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Karnataka High Court · body

2020 DIGILAW 1920 (KAR)

G. D. Harakumar v. Commissioner Of Police Infantry Road State Of Karnataka

2020-09-30

B.A.PATIL

body2020
JUDGMENT B.A. Patil, J. - The present petition has been filed by petitioners/accused Nos.1 to 10 under Section 438 of Cr.P.C., to release them on anticipatory bail by quashing the order dated 11.06.2020 passed in Criminal Misc.No.2688/2020 passed by LXXI Additional City Civil and Sessions Judge, Bengaluru. 2. I have heard Sri. K.B. Naveen Kumar, learned counsel for petitioners/accused Nos.1 to 10 and the learned HCGP Sri. M. Divakar Maddur, for the respondent No.1 State. 3. It is the submission of the learned counsel for petitioners/accused Nos.1 to 10 that petitioner/accused No.5 got married with Smt. Keerthana @ Pooja N.G. on 29.11.2017 and he is working in Jog Falls as a Government servant. Subsequently, after the marriage, the wife of petitioner/accused No.5 joined the matrimonial home and marriage was not consummated. Even though petitioner/accused No.5 tried to convince her but she was not ready to co-operate and refused to share the bed. She was not in the habit of cooking the food, cleaning the house and looking after the parents of petitioner/accused No.5 and she also used to abuse petitioner/accused No.5 and the in laws with filthy language. He further submits that she was having an illicit relationship with the another person and in that light, she has left the house and now she is residing in her parental house. It is his further submission that wife of petitioner/accused No.5 has also filed a domestic violence case in Criminal Misc.No.99/2020 before Additional Civil Judge and JMFC, Tarikere and there also serious allegations have been made for having taken the dowry and other material. It is his further submission that they are scared that at any time the police may apprehend petitioner/accused No.5. If the police are going to apprehend petitioner/accused No.5, who is a Government servant in that event he may be loosing his job. He further submits that petitioners/accused Nos.1 to 10 are ready to abide by any of the conditions that may be imposed by this Court and they are ready to offer the sureties. On these grounds, he prays to allow the petition and to release petitioners/accused Nos.1 to 10 on bail. 4. Per contra, the learned HCGP vehemently argued and submitted that there is no apprehension of the petitioners being arrested and that he has got a report from the jurisdictional police that no case has been registered as against the petitioners. On these grounds, he prays to allow the petition and to release petitioners/accused Nos.1 to 10 on bail. 4. Per contra, the learned HCGP vehemently argued and submitted that there is no apprehension of the petitioners being arrested and that he has got a report from the jurisdictional police that no case has been registered as against the petitioners. There is no apprehension of they being arrested in any crime and the petition is liable to be dismissed. 5. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records. 6. By going through the records except the fear, there is no material to show that the petitioners are likely to be arrested in any case. If there is any likelihood of they being arrested, then the Court can reasonably believe that they may be apprehended then under such circumstances, the Court can grant anticipatory bail. In so far as this preposition of law is concerned, I am not having any difference of opinion. 7. On perusal of the records and submissions made by the learned counsel that there is a case which has been registered under the Domestic Violence Act. Merely because a case has been registered under the Domestic Violence Act then it amounts to only a fear and not an apprehension that they being arrested. In the case of Gurubaksh Singh Sibbia Vs. State of Punjab, (1980) AIR SC 1632 it has been observed by the Hon'ble Apex Court that the Court has to come to the conclusion that if there is any likelihood of the applicant being arrested, the Court can grant anticipatory bail. It has been further observed that blanket order of anticipatory bail should not be generally granted. This preposition of law has also been laid down in the case of Adri Dharan Das Vs. State of West Bengal, (2005) AIR SC 1057 wherein at paragraph No.16, it is held as under: "16. Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead, innocence, since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail. Section 438 is a procedural provision which is concerned with the personal liberty of an individual who is entitled to plead, innocence, since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has 'reason to believe' that he may be arrested in a nonbailable offence. Use of the expression 'reason to believe' shows that the applicant may be arrested must be founded on reasonable grounds. Mere "fear" is not 'belief' for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that someone is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief on the applicant is based that he may be arrested in non-bailable offence must be capable of being examined. If an application is made to the High Court or the Court of Session, it is for the Court concerned to decide whether a case has been out for granting the relief sought. The provisions cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. Normally a direction should not issue to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever". Such 'blanket order' should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 438 is a device to secure the individual's liberty it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. An order under Section 438 is a device to secure the individual's liberty it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. On the facts of the case, considered in the background or legal position set out above, this does not prima facie appear to be a case where any order in terms of Section 438 of the Code can be passed." 8. On close reading of the aforesaid paragraph it clearly indicates that use of expression "reasons to believe" shows that the applicants may be arrested must be founded on reasonable grounds. Mere "fear" is not sufficient for the Court to exercise power under Section 438 of Cr.P.C., and direction cannot be issued to the effect that the applicant shall be released on bail whenever he is arrested for whichever offence whatsoever. 9. Keeping in view the said proposition of law, there is no reason to believe that the petitioners are likely to be apprehended in a particular crime and a blanket order cannot be passed in this behalf. In the light of the discussion held by me above, the petition is liable to be dismissed and accordingly it is dismissed . 10. However, liberty is reserved to the petitioners in the event, any case has been registered as against them, they can approach the Court for grant of anticipatory bail.