Karnataka High Court
Sri B K Kishore Kumar vs State Of Karnataka on 2 January, 2023
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CRL.P No. 9921 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CRIMINAL PETITION NO. 9921 OF 2022
BETWEEN:
SRI. B.K. KISHORE KUMAR
S/O B.M. KRISHNAPPA
AGED ABOUT 40 YEARS
WORKING AS INSPECTOR
OF POLICE, INTERNAL SECURITY DIVISION
R/O NO.99, BHUVANESHWARI NILAYA
BASAVANPURA, GOTTIGERE POST
BANNERGHATTA ROAD
BANGALORE - 560 068
...PETITIONER
(BY SRI: C.H. JADHAV, SENIOR ADVOCATE FOR
SRI: CHETHAN JADHAV, ADVOCATE)
AND:
Digitally STATE OF KARNATAKA BY
signed by ATTIBELE POLICE STATION
NANDINI B G REPRESENTED BY STATE
PUBLIC PROSECUTOR
Location: HIGH COURT BUILDING
High Court Of BANGALORE - 560 001.
Karnataka
...RESPONDENT
(BY SRI: SANTOSH S. NAGARALE, SPECIAL PUBLIC PROSECUTOR
SRI: GAUTAM S. BHARADWAJ, ADVOCATE FOR APPLICANT)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 438
CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON BAIL IN THE
EVENT OF HIS ARREST IN CRIME NO.356/2022 OF ATTIBELE P.S.,
BENGALURU DISTRICT FOR THE OFFENCE PUNISHABLE UNDER
SECTION 7(A) AND 7(C) OF PREVENTION OF CORRUPTION ACT 1988
AND 420, 421, 423, 424, 120-B, 149, 465, 467 AND 468 OF IPC
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CRL.P No. 9921 of 2022
PENDING ON THE FILE OF THE 9TH ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BENGALURU RURAL.
THIS CRIMINAL PETITION COMING ON FOR ORDERS, THIS
DAY, THE COURT PASSED THE FOLLOWING:
ORDER
The petitioner-accused No.12 is before this Court seeking grant of anticipatory bail under Section 438 of Cr.P.C. in Crime No.356 of 2022 of Attibele Police Station, pending on the file of the IX Additional District and Sessions Judge, Bengaluru Rural, registered for the offences punishable under Sections 7(A) and 7(C) of the Prevention of Corruption Act, 1988 (for short 'PC Act') and under Sections 420, 421, 423, 424, 120B, 149, 465, 467 and 468 of the Indian Penal Code (for short 'IPC'), on the basis of first information lodged by the informant S Sreedhar.
2. Heard Sri C H Jadhav, learned senior advocate for Sri Chethan Jadhav, learned counsel for the petitioner and Sri Santosh S Nagarale, learned Special Public Prosecutor for the respondent -State. Perused the materials on record. -3- CRL.P No. 9921 of 2022
3. Learned senior advocate for the petitioner submitted that the petitioner is arrayed as accused No.12. He has not committed any offences as alleged. He has been falsely implicated in the matter without any basis. The informant lodged the first information with Attibele Police Station on 20.09.2022. According to the first information, the incident had taken place from 08.01.2022 to 10.01.2022. There is inordinate delay in lodging the first information. He further submitted that the petitioner is working as Police Inspector. It is further submitted that the petitioner while discharging his duties, registered criminal case against the informant and a rowdy-sheet is opened in his name. Therefore, the informant had motive to falsely implicate the petitioner in the present case, even though he is no way concerned to the offences in question.
4. Learned senior advocate further submitted that the allegations against the petitioner is only on the basis of so- called confessional statement of the co accused i.e., accused No.11. There are no other independent materials to connect the petitioner to the offences in question. The Station House -4- CRL.P No. 9921 of 2022 Officer one Mr.Vishwanath is involved in the criminal case and departmental enquiry was held against him, wherein, he was found guilty and he was punished by withholding one increment. Since the petitioner was responsible in bringing out the commission of offence by the Station House Officer - Vishwanath, he was also having motive in registering the criminal case against the present petitioner and that is how the present petitioner is arrayed as accused No.12.
5. Learned senior advocate further submitted that except accused Nos.3 and 5, in whose names the sale deeds were registered, all other accused are enlarged on bail and accused No.13 was granted anticipatory bail. On parity, the present petitioner is also entitled for anticipatory bail. The petitioner is a public servant. Immediately after receipt of notice under Section 41-A of Cr.P.C., he had appeared before the Investigating Officer. His voice sample was collected and mobile hand set was also seized. Therefore, it cannot be said that the petitioner is absconding. He is ready and willing to co- operate with the Investigating Officer.
