Partly allowed

Sri Sandeep Gururaj v. the Station House Officer

Karnataka HC24 Jan 2024WP/1530/2024

Case brief

AI extract

What is this about?

Accused No.3 challenged an NBW issued by the Magistrate in C.C.No.23541/2019 after quashing petitions were dismissed. The High Court set aside the NBW, noting the petitioner had earlier sought bail and appeared repeatedly, permitted him to revive or file a fresh bail/anticipatory bail application within ten days with interim protection.

What did the court decide?

Order dated 10.01.2024 issuing NBW obliterated; liberty to revive or file fresh bail/anticipatory bail application within 10 days; interim protection till filing.

Sri Sandeep Gururaj Vs the Station House Officer — Quashing and FIR | Karnataka HC (2024)

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NC: 2024:KHC:3467 WP No. 1530 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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WRIT PETITION NO. 1530 OF 2024 (GM-RES)

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BETWEEN:

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SRI SANDEEP GURURAJ SON OF S V GURURAJ, AGED ABOUT 42 YEARS, RESIDING AT B-04, V K RESIDENCY DR SHIVARAMKARANTH ROAD, CHIKKALSANDRA BANGALORE 560004.

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…PETITIONER

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(BY SRI. GAUTHAM SHREEDHAR BHARADWAJ.,ADVOCATE)

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AND:

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Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA

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THE STATION HOUSE OFFICER CUBBON PARK POLICE STATION, REPRESENTED BY ITS SPECIAL PUBLIC PROSECUTOR.

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SRI SAURABH KUMAR SINGH SON OF VIJAY SHANKAR SINGH, AGED ABOUT 45 YEARS, RESIDING AT T3/401, PARSVNATH PRESTIGE-2, SECTOR 93A, NOIDA, UTTAR PRADESH - 201304.

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…RESPONDENTS

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(BY SMT. K. P. YASHODHA, HCGP FOR R1; SRI. ATMARAM N. S. NADAKARNI, SR. ADV. A/W SRI. SUNIL KUMAR PATEL AND SRI. R. CHANDRACHUD, ADVs. FOR SRI. S. K. VENKATA REDDY, ADV. FOR R2)

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NC: 2024:KHC:3467 WP No. 1530 of 2024

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ORDER DTD 10.01.2024 PASSED IN C.C.NO.23541/2019 PENDING ON THE FILE OF VIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE AT BENGALURU, WHEREIN A NON-BAILABLE WARRANT (NBW) CAME TO BE ISSUED AGAINST PETITIONER - ACCUSED NO.3. THE CERTIFIED COPY OF THE ORDER DTD 10.01.2024 PASSED IN C.C.NO.23541 OF 2019 IS PRODUCED AS ANNEXURE-A. AND ETC.

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THIS PETITION, COMING ON FOR 'FRESH MATTERS LIST', THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court calling in question an order dated 10.01.2024 passed in C.C.No.23541/2019 by the learned Magistrate issuing a Non-bailable Warrant (NBW) against the petitioner/accused No.3 in the aforesaid C.C.No.23541/2019.

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Heard Sri. Gautham Shreedhar Bharadwaj, learned counsel for the petitioner, Smt. Yashodha K. P., learned HCGP for respondent No.1, Sri. Atmaram N. S. Nadakarni, learned Senior counsel along with Sri. Sunil Kumar Patel and Sri. R. Chandrachud, learned counsel for Sri. S. K. Venkata Reddy, learned counsel appearing on behalf of respondent No.2.

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NC: 2024:KHC:3467 WP No. 1530 of 2024

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Sans details, facts in brief, are as follows:-

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The petitioner is accused in three crimes. The present case concerns Crime No.137/2019 in which the petitioner is accused No.3. The crime was registered on 23.07.2019 for the offence punishable under Sections 120B, 420, 423, 465, 468, 471, 506 and 149 of IPC. The petitioner then was in judicial custody during the tenure when the police conducted investigation and filed charge sheet before the concerned Court in Crime No.137/2019 in C.C.No.23541/2019, which is pending before the concerned Court. The petitioner was also an accused in Crime No.257/2018 in which the Apex Court enlarged him on bail in terms of an order dated 18.01.2021. By then certain proceedings had happened before the concerned Court in Crime No.137/2019.

