KABC010017452023
IN THE COURT OF THE LXIV ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-65) AT BENGALURU)
Dated this 25 th day of January 2023
-: P R E S E N T :Smt. Kalpana M.S.,
B.Sc., LL.M.,PGD-CLCF.,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
CCH-65, BENGALURU CITY.
Crl.Misc.No.559/2023
PETITIONERS:
1.

A.V.Krishnamurthy,
S/o. Veerabhadraiah,
Aged about 49 years,
(Accused No.1)
2.

Smt. Kamalamma,
W/o.Veerabhadraiah,
Aged 76 years,
(Accused No.3)
2
Crl.Mis.No.559/2023
3.

Manjunath,
S/o. Veerabhadraiah,
Aged about 46 years,
(Accused No.4)
All are R/at. No.66,
1st Cross, Mico Layout,
West of Chord Road,
Mahalakshmi Puram,
Bengaluru-560 086.
(By Sri.D.K.Shivakmar, Advocate)
/Vs/
RESPONDENT
:
State of Karnataka by
Mahalakshmipuram Police Station,
Bengaluru.
(Rep. By Learned Public Prosecutor)
ORDERS ON ANTICIPATORY BAIL APPLICATION
FILED U/S.438 OF CR.P.C.
Petitioners/accused No.1, 3 and 4 have filed this
petition U/s.438 of Cr.P.C., seeking anticipatory bail in
Cr.No.06/2023 of
Bengaluru
for
Mahalakshmipuram police station,
the
offences
punishable
U/s.420
3
Crl.Mis.No.559/2023
R/w.Sec.34 of Indian Penal Code (hereinafter referred as
I.P.C.),
pending
on
the
file
of
Chief
Metropolitan
Magistrate Court, Bengaluru.
2.

Learned Public Prosecutor appearing for the
State has filed objection along with report of the
Investigating Officer, opposing the bail petition.
3.

For the purpose of brevity, the facts stated in
the petition and objections will be stated at appropriate
stage of the orders.
4.

Heard
arguments. Perused the materials on
record.
5.

The points that arise for my consideration are;
1. Whether petitioners/accused No.1, 3
and 4 are entitled for anticipatory
bail U/s.438 of Code of Criminal
Procedure?

4
Crl.Mis.No.559/2023
2. What Order?
6.

For the reasons stated herein after, 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:REA S ON S
7.

POINT No. 1:- Along with petition, petitioners
have produced certified copies of F.I.R. in Cr.No.06/2023,
F.I.R. in Cr.No.264/2019, charge sheet and xerox copies
of Aadhar cards of the petitioners and memo with
documents. Perused the same.
8.

It
is
N.Krishnamurthy
alleged
that,
by
the
he
complainant/
along
with
Lakshminarasimha Swamy entered into Sale Agreement
dated 18.01.2017 with petitioner No.1 in respect of site
5
Crl.Mis.No.559/2023
bearing
No.77
Shramajeevi
Sangha
allotted
Karmikara
Niyamitha
for
by
the
Gruha
total
Bengaluru
Nirmana
Mico
Sahakara
consideration
of
?.64,00,000/- and paid an advance sale consideration of
?.11,00,000/-. They have failed to execute registered sale
deed by receiving the remaining sale consideration. On
enquiry, complainant came to know that, petitioners and
have mortgaged the site to Laksmi Finance and taken
loan. Despite request, petitioners have not returned the
advance amount or come forward to register the Sale
Deed. On the basis of the said complaint, a case for
offences punishable
U/s.420 R/w.Sec.34
of Indian
Penal Code came to be registered against the accused
persons.
9.

Learned counsel for the petitioners/accused
No.1, 3 and 4 vehemently argued that, they are innocent
6
Crl.Mis.No.559/2023
of the alleged offences. They have committed the said
offences. They have been falsely implicated in this case.
The alleged dispute is civil in nature. In case of default
by the petitioners, proper course open to the complainant
to file civil suit for specific performance. The complainant
has filed this false complaint to harass the petitioners.
Petitioner No.2 is lady and senior citizen. The petitioners
are ready and willing to abide by the terms and
conditions that may be imposed by this court. There is
serious apprehension of arrest. The learned counsel
submits that, the petitioners have made out prima facie
case for grant of anticipatory bail.
10.

