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2014 DIGILAW 490 (KAR)

State of Karnataka v. K. C. Prabhakar Reddy

2014-04-24

S.N.SATYANARAYANA

body2014
ORDER : S.N. Satyanarayana, J. 1. The complainant in Crl. Misc. No. 25939/2013 on the file of the Fast Track Court-III, Mayo Hall, Bangalore, has come up in this proceeding seeking to quash the order dated 04.11.2013 in rejecting the petition filed by the prosecution under Section 439(2) of Cr.P.C. and consequently modifying the conditions which were earlier imposed on the first respondent while considering his application for grant of anticipatory bail in Cri. Misc. No. 25449/2013 on the file of the FTC-III, Bangalore. 2. The brief facts leading to this criminal petition under Section 482 read with Section439(2) of Cr.P.C. are as under:- The second respondent is said to have filed a suit in O.S. No. 10743/92 for certain reliefs with reference to the property bearing No. 111/5 situated at Kowdenahalli Village, K.R. Puram, Bangalore. It is stated that in the said proceedings, she produced and relied upon a series of documents which were marked as Exs. P. 1 to P. 26, (at this juncture the counsel appearing for the first respondent-accused would try to clarify that the survey number of the property involved is not Survey No. 111/5 but it is Survey Nos. 63 and 63/1 of Kowdenahalli. However, this Court is not concerned with the relevancy of the survey numbers but it is concerned with the alleged act of misrepresentation and impersonation said to have committed in collecting certain documents from the custody of the Court. Therefore, said clarification is irrelevant for considering the present petition under Section 482 of Cr.P.C). It is stated that subsequently the said documents were removed from the custody of the Court by the first respondent with the assistance of one Nagaraj and another advocate by name Suresh by filing a false vakalath and forging signature of the second respondent and by impersonating her detrimental to her right in the suit schedule property in the said proceedings. 3. It is seen that a complaint with reference to that was initially lodged in Crime No. 323/2013 on 06.09.2010 with Ashok Nagar Police which was the subject-matter in Crl. P. No. 979/2012 before a co-ordinate Bench of this Court wherein considering the technical objection with reference to Section 195 of Cr.P.C. the said petition came to be allowed by quashing the complaint in Crime No. 323/2013. P. No. 979/2012 before a co-ordinate Bench of this Court wherein considering the technical objection with reference to Section 195 of Cr.P.C. the said petition came to be allowed by quashing the complaint in Crime No. 323/2013. It is necessary to mention at this juncture that in the operative portion of the aforesaid order dated 26.09.2012, a specific observation was made by this Court as under:- It is open for the second respondent to approach the concerned Court complaining the withdrawal of the documents in O.S. No. 10743/1992 by forging her signature. In such an event, the concerned Court shall take appropriate action in accordance with law. Ordered accordingly. Pursuant to which it is seen that the Officer of the City Civil Court, Mayo Hall lodged a complaint with Ashok Nagar Police in Crime No. 187/2013 for the offences punishable under Sections 468, 419 and 420 read with Section 34 of IPC. 4. When the said complaint was under investigation, it is seen that the first respondent herein who is accused No. 3 in Crime No. 187/2013 filed a petition in Criminal Misc. No. 25449/2013 seeking anticipatory bail under Section 438 of Cr.P.C. which came to be allowed by an order dated 25.04.2013 in granting bail subject to following conditions:- The petitioner is directed to appear before the IO and to co-operate with the Investigating agency. The petitioner shall not commit similar offences. The petitioner shall produce his proof of residential address before the IO at the time of his appearance or at the time of his arrest whatever the case may be. It is stated by the prosecution that several attempts were made by them to secure the presence of A-3, who is R-1 herein, which proved futile, many of the communications sent to him over telephone was ignored, all attempts to serve notice on him was thwarted and he has been eluding the police to receive the said notice. When the notice was ultimately served on him, he appeared before the Investigating Officer along with an advocate and remained non co-operative through out. Though his physical presence was available he was non co-operative through out, which is contrary to the conditions imposed in the order dated 25.04.2013 in Crl. Misc. No. 25449/2013. 5. Hence, it is stated that a petition was filed by the prosecution in Crl. Though his physical presence was available he was non co-operative through out, which is contrary to the conditions imposed in the order dated 25.04.2013 in Crl. Misc. No. 25449/2013. 5. Hence, it is stated that a petition was filed by the prosecution in Crl. P. No. 25939/2013 under Section 439(2) of Cr.P.C. seeking cancellation of bail for two reasons namely the Sessions Court while exercising its discretion for grant of anticipatory bail did not appreciate the material available on record properly and mislead itself to consider the material on record to hold that the offences alleged against the first respondent could not have been attributed to him inasmuch as the original complainant and owner of the property being a lady the first respondent could not have impersonated her and as such making such allegation against him would be in appropriate. It is also stated that there was another erroneous observation that the application for return of documents has already been filed before the City Civil Court and hence, the question of tampering with those documents will not arise for consideration since the aforesaid documents were already taken back from the Court by impersonating the complainant. 