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4. On 29.07.2019, production warrant was issued by

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the learned Magistrate to produce the petitioner before the Court on 02.08.2019. As he was in judicial custody in

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NC: 2024:KHC:3467 WP No. 1530 of 2024

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Crime No.257/2018 and as the Apex Court had not yet considered enlarging him on bail as on the said date, body warrant was executed and the petitioner was produced before the learned Magistrate on 02.08.2019. Learned Magistrate on the said date, remanded the petitioner to police custody till 14.08.2019. On 14.08.2019, the learned Magistrate later remands the petitioner to judicial custody and judicial custody was extended from time to time.

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Charge sheet was filed against the petitioner and five others on 03.10.2019 and an additional charge sheet was filed on 12.01.2021. The petitioner then files an application seeking enlargement on bail under Section 437 of Cr.P.C before the concerned Court and pleads that it should be kept in abeyance and therefore, there was no order granting bail in favour of the petitioner on his own volition in Crime No.137/2019. He then approaches this Court in Crl.P.No.7767/2021 seeking grant of anticipatory bail in Crime No.137/2019. This Court by the following order dismisses the petition reserving liberty to the

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NC: 2024:KHC:3467 WP No. 1530 of 2024

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petitioner in the event, he would not succeed in the Criminal Petition, to approach the Court for grant of anticipatory bail. The order reads as follows:-

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"ORDER

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This petition is filed by the petitioneraccused No.3 under Section 438 of Cr.P.C., for granting anticipatory bail in Crime No.137/2019 of Cubbon Park Police Station for the offences punishable under Sections 120B, 420, 149, 465, 468, 471, 506 of Indian Penal Code, 1860 (for short 'IPC').

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2. Heard the arguments of learned counsel for the petitioner and learned High Court Government Pleader for the respondent-State.

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3. At this stage learned HCGP and the counsel for the defacto complainant submits that this court has already stayed the further proceedings and the investigation in W.P.No.3201/2021 on 20.9.2021. The copy of the said order of status is also furnished before this court which also reveals that this court already stayed the F.I.R and further proceedings in CC.No.23541/2019 pending on the file of VIII ACMM, Bangalore.

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6 - NC: 2024:KHC:3467 WP No. 1530 of 2024

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Since this court already stayed further proceedings, the question of taking further investigation and apprehending arrest in the hands of the police does not arise. Therefore petition becomes infructuous and liable to be dismissed.

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Accordingly this petition is dismissed.

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However liberty is granted to the petitioner, if the petitioner is not able to succeed in the W.P.No.3201/2021 read with Section 482 of Cr.P.C then the petitioner can approach this court for anticipatory bail."

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On 18.01.2021, the petitioner was enlarged on bail by the Apex Court - bail in Crime No.257/2018. On him being granted bail, the petitioner moves the concerned Court for recall of the order directing to secure the petitioner by way of body warrant on 19.01.2021. The concerned Court by its order dated 25.01.2021 allows the application and recalls body warrant and directs release of the petitioner on the score that he has secured bail in Crime No.257/2018 at the hands of the Apex Court.

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NC: 2024:KHC:3467 WP No. 1530 of 2024

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Petitions had been preferred by several accused including petitioner, in the aforesaid crimes before this Court in Crl.P.No.6632/2020 and connected cases and an interim order was operating in favour of the petitioner till the disposal of the criminal petitions. Criminal Petitions come to be disposed on 20.12.2023 whereby the petitions filed by accused comes to be dismissed and the petition filed by complainant comes to be dismissed as it does not merit consideration in the light of the findings rendered in the petitions filed by the accused.

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8. A little background to the dismissal of the petition

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filed by the complainant is required to be noticed. On the order recalling the body warrant, the complainant had preferred Criminal Revision Petition before the Court of Session in Crl.R.P.No.33/2021. The concerned court though in the body of the order would observe that the petitioner not seeking bail was contrary to law but disposes the criminal revision petition by rendering it a tag

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NC: 2024:KHC:3467 WP No. 1530 of 2024

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of it becoming infructuous. The order insofar as it is

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germane reads as follows:-

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“21. Therefore, though the contentions of the defacto complainant that A-3 was taken into custody and was remanded to the judicial custody from time to time cannot be accepted because of the well settled principles and provisions of law that any person accused of any offence cannot be detained under a body warrant, he is successful in establishing that passing of the impugned order by recalling the body warrant when the bail application filed by A-3 under Section 437 of Cr.P.C. was pending for consideration is not in accordance with law. Hence, this point is answered partly in affirmative.

