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2013 DIGILAW 1042 (KAR)

Kantu v. State

2013-09-04

B.V.PINTO

body2013
ORDER B.V. Pinto, J. 1. This petition is filed seeking bail in Crime No. 8/2013 of Gulbarga Women police Station registered originally for the offence under Section 493 of IPC on 20.02.2013. 2. It is the case of the complainant who is referred to as victim herein after that, she is aged about 20 years and that the petitioner is residing in her neighborhood. They were loving each other for about one year. However, none of family members knew about the said affair. Both of them were talking with each other over telephone and it is also stated in the complaint that, the petitioner also had physical relationship with her by promising to marry her. It is further stated that, on 12.02.2013 at about 6.00 p.m., the petitioner informed the victim that, he would not have relationship with her and asked her to go away. He had also run away from the house. A panchayat was held. However, the petitioner refused to marry her. On the basis of the above information, a complaint came to be filed for the offence under Section 493 of IPC. 3. The petitioner was granted anticipatory bail by the learned Sessions Judge in Cri. Misc. 230/2013 on 08.03.2013. The petitioner appeared before the learned Magistrate on 22.03.2013 along with the copy of the anticipatory bail order granted by the Sessions Court and the learned Magistrate had released the petitioner on bail on the very same day by accepting the surety in the very same Crime No. 8/2013 4. However, it is seen that, on 06.03.2013, the Sub-Inspector of Police, Woman's Police Station, Gulbarga had filed a memo before the Court seeking permission to add the offences under Section 354, 504, 506 of IPC in Crime No. 8/2013. Again on 25.06.2013, the same Police Sub-Inspector filed a memo seeking to add the Section 376 and 420 of IPC. It is seen from the order sheet that, though the accused was released by Court on 22.03.2013, on 01.07.2013, the accused was absent. Therefore, NBW was issued against him. The said NBW was again reissued on 24.07.2013 returnable by 25.10.2013. On 08.08.2013, the order sheet indicates that, the accused was present before the Court and an application under Section 70(2) of Cr.P.C. was filed and the warrant was recalled on imposition of penalty of Rs. 150/-. Therefore, NBW was issued against him. The said NBW was again reissued on 24.07.2013 returnable by 25.10.2013. On 08.08.2013, the order sheet indicates that, the accused was present before the Court and an application under Section 70(2) of Cr.P.C. was filed and the warrant was recalled on imposition of penalty of Rs. 150/-. The order Sheet further indicates that, on 20.08.2013, the victim has filed an application for issuance of NBW on account of tampering the order of the Court on the ground that after insertion of Section 376 of IPC on the requisition dated 25.06.2013 by the Mahila police, the accused had moved for anticipatory bail for the offences under Section 376 and 420 of IPC before the IV Additional Sessions Judge, Gulbarga in Cri. Misc. 670/2013 which was rejected and after the said rejection, the bail application was moved before the High Court for the offences under Section 376 and 420 of IPC and the said application was also rejected on 05.08.2013. It is also mentioned in the order sheet that, after rejection of anticipatory bail for the offences under Section 376 and420 of IPC, the brother of the victim approached the Chowk police which informed him that, the accused had supplied the copy of the bail order granting bail to him under Section 376and 420 of IPC. Thereby, they have expressed their inability to arrest the accused. Thereafter, though the warrant was recalled on 08.08.2013, on 26.08.2013, the petitioner was again arrested by the police without warrant and he was produced before the Court. The in charge JMFC directed the police to produce the petitioner before the regular Curt on the next day stating that the police could not have arrested the petitioner when there was no warrant pending. On 27.08.2013, the learned Magistrate after holding that the aforesaid act of the accused amounts to cheating and tampering of the order sheet held that, the petitioner is not entitled to be released and hence remanded him to judicial custody. 5. Being aggrieved by the said order of refusing to release the petitioner, the petitioner has rightly approached this Court under Section 482 of Cr.P.C. contending that once the higher Court grants bail to the petitioner, the trial Court will not have the power to cancel the bail and remanding the petitioner to custody is illegal. 6. 5. Being aggrieved by the said order of refusing to release the petitioner, the petitioner has rightly approached this Court under Section 482 of Cr.P.C. contending that once the higher Court grants bail to the petitioner, the trial Court will not have the power to cancel the bail and remanding the petitioner to custody is illegal. 6. It is submitted by the learned Counsel for the petitioner while arguing the matter that he may be permitted to seek bail under Section 439 of Cr.P.C. and accordingly, the petition came to be amended adding Section 439 of Cr.P.C. to the original prayer for release of the petitioner on bail in Crime No. 8/2013 of Gulbarga Woman's police station. 7. Heard Sri Avinash A. Uploankar, learned Counsel for the petitioner and Sri Sanjay A. Patil, learned Addl. SPP for the State/respondent. 8. Sri Sanjay A. Patil, learned Addl. SPP on the other hand objects for grant of bail on the ground that the petitioner is involved in a heinous offence of committing the atrocity on a woman and the offence has been committed after the recent amendment to the Section376 of IPC has been effected. Hence, he submits that the bail application may be rejected. 9. It is observed that originally the victim had not complained of rape on her and the Woman's police station has developed the case stage by stage from an offence under Section 493 of IPC to the offences under Section 354, 504 and 506 of IPC and later to the offences under Section 376 and 420 of IPC. 10. Having regard to the peculiar circumstances of the case, I am of the opinion that the petitioner may be enlarged on bail. It is observed that once the learned Sessions Judge had granted bail and the accused is released on bail by accepting the surety, the same Magistrate could not have cancelled the same in the same crime number or else, as in the present case, it would give scope to the police to manipulate things and frustrate the orders of the Superior Courts. It is also noted that the police could not have arrested the accused after the warrant was cancelled by the Court on the appearance of the accused on 08.08.2013 and when in fact there was no warrant in the hands of the police as on 26.08.2013. 11. Accordingly, the petition is allowed. It is also noted that the police could not have arrested the accused after the warrant was cancelled by the Court on the appearance of the accused on 08.08.2013 and when in fact there was no warrant in the hands of the police as on 26.08.2013. 11. Accordingly, the petition is allowed. The petitioner is directed to be released on bail on his executing a personal bond for a sum of Rs. 25,000/- with one surety for the like sum to the satisfaction of the learned Magistrate/Sessions Court with the following condition: "The petitioner shall not contact the complainant/victim or her family members nor attempt to dissuade them from deposing against him in the Court."