KABC010161162022
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 23RD DAY OF JUNE, 2022
PRESENT:
Sri. Manjunatha, B.A., LL.B.,.
XLV Addl. City Civil & Sessions Judge, Bengaluru.
CRL.MISC. No.6005/2022
Petitioners
1.P. Sunil Kumar
S/o late Puttaswamaiah,
a/a 39 Yrs.,
R/a No.297, 13th Cross Road,
Muthurayaswamy Badavane,
Sunkadakatte,
Bengaluru-560 091.
2.Smt. Sharadamma,
W/o Late Puttaswamaiah,
A/a 74 Yrs.,
R/a No.68, 8th Main Road,
Pipe Line, Sunkadakatte,
Bengaluru North,
Bengaluru-560 091.
(By Sri/Smt; N.R. Raghu,
Advocate)
AND
Respondent
State by Kamakshipalya P.S.,
Bengaluru.
(By the learned Public Prosecutor)
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Crl.Misc.No.6005/2022
ORDER ON BAIL PETITION FILED U/S.438 OF Cr.P.C.,
The learned counsel for the petitioners has filed bail
petition U/s.438 of Cr.P.C. to grant an order of anticipatory bail
in favour of the petitioners and also direct the respondent police
to release them on bail in the event of their arrest in any case
to be registered on the complaint of Smt.C Poornima in the
interest of justice.
2. On the basis of complaint from Smt.Poornima, the
respondent police may register case against the petitioners
herein for the offence punishable U/s.498A, 323 and 506 of
IPC and Sec.3 and 4 of DP Act. Therefore, the petitioners are
apprehending arrest at the hands of respondent police. Hence,
the petitioners are constrained to file this petition and thereby
they have prayed for allowing the petition.
3. The learned Public Prosecutor filed objection to this
petition submitting that there is no FIR registered against the
petitioners regarding any criminal case by the respondent police
and therefore, there is no question of granting anticipatory bail
to the petitioners. Hence, the learned Public Prosecutor has
prayed for dismissal of the petition.
4. Heard the arguments on both sides and perused the
materials on record.
5.The points that arises for consideration of this Court are
as under:
1.Whether the petitioners have made out
sufficient ground for granting anticipatory
bail in their favour at this stage as sought
for?
2.What order?

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Crl.Misc.No.6005/2022
6.This court has answered the above points are as under:
Point No.1: In the Affirmative
Point No.2: As per final order
for the following:REASONS
7. Point No.1:Although the petition averments clearly go
to show that there is apprehension on the part of petitioners that
they will be arrested by the respondent Police if any case is
registered against them on the complaint of Smt.Poornima, but
there is no documents to show that there is apprehension of
arrest of petitioners by the respondent police.
8.

Generally the registration of criminal case is not a
condition precedent for availing benefit of anticipatory bail by
the concerned accused persons, but the petitioners have to
produce sufficient materials to show that even though there is
no FIR is registered against them at this stage there is an
apprehension that a case as alleged U/s.498A, 323 and 506 of
IPC and Sec.3 and 4 of DP Act, will be registered by the
respondent police, causing apprehension of their arrest. As per
the averments of the petition, it is alleged that the defacto
complainant-Smt.Poornima
married
petitioner
No.1
on
20.05.2010, and out of the wedlock they were blessed with two
children. It is the averments of the petition that as there was a
matrimonial dispute, due to which the defacto complainant may
file complaint before the
petitioners.

respondent police station against
The defacto complainant due to matrimonial
dispute threatening to lodge a false case against them. In the
instant case it is true that yet no case is registered against the
petitioners
by
the
respondent
Police,
but
the
defacto
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Crl.Misc.No.6005/2022
complainant has filed complaint against the petitioners before
respondent police, and based on the said complaint NCR
No.260/2022 is registered.

The copy of complaint dated
4.5.2022 and statement of petitioner No.1 produced by the
petitioners discloses the fact that the defacto complainant, wife
of first petitioner has lodged a complaint against the petitioners
before the respondent police and based on the said complaint,
NCR No.260/2022 has been registered and the same is
pending for enquiry.
9.It is also important to note that before taking action
regarding the arrest of the petitioners, the respondent police
have to follow the guidelines laid down by the Hon’ble Supreme
Court ruling reported in (2014) 8 SCC 273(Arnesh Kumar
Vs., State of Bihar and another, in which the Hon’ble
Supreme Court has clearly laid down the dictum of law and
guidance to the police officials that
“they
shall
not
arrest
the
accused
unnecessarily without proper counseling and only
on satisfaction that the persons have committed
the offence the police officials to prevent such
persons further in committing any offence or for
proper investigation of the case, or prevent the
accused from causing the evidence of the
offence of to disappear or tamper with such
evidence in any manner, or to prevent such
person from making any inducement, threat or
promise to a witness, so as to dissuade him from
disclosing such facts to the Court or the police
officer, or unless the accused person is arrested,
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Crl.Misc.No.6005/2022
if present in the court whenever required cannot
be ensured.

