ends of justice."
3. Brief facts of the case are as under:
One Sri Brijmohan K.S., a Businessman, lodged a complaint against the present petitioner and others in Seshadripuram Police Station, which is registered in Crime No.8/2021 on 27.02.2021 for the offences punishable under Sections 120B, 406, 420, 465, 468 and 471 read with Section 34 IPC.
4. The complaint averments further reveals that the complainant is the partner of M/s. Khoday Eshwarsa & Sons, having registered office at No.9, Seshadri Road, Bengaluru, is a partnership firm and complainant is a partner, and they have a Excise licence to manufacture and market Indian made Foreign liquor. The authority to do the affairs of the said company is by Sri K.L.A. Padmanabhaa and Sri K.L. Swamy, who are looking after the companies Bank account and was having signing authority. Thereafter, it is noticed 4 that there is a account in the Canara Bank, Avenue Road Branch, wherein the amount in the firm was mis- appropriation. Subsequent thereto, it has been noticed that in the year 2020 August, the products are not supplied to the retail business people and as such, this mis-appropriation came to be noticed.
5. After registering the complaint, the police are investigating the matter. One of the accused persons obtained anticipatory bail. The same was challenged by the de-facto complainant and by order dated 19.04.2021, the co- ordinate bench of this court, had cancelled anticipatory bail to one of the accused. Another accused has approached this court where the anticipatory bail was rejected by the District Court. In fact, the attempt made by the present petitioner to seek the grant of anticipatory bail was also turned down by the learned District Judge in Crl.Misc. 2873/2021 by order dated 28.9.2021.
6. Thereafter, the petitioner is before this court. In the petition, following grounds have been raised: 5
It is of submitted that the Petitioner is innocent of commission of offences. He has been falsely implicated by the police for extraneous reasons with oblique motives and the allegations made in complaint and FIR are false and concocted and created for the same.
It is submitted that the ingredients of the offences alleged in the above case are not complied.
It is submitted that the alleged offences are neither punishable with death nor imprisonment for life. The said offences are triable by the Hon'ble Magistrate.
It is submitted that the Respondent police are harassing the Petitioner and they are calling him over the phone to come to Police Station for investigation purpose or else he will be arrested by the said police. Yesterday night also they called the Petitioner and directed him to appear before the police.
It is submitted that the aforesaid averments demonstrates that the petitioner will be arrested at any moment. If he is arrested, he will be tortured, humiliated and consequently he will suffer irreparable loss and great hardship.
It is submitted that the Accused No.1 had filed a complaint against the complainant, K.L. Swamy, Giridhar K.S. and Chandramohan in Cr.No.26/2021 on 05.02.2021 before the Upparpet Police Station, 6 Bangalore, for the offences punishable under section 341, 448, 323, 511, 506, 504 r/w section 34 of IPC. Now the complainant has filed the present complaint on 27.02.21 before the Respondent Police as a counter blast to the FIR filed by the one Ghanshyam who is the Accused No.1 in the above case. The copy of the FIR is produced herewith for kind perusal of this Hon'ble Court.
It is submitted that the Petitioner was called to the Police Station and his statement was recorded by the I.O. Hence, he has fully co-operated for the investigation of the above case. Even on this ground also the Petitioner may be enlarged on bail.
The Petitioner is a permanent resident of Hassan and doing his business at Bangalore and Hassan and having deep roots in the society. The petitioner is ready and willing to offer for adequate surety for his due appearance before the I.O and also before the trial court. He will not abscond or tamper with the prosecution witnesses. investigation of the above case. He will co-operate for the speedy investigation of the above case.
It is submitted that the Petitioner had approached the Hon'ble Sessions Court in C.Misc. No.2873/21 for grant of anticipatory bail. The Hon'ble Sessions Court was pleased to reject the said Petition by the order dated:28/09/2021 without application of 7 Judicial mind. The certified copy of the said order is produced herewith for kind perusal of this Hon'ble Court.
If this Hon'ble Court is not pleased to grant anticipatory bail, the petitioner will suffer irreparable loss and great hardship. No other petition is filed before any other court or before this Hon'ble Court for same cause of action."
7. Re-iterating the above grounds, learned Senior Counsel Sri Jaikumar S.Patil, vehemently contended that the petitioner is no way connected with the alleged offences as he is a contractor and he was required to promote the business and while so doing, there was misappropriation. It is further contended that he has also taken part in the misappropriation of the huge amount of money to the tune of Rs.17.7 crores. Further, he contended that the petitioner is ready to co-operate with the Investigating Agency and join the investigation if this court, so directs and sought for grant of anticipatory bail.
8. He also contended that grant of anticipatory bail which stood cancelled by the learned District Judge would not 8 come in the way of the present petitioner for maintaining the request for grant of anticipatory bail inasmuch as rejection of the anticipatory bail to the co-accused cannot be treated as parity for rejection of the present petition and sought for grant of bail to the present petitioner.
9. Per contra, learned High Court Government Pleader opposes the bail petition stating that huge amount of money was misappropriated and therefore, custodial investigation of the accused person is very much necessary in order to unearth the truth in the same and therefore, sought for rejection of bail petition.
