Karnataka High Court
Sri. Krishna vs State Of Karnataka on 5 October, 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5th DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL PETITION NO.5133/2018
BETWEEN :
Sri Krishna
S/o Gopal Ramesh
Aged about 24 years
R/at. No.239, 10th C Main
1st Block, Jayanagar
Bengaluru-560 011.
... Petitioner
(By Sri B.V. Acharya, Senior Counsel for
Sri Rajendra Desai, Advocate)
AND :
State of Karnataka
By Central Crime Branch
Represented by Sri Shyamsundra, Advocate
Special Public Prosecutor.
... Respondent
(By Sri M.S. Shyamsundar, Special Public Prosecutor)
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.22/2018
(C.C.No.11615/2018) of Cubbon Park P.S., Bangalore for
the offences punishable under Sections 143, 144, 147,
148, 341, 323, 326, 504, 506B and 307 r/w 149 of IPC
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This Criminal Petition having been heard and
reserved on 06.09.2018 coming on for pronouncement of
orders this day, the Court made the following:-
ORDER
The present petition has been filed by accused No.3 under Section 438 of Cr.P.C. seeking his release on anticipatory bail in Crime No.22/2018 (CC.No.11615/2018) for the offences punishable under Sections 143, 144, 147, 148, 341, 323, 326, 504, 506B, 307 r/w. Section 149 of IPC.
2. The case of the prosecution is that on the night of 17.2.2018, the petitioner along with other accused persons had gone to Fergy Café, a Bar and Restaurant, situate in the second floor, U.B.City, within the jurisdiction of Cubbon Park Police Station, Bengaluru. At about 10.30 p.m., accused No.1 and CW.2-Vidvat L picked up a quarrel when the leg of CW.2 touched accused No.1. According to the prosecution, accused No.1 asked CW.2 to apologize saying "I am son of local -3- MLA N.A. Haris, you are not at all equal to my shoe, you say sorry and kiss my foot, bloody asshole". When CW.2 did not budge, he slapped CW.2 on his face. By then accused Nos.2 to 9 surrounded CW.2 and assaulted him with glass bottles and ice bucket. He was kicked and assaulted causing grievous injuries on his head, chest, face and limbs. Accused No.1 and other accused persons did not heed to the request of the bouncers and when the bouncers managed to take CW.2 to the first floor, accused No.8 and his associates followed him and pounced blows on him in the elevator.
3. Further case of the prosecution is that CW.2 was taken to nearby Mallya Hospital, but accused No.1 and the other accused persons followed the injured to the hospital and tried to assault CW.2 and his brother CW.3 in the Emergency Ward of Mallya Hospital.
4. I have heard the learned Senior Counsel Sri B.V.Acharya for Sri Rajendra Desai appearing on behalf -4- of the petitioner-accused No.3 and Sri Shyamsundar, learned Special Public Prosecutor for the respondent- State.
5. It is the contention of the learned Senior Counsel that already charge sheet has been filed. This Court after considering the material placed on record in Criminal Petition No.4072/2018 disposed of on 14.6.2018 has already given a finding to the effect that the allegations made in the complaint are general allegations and at the time of the alleged incident, nobody was armed with any deadly weapons. It has also been observed that the provisions of Section 307 of IPC are not attracted. He further submitted that there is an inordinate delay in recording the statement of CW.2. He further submitted that as per the charge sheet material, accused No.3 has gone separately and joined the said Bar and Restaurant and as such there is no question of inferring that accused No.3-petitioner herein with a common object came to the place of incident. He further -5- submitted that as already accused No.1 and other accused persons have also been released on bail, on the ground of parity the petitioner-accused No.3 is also entitled to be released on bail. By drawing my attention to the charge sheet material, he further submitted that the position of accused No.1 is in a higher footing than that of accused No.3. He is only an associate at the time of the alleged incident and at the most he is liable under Section 324 or 326 of IPC. He further submitted that there is no material to show that the petitioner-accused No.3 participated in the alleged crime and even there are no specific overt acts and he was also not identified. He further submitted that in the complaint and other material there is only common allegation in omnibus. He further submitted that the petitioner was not absconding. Since he was having an apprehension that he is likely to be apprehended, he did not surrender before the Investigating Officer. By relying upon the decision in the case of Siddharam Satlingappa Mhetre Vs. State of -6- Maharashtra and others, reported in (2011) 1 SCC 694, he submitted that a great ignominy, humiliation and disgrace is attached to arrest and if the Court is of the opinion that the accused can join investigation and cooperate with the Investigating Agency and if he is not likely to abscond, then in that event custodial interrogation shall be avoided and anticipatory bail should be granted. He further submitted that the provisions of Section 438 of Cr.P.C. are to protect the right and liberty of a person and it is the duty of the Court to maintain perfect balance between the two conflicting interests and by exercising the judicial discretion, anticipatory bail can be granted. Further relying upon the decision in the case of Sri Gurbaksh Singh Sibbia & others Vs. State of Punjab reported in (1980) 2 SCC 565 he submitted that Section 438 of Cr.P.C. is concerned