KABC010159722022
IN THE COURT OF THE LXIII ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH­64) AT BENGALURU
Dated this the 5th day of July 2022
: PRESENT :
Sri.A.V.Patil, B.Com., LL.B.,
LXIII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.

CRIMINAL MISCELLANEOUS NO.5948/2022
PETITIONERS
:
1. A.Mohsin Khan
S/o Late.Ali Afsar Khan,
Aged abot 38 years,
Residing at No.192/32,
6th Main, 1st Cross,
LIC Colony, Jayanagar
1st Block, Benglauru – 560 011.
2. Avinash
S/o N.P.Thangappa,
Aged about 39 years,
Residing at No.15, 7th Cross,
Akshayanagar West,
Nyanappanahalli,
Bannerghatta Road,
Bengaluru – 560 076.
Director,
White Emperor Properties
2
Crl.Misc.5948/2022
(By Sri.Tanveer Ahmed Shariff,
Advocate)
­ Vs ­
RESPONDENT
:
State by Circle Inspect of Police,
Begur Police Station, Bengaluru.
(By Public Prosecutor)
ORDER ON BAIL APPLICATION FILED U/S 438 OF
Cr.P.C.
The petitioner has filed the petition u/s 438 of Cr.P.C.
seeking anticipatory bail against the Begur Police in case of
registration of FIR against the petitioner on the basis of
complaint filed by Brend Deepa Williams and on the basis
of the Police Notice issued to the petitioners vide
No.B.PS/D­PI/Application/39/2022 dated 11.05.2022 may
be released on bail.
2.

It is stated in the bail application that they are
innocent of the offences alleged against them and they have
valid and tenable defence. The respondent/Police are
repeatedly calling the petitioners to appear before them and
hence
there
is
apprehension
of
their
arrest.

The
respondent/Police has issued Police notice to the petitioners
on 11.05.2022. Respondent/police started to threaten the
petitioners and insist for payment of entire amount to
Brenda Deepa Williams. The dispute is purely civil in
3
Crl.Misc.5948/2022
nature. The petitioners are businessmen having deep roots
in the society and have no criminal antecedents. Hon’ble
High Supreme Court and various High Courts have
categorically held that in the case of agreement of sale, if a
party does not pay or refund the advance amount received,
it would not amount to cheating on his part and only a civil
liability would be fastened upon him. That apart, it is also
held that the absence of an FIR and complaints, the Courts
have power to grant an order anticipatory bail. They are
the only bread earning members as such if they are arrested
and detained in custody, their family members will be put
to severe trouble. They are ready to abide by the conditions
that may be imposed against them and co­operate with the
police for investigation. The offences going to allege against
the
petitioners
are
imprisonment for life.

not
punishable
with
death
of
Hence, petitioners prays to grant
anticipatory bail.
3.

The learned P.P. opposed the bail application filed by
the petitioners. So far no case is registered against the
petitioners before the Begur Police. When no case is
registered the question of granting bail does not arise. The
anticipatory bail can be filed only in a specific crime
number of a police station. As no case is registered the
petition filed by the petitioners is not maintainable. Hence,
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Crl.Misc.5948/2022
prayed to dismiss the bail petition.
4.

Heard the arguments from learned Counsel for
petitioners and learned Public Prosecutor.

Perused the
material placed on records.
5.

The points that arise for my consideration are:­
1. Whether the petitioners are entitled for
anticipatory bail as prayed in the application
filed u/s 438 of Cr.P.C.?
2. What order?

6.

My answer to the above points are as follows:
Point No.1: in the affirmative.
Point No.2: As per final order
for the following;
REASONS
7.

Point No.1:­ According to the petitioners, the
complainant Brenda Deepa Williams submitted petitioner
before the PI Begur police station in connection with the
property dispute.

On the basis of the said petition the
Begur Police have got issued notice to the petitioners and
threatening the petitioners to pay the amount immediately.
If petitioners fails to pay the entire amount, they will arrest
them. Because of the pressure the petitioners have already
made payment to the tune of Rs.1,50,000/­.

However,
respondent/police are insisting for payment of entire
amount immediately.

The petitioners have apprehension
5
Crl.Misc.5948/2022
that on the basis of the petition filed by Brenda Deepa
Williams, respondent/police may register the FIR against
the petitioners and arrest the petitioners for the offence
punishable u/s 420 of IPC.
8.

At outset it is necessary to note that no case is
registered against the petitioners. It is well settled principle
of law that from the recent decision even in the absence of
non­registering of any crime, the Court if satisfied that
petitioners have got reasonable apprehension of arrest, can
exercise its power u/s 438 of Cr.P.C and grant anticipatory
bail. The Court has to see whether there are any grounds
made out by the petitioners to come to the conclusion that
the police may arrest the petitioners and the apprehension
is with regard to non­bailable offence.
9.
of
Petitioners have specifically claimed that on the basis
the
petition
filed
by
Brenda
Deepa
Williams,
respondent/police may register the FIR against them and
arrest the petitioners for the offence punishable u/s 420 of
IPC. It is necessary to note that the respondent has issued
notice
vide
No.B.PS/D­PI/Application/39/2022
dated
11.05.2022. According to the Advocate for petitioners,
there is every possibility that on the basis of the petition
filed by Brenda Deepa Williams for the offence punishable
u/s 420 of IPC. The alleged offence is non bailable offences
6
Crl.Misc.5948/2022
and the said offence is not punishable with death or
imprisonment for life. It is prayed that in case of registering
the case for the offence punishable u/s 420 IPC only pray to
grant anticipatory bail. In light of specific case made out by
the petitioners, the apprehension of arrest of petitioners
cannot be ruled out in case of registration of case for the
offence punishable u/s 420 IPC and the said offence is non­
bailable offence.
10.

Having regard to the facts & circumstances of the
case, gravity of the offences pleaded in the petition,
apprehension of the arrest of the petitioners by the Begur
Police in the considered opinion of this Court the petitioners
is
entitled
to
grant
anticipatory
bail
by
imposing
appropriate conditions. Accordingly, I answer this point in
the affirmative.
11.

Point No.2:­ In view of my findings on point No.1, I
proceed to pass the following;
ORDER
The bail petition filed by petitioners u/s 438 of Cr.P.C.
is hereby allowed and anticipatory bail is granted.
In the event of their arrest by the I.O. of Begur Police
Station if case is registered for the offence punishable u/s
420 IPC on the basis of the petition filed by Brenda Deepa
Williams and on the basis of the Police Notice issued to the
petitioners vide No.B.PS/D­PI/Application/39/2022 dated
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Crl.Misc.5948/2022
11.05.2022, the I.O. is directed to enlarge them on bail on
executing their personal bond for Rs.50,000/­ each with
one surety for like sum subject to following conditions:
1. Petitioners shall not tamper with the
prosecution witnesses in any manner.
2. Petitioners shall appear before the Court
during trial and co­operate for the disposal
of the case.
3. Petitioners shall not commit similar to the
offence alleged against them.
4. Petitioners shall appear before the I.O. as
and when called for investigation.
5. Petitioners shall furnish the attested copy
of her Adhaar card and present residential
address proof to the I.O.
Notwithstanding this order of
anticipatory bail do not in any manner
limit or restrict the rights and duties of the
police or investigating agency, to
investigate into the charges against the
petitioners.
(Dictated to the Judgment Writer, typed by her, taken
print out, corrected by me and then pronounced in the open
Court on this the 5th day of July 2022)
(A.V.PATIL)
LXIII ADDL.CITY CIVIL & SESSIONS
JUDGE (CCH­64), BENGALURU CITY.