At the out set, the alleged offence is triable by
Magistrate. The said offence is neither punishable with
death penalty nor imprisonment for life. There is no
report of criminal antecedents. The commission of offence
7
Crl.Mis.No.559/2023
by the petitioners is required to be established during
trial. The Hon’ble Supreme Court of India in the decision
of State of Rajasthan, Jaipur Balachandh @ Baliay
(AIR 1977 SC 2447) and in catena of decisions pleased
to laid down the legal doctrine that “Bail is a rule and jail
is an exception”. This legal doctrine is laid down for safe
guarding a fundamental right under article 21 of
Constitution of India, granting right to life and liberty.

11.

It is pertinent to note that, the petitioner No.2
is a lady and senior citizen and proviso to 437 of Code
is applicable to them. In this context, it is profitable to
refer the decision of the Co-ordinate Bench
of Hon’ble
High Court of Karnataka in Kavitha V. State of
Karnataka
–
Crl.P.No.2509/2019
05.08.2019, it is observed as under;
decided
on
8
Crl.Mis.No.559/2023
“In the above facts and circumstances of the
case, proviso to Section 432 of Cr.P.C. would
come to the help of the petitioner herein.
Even at this stage, if the court comes to the
conclusion that, a strong prima facie case is
made out against a woman, still the court
can exercise its discretion and it may
enlarge a lady on bail with
conditions.
Though the petition is filed under Section
439 of Cr.P.C., the proviso to section 437 can
be equally made use of. The said proviso
says that, even if there appears reasonable
grounds for believing that the accused is
guilty of the offences punishable with death
or imprisonment for life, provided the court
may direct that the person referred to in
Clause (i) or Clause (ii), be released on bail, if
such person is under the age of sixteen
years or is a woman or is sick or infirm.
Therefore, in the above circumstances, in my
opinion, as the petitioner/ accused has been
in jail since 05.01.2019 and the charge
sheet has already been filed, she is entitled
to be enlarged on bail during the trial, with
certain conditions……….”
12.
another
In the decision reported in Rathnawwa and
V/s.State
of
Karnataka
Crl.P.

9
Crl.Mis.No.559/2023
No.100503/2017 decided on 13.3.2014, wherein it is
observed that;
“ The proviso in section 437 of Code of
Criminal
Procedure1973
(hereinafter
referred to as “Cr.P.C.”for brevity) empowers
the court that even if the offences which are
punishable with death or imprisonment for
life
or
imprisonment
for
life
or
imprisonment for seven years or more, the
court may direct that such a person
referred to in clause – (I) or (ii) of Section
437 of Cr.P.C. be released on bail, it is
satisfied that if such person is under the
age of 16 years or is a woman or is sick or
infirm. Therefore, it is a special proviso
appended to Section 437 of Cr.P.C.
particularly, considering the woman folk,
sick and infirm persons and the persons,
who are less than 16 years.”
In view of
the principles laid down in the above
decision, woman and sick, aged persons are entitled to
be released on bail, even in cases of offences punishable
under death or imprisonment for life, as those categories
10
Crl.Mis.No.559/2023
of offenders falls within the purview of proviso to Section
437 of Cr.P.C.
11.

It is forth coming from the records that, the
dispute is civil in nature. The complainant is giving colour
of criminal offence. The petitioners have got permanent
place of abode in Bengaluru. They have got deep roots in
the society. The chances of flee from justice is remote.
Therefore, custodial investigation is not required. The
apprehension of the prosecution could be met by
imposing stringent conditions to secure the accused
person
during
trial.

Under
these
facts
and
circumstances, I am of the opinion that, to struck the
balance between individual liberty and humiliation due
to unjustifiable detention against free and fair trial as
well as welfare of society, it is proper to enlarge the
petitioner on bail by imposing appropriate terms and
11
Crl.Mis.No.559/2023
conditions. Accordingly, point No.1 is answered in
the
Affirmative.
12.