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22. POINTS Nos.2 AND 3 :- Since these points require common discussions, to avoid repetitions and for the sake of convenience, they are taken together for consideration.

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23. In view of the defacto complainant successful in establishing his ground that passing of impugned order recalling the body warrant

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NC: 2024:KHC:3467 WP No. 1530 of 2024

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during the pendency of consideration of the bail application filed by A-3 under Section 437 of Cr.P.C. is unlawful, prima facie the impugned order needs to be set aside.

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24. But, in the present case on hand, the special circumstance is that admittedly, the said order has already been executed and A-3 was released. Thus, in fact, there is nothing now remained to set aside and to recall. Therefore, prima facie, the relief sought in the present petition now became infracutous because the impugned order, admittedly, has already been executed.

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25. Admittedly, the present petition is filed under Section 397 of Cr.P.C., by invoking the revision power of this Court. Let this Court to have a look at the above provision before considering about the power if any to restore the proceedings to the stage before passing the impugned order.

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26. The relevant provision i.e., Section 397 of Cr.P.C. reads;

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NC: 2024:KHC:3467 WP No. 1530 of 2024

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“397. Calling for records to exercise powers of revision- (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

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Explanation- All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purpose of this sub-section (1) and of Section 398.

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(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation

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NC: 2024:KHC:3467 WP No. 1530 of 2024

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to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

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(3) If an application under this Section has been made by any person either to the High Court to the Sessions Judge, no further application by the same person shall be entertained by any other of them”.

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27. So, the power conferred on this Court being a Court of Sessions is only to satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of the trial Court and not to restore the case to the stage before passing the impugned order.

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28. It is an admitted fact and settled position of law that this Court being the Court of Sessions has no inherent power as of a civil Court under Section 151 of CPC. Moreover, as on date admittedly, there is stay against the entire proceedings before the trial Court including A-3. Therefore, in the special circumstance of the case, as noted above, the relief sought in the

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NC: 2024:KHC:3467 WP No. 1530 of 2024

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present petition now became infracutous and accordingly, these points are answered.

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29. POINT No.4 :- from the above discussions, though point No.1 is answered partly in affirmative, in view of answering the rest of the points became infructuous, this Court proceeds to pass the following order.

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ORDER

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The present Revision Petition filed by the defacto complainant/the revision petitioner under Section 397 of Cr.P.C. is hereby dismissed as the relief sought therein became infructuous.

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Office is directed to send a copy of this order to the trial Court forthwith.”

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In the other petition i.e., in Crl.RP.No.63/2021, the

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following order was passed:-

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"27. In the result, this Court proceeds to pass the following order.

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ORDER

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The present Revision Petition filed by the defacto complainant/the revision petitioner under Section 397 of Cr.P.C. is hereby allowed.

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NC: 2024:KHC:3467 WP No. 1530 of 2024

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Consequently, the trial Court i.e., the learned VIII ACMM., Bengaluru is hereby directed to secure the presence of A-3/the 2nd respondent herein in CC.No.23541/2019 on the file of his Court and to consider the bail application filed by A-3 subject to the result of WP.No.3201/2021 (GM-RES) 482 filed by A-3 pending on the file of the Hon'ble High Court of Karnataka, Bengaluru immediately on receipt of the order/communication of the order passed thereon.

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Office is directed to send a copy of this order to the trial Court forthwith."

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The Court of Sessions while passing the aforesaid order directed the concerned Court to consider the bail application filed by the petitioner subject to the result of W.P.No.10125/2021, which was filed by the complainant and pending by then. As observed herein above, this Court rejected the criminal petitions and the writ petitions wherein Crl.R.P.Nos.33/2021 and 63/2021 forms the challenge. What becomes of the dismissal is what forms the fulcrum of the present petition. After the dismissal of

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NC: 2024:KHC:3467 WP No. 1530 of 2024

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the cases, it transpires that the complainant moves for advancement of cases before the concerned Court. Advancement to mean petitions under Section 482 of Cr.P.C. being dismissed, he cannot roam free. The advancement results in the impugned order. The impugned order reads as follows:-

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"Ld. Counsel for De-facto complainant filed CC of the order passed by Hon'ble High Court of Karnataka in Crl.P.No.6632/2020 with connected matters dated 20-12-2023 by dismissing the petition filed by accused persons.

