IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 18th MARCH 2015 BEFORE THE HON'BLE MR. JUSTICE K.N.PHANEENDRA CRIMINAL PETITION NO.200295/2015

Between:

• 1. Arjun S/o. Kondalrao Kale, Age:28 years, Occ: Student
• 2. Sandeep S/o. Devidas Savale, Age:28 years, Occ: Driver

Both R/o. Savli village, Taluq Aurad (B) Dist, Bidar.

3. Amar S/o.Dulappa Biradar, Age: 25 years, Occ: Cab Conductor, Presently R/o. Kamalnagar Tq.Aurad (B) Dist. Bidar. …. Petitioners

(By Sri. Anil Kumar Navadagi, Advocate)

And:

The State of Karnataka Kamalnagar Police Station, Tq. Aurad (B) Dist. Bidar. …Respondent

(By Sri. Prakash Yeli Addl. S.P.P.)

This Criminal Petition is filed under Section 438 of Cr.P.C. praying to allow the petition and give direction to the respondent Kamalnagar Police Station, Dist: Bidar to enlarge the petitioners on bail in the event of their arrest in Crime No.109/2014 of Kamalnagar Police Station Dist: Bidar, which is registered for the offences punishable under Section 143, 147, 308, 323, 504 read with 149 of IPC and 15(A), 32(iii)of KE Act.

This petition coming on for Orders this day, the Court made the following:

O R D E R

The petitioners who are arrayed as accused Nos.2 to 4 in C.C. No.42/2015 on the file of J.M.F.C., Aurad (B) ( arising out of Crime No.109/2014) of Kamalnagar police station, for the offences punishable under Section 143, 147, 308, 323, 504 read with 149 of IPC and 15(A), 32(iii)of KE Act.

2. It is seen from the records that the police have already filed charge sheet making allegations that on 17-03-2014 the accused persons were consuming alcohol near Dhaba by name Ektha Dhaba at Kamal Nagar on Bidar - Udgir road. The complainant by name Anjugoud came there and told the accused persons not to consume alcohol in the said Dhaba and requested them to go out from the said Dhaba, it appears verbal altercations between the accused and the complainant and others taken place and in fact all the accused persons alleged to have assaulted the complainant and abused him in filthy language and also caused injuries to the complainant and another and also threatened the complainant with dire consequences of killing him etc.

3. The material discloses that the accused No.1 during the investigation itself was released on anticipatory bail. The petitioners did not approach the Court. However after filing the charge sheet when the Court has issued N.B.W., against them to secure their presence, it appears they approached the trial Court for grant of bail, the learned Sessions Judge, has dismissed the bail petition on the ground that the Court has issued N.B.W. to secure their presence and the Court process cannot be curtailed by means of granting anticipatory bail.

4. The trial Court mis-conceived the Order passed by this Court in Criminal Petition No.201006 /2014 dated: 07-01-2015, wherein this Court was of the opinion that when the accused persons once released on bail, it is their duty to appear before the Court to assist the Court for early disposal of the case, after taking bail if they remain absent before the Court and by virtue of the same, the Court takes no coercive steps by issuing N.B.W., under circumstance of each and every occasion , when the Court issues NBW, they cannot approach higher Court for grant of bail U/Sec.438 of Cr.P.C., Therefore looking to the above said facts and circumstances of the case, when once the accused has already been released on anticipatory bail, on the same factual aspects and also on perusal of the wound certificates produced, the complainant and another person who are claimed to be injured persons they only sustained abrasion, which superficial in nature and simply injury, as stated by the Doctor in the wound certificate.

Under the above circumstances, when the charge sheet is already filed, the custodial investigation is not necessary. Therefore the petitioners are entitled to be released on bail subject to stringent conditions.

Even after filing of the charge sheet and the trial Court issues NBW, the competent Courts can exercise the power U/Sec.438 of Cr.P.C.,, but it all depends upon the facts and circumstances of each case, it should be shown to the Court that at the initial stages summons were issued against the accused to secure their presence and inspite of service of summons, deliberately they did not appear before the Court, if directly the Court issued NBW against the persons then the petitioners definitely apprehend arrest at the hands of police or at the hands of Court, in such eventuality depending upon the circumstances of the case, they can show to the Court that they reasonably apprehend arrest at the hands of police or at the hands of Court, they can approach the Court. Considering the peculiar circumstances of the case, the Court can exercise the powers U/Sec.438 of Cr.P.C. In this case no material

to show that summons were issued at the first instance to secure their presence, co-accused already released on bail and charge sheet already filed. Hence petitioner are entitled for bail as sought for.

With these observations the petition deserves to be allowed. Hence the following;

O R D E R

The petition U/Sec.438 of Cr.P.C., is allowed.

Consequently the petitioners shall be released on bail in the event of their arrest in connection with Crime No.109/2015 of Kamalnagar police station Dist: Bidar for the offences punishable U/Sec. 143, 147, 308, 323, 504 read with 149 of IPC and 15(A), 32(iii)of KE Act, on following conditions.

i) The petitioners shall surrender themselves before the Investigating Officer within a week from the date of this order and execute personal bond for a sum of Rs.50,000/- (rupees fifty thousand only) each with two solvent sureties for the likesum to the satisfaction of the Investigating Officer.

• ii) The petitioners shall not indulge in hampering the investigation or tampering the prosecution witnesses.
• iii) The petitioners shall appear before the Court on all the future dates of hearing unless prevented by any genuine cause
• iv) The petitioners shall not leave the jurisdiction of the Bidar District without prior permission till the case registered against them is disposed off.

Sd/- JUDGE

MWS