with the personal liberty and the liberty cannot be whittled down by reading restrictions and limitations into it and a liberal interpretation of the -7- Section in the light of Article 21 of the Constitution has to be made. He further submitted that bail is a rule and jail is an exception. He further relying upon the decision in the case of Rahman Vs. The State of U.P. reported in AIR 1972 SC 110 submitted that abscondence of the accused by itself is not a conclusive proof of either guilt or guilty conscience. He further submitted that though the petitioner-accused No.3 was not available himself that itself is not a ground to reject the bail since a person may abscond on account of fear of being involved in the offence or for any other reasons. On these grounds, he prayed to allow the petition by granting anticipatory bail to the petitioner.
6. Per contra, the learned Special Public Prosecutor submitted that when the alleged incident has taken place, the entire incident has been recorded in CCTV camera and the CCTV footage clearly goes to show that there are overt acts on the part of the petitioner. By relying upon the decision of this Court in Criminal Petition -8- No.1764/2018 disposed of on 14.3.2018 he submitted that in respect of accused No.1 this Court after watching footage of CCTV coverage has come to the conclusion that the way in which accused No.1 and other accused persons have attacked brutally shows the exhibition of wielding muscle power. This Court has also observed that if accused No.1-petitioner in the said criminal petition is released on bail, he may destroy the evidence. He further submitted that the incident as a whole is a crime against the society and it was horrifying incident. He further submitted that the persons who had visited the restaurant could not come to the rescue of the injured from the brutal act of the accused persons including the petitioner. He further submitted that CCTV footage clearly indicates the barbaric way of attacking an innocent visitor to the restaurant. By referring to the wound certificate, he further submitted that the injured has suffered with grievous injuries and the assault has been committed with knuckle ring and bottle that itself -9- clearly goes to show that the petitioner-accused No.3 along with other accused persons were having an intention to cause the death of the injured. He further submitted that the petitioner was watching the Court proceedings when the entire world was watching and he waited till this Court passed the order in respect of accused No.1 and after consideration of the said thing now he has approached this Court, till then whereabouts of accused No.3-petitioner herein were not known and he was absconding. He further submitted that no one can take advantage of one's own wrong. He further submitted that in the absence of the petitioner no complete investigation has been done as the petitioner was hiding, avoiding and evading. In order to get the information and for the purpose of recovery, custodial interrogation is must. Though the prosecution has collected the material, what is within the knowledge of the accused is going to be revealed only when he has
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been interrogated and questioned. On these grounds, he prayed to dismiss the petition.
7. I have carefully and cautiously gone through the grounds made out in the petition and the submissions made by the learned counsel for the parties, so also the other materials and the decisions quoted by both sides.
8. The case of the prosecution is that on the night of 17.2.2018, the petitioner along with other accused persons had gone to Fergy Café, a Bar and Restaurant and at about 10.30 p.m., the alleged incident has taken place. It is not in dispute that earlier accused No.1 filed a petition under Section 439 of Cr.P.C. before this Court in Criminal Petition No.1764/2018, which came to be rejected by this Court on 14.3.2018. Subsequently again accused No.1 filed Criminal petition No.4072/2018 under the changed circumstances. This Court by its order dated 14.6.2018 allowed the said petition and granted bail to accused No.1 by imposing some conditions. It is
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well settled proposition of law that presumption of innocence is a human right. It has been observed by the Hon'ble Apex Court in the case of Dr.Subhash Kashinath Mahajan Vs. The State of Maharashtra & another, reported in AIR 2018 SC 1498 that there cannot be presumption of guilt so as to deprive a person of his liberty without an opportunity before an independent forum or Court. At paragraph-65 of the said decision, the Hon'ble Apex Court has observed as under:-
"65. Presumption of innocence is a human right. No doubt, placing of burden of proof on accused in certain circumstances may be permissible but there cannot be presumption of guilt so as to deprive a person of his liberty without an opportunity before an independent forum or court. In Noor Aga v. State of Punjab, it was observed:
"33. Presumption of innocence is a human right as envisaged under Article14(2) of the International Covenant
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on Civil and Political Rights. It, however, cannot per se be equated with the
fundamental right and liberty adumbrated in Article 21 of the Constitution of India. It, having regard to the extent thereof, would not militate against other statutory provisions (which, of course, must be read in the light of the constitutional guarantees as adumbrated in Articles 20 and 21 of the Constitution of India).