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6. Learned senior advocate further submitted that the information regarding restriction of alienation of the land in question as per the order of the Hon'ble Supreme Court on the basis of report of Justice Lodha Committee, was communicated to the office of Sub Registrar, Anekal only on 22.09.2022 i.e., after registration of three sale deeds in favour of accused Nos.3 and 5. Therefore, it is to be concluded that accused Nos.3 and 5 are the bonafide purchasers and the restriction on alienation was not within the knowledge of any of the accused.
7. Learned counsel placed reliance on the decision of Hon'ble Supreme Court in Siddharam Satlingappa Mhetre Vs State of Maharashtra and Others1 to contend that the right to life and liberty and the rights of citizens cannot be taken away in a casual manner. He referred to paras 11 to 13, 17 and 19 of the judgment to contend that since there are no materials to connect the present petitioner to the offences in question reasonably, and since the co-accused are already enlarged on bail, this petitioner is entitled for grant of anticipatory bail. He further submitted that the petitioner being 1 (2011) 1 SCC 694 -6- CRL.P No. 9921 of 2022 the public servant is ready and willing to co-operate with the Investigating Officer. Therefore, he prays for allowing the petition.
8. Per contra, learned Special Public Prosecutor for the respondent-State opposing the petition submitted that after due investigation, charge sheet is filed. He submitted that on the complaint registered by the informant, the Hon'ble Supreme Court had directed to constitute a Committee to give a report with regard to illegal collection of money from the general public by PACL Company Limited during 2015-16. It is alleged that the Company is about to alienate its assets to defraud the creditors. The Committee headed by Justice Lodha was appointed and on the basis of the report submitted by the Committee, the Hon'ble Supreme Court passed an order restricting the alienation of immovable properties in question. The communication in that regard was sent in the year 2016-17 itself to all the Sub Registrar's office concerned, including the Sub Registrar, Anekal. Therefore, the order passed by the Hon'ble Supreme Court was within the knowledge of the Sub Registrar and all other concerned. In spite of that, the accused -7- CRL.P No. 9921 of 2022 have conspired together and are able to execute three sale deeds i.e., one sale deed dated 03.01.2022 in favour of accused No.3 and two sale deeds dated 10.01.2022 in favour of accused No.5. The Sub Registrars working at that time are also arrayed as accused Nos.7 and 14 who are responsible for registration of the sale deeds. He further submitted that demand draft, RTGS entries were fake and forged which were used for registration of the sale deed to defraud the general public.
9. Learned Special Public Prosecutor further submitted that the petitioner is arrayed as accused No.12 during investigation. Initially, when FIR was registered it was only registered against accused Nos.1 to 7. The police notice was issued under Section 41-A of Cr.P.C. calling upon the petitioner to appear before the Investigating Officer. Accordingly, he appeared. His voice sample was collected and one mobile hand set was also seized. However, it was found that the said phone was formatted. After re-formatting the same, it was sent to FSL examination and the report is still awaited. The confessional statement of accused No.11 discloses that the -8- CRL.P No. 9921 of 2022 present petitioner is the main accused who conspired with the co-accused and facilitated registration of the sale deed in favour of accused Nos.3 and 5. Accused No.5 is the relative of the present petitioner.
10. He further submitted that a report is submitted to the learned Magistrate on 01.10.2022 arraying the petitioner as accused No.12. Even earlier to that, the petitioner remained absconding and till today he is not attending the duty. On the other hand, he has threatened the informant to withdraw the complaint or else to face dire consequences. Therefore, it is clear that the petitioner is using his official capacity and authority to influence or to threaten the informant and other witnesses to destroy the evidence. After due investigation, charge sheet is filed showing the present petitioner as absconding. The Investigating Officer has sought permission from the learned Magistrate to file additional charge sheet.
11. He further submitted that after apprehension of accused No.1, his mobile phone was recovered and his whatsapp chats disclosed that accused Nos.1 and 12 were in constant touch with each other. The text messages exchanged -9- CRL.P No. 9921 of 2022 between the two disclose that they were referring to the land which are referred to in the report of Justice Lodha Committee and they were aware of the restriction on alienation of the same. Considering the offences committed by the petitioner and also in view of the fact that the petitioner is required for custodial interrogation for seizing one more mobile hand set of the petitioner, to unearth the true facts and to find the missing links in the case, the petitioner is not entitled for grant of pre- arrest bail. Accordingly, he prays for dismissal of the petition.
