Karnataka High Court
Mohammad Shakir vs The State Of Karnataka And Anr on 23 June, 2022
Bench: M G Uma
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF JUNE, 2022
BEFORE
THE HON'BLE MRS.JUSTICE M.G. UMA
CRIMINAL PETITION NO.200564/2022
Between:
Sri. Mohammad Shakir
S/o Mohammad Nazeer Shaikh,
Aged about 36 years, Occ: Business,
R/o. Zandakatta, Near Alfa Medical,
J.M.Road, Vijaypur-586104.
... Petitioner
(By Sri S.S.Mamadapur, Advocate)
And:
1. The State of Karnataka,
Through PSI, Golgumbaz PS,
Rep. by its State Public Prosecutor,
Advocate General's Office,
High Court Building,
Kalaburagi-585103.
2. Sri. Nabisab S/o Kamroddin Salotagi,
Aged about 43 years, Occ: Bsuiness,
R/o. Near Zandakatta, J.M.Road,
Vijaypur-586104.
... Respondents
(By Sri Gururaj V.Hasilkar, HCGP for R1;
V/o dated 02.06.2022, Notice to R2 is dispensed with)
2
This Criminal Petition is filed under Section 439(1)(b)
of Cr.P.C., praying to relax Order / Condition in Crl.
Misc.No.373/2022 passed by the II Addl. Sessions Judge,
Vijaypur vide Order dated 16.04.2022 ordering furnishing
of two local solvent sureties with solvency certificates
issued by the Revenue Authority for sum of Rs.1.00 lakh
each and further extend the time relating to compliance of
Condition-1 with respect to the petitioner appearing before
the jurisdictional police and to move for regular bail before
the Court.
This petition coming on for Orders this day, the
Court passed the following:
ORDER
The petitioner-accused No.1 is before this Court
seeking relaxation of condition imposed in Crl.Misc.
No.373/2022 by the learned II-Additional Sessions Judge,
Vijayapur vide Order dated 16.04.2022 ordering to furnish
two local solvent sureties with solvency certificates issued
by the Revenue Authority for a sum of Rs.1.00 Lakh each
and to extend the time fixed for the petitioner to appear
before the jurisdictional police and to move for regular
bail.
2. Heard Sri S.S.Mamadapur, learned Counsel for
the petitioner and Sri Gururaj V. Hasilkar, learned High
Court Government Pleader for the respondent -State.
Perused the materials on record.
3. Learned Counsel for the petitioner submits that
the petitioner is arrayed as accused No.1. He is innocent
and has not committed any offences as alleged. He has
been falsely implicated in the matter by the complainant
while filing private complaint in P.C.No.123/2021 before
the JMFC Court, Vijayapur, for the offences punishable
under Sections 406, 420, 120B and 506 r/w section 34 of
IPC. The petitioner was having reasonable apprehension of
being arrested. Therefore, he approached the Trial Court
for grant of anticipatory bail in Crl.Misc.No.373/2022. The
said petition came to be allowed vide order dated
16.04.2022. However, the Trial Court without assigning
any valid reason, mechanically imposed the condition for
furnishing solvent sureties to the satisfaction of the Court
and to produce solvency certificates issued by the revenue
authorities.
4. Learned counsel for the petitioner submits that
there is absolutely no reason for imposing such harsh
conditions on the petitioner. Obtaining solvency certificates
to be issued by the revenue authorities is a lengthy and
cumbersome procedure. The petitioner is not having
criminal antecedents. The offences alleged are not
punishable either with death or imprisonment for life.
Therefore, imposition of such harsh condition is not called
for. The petitioner is ready and willing to abide by all other
conditions imposed by the Trial Court and also any
conditions that may be imposed by this Court. Hence, he
prays to allow the condition.
5. Per contra, learned High Court Government
Pleader opposing the petition submitted that considering
the facts and circumstances of the case, the learned
Sessions Judge imposed the condition which cannot be find
fault with. Therefore, he prays for dismissal of the petition.
6. In view of the rival contentions urged by the
learned counsel for both the parties, the point that would
arise for my consideration is:
"Whether the petitioner is
entitled for relaxation of conditions
imposed vide order dated 16.04.2022
under Section 439(1)(b) of Cr.P.C.?"
My answer to the above point is in 'Affirmative' for
the following:
REASONS
7. The private complaint came to be filed by the
complainant against accused Nos.1 and 2. The
petitioner/accused No.1 is the Director and accused No.2 is
the owner of Al-Falha Distributor Private Limited,
Bengaluru. It is stated that they criminally conspired and
insisted the complainant to invest money in the firm
assuring bonus at the rate of 10%. Accordingly,
complainant invested huge sums of money. But, within
three months, accused have closed down their office and
when the complainant insisted for return of his money,
accused No.1 abused him in filthy language and gave life
threat. Thereby he has committed the offences as stated
above.
