Smt Ashwini S vs State Of Karnataka
2021 Latest Caselaw 2713 Kant

                             1


   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 8TH DAY OF JULY, 2021

                           BEFORE

          THE HON'BLE MR. JUSTICE K.NATARAJAN

            CRIMINAL PETITION NO.3377 OF 2021
                    CONNECTED WITH
            CRIMINAL PETITION NO.3508 OF 2021


IN CRL.P.NO.3377 OF 2021


BETWEEN

SMT. ASHWINI S.
D/O. SARIKA PUSHPA,
AGED ABOUT 30 YEARS,
RESIDING AT No.30, 5TH 'A' MAIN,
BANASHANKARI 2ND STAGE,
BENGALURU - 560 070.
                                            ... PETITIONER
(BY SRI A.S. PONNANNA, SENIOR COUNSEL FOR
      SRI H.C. PRATEEK, ADVOCATE)

AND


STATE OF KARNATAKA
BY THE ALANAHALLY POLICE, MYSURU,
REPRESENTED BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
                                       ... RESPONDENT
(BY SRI THEJESH P., HCGP)
                            2


IN CRL.P.NO.3508 OF 2021

BETWEEN


SRI B.S. LOKESHWAR
S/O. LATE P. SIDDAIAH,
AGED ABOUT 55 YEARS,
RESIDING AT HANUMANALU,
BANNUR HOBLI, T. NARASIPURA TALUK,
MYSURU DISTRICT - 560 007.
                                         ... PETITIONER
(BY SRI ARNAV A. BAGALWADI, ADVOCATE)

AND


STATE OF KARNATAKA
BY THE ALANAHALLY POLICE, MYSURU,
REPRESENTED BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001.
                                       ... RESPONDENT
(BY SRI K. NAGESHWARAPPA, HCGP)


      THESE CRIMINAL PETITIONS ARE FILED UNDER SECTION
438 OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
ENLARGE THE PETITIONERS ON BAIL IN THE EVENT OF THEIR
ARREST IN CRIME NO.109/2020 OF ALANAHALLY POLICE
STATION, MYSURU CITY, FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 406 AND 420 READ WITH SECTION 34 OF
THE INDIAN PENAL CODE AND SECTION 9 OF THE KARNATAKA
PROTECTION OF INTEREST DEPOSITORS OF FINANCIAL
ESTABLISHMENT ACT.


     CRIMINAL PETITION NO.3377 OF 2021 HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 24.06.2021 AND
CRIMINAL PETITION NO.3508 OF 2021 HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 01.07.2021 AND COMING ON
FOR PRONOUNCEMENT, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
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                                   ORDER

Crl.P.No.3377/2021 is filed by the petitioner-accused

No.17 and Crl.P.No.3508/2021 is filed by the petitioner-

accused No.2 under Section 438 of Cr.P.C., for granting

anticipatory bail in Crime No.109/2020 registered by

Alanahally Police Station, Mysuru for the offences

punishable under Sections 406 and 420 read with Section

34 of the Indian Penal Code, 1860 (for short 'IPC') and

Section 9 of the Karnataka Protection of Interest

Depositors in Financial Establishment Act 2004 (in short

'KPID Act').

2. Heard the arguments of learned senior counsel

for the petitioners and learned High Court Government

Pleader for the respondent - State.

3. The case of the prosecution is that the

Alanahally Police have registered a case on the complaint

of one Basavaraju filed on 7.12.2020, alleging that the

petitioners/accused persons, who were the Directors,

Managing Directors, President of Yashaswini Housing Co-

operative Society (Petitioner - Society) have collected

more than Rs.80.00 crores from the complainant and 1500

members by giving a false promise that they will provide

sites to them on payment of equal installments under

different schemes. Believing the assurance of the

Petitioner-Society, nearly 1500 members have invested

the amount in the said Society almost to the tune of

Rs.80.00 crores. The amounts were collected during the

year 2011 but they have not allotted any sites till date and

there is no any progress after registration of the case. The

Police are trying to arrest these petitioners and other

accused. Hence, accused No.17 has approached this Court

for granting anticipatory bail in Crl.P.No.1465/2020 and

accused No.2 has approached this Court for granting

anticipatory bail in Crl.P.No.1468/2021. Both the bail

petitions came to be rejected by this Court on 18.03.2021.

Again both the petitioners have filed a successive bail

petition mainly on the medical ground that the petitioner in

Crl.P.No.3377/2021 has contended that she was pregnant

at the time of registering the case and she was admitted to

the hospital for her ill health. Later, she gave birth to a

child and it is very difficult for her to look after the child

and she requires periodical check up and medical care.