It is also clearly laid down that
before arrest the first police officer should have
reason to believe on basis of information and
materials that the accused has committed the
offence. Apart from this the police officer has to
be satisfied further that the arrest is necessary
for one or more purposes envisaged by subclauses (a) to (e) of clause 1 of Sec.41 Cr.P.C.,
In all cases were arrest of the persons is not
required
U/s.41(1)
Cr.P.C.,
police
officer
is
required to issue notice directing the accused to
appear before him at a specified time and place.
The law obliges such an accused to appear
before police officers and if mandates that if such
an accused complies with terms of notice, he
shall not be arrested, unless for reasons to be
recorded, police officer is of the opinion that the
arrest is necessary”.
By applying the above dictum of law to the facts of the
present case, it is found that in the instant case complaint has
been lodged and notice has been issued by the respondent
police regarding the conciliation U/s.498A of IPC in according
to the guidelines laid down in the above case by the Hon’ble
Supreme Court of India.
At this juncture I would like to quote ruling of Hon’ble
High Court of Karnataka, Dharwad Bench , reported in
Criminal
Petition
No.101022/2021
dated
22.06.2021
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Crl.Misc.No.6005/2022
(Ramappa @ Ramesh Vs., State of Karnataka)
Wherein
the Hon’ble High Court at Para 25 has held that
Section 41A of the Cr.P.C., defers the arrest
until and unless sufficient evidence is collected,
so as to produce or forward the accused to the
custody of the court.

The apprehension of
arrest, thus, does not completely vanish away on
the issuance of notice of appearance under
Section 41A of the Cr.P.C., and hence, the
question being raised in maintainability of an
application under Sec.438 of Cr.P.C., during the
pendency of notice being issued under Sec.41A
Cr.P.C., or during the compliance of the terms of
such notice is completely unwarranted and is not
in tune with the provisions
of law.

The
apprehension of arrest always does exist even
after issue of notice of appearance under Section
41 Cr.P.C., and under such circumstances the
Courts cannot evade to entertain an application
under Sec.438 Cr.P.C.,
10.It is well settled principle of law that the granting of
bail, is discretionary power of the Court has to be exercised
consciously and with due care, so that no blanket order is
passed and every case should be considered on the basis of
facts of each case. The Hon’ble Supreme Court of India have
clearly held that blanket Order of Anticipatory Bail should not be
generally passed unless specific event and facts is discloses
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Crl.Misc.No.6005/2022
by the applicant in order to enable the Court to arrive at judicial
conclusion.
At this juncture I would like to quote the dictum of law laid
down in the decision reportd in (2011) 1 Supreme Court
cases 694 (Siddharam Satlingappa Mhetre Vs., State of
Maharashtra and others) wherein the Hon’ble Supreme Court
has held that :-
“Sec.438 of Cr.P.C., is not extraordinary in
the
sense
that
it
should
be invoked
only
exceptional or rare cases – A great ignominy,
humiliation and disgrace is attached to arrest –
In cases where Court is of considered view that
accused has joined investigation and he is fully
co-operating with the investigating agency and is
not likely to abscond, in that event, custodial
interrogation should be avoided, and anticipatory
bail should be granted – exercise of said
jurisdiction
requires
maintaining
of
perfect
balance between two conflicting interests viz.,
sanctity or individual liberty and interest of
society”.
11.The principle laid down by the Hon’ble Supreme Court
it is crystal clear that mere apprehension of arrest by the Police
is sufficient to invoke the provision of Sec.438 of Cr.P.C. for
grant of anticipatory bail. The apprehension of arrest always
does exist even after issue of notice of appearance U/s.41
Cr.P.C., by respondent police station, and under such
circumstances this Court cannot evade to entertain an
application under Sec.438 Cr.P.C., Even for the sake of
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Crl.Misc.No.6005/2022
argument, if it is accepted that the case that would be
registered against the petitioners for the alleged non bailable
offence Sec.498A of IPC, the same would be triable by the
Magistrate if not punishable death or imprisonment for life.
12. Further, the materials on record show that there exist
a matrimonial dispute. To substantiate their contention the
petitioners have produced the copy of complaint dated 4.5.2022
and statement of petitioner No.1 dated 4.5.2022, which
discloses the fact that the defacto complainant has lodged a
complaint on
against the petitioners before the respondent
police and based on the same NCR No.260/2022 is registered
and the same is pending for enquiry.

