Smt Jyothi vs State Of Karnataka
2022 Latest Caselaw 12410 Kant

Citation : 2022 Latest Caselaw 12410 Kant
Judgement Date : 13 October, 2022

Karnataka High Court

Smt Jyothi vs State Of Karnataka on 13 October, 2022

Bench: Rajendra Badamikar

                          1


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 13TH DAY OF OCTOBER, 2022

                       BEFORE

   THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

           CRIMINAL PETITION NO.8974/2022


BETWEEN:

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

(BY SRI NISHIT KUMAR SHETTY, ADVOCATE)

AND:

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

(BY SRI K. NAGESHWARAPPA, HCGP)

                        *****

     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,
                               2


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.

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

                            ORDER

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.

2. 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.

3. The learned Magistrate has recorded the

evidence of the witnesses and posted the matter for

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.

4. 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.

5. It is evident from the records that the

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 petitioner-

accused 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.

6. 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

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.

7. 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:

"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."

8. Hence, the entire approach of the learned

Magistrate was wrong. Apart from that the petitioner was

enlarged on bail in C.C.No.550/2017 earlier itself.

9. 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.

10. Accordingly, the petition is allowed.

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:

(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.