KABC010004802023 Presented on : 05-01-2023 Registered on : 05-01-2023 Decided on : 27-01-2023 Duration : 0 years, 0 months, 22 days BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY. (CCH67) DATED: This the 27th day of January, 2023 PRESENT Sri. S. NATARAJ., BAL., LLB. LXVI Addl.City Civil & Sessions Judge, Bengaluru Crl.Misc.No. 122 of 2023 Petitioners : 1. Umashankar.S. S/o Shiva Gangappa, Aged about 62 years, R/at Door No.10/4, 8th Cross, magadi Road, Bengaluru 560 023.
2. B.Narayanappa, S/o late Byrappa, Aged about 59 years, R/at No.2506, 6th Main, 3rd Block, Jayanagar, Bengaluru 560 011. (By Sri.S.Narasimha, Adv.) 2 Crl.Misc.No.122/2023
/Vs/ Respondent : State by:
1. KP Agrahara Police Station, Magadi Road, Bengaluru. (By Public Prosecutor.)
2. The Superintendent of police, Land Grabbind Section, Krishnagiri District, Tamilnadu.
ORDERS ON BAIL APPLICATION FILED UNDER SEC.438 OF Cr.P.C. The petitioners filed a petition under Section 438 seeking anticipatory bail in the event of their arrest by respondent Nos.1 and 2 likely to be registered under Section 420, 506 IPC on the complaint of Smt.D.V.Nithya W/o Periyaswamy.
2. The brief facts of petitioners case are as follows:
That the petitioners are innocent of the offences alleged. The allegations are concocted, petitioners have not committed any offences, likely to be registered by the 2nd respondent against them. The complainant has filed false complaint with 2nd respondent. One Jayaprakash has sold the property in favour of petitioner No.1. He has paid 3 Crl.Misc.No.122/2023 entire sale consideration amount. The Jayaprakash had executed registered GPA in favour of petitioner No.1 on 29.4.2019. After purchase of the property, petitioner No.1. has sold the same in favour of complainant and handed over original documents. He has not forged or fabricated the documents. During pendency of suit in OS.343/2019 the complainant without the knowledge of petitioners had executed sale deed in favour of her husband Periyaswamy on 20.10.2022. The respondent police forcing the petitioners to pay Rs.15,00,000/ or else they will register the case. The 1st petitioner is a senior citizen suffering from illness, the 2nd petitioner is no way concerned to the transactions. The offences are not punishable with death or life imprisonment and prayed for allow the petition.
3. The learned Public Prosecutor for respondent No.1
has submitted that no case has been registered before the 1st respondent police, they have been made as a party since the petitioners are residing within the jurisdiction of respondent No.1. Whereas the respondent No.2 appeared and filed objections stating that the complainant 4 Crl.Misc.No.122/2023 Smt.Nithya has filed a complaint, it is under preliminary investigation. If the petitioners are granted bail, they may abscond from the case and prayed for dismissal.
4. Heard the arguments of both sides and perused
the record.
5. Out of above said facts and circumstances of the
case, the points that arose for consideration are as under: Point No.1: Whether the petitioners are entitled for anticipatory bail ? Point No.2: What Order?
6. My answer to the above points are as under:
Point No.1: In the affirmative Point No.2: As per the final order for the following reasons.:
REASONS
7. Point No.1 : It is the case of the petitioners that
the Nithya has filed a complaint before 2nd respondent, the respondent No.2 calling them to appear for enquiry. They are likely to be arrested by the 2nd respondent. They have got apprehension of arrest. The petitioner No.1 has 5 Crl.Misc.No.122/2023 purchased property from one Jayaprakash and sold to complainant. They have not cheated the complainant.
8. From the report of respondent No.2 discloses, the
written complaint has been filed by Smt.Nithya against petitioner No.1. It is under preliminary investigation. In the petition as well as affidavit it is alleged by the petitioners that the respondent are calling them for enquiry and demanding them to pay the amount and apprehending arrest from the respondent No.2. The respondent No.2. is a Tamilnadu police, now the question for consideration whether this court has jurisdiction to grant anticipatory bail on apprehension by the petitioners. The counsel for petitioner has relied a judgment of Hon’ble Rajasthan High Court, 1994 Crl.L.J. 1962 Jodhram Vs State of Rajasthan wherein it is held: 'The Courts at where the offender apprehends his arrest has jurisdiction to grant anticipatory bail. The fact that the offence was committed beyond territorial jurisdiction of such court immaterial.” 6 Crl.Misc.No.122/2023
9. 1991 Crl.L.J. 950 Delhi High Court Captain
Sathish Kumar Sharma Vs Delhi Administration held that “The grant of anticipatory bail not only Court within whose territorial jurisdiction offence is committed and tried. But also court where person apprehends his arrest has jurisdiction arrest being a threat to personal liberty petition is maintainable.”
10. In the present case though the alleged complaint
was filed before the 2nd respondent at Krishnagiri Tamilnadu. The petitioners are the resident of Bengaluru, they are apprehending arrest in Bengaluru within the jurisdiction of this Court. Therefore, in view of above said judgments the petition for anticipatory bail is maintainable where the offender has apprehension of arrest irrespective of the case was registered in some other place.
