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2019 DIGILAW 182 (KAR)

MOHAMMED ILYAS v. STATE OF KARNATAKA

2019-01-16

H.P.SANDESH

body2019
JUDGMENT H.P. Sandesh, J. I have heard the arguments of the petitioner's counsel and also the learned HCGP for respondent-State. 2. The factual matrix of the case is that, when the A.S.I. went to the house of this petitioner in connection with non-bailable warrant issued against him on 20/10/2018, this petitioner was there in the house and his family members came and informed that he is not in the house and when the police started searching him he ran away from the backside door. The family members made galata with the A.S.I. and abused him in filthy language and thereafter, when he was outside the house, again this petitioner came along with others and started to assault him and also tried to strangulate him and immediately, he came and took the treatment in the hospital and thereafter, lodged the complaint and police have registered the case against the petitioner. The main contention of the petitioner is that the petitioner is an innocent and he is a law abiding citizen and he was not present on the spot, but, the name of the petitioner has been falsely implicated and on the date of the alleged incident, the petitioner not at all gone to the said alleged place of incident and false case has been registered against this petitioner and there is no bar to grant the anticipatory bail in favour of the petitioner and there are no any ingredients to invoke Section 307 of IPC and prayed this Court to enlarge them on bail and he is ready to obey the conditions that may be imposed by this Court. 3. Per contra, the learned High Court Government Pleader appearing for the respondent-State in his arguments contends that this petitioner is a habitual offender and there are four cases are before Hubli police and out of four cases two cases against this petitioner are preventing the Government official in discharging the duty and there are prima facie material to believe the case of the prosecution and the petitioner is not entitled for bail. Hence, prays for dismissal of the petition. 4. Hence, prays for dismissal of the petition. 4. In reply to the arguments the petitioner's counsel contends that though the Sessions Judge also rejected the bail application of other petitioner, subsequently, on 7/12/2018 granted bail and further contends that the other accused also approached this Court by Filing crl.P.No.102357/2018 and this Court allowed the petition filed under Section 439 of Cr.P.C. and released him on bail considering the nature of the offence and custody of the petitioner. Hence, prayed this Court to enlarge the petitioner on bail. 5. Having heard the arguments of the learned counsel for the petitioner and also learned HCGP appearing for the respondent-State, the point that arise for my consideration is whether this Court can exercise the powers under Section 438 of Cr.P.C. 6. The factual matrix of the case is that the case discloses that in connection with non-bailable warrant issued against this petitioner, the complainant went along with his staff to the house of this petitioner and further allegation that though he was in the house, he ran away from the backyard and again he came back and assaulted the complainant. 7. The learned HCGP also brought my notice that the injured A.S.I. took the treatment on the same day at KIMS Hospital, Hubli, and the wound certificate discloses that he has sustained tenderness over chest and over right leg. He was treated on OPD basis. 8. Having taken note of the nature of allegation made in the complaint that too the petitioner has prevented the A.S.I. in discharging of his duties, in connection with the non-bailable warrant issued against the petitioner and also assaulted the A.S.I. and records also reveal that there are four cases are registered against him. 9. The petitioner's counsel contends the case of the Maharastra Court is under Section 138 of N.I. Act, and the HCGP in his contention contends that the similar case was registered against this petitioner and prevented the bank official in recovery of the advance amount and he is a habitual offender. 10. 9. The petitioner's counsel contends the case of the Maharastra Court is under Section 138 of N.I. Act, and the HCGP in his contention contends that the similar case was registered against this petitioner and prevented the bank official in recovery of the advance amount and he is a habitual offender. 10. For having taken note of the allegation made in the complaint and the offences alleged against the petitioner is not punishable with life imprisonment or with death sentence and regarding preventing of the A.S.I. in discharging of duty has to be tested in trial and the offence invoked against the petitioner is though under Section 307, allegation of strangulation is made, and the same has to be tested in trial and the A.S.I. took the treatment in KIMS, Hospital, and discharged on the same day and injuries are only tenderness over the chest and right leg and having considered the complaint averments and circumstances under which the incident is taken place, I am of the opinion that it is a fit case to grant anticipatory bail by exercising the powers under Section 438 of Cr.P.C., subject to certain conditions to safeguard the interest of the prosecution. In view of the discussions made above, I pass the following: ORDER (i) The criminal petition is allowed. (ii) The petitioner is directed to appear before the Investigating Officer within fifteen days from the date of receipt of copy of this order. (iii) The petitioner shall be released on executing a personal bond in a sum of Rs.50,000/-(Rupees Fifty Thousand Only) with one surety for the like-sum to the satisfaction of the Investigating Officer/Court on his appearance. (iv) The petitioner shall not indulge or tamper the prosecution witnesses. (v) The petitioner shall not indulge in similar crime. (vi) The petitioner shall assist the I.O. to complete the investigation. (vii) The petitioner shall mark his attendance on 15th of every month before the concerned Police Station till filing of charge sheet.