POINT
NO.2:
In
view
of
the
aforesaid
discussion, this court proceed to pass the following :
ORD ER
Anticipatory
bail
petition
U/s.438
of
Cr.P.C., filed by petitioners/accused No.1, 3 and
4 is allowed.
Respondent police is directed to release
the petitioners/accused No.1, 3 and 4 on bail in
the event of their arrest in Cr.No.06/2023 of
Mahalakshmipuram police station, Bengaluru
for the offences punishable U/s.420 R/w.Sec.34
of Indian Penal Code pending on the file of Chief
Metropolitan Magistrate Court, Bengaluru by
12
Crl.Mis.No.559/2023
taking personal bonds for Rs.1,00,000/- (one
lakh) each with two solvent sureties for like sum
under following conditions;
1. Petitioners/accused No.1, 3 and 4 shall
appear before Investigating Officer and
co-operate with investigation within 15
days from the date of this order and
make
themselves
available
for
investigation as and when called by the
Investigating Officer.
2.

They
shall
furnish
documents
regarding their address proof and the
address proof of their sureties at the
time of furnishing sureties.
3. They shall mark their attendance at
respondent police station on 1st and 3rd
Sunday of every month between 10.00
a.m. and 2.00 p.m., till conclusion of
13
Crl.Mis.No.559/2023
investigation or for a period of 3
months, whichever is earlier.
4. They shall not
make
any
directly or indirectly
inducement
threat
or
promise to any person acquainted with
the facts of the case so as to dissuade
them from disclosing such facts either
to the Investigation Officer or to the
trial court.
5. They shall not leave the jurisdiction of
India without prior permission of the
trial court.
6. They shall not involve in any criminal
activities.
7. In
the
event
residential
any
address,
change
in
the
petitioners
and
their sureties shall intimate the same
to the trial court immediately without
fail.

14
Crl.Mis.No.559/2023
Violation of any of these conditions would
entitle cancellation of bail.
(Dictated to the Judgment writer, script typed by her and
corrected, signed and then pronounced by me in the open
court on this 25th day of January, 2023.)

(KALPANA M.S.)
LXIV ADDL.CITY CIVIL &
SESSIONS JUDGE, CCH-65,
BENGALURU CITY.

15
Crl.Mis.No.559/2023
Order pronounced in the open
Court, vide separate Order:OR DER
Anticipatory
U/s.438
of
bail
Cr.P.C.,
petition
filed
by
petitioners/accused No.1, 3 and 4 is
allowed.
Respondent police is directed
to release the petitioners/accused
No.1, 3 and 4 on bail in the event of
their arrest in Cr.No.06/2023 of
Mahalakshmipuram police station,
Bengaluru
for
the
offences
punishable U/s.420 R/w.Sec.34 of
Indian Penal Code pending on the
file of Chief Metropolitan Magistrate
Court, Bengaluru by taking personal
bonds for Rs.1,00,000/- (one lakh)
16
Crl.Mis.No.559/2023
each with two solvent sureties for
like sum under following conditions;
1.

Petitioners/accused
and
4
shall
No.1,
appear
3
before
Investigating Officer and cooperate
with
investigation
within 15 days from the date of
this
order
and
make
themselves
available
investigation
as
called
by
the
and
for
when
Investigating
Officer.
2. They shall furnish documents
regarding their address proof
and the address proof of their
sureties
at
the
time
of
furnishing sureties.
3. They
shall
attendance
mark
at
their
respondent
police station on 1st and 3rd
17
Crl.Mis.No.559/2023
Sunday
of
every
month
between 10.00 a.m. and 2.00
p.m.,
till
conclusion
of
investigation or for a period of
3 months, whichever is earlier.
4. They shall not
indirectly
directly or
make
any
inducement threat or promise
to any person acquainted with
the facts of the case so as to
dissuade them from disclosing
such
facts
either
to
the
Investigation Officer or to the
trial court.
5.

They
shall
not
leave
the
jurisdiction of India without
prior permission of the trial
court.
6. They shall not involve in any
criminal activities.

18
Crl.Mis.No.559/2023
7. In the event any change in the
residential address, petitioners
and
their
sureties
shall
intimate the same to the trial
court immediately without fail.
Violation
of
any
of
these
conditions would entitle cancellation
of bail.
Consequently, this criminal
miscellaneous
proceedings
is
disposed of.

LXIV ADDL.CITY CIVIL &
SESSIONS JUDGE, CCH-65,
BENGALURU CITY.