Karnataka High Court
Gomal Bhimappa vs State Of Karnataka on 12 July, 2013
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12TH DAY OF JULY 2013
BEFORE
THE HON'BLE MR JUSTICE K. N. KESHAVANARAYANA
CRIMINAL PETITION No.3762/2013
BETWEEN:
Gomal Bhimappa,
S/o. Late Hanumappa,
Aged about 62 years,
Occupation: Retired Service,
Residing at No. 235,
9th Main Road,
H.R.B.R.Layout,
1st Block, Kalyanagar,
Bangalore-560 043. ... Petitioner
(By Sri.C.H.Jadhav Senior Counsel for
Sri.Prasanna Kumar P., Advocate)
AND:
State of Karnataka,
By Vidhana Soudha Police Station,
Cubbon Park Sub-Division,
Bangalore-560 001,
Represented by the
State Public Prosecutor,
High Court Building,
Bangalore-560 001. ... Respondent
(By Sri.S.Doreraju, State Public Prosecutor)
2
This Criminal Petition is filed under Section 438 of the
Cr.P.C. praying to enlarge the petitioner on bail in the event of
his arrest in Crime No.28/2013 of Vidhana Soudha Police
Station, Bangalore City, which is registered for the offences
punishable under Sections 120B, 418, 420 and 465 read with
Section 34 of IPC and Section 7 of Prevention of Corruption Act,
1988.
This Criminal Petition coming for orders on this day, the
Court made the following:
ORDER
After arguing the matter, the learned Senior Counsel appearing for the petitioner, in the light of the consistent view expressed by this Court in various decisions and the latest decision of this Court in C.P. Yogeshwara Vs. State of Karnataka in Criminal Petition No.4258/2012 and connected petitions disposed of on 01.03.2013, with regard to maintainability of petition under Section 438 of Cr.P.C. directly before this Court without approaching the Sessions Court, submitted that the petition be dismissed as not pressed with liberty to the petitioner to approach the Sessions Court with a petition under Section 438 of Cr.P.C.
2) The submission is placed on record. However, the learned Senior Counsel further submitted that, while 3 disposing of this petition the interim order granted by this Court in this petition may be continued until the disposal of the petition to be filed by the petitioner before the Sessions Judge.
3) The learned S.P.P. though did not oppose for dismissal of the petition as withdrawn with liberty as sought, opposed the prayer for continuing the interim order granted by this court.
4) The learned Senior Counsel relying on several decisions of the Apex Court and other High Courts, contended that, this Court has ample power to extend the interim order till the disposal of the petition to be filed before the Sessions Judge and such an order in the case on hand is very much necessary to safeguard the interest of the petitioner. On the other hand, the learned S.P.P contended that, when the petition itself is not maintainable, question of extending the interim order does not arise. He further contended that the nature of the interim order granted by this court is not the one that could be granted 4 in terms of Section 438 of Cr.P.C. and therefore, the said interim order should not be extended as sought by the petitioner.
5) In the light of the submission made by the learned Senior Counsel with regard to the maintainability of this petition and in view of the decision of this Court in Criminal Petition No.4258/2012 and connected petitions disposed of on 01.03.2013, this petition presented under Section 438 of Cr.P.C. before this Court without approaching the Sessions Judge is certainly not maintainable. Therefore, in view of the submission made by the learned Senior Counsel, this petition is dismissed as not pressed. However, it is open to the petitioner to approach the Sessions Court under Section 438 of Cr.P.C. and if such petition is filed, the concerned court shall consider the same in accordance with law.
6) On 28.06.2013, this court while adjourning the matter at the request of the learned S.P.P., passed an interim order stating that the petitioner shall not be taken 5 into custody or arrested till 02.07.2013. The said order was extended on 03.07.2013 till the next date of hearing. The said order is in force as on today. On account of this, the petitioner has not been taken into custody nor was arrested. Of course, as rightly contended by the learned S.P.P., under Section 438 of Cr.P.C., though the court has got powers to grant ad-interim anticipatory bail, it cannot be an absolute order nor the court could direct the police not to arrest the applicant and such an order should be in terms of Section 438 of Cr.P.C., putting the petitioner on conditions.
7) In the various decisions cited by the learned Senior Counsel appearing on behalf of the petitioner, the courts have extended the interim order granted while remanding the matter to the trial court or the lower courts. Of course, some of these decisions are in relation to civil litigation. In the light of these decisions, it is clear that the court is not powerless in the matter and if the court finds it necessary to protect the interest of the person, could 6 extend the interim order till the party approaches other Forum seeking remedy.
8) Having regard to the facts and circumstances of the case, I am of the considered opinion that it is just and proper to extend the interim relief to the petitioner atleast for a period of another 10 days, so as to enable him to file a petition before the Sessions Court and seek appropriate relief.
9) In view of the above, the petition is dismissed as withdrawn. There shall be an interim order of Anticipatory Bail for a period of 10 days from to-day. The Respondent- Police are directed to release the petitioner on bail in the event of his arrest within the period of 10 days, subject to his executing personal bond for Rs.5,00,000/- (Rupees Five Lakhs only) with two sureties for the like-sum to the satisfaction of the Investigating Officer and subject to further conditions that,-
i) Upon such arrest and release, the petitioner shall appear before the Investigating Officer as and when 7 so required by him and shall co-operate in the investigation of the case;
ii) the petitioner shall not tamper or terrorize the prosecution witnesses in any manner; and
iii) he shall not leave the country without the express permission of the court concerned.
If the petition under Section 438 of Cr.P.C. is filed before the learned Sessions Judge by the petitioner, the Sessions Judge is directed to dispose of the same expeditiously. This interim order shall be in force for a period of 10 days from today.
SD/-
JUDGE KGR*