11. On reading the petition averments it appears that
dispute between the parties is in respect of immovable property. The petitioner No.1 alleged to have purchased property from one Jayaprakash. Subsequently, the petitioner No.1 through sale deed dated 20.10.2022 has 7 Crl.Misc.No.122/2023 sold the property in favour of complainant Smt.D.V.Nitya, N.Ganeshan and Periyaswamy. It appears there is also a suit is pending in OS.No.343/2019. Thus, it requires to be investigated whether the petitioners since from inception fraudulently with intention to deceive the complainant had executed the sale deed or not.
12. It is significant to note the 2nd respondent had
received the complaint filed by Smt.N.D.Nithya the complaint not yet registered and it is kept pending for preliminary enquiry. The petitioners filed this petition on 4.1.2023. As per the judgment of Hon’ble Apex Court in Lalita Kumari vs Govt.Of U.P.& Ors (2008) 14 SCC 337 wherein it is held: i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. ii) If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In 8 Crl.Misc.No.122/2023 cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence. v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. vi) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: a) Matrimonial disputes/ family disputes b) Commercial offences c) Medical negligence cases d) Corruption cases e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. 9 Crl.Misc.No.122/2023 vii) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. viii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.
13. As per the guidelines of Hon’ble Apex Court. If the
police officer on receiving complaint entertains any doubt whether the cognizable offence has been made out or not, he has power to conduct preliminary enquiry to extent of ascertaining existence of cognizable offence. The preliminary enquiry has to be completed within 7 days from the date of receipt of complaint. Here in this case as per the report of respondent No.2 it is still kept pending for preliminary enquiry even after expiry of 7 days without registering the complaint. Therefore, there is clear violation of judgment of Hon’ble Apex Court. 10 Crl.Misc.No.122/2023
14. Even otherwise, the alleged offences are under
Section 420, 506 IPC, which are non bailable but not punishable with death or life imprisonment. The petitioners have made out definite case that they are apprehending arrest on the complaint of Smt.Nithya. Therefore, the petitioners have approached the Court on apprehension of arrest from the respondent police. Considering the nature of offence, gravity and accusation leveled against the petitioners, the petitioners are entitled for anticipatory bail. The custodial interrogation may not be required. Accordingly answer point No.1 in Affirmative.
15. POINT No.2: In view of findings given on point
No.1, this Court pass the following order.
ORDER
The petition filed by the petitioners/1. Umashankar.S., 2./B.Narayanappa under Section 438 Cr.P.C. is allowed. The petitioners are ordered to be released on anticipatory bail in the event of their arrest on the complaint of Smt.D.V.Nithya 11 Crl.Misc.No.122/2023 W/o Periyaswamy under Sections 420, 506 IPC likely to be registered by the respondent No.2 police on executing personal bond for a sum of Rs.50,000/ each with one surety for likesum to the satisfaction of concerned Investigation Officer on following conditions:
1. The petitioners shall appear before the 2nd respondent police for the purpose of
eqnuiry/preliminary enquiry on the complaint of Smt.Nithya.D.V. likely to be registered for the offences under Sections 420, 506 IPC on or before 6th February 2023 between 10:00 am to 5:00 p.m.
2. The petitioners shall not threaten the
complainant or witnesses directly or indirectly in any manner.
3. The petitioners shall cooperate with the investigation agency in the investigation of
the case on the complaint of Smt.Nithya.D.V. if registered.
4. This anticipatory bail order is in force for a period of 2 months from this day.
(Typed to my online dictation by the Judgment writer, corrected by me and then pronounced in the open Court on this the 27 th day of January 2023). (S. NATARAJ), LXVI Addl. CC & SJ, Bengaluru. 12 Crl.Misc.No.122/2023 The Order is pronounced in the open Court (vide separate Order).
ORDER
The petition filed by the petitioners/1. Umashankar.S., 2./B.Narayanappa under Section 438 Cr.P.C. is allowed. The petitioners are ordered to be released on anticipatory bail in the event of their arrest on the complaint of Smt.D.V.Nithya W/o Periyaswamy under Sections 420, 506 IPC likely to be registered by the respondent No.2 police on executing personal bond for a sum of Rs.50,000/ each with one surety for likesum to the satisfaction of concerned Investigation Officer on following conditions:
1. The petitioners shall appear before the 2nd respondent police for the purpose of eqnuiry/preliminary enquiry on the complaint of Smt.Nithya.D.V. likely to be registered for the offences under Sections 420, 506 IPC on or before 6th February 2023 between 10:00 am to 5:00 p.m.
2. The petitioners shall not threaten the complainant or witnesses directly or indirectly in any manner. 13 Crl.Misc.No.122/2023
3. The petitioners shall cooperate with the investigation agency in the investigation of the case on the complaint of Smt.Nithya.D.V. if registered.
4. This anticipatory bail order is in force for a period of 2 months from this day.
LXVI Addl. CC & SJ, Bangalore.