Allowed

Smt Jyothi v. State of Karnataka

Karnataka HC13 Oct 2022CRL.P/8974/2022

Case brief

AI extract

What is this about?

The High Court enlarged the petitioner on anticipatory bail under Section 438 Cr.P.C. regarding offences under the Immoral Traffic Act and IPC Sections 370/370A. The court granted relief noting a procedural flaw where the lower court wrongly took fresh cognizance of added offences instead of using Section 323 Cr.P.C., and confirmed no risk of witness tampering as trial was complete.

What did the court decide?

Petitioner enlarged on personal bond of Rs. 50,000 with one surety, to surrender within 15 days, appearing regularly, and not leaving jurisdiction without permission.

Smt Jyothi Vs State of Karnataka — Bail and Remand | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF OCTOBER, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE RAJENDRA BADAMIKAR

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CRIMINAL PETITION NO.8974/2022

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BETWEEN:

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SMT. JYOTHI W/O NAVEEN KUMAR AGED ABOUT 25 YEARS, R/AT BHOVI COLONY, KODI CAMP, TARIKERE POST, CHIKKAMAGALURU DISTRICT-577 228.

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...PETITIONER

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(BY SRI NISHIT KUMAR SHETTY, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY TARIKERE POLICE STATION, CHIKKAMAGALURU DISTRICT, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE-560 001.

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...RESPONDENT

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(BY SRI K. NAGESHWARAPPA, HCGP)

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THIS PETITION IS FILED U/S 438 OF CR.P.C, PRAYING TO ENLARGE THE PETITIONER ON BAIL IN THE EVENT OF HER ARREST IN C.C.NO.550/2017 (CR.NO.211/2017) OF TARIKERE TOWN POLICE STATION,

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CHIKKAMAGALURU DISTRICT FOR THE OFFENCE P/U/S 3,4,5 OF IMMORAL TRAFFIC (PREVENTION) ACT AND SECTION 370 AND 370A OF IPC, PENDING ON THE FILE OF THE SENIOR CIVIL JUDGE AND PRL.J.M.F.C, TARIKERE, CHIKKAMAGALURU DISTRICT.

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THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This petition is filed by the petitioner/ accused No.1 under Section 438 of Cr.P.C. seeking anticipatory bail, in the event of her arrest in C.C.No.550/2022 arising out of Crime No.211/2017 of Tarikere police station for the offences punishable under Sections 3, 4, 5 of Immoral Traffic (Prevention) Act, 1956 and Sections 370 and 370A of IPC.

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The brief factual matrix that leading to the case are that the present petitioner is accused No.1 and she was charge sheeted for the offence punishable under Sections 3, 4, 5 of Immoral Traffic (Prevention) Act. The trial was held before the learned Magistrate and during the course of the trial the petitioner was enlarged on bail.

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The learned Magistrate has recorded the evidence of the witnesses and posted the matter for

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judgment. Before, the pronouncement of the judgment, the learned Magistrate noticed that, apart from the offences punishable under Sections 3, 4, and 5 of the Immoral Traffic (Prevention) Act, the provisions of Sections 370 and 370A of IPC are also attracted against the present petitioner. Hence, the learned Magistrate, by order dated 4.3.2022 taken cognizance of the said offences under Section 190(b) of Cr.P.C., for the offence punishable under Section 370 and 370A and issued process against the petitioner/accused No.1 herein. Summons is said to have been served on the petitioner on 7.5.2022 and on 27.06.2022 warrant came to be issued. On 21.06.2022 itself the petitioner moved anticipatory bail petition but the same was rejected vide order dated 11.7.2022. Hence, the petitioner is before this Court.

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Heard the arguments of the learned counsel appearing for the petitioner/accused No.1 and also High Court Government Pleader for respondent State. and perused the records.

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It is evident from the records that the

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petitioner is initially prosecuted in Crime No.211/2017 for the offence punishable under Sections 3, 4, and 5 of the Immoral Traffic (Prevention) Act. FIR was also issued under the said provisions. Subsequently, the charge sheet was also submitted. Further the learned Magistrate after appearance of the petitioner, enlarged her on bail and subsequently charge was framed and the petitioneraccused No.1 is pleaded not guilty. Trial was also conducted and before pronouncement of the judgment, the learned Magistrate came to a conclusion that the offence under Section 370 and 370A of IPC are also attracted. However, after coming to such a conclusion, the learned Magistrate has again directly taken fresh cognizance of the offence under Section 190 (b) of Cr.P.C. for the offence punishable under Section 370 and 370A of IPC, by registering fresh case in C.C.No.550/2017 itself.

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It is surprising to note that the learned Magistrate has taken cognizance twice in the same Crime. No doubt that he was of the opinion that offences under

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Sections 370 and 370A of IPC are also attracted and in the said circumstances, remedy was to exercise power under Section 323 of Cr.P.C. and commit the matter to the Sessions Court for further denova trial. But the learned Magistrate has taken a fresh cognizance of the offence in the same C.C.No.550/2017 which is registered earlier itself and there is no provision for taking second cognizance.

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Apart from that, the trial is already concluded by the learned Magistrate and when he had come to a conclusion that the other offence is triable by the learned Session Judge and required to frame fresh charge against the present petitioner, the remedy was to exercise power under Section 323 of Cr.P.C., which reads as under:

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"323. Procedure when, after commencement of inquiry or trial, Magistrate finds case should be committed ._ If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall, commit it to that Court under the provisions hereinbefore contained and thereupon the provisions of Chapter XVII shall apply to the commitment so made."

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Hence, the entire approach of the learned

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Magistrate was wrong. Apart from that the petitioner was enlarged on bail in C.C.No.550/2017 earlier itself.

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Under these circumstances, I am of the considered opinion, that the petitioner can be admitted for anticipatory bail as there is no issue of tampering of prosecution witnesses since the material witnesses have been already examined and may required to be reexamined before the Sessions Case.

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10. Accordingly, the petition is allowed.

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The petitioner/Accused No.1 is directed to be enlarged on bail in the event of her arrest in C.C.No.550/2017 arising out of Crime No.211/2017 of Tarikere police station for the offences punishable under Sections, 3, 4, 5 of Immoral Traffic (Prevention) Act, 1956 and Sections 370 and 370A of IPC., on her executing personal bond for a sum of Rs.50,000/- (Rupees Fifty Thousand only) with one surety for the like-sum to the satisfaction of the learned Magistrate, subject to the following conditions:

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(i) Petitioner shall surrender herself before the learned Magistrate within fifteen days from the date of receipt of a certified copy of this order and in the event of surrender, the learned Magistrate shall release her on bail as directed above.

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(ii) She shall not indulge in any similar offences.

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(iii) The petitioner has to appear before the concerned Magistrate Court regularly.

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(iv) She shall not leave the jurisdiction of the Court without prior permission.

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(v) The learned Magistrate is directed to proceed in accordance with section 323 of Cr.P.C.

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Sd/JUDGE

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Smt Jyothi v. State of Karnataka

Case brief

What is this about?

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Smt Jyothi v. State of Karnataka

Case brief

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