Hanamant Mayappa Malali vs The State Of Karnataka
2021 Latest Caselaw 573 Kant

             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

       DATED THIS THE 11TH DAY OF JANUARY, 2021

                            BEFORE

           THE HON'BLE MR.JUSTICE K. NATARAJAN

            CRIMINAL PETITION NO.100082/2021

BETWEEN:

1.     HANAMANT MAYAPPA MALALI
       AGE: 60 YEARS, OCC: AGRICULTURE,
       R/O. GULAGANJIKOPPA,
       TAL: MUDALAGI, DIST. BELAGAVI.

2.     VITTAL HANAMANT MALALI
       AGE. 35 YEARS, OCC. AGRICULTURE,
       R/O. GULAGANJIKOPPA,
       TAL: MUDALAGI, DIST. BELAGAVI.

3.     SHRIKANT S/O. BHIMAPPA ARENAD
       AGE. 42 YEARS, OCC. AGRICULTURE,
       R/O. GULAGANJIKOPPA,
       TAL. MUDALAGI, DIST. BELAGAVI.
                                          ...PETITIONERS
(BY SRI. VITTHAL S. TELI, ADVOCATE)

AND:

THE STATE OF KARNATAKA
R/BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, AT. DHARWAD
THROUGH MUDALAGI POLICE STATION,
MUDALAGI, DIST. BELAGAVI.
                                          ...RESPONDENT
(BY SRI. RAMESH B. CHIGARI, HCGP)
                                    2




       This Criminal Petition is filed u/s. 439 (1)(b) of Cr.P.C.
praying that the conditions No.2 and 6 in order dated 21.12.2020
passed in Criminal Misc.No.8036/2020 while granting anticipatory
bail in favour of petitioners/accused Nos.1 to 3 in Mudalagi P.S.
Crime No.188/2020 for offences punishable under Sections 420,
468, 471, 472 R/w. Section 34 of IPC pending on the file of Civil
Judge and JMFC, Mudalagi, Gokak, may kindly be modified/set-
aside.

      This Petition coming on for orders through Physical
Hearing/Video Conferencing Hearing this day, the Court made the
following:

                                 ORDER

This petition is filed by the petitioners /accused Nos. 1, 2 and

3 under Section 439(1)(b) of Cr.P.C. for relaxation of the conditions

imposed by the XII Addl. District and Sessions Judge, Belagavi,

sitting at Gokak (hereinafter referred to as 'the Sessions Judge', for

brevity), in Crl.Misc.No.8036/2020 and seeking modification of

conditions No.2 and 6 of the bail order.

2. Heard the arguments of learned counsel for the

petitioners as well as learned HCGP for the respondent-State.

Perused the records.

3. Learned counsel for the petitioners submits, the

Mudalagi Police registered a case against the petitioners for the

offences punishable under Sections 420, 468, 471, 472 R/w.

Section 34 of the IPC. The petitioners are apprehending their arrest

in the hands of the police. Hence they approached the Sessions

Judge for granting anticipatory bail under Section 438 Cr.P.C.,

which came to be allowed. The Sessions Court ordered to release

the petitioners on bail on executing a personal bond and two

sureties for `1,00,000/- each. However, it has imposed conditions

to the petitioners to deposit the outstanding dues to the bank by

giving one month's time and further, if the said amount is not

deposited, ordered that the protection given to the petitioners by

the bail order ceases immediately, which is against the law. If at all

there is any recovery, the police can recover the amount from the

persons during investigation. The bank dues shall have to be

recovered in accordance with law. Therefore, he prayed for

modifying the condition Nos. 2 and 6.

4. Per contra, learned HCGP objected the petition and

contended that the petitioners have committed a heinous offence.

They have created and fabricated documents even though not paid

the amount. Therefore, the said conditions are necessary for the

Sessions Court, which has imposed the conditions on exercising the

discretionary power. Hence, prayed for dismissing the petition.

5. Upon hearing the arguments and perusal of the records,

it goes to show that the Mudalagi Police, Gokak, Belagavi District,

registered a case against the petitioners in Crime No.188/2020 for

the offences punishable under Sections 420, 468, 471, 472 R/w.

Section 34 of the IPC. The petitioners approached the Sessions

Court for anticipatory bail, which came to be allowed and the

Sessions Court by its order dated 21.12.2020 in

Crl.Misc.No.8036/2020, imposed the following conditions while

allowing the bail petition:

i. They shall execute PB and other two sureties for sum of `1,00,000/- each.

ii. They shall deposit outstanding dues a son 13.10.2020 with the complainant bank within one month from today.

iii. They shall surrender before IP within 10 days from today. On such surrender they shall be released on bail.

iv. They shall co-operate with investigation if any pending.

v. They shall not commit similar offence and shall not tamper with prosecution case.

vi. On failure to comply condition No.2, the protection given to the petitioners in this order ceases immediately.

6. The petitioners have challenged conditions No.2 and 6,

where the Sessions Court while granting bail directed the

petitioners for depositing the outstanding dues with the

complainant bank within one month from the date of judgment and

on failure to deposit, it is ordered that the protection given to the

petitioners in the said order ceases immediately.

7. In my considered opinion, the conditions imposed by

the Sessions Court is not sustainable under law, especially while

dealing with the bail petition under Sections 438 or 439 of Cr.P.C.

If at all any amount is to be recovered from the accused, it is a

matter of investigation and it is the duty of the Investigating Officer

to recover or cease any incriminating evidence from the accused in

accordance with law. But the allegation in the case is that, the

accused is said to have created a false document and named as

reconveyance deed on 17.02.2018 and got registered the said

document. Petitioners No. 2 and 3 are said to be witnesses to the

said forged document. Petitioner No.1 said to have created the

document and stated that there is no outstanding dues from the

bank, nor they have committed offence of creating false document,

which are all the matters of investigation. It has to be proved

before the Court of law after conclusion of the trial. But the

recovery of any loan amount is the subject matter of the civil suit,

which is between the banker and the accused for recovering in

accordance with law.

8. Such being the case, the Sessions Court had no power

to impose such conditions for making payment in a criminal case

registered against those accused and especially for forging the

document. Therefore, both the conditions are not in accordance

with law while exercising the power under Section 438 of Cr.P.C.

while granting anticipatory bail. Therefore, for the reasons stated

by the learned counsel for the petitioners, these two conditions are

required to be deleted from the conditions imposed by the Sessions

Court while granting anticipatory bail. However, this Court can

impose fresh any other fresh condition for the purpose of

investigation. Hence I pass the following:

ORDER

The petition is allowed. Conditions No.2 and 6 imposed by

the trial Court is hereby set aside and deleted. However, fresh

condition is imposed that the petitioners are deemed to be in

custody for the purpose any recovery under Section 27 of the IPC.

The remaining conditions are unaltered.

Sd/-

JUDGE

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