10. Learned High Court Government Pleader also contended that rejection of the bail petition to the co-accused and also cancellation of the anticipatory bail granted to another accused is a relevant factor to be noted while considering the present request.
11. Learned Senior Counsel Sri P.P. Hegde, representing the de-facto complainant also pointed out that in the same crime, one of the accused, who had obtained the 9 benefit of grant of anticipatory bail through the learned District Court was reviewed by this court in a petition filed by the de-facto complainant and this court after analyzing the entire materials on record has cancelled the anticipatory bail granted by the learned District Court and therefore, it is a relevant factor while considering the present request.
12. Learned Senior Counsel Sri P.P.Hegde, further contended that another accused has been denied the anticipatory bail by the learned District Court and again said accused approached this court in Criminal Petition No.2493/2021, the coordinate bench of this court rejected the request made by the co-accused and therefore, this court is required to reject the bail petition of the present petitioner as his custodial investigation is utmost necessary.
13. In view of the rival contentions, this court perused the materials on record meticulously.
14. The grant of anticipatory bail is a special remedy. Catena of judicial pronouncements, have time and again, emphasize that liberty of a person cannot be taken away by 10 the investigation under the pretext of an investigation lightly. Suffice to say that the various judicial pronouncements have always emphasized that the protection of the personal liberty is the paramount consideration while considering the request for grant of anticipatory bail, whenever there is a complaint that there is a real apprehension of arrest. Despite the Hon'ble Apex Court in the case of Joginder Kumar Vs. Union of UP and others reported in (1994) 4 SCC 260 had directed that in every case arrest is not necessary, but the same is not followed by the police authorities in general. However, in a matter of this nature, especially when there is an allegation that a sum of Rs.17.7 crores money has been misappropriated, the custodial investigation of accused is utmost necessary for the purpose of unearth the truth. At the same time, a right of a person cannot also be taken away easily. Therefore, in such matters, an arrangement needs to be made by resorting to the Special powers vested with this Court under Section 438 Cr.P.C. to strike a harmonious balance between the need of the Investigating Agency and the right of the accused/petitioner.
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15. Keeping that in the back of mind, if the materials on record is analyzed, there is a real scope for custodial investigation of the petitioner in this case. However, the right of the petitioner cannot also be taken away so easily. More over the crime came to be registered on 27.02.2021. More than one year has elapsed from the date of registration of the crime and the attempt made by the petitioner to seek grant of anticipatory bail is also turned down by the District Court. However, the Investigating Agency is still not able to arrest the present petitioner. Therefore, the investigation has also crippled to a considerable extent. Non granting of anticipatory bail to the co-accused and an order passed by the co-ordinate bench of this court in canceling the order granting the anticipatory bail would not be a relevant factor except for the fact that the disclosure of any information made by the co-accused so far as it relates to the present petitioner may be considered by the court which is seized of the trial of the matter. Since the investigation is under process, this court, at this stage, cannot undertake a mini trial to find out the merits and demerits of the case though 12 the same was urged before this Court at length. A coordinate bench of this court has also taken into note of the magnitude of the misappropriation and different dimensions of the case and then formed an opinion that the anticipatory bail granted to the co-accused needs to be cancelled. Same is not the case here with respect of this petitioner inasmuch as he is only a contractor and he was required to promote the business. What exactly the role played by the present petitioner can only be ascertained by the Investigating Agency after the present petitioner is taken to custody and further information is revealed at the instance of the petitioner.
16. Therefore, keeping in view of these aspects of the matter, this court is of the considered opinion that an harmonious balance needs to be struck between the right of the petitioner and the need of the prosecution agency. Accordingly, following order is passed:
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ORDER The Criminal Petition is allowed subject to the following conditions:
(1) The petitioner is directed to join the investigation by appearing before the Investigating Officer of Seshadripuram Police Station on 31.03.2022 at 9.00. a.m., (2) The Investigating Officer is at liberty to take the petitioner to custody and complete the custodial investigation on the same day before 7.00 p.m., However, if the custodial investigation cannot be completed on the same day, the Investigating Officer is at liberty to direct the accused-
petitioner to appear before the Investigating Agency again on 1.4.2022 at 9.00 a.m., which shall be complied by the petitioner without any hesitation and the petitioner shall be taken to custody for custodial investigation if any and complete the same before 7.00 p.m., on the same day.
(3) Soon after the custodial investigation is completed either on 31.03.2022 or on 01.04.2022 as the case may be, the accused-petitioner be enlarged on bail by taking a bond in a sum of Rs.5,00,000/- [Rupees Five lakhs] only with two sureties for the likesum.
(4) The petitioner shall co-operate with the Investigating Agency and in this regard, he shall mark his 14 attendance every alternate Sunday between 10.00 am and 2.00 p.m., till the final report is filed.
(5) The petitioner shall not directly or indirectly hamper the investigation process or tamper the prosecution witnesses.
(6) The petitioner shall attend the court regularly. (7) The petitioner shall not leave the jurisdiction of Hassan and Bengaluru District without prior permission.
It is made clear that the benefit of this order shall not enure to the benefit of other accused in any manner and any such request is made by other accused, the same shall be dealt with in accordance with law.
Violation of any one of the conditions would entitle the prosecution to seek for cancellation of the bail.
Ordered accordingly.
Sd/-
JUDGE PL*