8. When the petitioner approached the Sessions
Court for grant of anticipatory bail, the same came to be
allowed, subject to conditions. One of the conditions
imposed is that accused No.1 shall execute personal bond
for a sum of Rs.1,00,000/- with two local solvent sureties
with solvency certificates issued by the revenue authorities
for the reason stated in paragraph-22 of the order.
9. In paragraph-22, learned Sessions Judge
discussed about the common practice of furnishing fake
sureties and the difficulty in ascertaining and determining
their genuinity. He also referred to the copies of the RTCs
which are being obtained online, through cyber centers
and also discussed about the difficulty in verifying about
the encumbrance on the property in question. Therefore, it
was opined that it is unsafe to rely upon such RTC
extracts. It is also stated that no valuation certificate from
the Sub-Registrar's office is being produced about the
value of the property. It is the practice of the Court that
only on the basis of sworn statement of sureties that they
are solvent is being accepted, which fact cannot be cross-
checked. Therefore, it was felt that obtaining solvent
sureties from the revenue authorities is necessarily to be
produced by the petitioner.
10. It is informed at the bar that similar conditions
are being imposed invariably in all the cases by the Court
which passed the order.
11. Learned counsel for the petitioner has drawn
my attention to the order passed by this Court in Criminal
Petition No.201250/2020 dated 18.12.2020 wherein this
question was considered where similar condition was
imposed for producing solvency certificate and it is held in
paragraph-10 as under:
"10. The learned Sessions Judge
assigned reasons for insisting for solvency
certificates. That may be the hard realities of
any case. But that cannot be a ground to
insist for solvency certificates in each and
every case, which involve a long procedure. In
the light of the facts and circumstances of the
case, directing the petitioners to execute
personal bond for Rs.2,00,000/- each, with two
local sureties, along with other reasonable
conditions, will serve the purpose. Even if the
condition to furnish solvency certificates by the
sureties is relaxed, that will not affect the
prosecution in any manner, as even without
solvency certificates, the sureties can be
compelled to ensure the presence of the
accused before the Court. Moreover, the
interest of the prosecution can be safeguarded
by imposing such other conditions which will
take care of the situation as apprehended by
the learned Sessions Judge, that there are
possibilities of furnishing fake sureties with
fake documents. Therefore, I am of the opinion
that the condition that was imposed to furnish
solvency certificates by the sureties which
frustrate the order passed in favour of the
petitioners is liable to be relaxed."
12. It is also held that, on furnishing sureties by
the accused, if the Trial Court thinks it necessary, it may
refer the documents furnished by the surety to the
Investigating Officer for verification and to file a report
about the authenticity of the revenue documents and to
confirm their place of residence as mentioned in their
identification proof, at the earliest. Only on receipt of such
report, if the Court is satisfied, the same could be
accepted.
13. It is noticed that the learned Sessions Judge
also imposed condition No.1 which reads as under:
"1. The instant-petitioner/accused No.1
shall appear before the concerned
respondent-police within 30 days from
the date of this order and thereafter shall
move for regular-bail before the
concerned jurisdictional Court within 45
days from the date of this order."
(emphasis supplied)
Thereby, the accused was not only directed to
appear before the respondent police but also directed to
get regular bail before the jurisdictional Court within 45
days.
14. In this regard, the decision of the Hon'ble Apex
Court in Sushila Aggarwal and others vs. State (NCT
of Delhi) and another wherein five Judges Bench of the
Hon'ble Apex Court considered the following questions
referred to it:
"i. Whether the protection granted to a
person under Section 438 of Cr.P.C., should be
limited to a fixed period so as to enable the
person to surrender before the Trial Court and
to seek regular bail?
ii. Whether the life of anticipatory bail
should end at the time and stage when the
accused is summoned by the Court?"
and arrived at a conclusion that,
"91.1. Regarding Question 1, this Court
holds that the protection granted to a person
under Section 438 Cr.P.C., should not
invariably be limited to a fixed period; it should
1 (2020)5 SCC 1
enure in favour of the accused without any
restriction on time. Normal conditions under
Section 437(3) read with Section 438(2)
should be imposed; if there are specific facts or
features in regard to any offence, it is open for
the court to impose any appropriate condition
(including fixed nature of relief, or its being
tied to an event), etc.
91.2. As regards the second question
referred to this Court, it is held that the life or
duration of an anticipatory bail order does not
end normally at the time and stage when the
accused is summoned by the court, or when
charges are framed, but can continue till the
end of the trial. Again, if there are any special
or peculiar features necessitating the court to
limit the tenure of anticipatory bail, it is open
for it to do so.
92. to 92.11. xxxx
92.12 The observations in Siddharam
Satlingappa Mhetre v. State of Maharashtra
[(2011)1 SCC 694 (and other similar
judgments) that no restrictive conditions at all
can be imposed, while granting anticipatory
bail are hereby overruled. Likewise, the
decision in Salauddin Abdulsamad Shaikh v.