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35. A right to be presumed innocent, subject to the establishment of certain foundational facts and burden of proof, to a certain extent, can be placed on an accused. It must be construed having regard to the other international conventions and having regard to the fact that it has been held to be constitutional. Thus, a statute may be constitutional but a prosecution thereunder may not be held to be one. Indisputably, civil liberties and rights of citizens must be upheld.
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43. The issue of reverse burden vis-a-vis the human rights regime must also be noticed. The approach of the common law is that it is the duty of the prosecution to prove a person guilty. Indisputably, this common law principle was subject to parliamentary legislation to the contrary. The concern now shown worldwide is that Parliaments had frequently been making inroads on the basic presumption of innocence. Unfortunately, unlike other countries no systematic study has been made in India as to how many offences are triable in the court where the legal burden is on the accused. In the United Kingdom it is stated that about 40% of the offences triable in the Crown Court appear to violate the presumption. (See "The Presumption of Innocence in English Criminal Law", 1996, CRIM.L.REV.306, at p.309.)
44. In Article 11(1) of the Universal Declaration of Human Rights (1948) it is stated:
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"Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law..."
Similar provisions have been made in Article 6.2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and Article 14.2 of the International Covenant on Civil and Political Rights (1966).
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47. We may notice that Sachs, J. in State v. Coetzee [1997(2)LRC 593] explained the significance of the presumption of innocence in the following terms:
"There is a paradox at the heart of all criminal procedure in that the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional protections of the accused become. The starting point of any balancing enquiry where constitutional rights are concerned
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must be that the public interest in ensuring that innocent people are not convicted and subjected to ignominy and heavy sentences massively outweighs the public interest in ensuring that a particular criminal is brought to book... Hence the presumption of innocence, which serves not only to protect a particular individual on trial, but to maintain public confidence in the enduring integrity and security of the legal system. Reference to the prevalence and severity of a certain crime therefore does not add anything new or special to the balancing exercise. The perniciousness of the offence is one of the givens, against which the presumption of innocence is pitted from the beginning, not a new element to be put into the scales as part of a justificatory balancing exercise. If this were not so, the ubiquity and ugliness argument could be used in relation to murder, rape, car-jacking, housebreaking, drug-smuggling, corruption.... the list is unfortunately almost endless, and nothing would be left of the presumption of innocence, save, perhaps, for its relic
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status as a doughty defender of rights in the most trivial of cases."
In view of the above, an accused is certainly entitled to show to the Court, if he apprehends arrest, that case of the complainant was motivated. If it can be so shown there is no reason that the Court is not able to protect liberty of such a person. There cannot be any mandate under the law for arrest of an innocent. The law has to be interpreted accordingly."
9. On going through the above said decision, it indicates that there cannot be presumption of guilt so as to deprive a person of his liberty without an opportunity before an independent forum or Court.
10. In the case of Sanjay Chandra Vs. Central Bureau of Investigation reported in (2012) 1 SCC 40, it has been observed that right to bail is not to be denied merely because of the sentiments of the community against the accused. The relevant paragraph-40 reads thus:-
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"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 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."