6. The endeavour of the prosecution is to locate the said documents, that the material available on record and also the investigation points finger towards Respondent No. 1 as custodian of those documents and also perpetrator of the crime in association with Nagaraju and advocate Suresh advocate in securing the documents from the Court. It is also the case of the prosecution that non appreciation of the material on record has resulted in grant of anticipatory bail to the accused who had dared to the extent of snatching away the Court records under the nose of a Court official with the assistance of an advocate by impersonating complainant-Smt. Mala. However, it is seen that the said line of argument was not found favour by the Sessions Court in Cri. Misc. No. 25449/2013 which felt that under the facts and circumstances the cancellation of bail which was granted earlier is not warranted, instead the same is required to be modified with certain other conditions to be imposed on the petitioner which are as under:- 1. The petitioner-police should serve notice personally upon this respondent fixing the date and time for his appearance before the police-station for the purpose of his interrogation and identification through witnesses. 2. The petitioner-police should serve notice personally upon this respondent fixing the date and time for his appearance before the police-station for the purpose of his interrogation and identification through witnesses. 2. The petitioner-police should produce a copy of the notice served on the respondent personally, before the trial Court. 3. Respondent should appear before the Petitioner-police station in the date and time fixed for his appearance in the police station. Thereafter police may interrogate him and get his identification through witnesses. Then petitioner-police may carry the procedure of nominal arrest of him and to be released on anticipatory bail in terms of the order dated 25.4.2013. 7. Being aggrieved by the said observation of the learned Sessions Judge in Crl. Misc. No. 25939/2013 the prosecution has come up in this petition under Section 482 Cr.P.C. seeking cancellation of anticipatory bail that was granted in favour of first respondent and consequently seeking permission for custodial possession and interrogation of the first respondent herein who is accused No. 3 in Crime No. 187/2013. 8. In this proceeding, the learned Additional SPP, Sri Keshava Murthy reiterate the grounds which were urged before the learned Sessions Judge in Crl. Misc. No. 25939/2013 in his arguments seeking cancellation of anticipatory bail and also try to impress upon this Court that securing the presence of first respondent before the Investigating Officer is a herculean task, inasmuch as he is always evasive in receiving the notices that are sent to him by the police. Though he is informed over the telephone to appear before the Investigating Officer for the purpose of investigation into the offence alleged against him in Crime No. 187/2013, he is not responding to the same. Therefore to complete the investigation into the said complaint, the bail which is granted to first respondent is required to be cancelled. Learned Addl. SPP Sri Keshava Murthy has this day filed a memo with a copy of complaint by one of the witnesses, who has given statement under Section164 of Cr.P.C. with reference to involvement of first respondent along with Nagaraj and Advocate Suresh in stealing the documents from the Court, being threatened by first respondent. It is seen that pursuant to the said complaint, NCR No. 163/2013 is registered, the said documents are taken on record and the contents of the same is perused. 9. According to learned Addl. It is seen that pursuant to the said complaint, NCR No. 163/2013 is registered, the said documents are taken on record and the contents of the same is perused. 9. According to learned Addl. SPP, the aforesaid conduct of the first respondent further strengthen his attitude to confront the investigation agency by violating the conditions of bail in trying to threaten the witness and interfere with the process of investigation which also would work against the interest of investigation agency in securing a proper statement recorded from him. It is further stated that the first respondent being an influential person and politically well connected, is also using all the contacts in trying to destabilize the investigation already commenced which amounts to violation of the conditions of bail that was granted on 25.04.2013 and subsequently re-affirmed with modification on 14.11.2013. 10. Per contra, learned counsel for the first respondent would submit that much has been made out of an ordinary petition, which is got prepared by the investigation agency to secure the cancellation of bail of first respondent. An attempt is also made by the learned counsel for the first respondent to demonstrate that the first respondent has always been diligent and when a criminal complaint is falsely lodged against him in the first instance, he has appeared before the Court and secured an order of quashing the same against him and in the complaint which is subsequently registered pursuant to the direction issued in the order passed in Criminal Petition No. 979/2012, he has been assisting the investigating agency in recording his statement. He also submits that on more than one occasion, the first respondent was present before the investigating agency along with an advocate for the purpose of assisting the investigation into the alleged offence. 