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2020 DIGILAW 1783 (KAR)

Bhima v. State Of Karnataka

2020-09-10

SHIVASHANKAR AMARANNAVAR

body2020
JUDGMENT Shivashankar Amarannavar, J. - This criminal petition is filed by the petitionersaccused Nos.1 to 3 under Section 438 Cr.P.C. praying to release them on anticipatory bail in Crime No.202/2019 of Raibag Police Station for the offences punishable under Sections 417, 418, 420, 423, 465, 504, 506 r/w Section 34 of IPC. 2. The case of the prosecution is that one Rayappa Bheemappa Hirekodi has filed Private Complaint No.2/2019 before Prl. Civil Judge and JMFC., Raibag against petitioners-accused Nos.1 to 3 and another for the offences punishable under Section 417, 418, 420, 423, 465, 504, 506 r/w Section 34 of IPC. The said complaint came to be referred to Police for investigation. Police have registered the said complaint in Raibag Police Station Crime No.202/2019 on 19.11.2019 for the aforesaid offences. In the complaint it is alleged that complainant is permanent resident of Nidagundi and his land is situated within the village limits of Bommanal village in Raibag Taluka and accused are his bahubands (relatives). The complainant further alleges that the names of himself and one Bhima Shivageni Hirekodi, Bhairu Shivageni Hirekodi, Nagavva Shivageni Hirekodi, Siddavva Mallappa Kurbar and Manigeni Bhimappa Hirekodi were entered as joint owners in land R.S.No.7/2 measuring 1 acre 20 guntas situated at Bommanal village, Taluk Raibag and accused No.3 is no way concerned to the family of the complainant as well as to the above said land. The complainant and accused and others were in actual possession, wahiwat and enjoyment over the above said land and growing sugarcane crops. The accused Nos.1, 2 and 4 colluding with accused No.3 have played fraud, misrepresentation and cheating upon the complainant and have created a false, fabricated and illegal document styled as General Power of Attorney before Sri.D.M.Naik, Advocate and Notary, Raibag and accused No.3 not having any rights over the above said land colluded with each other and falsely shown the complainant is executing the GPA in favour of accused No.1. The accused No.1 to 4 have affixed the photo of accused No.3 on 5th page of GPA and accused No.3 signed on the photo of accused No.3 as RBH before Sri.D.M.Naik, Advocate and Notary, Raibag on 04.04.2018. The accused No.1 to 4 have affixed the photo of accused No.3 on 5th page of GPA and accused No.3 signed on the photo of accused No.3 as RBH before Sri.D.M.Naik, Advocate and Notary, Raibag on 04.04.2018. The complainant also alleges that on the basis of bogus fabricated GPA the accused Nos.1 to 4 have appeared before Sub Registrar, Raibag and got executed sale deed in favour of one Shivappa Rama Konkani on 07.04.2018 wherein the accused No.1 has signed on registered sale deed as Ramappa Bhimappa Hirekodi who is present complainant. The accused Nos.1 to 4 have played fraud upon the Notary as well as before Sub Registrar, Raibag by hiding true facts. It is further alleged that in the month of April-2018, he came to the know about illegal acts of petitioners and immediately the complainant approached to the petitioners and asked them about the illegal acts made by them at that time the petitioners used un-parliamentary words against the complainant and also given him life threat, hence, the complainant approached jurisdictional Police at Raibag to lodge a complaint but the Police have told him to approach the Court as the matter of Civil nature. Therefore, the complainant has filed the private complaint under Section 200 of Cr.P.C. against the present petitioners before Prl. Civil Judge and JMFC, Raibag for the alleged offences punishable under sections 417, 418, 420, 423,465, 504, 506 r/w Section 34 of IPC and the Court has referred the matter to Raibag Police and the Raibag Police have filed the FIR. The Investigating Officer is trying to arrest the petitioners and there is an apprehension of their arrest. The petitioners have filed petition seeking anticipatory bail in Crl. Misc. No.295/2020 before Principal Sessions Judge, Belagavi and the same came to be rejected vide order dated 09.03.2020. Therefore, the petitioners are before this Court seeking bail. 3. Heard the learned counsel appearing for the petitioners-accused Nos.1 to 3 and also the learned HCGP for the respondent-State. 4. The learned counsel for the petitioners submitted that petitioners-accused Nos.1,2 and 4 are co-owners of R.S.No.7/2 measuring 1 acre 20 guntas. It is his further submission that petitioners have not committed any forgery and created any documents as alleged by complainant. It is his further submission that the case of the prosecution is based on the documents. 