11. On going through the above said paragraph, it indicates that the primary purpose of bail in criminal case is to relieve the accused of imprisonment and at the same time to keep the accused constructively in the custody of the Court assuring that he will submit to the jurisdiction of the Court and be in attendance thereon
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whenever his presence is required. 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. Though during the course of arguments, the learned Special Public Prosecutor submitted that the accused was hiding and watching the entire proceedings of accused No.1, at that time, the entire world was watching the proceedings as against accused No.1 and the action of accused has generated a sense of repulsion in the mind of public. But the said contention of the learned Special Public Prosecutor cannot be a reason to reject the bail application and confine the accused No.3- petitioner to custody. It is well settled proposition of law that the Court cannot go-bye the hype and sensation created by the public or media. In the case of Sandeep Kumar Bafna Vs. State of Maharashtra & another reported in (2014) 16 SCC 623, it has been observed that the learned Sessions Judge is expected to remain impervious to any pressure that may be brought upon
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him either from the public or media as it was the fundamental and onerous duty cast on the judge. In the light of the said observation it can be held that the public attention has been drawn and public were watching is not going to shaken the decision of this Court since the judicial power is an independent power.
12. Keeping in view the said aspect, let me consider the case of the prosecution as to whether accused No.3- petitioner is entitled to be released on bail or not.
13. The records indicate that the incident was triggered over a trivial issue. As per the case of the prosecution, when the leg of CW.2 touched accused No.1 he demanded or requested an apology from CW.2, but CW.2 was not in a mood to apologize that prompted accused No.1 to slap CW.2. In that light, the rift has taken place and the victim sustained the injuries. As could be seen from the charge sheet material only because of instigation of accused No.1, other accused
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persons including the petitioner-accused No.3 surrounded the victim by constituting an unlawful assembly and assaulted with bottles, ice bucket and such other articles. On going through the charge sheet material it would indicate that there are specific overt acts which have been stated, but there is only omnibus general statement to the effect that all the accused persons assaulted with glass bottles. The learned Special Public Prosecutor does not dispute the fact that it is accused No.1 who slapped on the face twice and kicked him once and no other injury has been caused to CW.2 or any other witnesses. Though there is allegation that accused Nos.2 to 9 have caused the assault and injuries, no other accused persons were armed with any weapons except the bottles and ice bucket found in the Bar and Restaurant which were used as weapons. The said circumstance clearly indicates the fact that there was no preplan or premeditation on the part of the accused persons including petitioner-accused No.3 either to kill or
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cause such injuries which may lead to death. This Court has already taken the view that the injuries sustained by CW.2 are not sufficient in the ordinary course of nature to cause the death and the acts alleged against the accused persons do not attract the ingredients of Section 307 of IPC. Even it has been observed that the records indicate that the charge under Section 307 of IPC came to be inserted at a later stage after recording the statements of injured witnesses and there is inordinate delay in recording the statement of CW.2 though he was in a fit condition to give his statement as on 17.2.2018. As per the records, his statement was recorded on 3.3.2018. When already this Court has come to the conclusion that the entire incident is stated to have taken place without any premeditation in a sudden fight and there are no allegations against accused persons including the petitioner that they have used any weapons, then under such circumstances, much appreciation of the facts and other things are not
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necessary by me. Even the records also indicate the fact that there are no allegations against the petitioner- accused No.3 that he used any weapons to cause the injury. Already accused No.1 and other accused persons have already been released on bail, even on the ground of parity, the petitioner-accused No.3 is entitled to be released on anticipatory bail.
14. It is the contention of the learned Special Public Prosecutor that the petitioner-accused No.3 was watching the proceedings in respect of accused No.1 and other accused persons and only after consideration of the said petitions, he has moved this petition and no one can take advantage of one's own wrong. By relying upon a decision of the Hon'ble Apex Court in the case of Lavesh Vs. State (National Capital Territory of Delhi), reported in LAWS(SC)-2012-8-58, he further submitted that when an accused is absconding, there is no question of granting anticipatory bail. He further relying upon another decision in the case of State of
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Madhya Pradesh Vs. Pradeep Sharma, reported in LAWS(SC)-2013-12-7, submitted that the power exercisable under Section 438 of Cr.P.C. is somewhat extraordinary in character and it is to be exercised exceptionally. I am conscious of the ratio laid down by the Hon'ble Apex Court in the abovesaid decisions. In the said decisions, as the accused is proclaimed offender and the proceedings have been initiated in this behalf and under the said facts and circumstances the said observation has been made. But in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others (quoted supra), it has been observed that the power under Section 438 of Cr.P.C. is an extraordinary which was incorporated before other provisions for granting of bail under Sections 437 and 439 of Cr.P.C. and judicial discretion is a matter regard and required to be exercised with the due care and caution. Grant or refusal of bail is entirely discretionary and discretion should depend upon the facts and
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circumstances of each case. At paragraph-112 of the said decision it has been observed as to what are the parameters that can be considered into while dealing with anticipatory bail, which reads as under:-
"112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) 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;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused's likelihood to repeat similar or other offences;
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(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly 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;
(viii) 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 the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
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(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) 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 is entitled to an order of bail."
