KABC010016032023
Presented on : 17-01-2023
Registered on : 17-01-2023
Decided on : 21-01-2023
Duration
: 0 years, 0 months,
4 days
IN THE COURT OF THE LXIV ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-65) AT BENGALURU)
Dated this 21 st 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.512/2023
PETITIONERS:
1.

Rajesh P.
Aged 39 years,
S/o. M.Prabhakar,
2.

M.Prabhakar,
Aged 66 years,
S/o. Late Muniswappa,
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Crl.Mis.No.512/2023
3.

R.Vasantha,
Aged 60 years,
W/o. M.Prabhakar
All are R/at.No.381,
22nd Main Road,
(Near Power Station),
AGS Layout,
Bengaluru-560061.
(Accused No.1 to 3)
(By Sri. P.K.Vijay, Advocate)
/Vs/
RESPONDENT
:
State of Karnataka by
Channammanakere Achukattu
Police Station, Bengaluru.
(Rep. By Learned Public Prosecutor)
ORDER ON ANTICIPATORY BAIL APPLICATION
FILED U/S.438 OF CR.P.C.
Petitioners have filed this petition U/s.438 of
Cr.P.C., seeking anticipatory bail in the event of
arrest
by
their
the respondent police on the basis of
complaint lodged by the complainant Naveen Kumar
for
3
Crl.Mis.No.512/2023
the offences punishable U/s.406, 420 of Indian Penal
Code (herein after referred as I.P.C., for short).
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 the
appropriate stage of orders.
4.

Heard
arguments. Perused the materials on
record.
5.

The points that arise for my consideration are;
1.

Whether
petitioners/accused
No.1 to 3 are entitled for grant
of anticipatory bail U/s.438 of
Cr.P.C.,?

2. What Order?

4
Crl.Mis.No.512/2023
6.

For the reasons stated hereinafter, 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
Rental Agreement,
Mutual Agreement, Settlement Agreement, Lost Article
Report. Learned Public Prosecutor filed copy of Case
Diary. Perused the same.
8.

The facts set out in the F.I.R. in brief, is as
under;
It is allegations of the complainant- Naveen Kumar
that, all the accused persons are due to pay an amount of
?.7,39,500/- based on the cheque
returned by the
5
Crl.Mis.No.512/2023
Canara Bank. It is further alleged that, according the
Mutual Agreement, he paid a sum of ?.4,39,500/- as a
loan in cash to the petitioners, apart from advance
amount of ?.3,00,000/-. In pursuance of the complaint,
respondent
police
have
registered
a
case
in
Cr.No.290/2022 for the offences punishable U/s.420,
380, 427, 448 R/w.Sec.34 of I.P.C.
9.

Learned Counsel for the petitioners /accused
No.1 to 3 vehemently argued that, the petitioners are
innocent
committed
of
the
any
alleged
offences.

implicated in this case.

offences.
They
They
have
have
been
not
falsely
The complainant was an
employee under the petitioners. He has stolen the
cheques belongs to the petitioners. The Investigating
Officer has directed and pressurizing the petitioners to
settle the amount
to avoid prosecution, arrest and
6
Crl.Mis.No.512/2023
detention. There is serious apprehension of arrest.
Petitioners No.2 and 3
hyper
tension
from
are suffering from diabetic and
last
15
years
and
20
years
respectively. They are on continuous treatment and
medication.

Petitioner No.2 is senior citizen and
petitioner No.3 is lady senior citizen. The petitioners are
ready to abide by the terms and conditions imposed by
this court. There is serious apprehension of arrest for
non-bailable offences. The learned counsel submits that,
petitioners have made out prima facie case for grant of
pre-arrest bail.
10.

At the out set, the alleged offences are triable
by Magistrate. The said offences are neither punishable
with death penalty nor imprisonment for life. The
commission of offences by petitioners are required to be
established during trial. The Hon’ble Supreme Court of
7
Crl.Mis.No.512/2023
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 the right to life and liberty.
11.

It is pertinent to note that, the petitioner No.2
is senior citizen and petitioner No.3 is a lady as well as
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 decided on 05.08.2019, it is
observed as under;
8
Crl.Mis.No.512/2023
“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 Caluse (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.512/2023
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
of offenders falls within the purview of proviso to Section
437 of Cr.P.C.

10
Crl.Mis.No.512/2023
13.

The
petitioners
have
not
produced
F.I.R.

However, along with the objection statement, Learned
Public Prosecutor produced case diary, wherein the F.I.R.
No.0290/2022 for the offences punishable U/s.420, 380,
427, 448 R/w.Sec.34 of I.P.C., are alleged against the
accused persons. The apprehension of the prosecution
could be met by imposing stringent conditions to secure
the accused persons 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 petitioners
on bail by imposing appropriate terms and conditions.
Accordingly, point No.1 is answered in the Affirmative.
14.

POINT
NO.2:
In
view
of
the
aforesaid
discussion, this court proceed to pass the following :
11
Crl.Mis.No.512/2023
ORD ER
Anticipatory
bail
petition
U/s.438
of
Cr.P.C., filed by petitioners/ accused No.1 to 3
is allowed.
Respondent police is directed to release
the petitioners/ accused No.1
to 3 on bail in
the event of their arrest in Cr.No.290/2022 of
Channammanakere Achukattu police station,
Bengaluru for the offences punishable U/s.420,
380, 427, 448 R/w.Sec.34 of Indian Penal Code
pending on the file of Addl.Chief Metropolitan
Magistrate Court, Bengaluru by 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 to 3 shall
appear before Investigating Officer and
co-operate with investigation within 15
days from the date of this order and
make
themselves
available
for
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Crl.Mis.No.512/2023
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
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.

13
Crl.Mis.No.512/2023
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.
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 21st day of January, 2023.)

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

14
Crl.Mis.No.512/2023
Order pronounced in the
open Court, vide separate Order:ORD ER
Anticipatory
U/s.438
of
bail
Cr.P.C.,
petition
filed
petitioners/ accused No.1 to 3
by
is
allowed.
Respondent police is directed
to release the petitioners/ accused
No.1
to 3 on bail in the event of
their arrest in Cr.No.290/2022
Channammanakere
of
Achukattu
police station, Bengaluru for the
offences punishable U/s.420, 380,
427,
448
R/w.Sec.34
of
Indian
Penal Code pending on the file of
Addl.Chief Metropolitan Magistrate
Court, Bengaluru by taking personal
bonds for Rs.1,00,000/- (one lakh)
each with two solvent sureties for
like sum under following conditions;
15
Crl.Mis.No.512/2023
1. Petitioners/accused No.1 to 3
shall
appear
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
for
and
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
Sunday
of
every
month
between 10.00 a.m. and 2.00
p.m.,
till
conclusion
of
16
Crl.Mis.No.512/2023
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.
7. In the event any change in the
residential address, petitioners
and
their
sureties
shall
17
Crl.Mis.No.512/2023
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.