11. It is also stated by him that more than one criminal prosecution is lodged against him. According to him, in addition to complaint registered in Crime No. 189/2013 pursuant to the direction issued in Criminal Petition No. 979/2012, another complaint is registered against him in Crime No. 427/2013 and that the investigation agency is trying to tear him between these two complaints in the guise of investigation and also trying to make reckless allegation against him without any basis. The attitude on the part of the investigation agency is to somehow fix him in more than one proceeding, hence this petition is filed by the prosecution seeking cancellation of bail, which is nothing but an attempt to harass the accused, hence the same is liable to be dismissed. 12. Heard the learned Additional SPP, Sri Keshava Murthy for State, learned counsel for first respondent, Sri S. Shankarappa and also learned counsel Sri Monesh Kumar, appearing for second respondent - original complainant, who is said to have lost the documents in the original suit. On going through the material on record, it is seen that the first respondent herein is accused of an offence in impersonating the second respondent with the assistance of Nagaraj and Suresh in stealing Exs. P-1 to P-26 which are produced and marked as exhibits in O.S. No. 10743/1992. It is not in dispute that the complaint which was originally registered in Crime No. 323/2011 is quashed due to technical reason under Section 195 of Cr.P.C. It is further not in dispute that the second FIR is registered against him in Crime No. 427/2013 pursuant to direction issued by this Court in Criminal Petition No. 979/2012. It is also not in dispute that as and when the said complaint is registered, he immediately approached the learned Sessions Court in seeking anticipatory bail by filing an application under Section 438 of Cr.P.C. and in a proceeding initiated in Crl. Misc. No. 25449/2013, the anticipatory bail is granted in his favour by the Sessions Court. 13. However, while going through the said order, it is clearly seen that there is a gross error on the part of the learned Sessions Judge in appreciating the materials available on record to consider or otherwise the prayer for anticipatory bail. It is seen that the learned Sessions Judge in his haste to grant the relief of anticipatory bail to the first respondent herein has jumped into conclusion and has misled himself to jump into the conclusion like the first respondent could not have been involved in impersonating the second respondent herein for withdrawal of Exs. P-1 to P-26 from the City Civil Court with the assistance of mediators, Nagaraj and Advocate Suresh. P-1 to P-26 from the City Civil Court with the assistance of mediators, Nagaraj and Advocate Suresh. It is also seen that there is lack of application of mind on the part of the learned Sessions Judge, which has resulted in him observing in the said order "anyhow, the application for returning of the documents has already been filed before the Court of law and hence, the question of tampering the document will not arise." This clearly indicates that the Sessions Judge has not even gone through the materials available on record to consider the application of the first respondent herein for grant of anticipatory bail. 14. In the present complaint pending investigation allegations against accused is quite serious in nature i.e., he is said to have stolen the Court record with the assistance of one Nagaraj and Advocate Suresh in taking away the documents at Exs. P-1 to P-26 produced and marked in O.S. No. 10743/1992. When admittedly the complaint shows that the said documents were taken away by impersonating the second respondent, the presumption on which the Sessions Court has proceeded with in view of the petition being filed seeking return of the documents, the said documents would not get tampered appears to be meaningless. The mechanical manner in which the learned Sessions Judge has considered the same, shows there being absolutely no application of mind and hence, the order suffers from lack of application of mind in not perusing the records properly before considering the prayer for anticipatory bail. Further it is seen that the conditions which are culled out above are also not proper and stringent considering the nature of offence alleged against the first respondent and others. The Court below has considered the said application in such a casual and frivolous manner, much is required to be said about the manner in which particular Judge has dealt with the matter. 15. It is further seen that subsequent to grant of bail, several attempts are made to secure the presence of first respondent herein before the Investigating Officer for the purpose of recording his statement and also to investigate into the alleged offence of taking away the documents from the premises of the Court under impersonation with the assistance of Nagaraj and Advocate Suresh. It is seen that there is hardly any support by the first respondent either in appearing before the Investigating Officer or in assisting the Investigating Officer in furnishing the information that are required to be furnished in the form of statement or other answers to the posing question during the period of investigation. Instead, there is an attempt to make allegations against the prosecution to state that one more complaint is registered against him and he has made to shuttle between two Investigating Officers. This Court for the purpose of going into the bottom of the case, ascertained as to what is there in the complaint pending in Crime No. 427/2013. Though it is not relevant for the present, for the purpose of clarifying the defence raised in this proceeding, it is necessary to touch upon the complaint in Crime No. 427/2013. 