KABC010214662023
IN THE COURT OF XLV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-46)
DATED THIS THE 22ND DAY OF AUGUST, 2023
PRESENT:
Sri. Manjunatha, B.A., LL.B.,.
XLV Addl. City Civil & Sessions Judge, Bengaluru.
CRL.MISC. No.7757/2023
Petitioners
1.Chidanand,
S/o Siddappa angadi, a/a 35 Yrs.,
R/a No.107, 7th Cross, Sai Tejaserin,
Alaffa Garden, Kogigehalli Main Road,
Ayappa Nagara, KR Puram,
Bengaluru-560 036.
2.Siddappa
S/o Pakeerappa Angadi, a/a 70 Yrs.,
3.Smt. Girijavva,
W/o Siddappa Angadi, a/a 62 Yrs.,
both are r/o Neeralagi Taluk, Shiggan
District, Haveri.
(By Sri/Smt: M.S. Shankaragulli, Adv., )
AND
Respondent
State by KR Puram P. S., Bengaluru
City.
(By the learned Public Prosecutor)
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Crl.Misc.No.7757/2023
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.Kavya, in the interest
of justice.
2. On the basis of complaint from Smt.Kavya, wife of first
petitioner the respondent police may register case against the
petitioners herein for the offences punishable U/s.498A, 324,
504 and 506 of IPC and Sec.3 and 4 of DP Act. Therefore, the
petitioners are apprehending arrest by 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 by submitting that based on the complaint notice has
been issued and 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
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Crl.Misc.No.7757/2023
bail in their favour at this stage as sought
for?
2.What order?
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.Kavya, 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, 324, 504 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 on 14.06.2020
the marriage of defacto complainant was solemnized with
petitioner No.1. 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 respondent police
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station against petitioners.

Crl.Misc.No.7757/2023
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
complainant has filed complaint against the petitioners before
respondent
police
and
based
on
the
said
complaint
unnumbered NCR 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 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 ratio and
guidance to the police officials that
Уthey 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, if present in
the court whenever required cannot be ensured. It is
also clearly laid down that before arrest the first police
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Crl.Misc.No.7757/2023
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
sub-clauses (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 necessaryФ.
By applying the above ratio 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.
The Hon’ble High Court of Karnataka, Dharwad Bench ,
reported in Criminal Petition No.101022/2021 dated 22.06.2021
(Ramappa @ Ramesh Vs., State of Karnataka) 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
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court.

Crl.Misc.No.7757/2023
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 has
clearly held that blanket Order of Anticipatory Bail should not be
generally passed unless specific event and facts is discloses
by the applicant in order to enable the Court to arrive at judicial
conclusion.
In (2011) 1 Supreme Court cases 694 (Siddharam
Satlingappa Mhetre Vs., State of Maharashtra and others)
Hon’ble Supreme Court has held that :-
УSec.438 of Cr.P.C., is not extraordinary in the
sense that it should be invoked only exceptional or
rare cases Ц A great ignominy, humiliation and
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Crl.Misc.No.7757/2023
disgrace is attached to arrest Ц 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 Ц exercise of
said jurisdiction requires maintaining of perfect
balance between two conflicting interests viz., sanctity
or individual liberty and interest of societyФ.
11.The ratio 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 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
acknowledgment
dated
15.07.2023, complaint dated 14.07.2023 and statement of first
petitioner, which discloses the fact that the defacto complainant
has lodged a complaint
against the petitioners before the
respondent police and based on the same unnumbered NCR
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Crl.Misc.No.7757/2023
has been 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
offence punishable U/s.498A, 324, 504 and 506 of IPC and
Sec.3 and 4 of DP Act, and the same is pending for enquiry.
13.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 granting
anticipatory bail and held that:-
УWhat 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 undergone
imprisonment on conviction by a Court in respect of
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
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Crl.Misc.No.7757/2023
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 full investigation and there
should be prevention of harassment, humiliation and
unjustified detention of the accused. It is also held
held that while considering the objections of the
prosecution, the court has to consider reasonable
apprehension of tampering
of the witness or
apprehension of threat 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 УblanketФ
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 incidentФ.

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Crl.Misc.No.7757/2023
14.By applying the above ratio 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.Kavya, 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
Bangalore, 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
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.Kavya, for the offences as
alleged in the petition U/s.498A, 324, 504 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
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Crl.Misc.No.7757/2023
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 this order. If the
petitioners so appear before the IO, the
IO shall, after interrogation, release them
after obtaining necessary bonds as
directed supra.
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 22nd day of August, 2023)
(Manjunatha)
XLV Addl. CC & SJ, Bengaluru.

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Crl.Misc.No.7757/2023
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.