12. In view of the rival contentions urged by the learned counsel for both the parties, the point that would arise for my consideration is:
"Whether the petitioner is entitled for grant of anticipatory bail under Section 438 of Cr.P.C.?"
My answer to the above point is in 'Negative' for the following:
REASONS
13. The allegations made against the petitioner is of serious nature. Admittedly, he is a Police Inspector. Initially,
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CRL.P No. 9921 of 2022when the first information was lodged on 20.09.2022, it was only against accused Nos.1 to 7. Petitioner was not arrayed as accused. However, notice under Section 41-A of Cr.P.C. dated 23.09.2022 was issued calling upon the petitioner to appear before the Investigating Officer. In response to the same, the petitioner had appeared before the Investigating Officer and his one mobile hand set was recovered and it was found to be formatted. It is the contention of the prosecution that mobile phone was re-formatted and forwarded to FSL examination. The report is still awaited.
14. Apart from the confessional statement made by accused No.11 regarding conspiracy involving the petitioner, the Whatsapp chats in the mobile phone of accused No.1 prima facie discloses the conversation between accused No.1 and the present petitioner. The contention of the prosecution that mobile phone which was seized from the custody of the petitioner was formatted assumes importance in light of the allegations made against him. Further allegation is that there is one more mobile phone to be recovered from the petitioner is
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CRL.P No. 9921 of 2022also to be taken into consideration in deciding as to whether he is entitled for anticipatory bail or not.
15. Learned senior advocate specifically stated that the petitioner is not attending the duty since 29.09.2022 as there is apprehension of his false implication. It is to be noted here that the requisition to array the petitioner as accused No.12 is submitted to the Court only on 01.10.2022 and even before that, the petitioner has chosen to remain absent to his duty. The petitioner is a public servant who is a Police Inspector. Under such circumstances, the allegations made against him is to be taken into consideration very carefully.
16. It is contended by the learned senior advocate that accused No.13 against whom similar allegations are made is already granted anticipatory bail and therefore, on parity the petitioner is also entitled to be granted anticipatory bail. The charge sheet and the order dated 30.11.2022 of the co- ordinate Bench of this Court disclose that allegations made against accused No.13 is that he is the brother of the present petitioner. It is observed by the co-ordinate Bench of this Court that, the only allegations made against accused No.13 is
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CRL.P No. 9921 of 2022that he was a party to the conspiracy regarding purchase of the property along with accused Nos.11 and 12. There are no other material evidence against him and prima facie no role is said to have been played by accused No.13. Considering all these facts and circumstances, accused No.13 was granted anticipatory bail. But the allegations made against the present petitioner is of serious nature.
17. Learned Special Public Prosecutor produced the copy of the charge sheet filed by the Investigating Officer, wherein, accused Nos.8 and 12 are shown as absconding. The requisition is forwarded by the learned Magistrate to the jurisdictional Magistrate seeking permission to undertake further investigation in the matter and to file additional charge sheet.
18. The contention of the learned senior advocate that the complainant is a rowdy sheeter and he was having motive to falsely implicate the present petitioner may not be relevant at this stage since the petitioner is not arrayed as one of the accused when the FIR was registered on 20.09.2022. Only after due investigation and seizing of the mobile phone and
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CRL.P No. 9921 of 2022voice sample of the petitioner, he was arrayed as accused No.12 only on 01.10.2022. If at all, the informant was having motive to falsely implicate the petitioner, nothing prevented him in naming the petitioner in the first information itself. From all these materials on record, it cannot be concluded that the petitioner is falsely implicated in the matter without any basis.
19. Considering all these facts and circumstances of the case, I am of the opinion that there are prima facie materials against the petitioner which requires him for custodial interrogation. The decision rendered by the Hon'ble Supreme Court in Siddharam Satlingappa Mhetre (supra) makes it clear that no straight jacket formula can be applied for grant or refusal of anticipatory bail in each and every case. Each case is to be considered with its facts and circumstances. Applying the above principle laid down by the Hon'ble Supreme Court, I am of the opinion that it is an exceptional case where the petitioner is not entitled for pre-arrest bail. No grounds are made out entertain the petition and hence, the same is liable to be dismissed.
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CRL.P No. 9921 of 2022Accordingly, the petition is dismissed.
Since the main petition is disposed of, IA.1 of 2022 filed for interim bail does not survive for consideration and hence, the same is disposed of.
Sd/-
JUDGE *bgn/-