State of Maharashtra [(1996)1 SCC 667] and
subsequent decisions (including K.L. Verma v.
State [(1998)9 SCC 348], Sunita Devi v. State
of Bihar [(2005)1 SCC 608, Adri Dharan Das v.
State of W.B. [(2005)4 SCC 303], Nirmal Jeet
Kaur v. State of M.P. [(2004)7 SCC 558, HDFC
Bank Ltd., v. J.J. Mannan [(2010)1 SCC 679,
Satpal Singh v. State of Punjab [(2018)13 SCC
813, and Naresh Kumar Yadav v Ravindra
Kumar [(2008)1 SCC 632]) which lay down
such restrictive conditions, or terms limiting
the grant of anticipatory bail, to a period of
time are hereby overruled."
15. Thus, the position of law is very well settled
about the life of anticipatory bail granted in favour of the
accused.
16. The impugned order passed by the learned
sessions Judge discloses that invariably in all the cases,
similar conditions are being imposed, whenever an
application either under Section 438 or under Section 439
of Cr.P.C., are being moved by the accused. Imposition of
such conditions, generally by observing that such extracts
of RTCs are being obtained from cyber cafes or on getting
photocopies, it will not be possible to ascertain its
authenticity or about the encumbrances, etc., will not hold
good and it is nothing but harassment to the accused. The
Court cannot stick on to its opinion about verification of
solvency or otherwise of the sureties only by compelling to
produce the solvency certificate issued by the Revenue
Department. The Judicial Officer shall update himself as
and when technology develops, he should adopt novel
method of verifying the authenticity of the RTCs that are
produced before the Court. The Court can venture to do so
on its own or through the assistance of the Investigating
Officer. Without recourse to any of such methods, asking
the accused to produce the solvency certificates of the
sureties, cannot be accepted by this Court. Even after
modification of such orders earlier and relaxation of such
conditions, the Judicial Officer concerned is adamant and
the practice is being continued, which is to be deprecated.
17. Learned counsel for the petitioner submits that
the order dated 18.12.2020 passed by this Court in
Criminal Petition No.201250/2020 was very much brought
to the notice of the Court concerned by producing the copy
thereof. Inspite of that such condition was imposed. It is
also brought to the notice of this Court that hundreds of
such cases where similar conditions imposed, were
challenged before this Court and all such petitions are
invariably allowed and the conditions were relaxed. Inspite
of that practice of imposing such condition is being
followed. If this submission on the part of learned counsel
for the petitioner is true, such practice is really shocking
and is of serious nature. The adamant practice on the part
of the Judicial Officer concerned will have far-reaching
consequences. The accused have to spend their money,
energy and time for compliance of unnecessary conditions
that are being imposed while allowing the bail petitions.
Till compliance of such conditions, the accused are
compelled to languish in prison or to conceal his presence
to avoid arrest, without there being any justifiable cause
as the Court has already opined that the accused is
entitled for grant of bail or anticipatory bail. This will
amount to infringement of their right to life and liberty
guaranteed under Article 21 of the Constitution of India.
Moreover, it creates unnecessary burden on this Court as
well, as the accused are compelled to challenge such
orders by spending huge amount and pendency before the
High Court would naturally increase with such unnecessary
litigations. The Judicial Officer concerned who is unmindful
of his acts is warned and directed to follow the dictum of
the Higher Courts in letter and spirit, instead of having his
own personal view on the issue.
18. In view of the discussions held above, I am of
the opinion that both the conditions viz., (i) to seek regular
bail within 45 days from the date of the order and (ii) to
furnish solvent sureties with solvency certificates issued by
the Revenue Department, are liable to be relaxed.
19. Accordingly, I answer the above point in the
affirmative and proceed to pass the following:
ORDER
The petition is allowed.
The order dated 16.04.2022 passed in Crl.Misc.
No.373/2022 by the learned II-Additional Sessions Judge,
Vijayapur imposing the condition of furnishing two local
solvent sureties with solvency certificates issued by he
Revenue Authority, is relaxed. Instead, the petitioner shall
furnish two local sureties for the likesum.
On furnishing the sureties by the accused, the Trial
Court may, if it thinks necessary, refer the documents
furnished by the sureties to the Investigating Officer for
verification and to file a report about authenticity of the
revenue documents and to confirm their place of residence
as mentioned in their I.D.proof, at the earliest. On receipt
of such report if the Court is satisfied about the sureties,
same may be accepted.
The condition imposed by the Trial Court to move for
regular bail before the concerned jurisdictional Court within
45 days is also relaxed.
The time fixed by the Trial Court to the petitioner to
appear before the Investigating Officer is extended by 15
days from the date of receipt of copy of this order.
Registry is directed to communicate this order to the
Judicial Officer who passed impugned order wherever he
is, with a request to bestow his attention to the latest
position of law and to pass appropriate orders on the bail
applications in the light of the observations made herein.
Sd/-
JUDGE
VNR