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In view of the order passed by Hon'ble Sessions Court in Crl.R.P.No.63/2021 it is necessary to secure the presence of accused No.3 and to consider pending bail application U/S. 437 of CrPC filed by him.

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Issue NBW to accused No.3.

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Call on hearing date."

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The impugned order directs issuance of NBW to the petitioner ostensibly on the score that the petitioner has been outside without securing bail in Crime No.137/2019.

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NC: 2024:KHC:3467 WP No. 1530 of 2024

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The order stands to reason, as if the petitioner/accused had not secured bail, he ought to have approached the concerned Court seeking enlargement on bail. It is not a case that the petitioner has not approached the concerned Court seeking enlargement on bail. The first of the instance is that the petitioner approaches the concerned Court seeking enlargement on bail, but pleads that his bail application be kept in abeyance; second instance is when he approaches the Co-ordinate Bench of this Court in the aforesaid criminal petition seeking anticipatory bail which comes to be disposed reserving liberty to the petitioner. Bail/anticipatory bail is not sought by the petitioner even as on today in Crime No.137/2019.

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The defence of the petitioner for the aforesaid observations appears to be that the petitioner has been diligent in appearing before the Court and also demonstrates by taking this Court to the paragraphs in the memorandum of petition to demonstrate that he has appeared on 60 occasions before the concerned

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Court/Investigating Officer in all crimes put together. It is his further pleading that the order dated 20.12.2023 was uploaded on 09.01.2024 and certified copy of which was secured by the petitioner on 10.01.2024 and on the same day, order comes to be passed. Therefore, for the order being uploaded with certain delay cannot mean that the petitioner should be penalized for the said act.

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To resolve the conundrum, I deem it appropriate to permit the petitioner to seek his enlargement on bail before any appropriate fora as, bearing in mind the observations made during the course of the order.

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Since protection is granted by this Court directing prosecution not to take any precipitative action, the same shall continue till the petitioner files a fresh application or seek revival of the application seeking enlargement on bail/anticipatory bail. The Court concerned shall consider

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the same and pass appropriate orders in accordance with law. Merely because this Court has granted protection to the petitioner, in the peculiar facts as narrated herein

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NC: 2024:KHC:3467 WP No. 1530 of 2024

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above, it would not influence or bind the concerned Court to grant the application seeking anticipatory bail/bail. The same shall be considered on its merit on independent application of mind after hearing parties to the lis. In the light of the aforesaid observations, the following:-

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ORDER

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(i) The petition is allowed in part.

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(ii) The order dated 10.01.2024 passed in C.C.No.23541/2019 by the VIII Addl. Chief Metropolitan Magistrate, Bengaluru, stands obliterated.

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(iii) The petitioner is at liberty to either revive the application pending seeking enlargement on bail/anticipatory bail or file a fresh application for anticipatory bail/bail.

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(iv) The concerned Court shall consider the same bearing in mind the observations made in the course of the order, without being influenced by the protective order granted by this Court.

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NC: 2024:KHC:3467 WP No. 1530 of 2024

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(v) Protection shall extend only till the filing or revival of the application before the concerned Court.

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(vi) It is for the concerned Court to regulate its procedure and pass appropriate orders in accordance with law.

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(vii) The petitioner shall file a fresh application or seek revival of the application within 10 days from the date of receipt of a copy of the order.

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(viii) In the event, the petitioner would not avail of the liberty granted of filing fresh application or seek revival within a period of ten days, the impugned order which is now obliterated shall stand revived.

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Sd/JUDGE

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List No.: 1 Sl No.: 19

Sri Sandeep Gururaj v. the Station House Officer

Case brief

What is this about?

What did the court decide?

Sri Sandeep Gururaj v. the Station House Officer

Case brief

What is this about?

What did the court decide?

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