16. The case of the prosecution is that the first respondent, K.C. Prabhakar Reddy, after having taken away the documents in Exs. P-1 to P-26, got the very same property registered in his name under a registered Sale Deed said to have executed by Chitra Anna Swamy, original owner. According to the prosecution, the signature of Chitra Anna Swamy, on the said document and other related documents is tampered inasmuch as she is bed ridden and not in a position to move and the first respondent with the assistance of some persons, i.e., Nagaraj and advocate, Suresh, secured the Sale Deed in his favour by utilizing the forged signature of aforesaid lady. When the heat built up in filing complaint against him, it is stated first respondent has tried to pass it on to his relative, one Venugopala Reddy, who happens to be an employee of a factory, not a person having means to mobilize a sum of Rs. 40,00,000/- and it is projected as if he has purchased the same by referring to certain cheque numbers as payment towards such payment, which is not in existence. Hence a complaint is lodged in Crime No. 427/2013 and considering the gravity of the offence in the said complaint, the same is referred for investigation by A.C.P., of K.R. Puram Police Station, within whose jurisdiction, the property is situated. 17. Hence a complaint is lodged in Crime No. 427/2013 and considering the gravity of the offence in the said complaint, the same is referred for investigation by A.C.P., of K.R. Puram Police Station, within whose jurisdiction, the property is situated. 17. This Court is unable to understand how a complaint which is registered in Crime No. 427/2013 pursuant to a sale transaction between K.C. Prabhakar Reddy and Venugopala Reddy, would come in the way of first respondent's appearance before the Investigating Officer so far as the investigation into Crime No. 187/2013 with reference to theft of Exs. P-1 to P-26. Be that as it may. Now the point for consideration in this petition is whether K.C. Prabhakar Reddy, first respondent herein is diligent in appearing before the Investigating Officer and assisting the investigating agency to go into the bottom of the offence alleged against him and others so far as it pertains to stealing of the documents with the help of Court officials by impersonating the second respondent, is required to be looked into by this Court. 18. On going through the same, it is seen that there appears to be force in the arguments advanced by the learned Additional SPP. As could be seen, the offence is said to have committed in October, 2010 and we are in the year 2014. The prosecution which was launched earlier was rightly struck down by this Court for technical reason under Section195 of Cr.P.C. Therefore, no advantage can be taken by the accused so far as quashing of the earlier complaint. Further it is seen that while quashing the proceeding, this Court did not give any finding to the effect that Prabhakar Reddy is innocent of the said offence, instead, it is observed, to ascertain the extent of involvement of the accused in the said offence is to be investigated into under a separate complaint to be filed by the Court officials of City Civil Court, Mayo Hall, Bangalore, pursuant to which complaint in Crime No. 137/2013 is registered. It is seen right from the time of registering the complaint in Crime No. 137/2013, the first and foremost thing the first respondent is said to have done is, approaching the learned Sessions Judge in filing an application to secure his so called personal liberty. It is seen right from the time of registering the complaint in Crime No. 137/2013, the first and foremost thing the first respondent is said to have done is, approaching the learned Sessions Judge in filing an application to secure his so called personal liberty. While doing so, he has misled the Sessions Court to believe that the documents are still available with the Court and the application which is filed by the second respondent for return of the same could be considered by the Court while the original suit is pending. He also tried to convince this Court that he could not have indulged in any act of tampering with the said documents and convinced the Court in granting anticipatory bail to him with minimum conditions as observed supra. 19. It is seen that subsequently inspite of notices and communications to him, he has not appeared before the investigating agency and he is not assisting the Investigating Officer in conducting a fair and proper investigation into the matter. It is also seen that even when he has appeared before the investigation agency, it is always under the guidance of his advocate, which has come in the way of a fair and proper investigation by the investigation agency into the offence alleged against the first respondent and others. Therefore, anticipatory bail, which is granted in his favour is virtually used as a sword by him and the same is used as sword against the Investigating Officer in stalling the investigation taken up against him and others. 