15. Merely because the accused is required for the purpose of interrogation as argued by the learned Special Public Prosecutor, it cannot be held that the custodial interrogation is necessary. If the accused is ready to join the investigation and is ready to fully co-operate with the Investigating Agency and not likely to abscond, in that event, custodial interrogation should be avoided and anticipatory bail should be granted. The said proposition of law has been laid down in the aforesaid case at paragraphs-19, 27 and 89, which read as under:-
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"19. Mr.Bhushan also submitted that an order of anticipatory bail does not in any way, directly or indirectly, take away from the police their power and right to fully investigate into charges made against the appellant. He further submitted that when the case is under investigation, the usual anxiety of the investigating agency is to ensure that the alleged accused should fully cooperate with them and should be available as and when they require him. In the instant case, when the appellant has already joined the investigation and is fully cooperating with the investigating agency then it is difficult to comprehend why the respondent is insistent for custodial interrogation of the appellant? According to the appellant, in the instant case, the investigating agency should not have a slightest doubt that the appellant would not be available to the investigating agency for further investigation particularly when he has already joined the investigation and is fully cooperating with the investigating agency.
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27. Mr.Mahesh Jethmalani, learned Senior Counsel appearing for Respondent 2, submitted that looking to the facts and circumstances of this case, the High Court was justified in declining the anticipatory bail to the appellant. He submitted that the anticipatory bail ought to be granted in the rarest of rare cases where the nature of offence is not very serious. He placed reliance on Pokar Ram v. State of Rajasthan and submitted that in murder cases custodial interrogation is of paramount importance particularly when no eyewitness account is available.
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89. It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion 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 investigation and he is fully cooperating
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with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided."
16. Keeping in view the abovesaid proposition of law and the other aspects and when already the charge sheet has been filed and under similar circumstances accused No.1 and other accused have been released on bail, in order to maintain the judicial infirmity and consistency and even on the ground of parity, the petitioner herein is also entitled to be released on anticipatory bail. The Hon'ble Supreme Court in the case of Bhagirathsinh Judeja Vs. State of Gujarat, reported in 1984 AIR(SC) 372, it has been observed as under:
"It is now well-settled by a catena of decision of the Supreme Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is
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likely to abuse the discretion granted in his favour by tampering with evidence. If there is no prima facie there is no question of considering other circumstances. But even where a prima facie case is established, the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence."
17. In view of the dictum in the aforesaid decision of the Hon'ble Apex Court, I am of the considered opinion that it is not proper to send the petitioner-accused No.3 behind the bars as a measurement of pre-trial punishment. The apprehension and interest of the prosecution that if the petitioner is enlarged on bail, he may abscond, he may threaten the prosecution witnesses and go out of country could be safeguarded by imposing some stringent conditions.
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18. In the light of the discussion held by me above, the petitioner has made out a case to release him on anticipatory bail. Accordingly, I pass the following order:-
The petition is allowed and accused No.3- petitioner herein is granted anticipatory bail. In the event of his arrest in Crime No.22/2018 of Cubbon Park Police Station, the petitioner herein is ordered to be released, subject to the following conditions:-
i) Petitioner shall execute a personal bond for Rs.2,00,000/- (Rupees two lakhs only) with two sureties for the like sum to the satisfaction of the Investigating Agency.
ii) He shall surrender before the Investigating Agency within fifteen days from today.
iii) He shall co-operate with the Investigating Agency as and when required.
iv) He shall not tamper with the prosecution evidence directly or indirectly.
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v) He shall not leave the jurisdiction of the trial Court without prior permission.
vi) He shall surrender his passport before the jurisdictional Court within twenty days from today.
vii) He shall not indulge in similar type of criminal activities in future.
If any of the conditions mentioned above are violated by the petitioner, this order of granting anticipatory bail shall automatically stand cancelled.
Sd/-
JUDGE *ck/-