On perusal of these
documents, it is clear that there is a matrimonial dispute
between the defacto complainant and petitioner No.1, which is
sufficient to inspire the Court that there exists apprehension of
arrest of the petitioners by the respondent police for the alleged
offences as contended in the petition. At this juncture the court
cannot ascertain the allegations and dispute between the
parties unless the full fledge trial is completed, but the
documents produced by the petitioners is sufficient to prove that
the defacto complainant has filed the complaint against the
petitioners for the alleged offences punishable U/s.498A, 323
and 506 of IPC and Sec.3 and 4 of DP Act, and the same is
pending for enquiry.
13.At this stage, the dictum of law and guidelines laid
down by the Hon’ble Supreme Court of India in Gurbaksh
Singh Sibbia V., State of Punjab, (1980) 2 SCC 565: 1980
SCC (Cri) 465 has to be taken into consideration while
9
granting anticipatory bail.

Crl.Misc.No.6005/2022
In the said ruling the Hon’ble
Supreme Court held that:-
“What is the quantum of punishment is not
much important on the other hand, the Courts
ought to consider such nature and gravity of the
accusation and the exact role of the accused
must be properly comprehended before arrest is
made. Further the antecedents of the applicant
including the fact as to whether the accused has
previously
conviction
undergone
by
a
Court
imprisonment
in
respect
of
on
any
cognizable offence, and the possibility of the
applicant to flee from justice is also to be
considered. The
possibility of the accused’s
likelihood to repeat similar or other offences and
where the accusations have been made only with
the object of injuring or humiliating the applicant
by arrest him or her has to be looked into. It is
equally important to note that impact of grant of
anticipatory bail particularly in cases of large
magnitude affecting a very large number of
people has to be taken into consideration.
Further the Hon’ble Supreme Court has clearly
laid down caution that the Courts must evaluate
the entire available material against the accused
very carefully and while considering the prayer
for grant of anticipatory bail, the balance has to
be struck between two factors, namely, no
prejudice should be caused to the free, fair and
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Crl.Misc.No.6005/2022
full investigation and there should be prevention
of
harassment,
humiliation
and
unjustified
detention of the accused. It is also held held that
while
considering
prosecution,
the
the
objections
court
has
of
to
consider
reasonable apprehension of tampering
witness
or
apprehension
of
the
threat
of the
to
the
complainant at time of granting anticipatory bail
and the frivolity in prosecution should also be
taken
into
consideration.

Also
order
of
anticipatory bail should not be “blanket” in the
sense that it should not enable the accused to
commit further offences and claim relief. It
should be confined to the offence or incident, for
which apprehension of arrest is sought, in
relation to a specific incident”.
14.By applying the above principles and considering the
fact of the case it is found that absolutely no serious ground
made out by the respondent police to reject this petition since
the petitioners have produced documents to show that there is
complaint pending enquiry before respondent police station,
which has been filed by defacto complainant- Smt.Poornima, on
imposing stringent conditions regarding the availability of the
petitioners for investigation, the objections of the prosecution
would be met with when the petitioners have produced
document to show that they are the permanent residents of
Tamil nadu, ready to abide the conditions imposed by the Court
by furnishing valid surety. Hence, in the circumstances, the
petitioners have made out sufficient grounds for granting
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Crl.Misc.No.6005/2022
anticipatory bail in their favour at this stage as prayed.
Accordingly, I answer Point No.1 in the partly Affirmative.
15. Point No.2: In view of answer of this court on point
No.1, this court pass the following:ORDER
The bail petition filed by the petitioners
U/s.438 of Cr.P.C. is hereby allowed.
In the event of arrest of the petitioners by the
respondent police on the basis of the complaint to
be lodged by Smt.Poornima for the offences as
alleged in the petition U/s.498A, 323 and 506 of
IPC and Sec.3 and 4 of DP Act, the concerned
Investigating Officer shall release the petitioners on
bail on their executing personal bond for the sum
of Rs.1,00,000/- each with one surety for the like
sum to his satisfaction, subject to the following
conditions that:
1. The petitioners shall not threaten the
prosecution witnesses and tamper with
prosecution evidence in any manner,
2. They shall co-operate with the I. O. in the
investigation of the case as and when
called for.
3. They shall appear before the IO within 30
days from the date of registration of the
case. If the petitioners so appear before
the IO, the IO shall, after interrogation,
release them after obtaining necessary
bonds as directed supra.

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Crl.Misc.No.6005/2022
It is made clear that this bail order shall be in force for
the period of three months from the date of this order.
(Typed to my dictation by the Stenographer directly on Computer, corrected by me
and then pronounced in open Court on this the 23rd day of June, 2022)
(Manjunatha)
XLV Addl. CC & SJ, Bengaluru.

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Crl.Misc.No.6005/2022
Order pronounced in the open court
vide its separate order
ORDER
The bail petition filed by the petitioners
U/s.438 of Cr.P.C. is hereby allowed.
(Manjunatha)
XLV Addl. CC & SJ, Bengaluru.