20. It is also seen that he has blatantly violated the bail conditions in trying to tamper with the witness, i.e., one of the witnesses, who has given a statement recorded under Section164 of Cr.P.C., is sought to be threatened by the first respondent herein detriment to the investigation. In the circumstance, this Court will have to consider the attitude of the first respondent with reference to the judgments relied upon by the prosecution and as well as counsel for the first respondent. 21. Learned prosecutor relied upon the following Judgments in support of his prayer for cancellation of bail and though he has given a list of seven judgments, most important of them could be one in the matter of Ram Govind Upadhyay Vs. 21. Learned prosecutor relied upon the following Judgments in support of his prayer for cancellation of bail and though he has given a list of seven judgments, most important of them could be one in the matter of Ram Govind Upadhyay Vs. Sudarshan Singh and Others, reported in 2002 Crl.L.J. 1849 and another judgment in the matter of State of Kerala Vs. K.R. Suraj, reported in 2004 Crl.L.J. 1995, wherein the Apex Court has observed under what circumstances, cancellation of bail can be considered by this Court, which being a serious infringement to the personal right and liberty and how judiciously the same is required to be considered is dealt at length. While doing so, they have also observed that the gravity of offence is not an essential thing, it is the conduct of the accused, which is required to be looked into to consider the prayer for cancellation of bail. 22. Per contra, learned counsel appearing for the first respondent would rely upon the judgment of the Apex Court in the matter of Bhagirathsinh, S/o. Mahipat Singh Judeja Vs. State of Gujarat, reported in 1984 Supreme Court Cases (Crl.) 63 and in the matter of Samarendra Nath Bhattacharjee Vs. State of West Bengal and another reported in AIR 2004 Supreme Court 4207. Though the judgments which are relied upon by the prosecution, as stated supra, would deal with the manner in which application for cancellation of bail should be considered, it is seen how it should be considered in the Judgment which are referred to by the learned counsel for the first respondent. The first of which is in the matter of Bhagirathsinh, S/o. Mahipat Singh Judeja Vs. State of Gujarat, reported in 1984 Supreme Court Cases (Crl.) 63, wherein a cancellation of bail did not find favour with the Apex Court, for the following reasons, which is enumerated in Para. No. 7 and reads thus: 7. In our opinion, the learned Judge appears to have misdirected himself while examining the question of directing cancellation of bail by interfering with a discretionary order made by the learned Sessions Judge. No. 7 and reads thus: 7. In our opinion, the learned Judge appears to have misdirected himself while examining the question of directing cancellation of bail by interfering with a discretionary order made by the learned Sessions Judge. One could have appreciated the anxiety of the learned Judge of the High Court that in the circumstances found by him that the victim attacked was a social and political worker and therefore the accused should not be granted bail but we fail to appreciate how that circumstance should be considered so overriding as to permit interference with a discretionary order of the learned Sessions Judge granting bail. The High Court completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before it was for cancellation of the bail. Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail and the trend today is towards granting bail because it is now well-settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. The order made by the High Court is conspicuous by its silence on these two relevant considerations. It is for these reasons that we consider in the interest of justice a compelling necessity to interfere with the order made by the High Court. In another matter, i.e., in the matter of Samarendra Nath Bhattacharjee, the Apex Court felt that the High Court in its inherent power to cancel the bail, has dwelt into the merits of the case and decided the application as if it is sitting in the Judgment over acquittal. In the instant case, barring with the other observation in those Judgments, it would enure to the benefit of the prosecution regarding how an application should be considered for cancellation of bail. 23. In the instant case, barring with the other observation in those Judgments, it would enure to the benefit of the prosecution regarding how an application should be considered for cancellation of bail. 23. On going through the aforesaid Judgments, it is clearly-seen that in the instant case, there is an attempt on the part of first respondent in not appearing before the police as and when he is called upon to appear and to assist the investigation agency in the process of investigation. There is also an attempt on his part in trying to threaten the witnesses, inasmuch as committing the breach of conditions of anticipatory bail that were imposed on him and subsequently modified. Therefore, considering all these aspects, this Court is of the opinion that the bail, which was granted in his favour by order dated 25.04.2013 and subsequently modified by order dated 14.11.2013 is required to be cancelled and he shall be subjected to custodial interrogation by the prosecution. In view of the cancellation of bail, the prosecution shall forthwith take the first respondent into custody and shall subject him to investigation for a period of fifteen days at the first instance. With the aforesaid observations, this petition filed by the prosecution is accordingly allowed.