Therefore, prayed for granting bail. Learned senior counsel

has also produced various medical records and also with

regard to delivery of the child.

4. Whereas, the petitioner in Cr.P.No.3508/2021

has also filed medical certificate dated 27.03.2021 stating

that he is suffering from Diabetes Mellitus, Accelerated

Hypertension and opinion of Cardiologist is that he is

suffering from Ischemic Heart Disease, Recurrent Urinary

track infection and advised not to take stressful work. He

is on treatment since two months and advised not to travel

long distance etc., and hence, accused No.2 prayed for

granting anticipatory bail.

5. Per contra, learned High Court Government

Pleader seriously objected the bail petitions.

6. Upon hearing the arguments and on perusal of

the records which goes to show that both the petitioners

have approached this Court for anticipatory bail which

came to be rejected on 18.03.2021. After a month i.e., in

April 2021, both the petitioners again moved a bail petition

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

on medical ground and the same was objected by the

learned High Court Government Pleader and has also relied

upon the judgment of the Hon'ble Supreme Court in the

case of G.R.Ananda Babu vs. The State of Tamil Nadu

and Another in Special Leave to Appeal

(Crl.)No.213/2021 dated 28.01.2021.

7. Admittedly, on perusal of the records and the

facts of the case on hand, these petitioners and others are

the Directors, Managing Directors and President of the

Yashaswini Housing Co-operative Society. They have

collected more than Rs.80.00 crores from 1500 members

by giving a false promise of providing sites to them on

payment of equal installments under different schemes.

Though the amounts were collected in the year 2011, still

they have not allotted any sites or formed any Layout.

They have misused the funds and invested the funds in

Foreign Banks through their children. By considering the

material on merits, this Court has rejected the bail

petition.

8. Now, the petitioner-accused No.17 has

come-up with medical ground that she gave birth to a child

and she was pregnant when the case was registered and

therefore, she is seeking for anticipatory bail.

9. On perusal of the records, the FIR came to be

registered on 07.12.2020. The bail petition has been

rejected by this Court on 18.03.2021. At that time, there

was no such contention taken by the petitioner-accused

No.17 that she was pregnant and not urged any medical

ground. But, after dismissal of the petition, the fresh

ground is urged that she gave birth to a child. Of course,

the medical ground is required to be considered

sympathetically, if the petitioner is in custody or in jail.

But here, from the date of registering the case, this

petitioner is absconding and not available for arrest and

she has managed by getting admission in the hospital at

Mysuru itself and got discharged from the hospital. Such

being the case, the question of considering the medical

ground on the ground of delivering the child and seeking

anticipatory bail after rejection of the bail petition does not

arise and it cannot be said to be a changed circumstance.

Hence, the bail petition of accused No.17 is required to be

dismissed.

10. As regards the other bail petition of accused

No.2, he has also produced the medical certificate obtained

from the Hospital on 27.03.2021 after rejection of this bail

petition on 18.03.2021. Accused No.2 is also absconding

from the date of registering the case and after rejection of

the bail petition, the medical ground urged by accused

No.2 is not acceptable one as Diabetes Mellitus and Hyper

Tension are all common diseases and even the opinion of

Cardiologist who has advised to take rest for two months

and as such, there is no serious illness. It is also advised

not to take stressful work. Therefore, the medical ground

urged by accused No.2 is not a good ground for

considering the successive anticipatory bail once the same

was rejected by this Court.

11. Learned High Court Government Pleader has

produced the copy of the order of the Hon'ble Supreme

Court in the case of G.R.Ananda Babu stated supra,

wherein it is held that once the anticipatory bail is

rejected, the successive anticipatory bail shall not be

entertained as the accused is absconding and not co-

operating with the investigation. The specious reason of

change in circumstances cannot be invoked for the

successive anticipatory bail application, once it is rejected

by a speaking order and that too by the same Judge. The

Hon'ble Supreme Court has held that the High Court shall

not entertain the successive anticipatory bail petition.

12. In view of the principle laid down by the

Hon'ble Supreme Court in Special Leave to Appeal (Crl.)

No.213/2021, the successive anticipatory bail petition filed

by accused Nos.17 and 2 is not maintainable and the

medical grounds are also not sufficient to grant

anticipatory bail. Of course, the medical ground shall have

to be extended for the accused who is actually in the

judicial custody and for providing him proper treatment in

good hospital and the Court is required to grant an Interim

bail or regular bail but not the anticipatory bail as they are

outside and absconding.

13. Therefore, the successive bail petitions filed by

accused No.17 in Crl.P.No.3377/2021 and accused No.2 in

Crl.P.No.3508/2021 are hereby dismissed.

Sd/-

JUDGE

GBB