IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2nd DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION NO.1998/2019 BETWEEN :
Imam Hussain T.H.
S/o Mohamed Habeebulla T., Aged about 39 years Head Constable (CHC-1317) Town Police Station, Chitradurga R/at Door No.480, 4th Cross Near Reliance Tower, Vijayanagar, Chitradurga District-546 101.
… Petitioner (By Sri Hashmath Pasha, Senior Counsel for Sri Ranjankumar P., Advocate) AND :
State of Karnataka by Chitradurga Rural Police Station Chitradurga, Chitradurga District, Represented by learned State Public Prosecutor High Court of Karnataka Bengaluru-560 001.
… Respondent (By Smt. Namitha Mahesh B.G., HCGP) This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.33/2019 of Chitradurga Rural Police Station, Chitradurga, for the offences punishable under Sections 120B and 379 of Indian Penal Code and Section 21(1), 21(4), 21(4A) of Mines and Minerals (Development and Regulation) Act, 1957.
This Criminal Petition coming on for orders this day, the Court made the following:-
O R D E R The present petition is filed by accused No.13 under Section 439 of Cr.P.C. praying to release him on bail in Crime No.33/2019 of Chitradurga Rural Police Station for the offences punishable under Sections 379, 120B of IPC and Sections 21(1), 21(4) and 21(4A) of Mines and Minerals (Development and Regulation) Act, 1957 (for short ‘MMDR Act’), pending on the file of I Additional Civil Judge (Jr.Dn.) and JMFC., Molakalmuru.
2. I have heard Sri Hashmath Pasha, the learned Senior Counsel for the petitioner and Smt. Namitha Mahesh B.G., learned HCGP for the respondent-State.
3. The gist of the complaint is that on 28.1.2019 at about 7.00 a.m. the Deputy Director of Mines and Geology, Chitradurga received a credible information that from Bheemasamudra towards Challakere and Bellary in the lorries iron ore was being transported illegally. On receipt of such information, he went to Mallappanahatti Cross at about 7.30 a.m. where he saw that two lorries bearing Regn.Nos.AP-02-TB-7722 and AP-02TE-1359 were carrying iron ore. When he stopped the said two lorries, it was found that they were not having any permit or license. The said lorries were seized and the drivers were apprehended and a case has been registered.
4. It is the submission of the learned Senior Counsel for the petitioners that earlier the case has been registered under Section 379 of IPC and subsequently during the course of investigation, the provisions of MMDR Act have been included. He further submitted that no other overt acts have been stated as against accused No.13-petitioner. The only allegation which has been made as against him is that he has conspired with the other accused persons and he used to make call and help them for commission of the offence. He further submitted that if at all he was helping the other accused persons to escape, then under such circumstances, the provisions of Sections 201 and 202 of IPC are attracted and not the other provisions. The other provisions are applicable only to the main accused. He further submitted that the petitioner has not been involved in transportation of iron ore illegally. He further submitted that the provisions of Section 120B of IPC are attracted only when if the conspiracy is done before the commission of offence or preceding the commission of offence. The allegation is that after the commission of offence, the petitioner-accused No.13 contacted accused Nos.4, 5 and 7 and was talking with them. No material has been produced to show as to what was conspired in the said conversation. He further submitted that the alleged offences are not punishable with death or imprisonment for life and even under MMDR Act the petitioner-accused No.13 is liable to be punished with maximum period of five years. He further submitted that in order to prosecute the accused under MMDR Act as per Section 22 of the said Act, a complaint has to be registered by the Authorised Officer or the Deputy Director of Mines and Geology. But earlier the case was registered by the police and no private complaint has been registered as contemplated in law. Under the said facts and circumstances of the case, there is no material as against the petitioner-accused No.13 to detain him behind the bars. He further submitted that the petitioner is working as a Head Constable and there is no question of he being fleeing away from justice. He further submitted that accused Nos.1 and 3 have already been released on bail and on the ground of parity, the petitioner-accused No.13 is also entitled to be released on bail. Petitioner is ready to abide by any conditions imposed by this Court and ready to offer sureties. On these grounds, he prayed to allow the petition.
5. Per contra, the learned HCGP vehemently argued and submitted that the petitioner-accused No.13 has conspired with the other accused persons and he used to make frequent calls by using the fake SIMS standing in the names of other persons. Sufficient call details have been produced to show that the petitioner-accused No.13 has been involved in the alleged offence. The petitioner contacted the other accused persons and helped them to escape from the clutches of the law. She further submitted that the petitioner being the Head Constable, he may know the manner in which the investigation is going to be conducted and if he is released on bail, he may change the direction of the investigation and he may influence the investigation. She requests this Court that till the charge sheet is filed, the petitioner may not be released on bail. She further submitted that the petitioner being a highly influential person, may tamper with the prosecution evidence. On these grounds, she prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records.
7. On close reading of the complaint and other material, it discloses the allegations made under Sections 21(1) 21(4) and 21(4A) of MMDR Act. But in order to register the said case, a private complaint is required to be filed by the competent authority under the said Act and Rules. The said procedure has not been followed. Even the contents of the complaint and other material, it discloses that the petitioner-accused No.13 conspired with the other accused persons and he used to make calls and help the other accused persons in commission of offence, that is a matter which has to be considered and appreciated only at the time of trial. The alleged offences are not punishable with death or imprisonment for life. The maximum punishment under MMDR Act is five years. The only apprehension which has been expressed by the learned HCGP is that the petitioner- accused No.13 being the Head Constable, may change the direction of the investigation which has been entrusted to DCIB. I feel that by imposing some stringent conditions, if the petitioner-accused No.13 is ordered to be released on bail, the said apprehension can also be protected in the interest of justice.
Taking into consideration of the aforesaid facts and circumstances, petition is allowed. accused No.13- petitioner herein is enlarged on bail in Crime No.33/2019 of Chitradurga Rural Police Station for the offences punishable under Sections 379, 120B of IPC and Sections 21(1), 21(4) and 21(4A) of Mines and Minerals (Development and Regulation) Act, 1957, pending on the file of I Additional Civil Judge (Jr.Dn.) and JMFC., Molakalmuru, subject to the following conditions:-
i) Petitioner shall execute a personal bond for Rs.2,00,000/- (Rupees two Lakhs only) with two sureties for the like sum to the satisfaction of the trial Court.
ii) He shall not tamper with the prosecution evidence directly or indirectly.
iii) He shall not indulge in similar type of criminal activities during the bail period.
iv) He shall not leave the jurisdiction of the trial Court without prior permission. Respondent-police are at liberty to move for cancellation of bail, if there is any interference by the petitioner-accused No.13 in conducting the investigation.
Sd/- JUDGE *ck/-