4. The learned counsel for the petitioners submitted that petitioners-accused Nos.1,2 and 4 are co-owners of R.S.No.7/2 measuring 1 acre 20 guntas. It is his further submission that petitioners have not committed any forgery and created any documents as alleged by complainant. It is his further submission that the case of the prosecution is based on the documents. It is his further submission that as FIR is registered against them they apprehend their arrest. It is his further submission that if the petitioners are not granted with anticipatory bail, they will be arrested and put to harassment by the Police. With this he prays to allow the petition. 5. Per contra, the learned HCGP has contended that the petitioners in collusion with another have created GPA impersonating the complainant and sold property belonging to the complainant in R.S.No.7/2 measuring 1 acre 20 guntas and cheated the complainant. It is her further submission that since registration of the FIR, petitioners are not available for investigation and they are absconding. It is her further submission that as the petitioners have created the documents and cheated the complainant, it is not a fit case to grant anticipatory bail. With this she prays to reject the petition. 6. Having regard to the submission made by learned counsel for the petitioners-accused Nos.1 to 3 and learned HCGP, this Court has gone through the FIR and Complaint. 7. With this she prays to reject the petition. 6. Having regard to the submission made by learned counsel for the petitioners-accused Nos.1 to 3 and learned HCGP, this Court has gone through the FIR and Complaint. 7. In Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) AIR SC 312 , the Hon'ble Supreme Court after analyzing various previous judgments and guidelines, has enumerated the following factors and parameters that can be taken into consideration by courts while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of sections 34 and 149 of the Penal code, 1860, the court should consider with even greater care and caution because over-implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 8. 8. It is alleged that the accused Nos.1 to 4 have created GPA in favour of accused No.1 impersonating the complainant and subsequently accused No.1 executed sale deed in favour of Shivappa Rama Konkani in respect of R.S.No.7/2 measuring 1 acre 20 guntas belonging to the complainant. The complainant has filed a Private Complaint in PCR No.2/2018 before Prl. Civil Judge, Raibag and the said complaint came to be referred to Raibag Police for investigation and the Police have registered the same in Crime No.202/2019 of Raibag Police Station for the offences punishable under Sections 417, 418, 420, 423, 465, 504, 506 r/w Section 34 of IPC showing the name of petitioner Nos.1 to 3 as accused Nos.1 to 3 and one more Shankar Manigini Hirekodi as accused No.4. As the FIR registered against the petitioners they apprehend their arrest. The case of the complainant is based on documents. The offences alleged are not punishable with death or imprisonment for life. Whether the petitioners have committed the offences alleged against them can only be ascertained after investigation and trial. 9. In the facts and circumstances of the case and submission of the counsel, this Court is of the view that there are valid grounds for grant of anticipatory bail subject to certain terms and conditions. Hence, I pass the following: ORDER Criminal petition filed under Section 438 of Cr.P.C. is allowed. In the event of arrest, petitioners/accused Nos.1 to 3 are ordered to be released on bail in connection with Crime No.202/2019 of Raibag Police Station with the following conditions: I. Petitioners shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh Only) each with one surety for the like sum to the satisfaction of the Investigating Officer. II. Petitioners shall surrender before the Investigating Officer within fifteen days from today. III. The petitioners shall co-operate with the investigation and make themselves available for interrogation whenever required. IV. The petitioners shall not directly or indirectly make any inducement, threat or promise to any witness acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police Officer. V. The petitioners shall not obstruct or hamper the Pol ice investigation and not to play mischief with the evidence collected or yet be collected by the Police. VI. V. The petitioners shall not obstruct or hamper the Pol ice investigation and not to play mischief with the evidence collected or yet be collected by the Police. VI. The petitioners shall mark their presence before the Police station concerned on second Sunday of every month between 10 a.m. to 2 p.m. for a period of six months from the date of this order.