IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION No.1637/2019 c/w CRIMINAL PETITION No.1631/2019, CRIMINAL PETITION No.1725/2019, CRIMINAL PETITION No.2039/2019, CRIMINAL PETITION No.1620/2019, CRIMINAL PETITION No.1360/2019, CRIMINAL PETITION No.1237/2019.
IN CRIMINAL PETITION No.1637/2019 BETWEEN:
Imran Khan @ Imran S/o late K.K.Anwar Pasha Aged about 30 years R/at No.38, 5th Main, Rehmath Nagar, R.T.Nagar, Bengaluru-560 078.
(By Sri Hashmath Pasha, Senior Counsel for Sri Ranjankumar P., Advocate) AND:
State of Karnataka by R.T. Nagar Police Station, Bengaluru, Represented by the learned …Petitioner State Public Prosecutor, High Court Complex, Bengaluru-560 001.
(By Sri H.S.Chandramouli, SPP for Smt. Namitha Mahesh B.G., HCGP;
Sri R. Kothwal, Advocate for Complainant) …Respondent This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.19/2019 registered by R.T.Nagar Police Station, Bengaluru, for the offences punishable under Sections 120(B), 406, 463, 464, 468, 470, 471 and 420 r/w Section 34 of Indian Penal Code.
IN CRIMINAL PETITION No.1631/2019: BETWEEN:
Sultan Pasha S/o Saleem Miyan Aged about 25 years Residing at No.46, 4th Cross, 4th Main, HBR layout, 4th Cross, Hennur Cross Bengaluru-560 096.
(By Sri C.N.Raju, Advocate) AND:
State by R.T. Nagar Police, Bengaluru, Represented by State Public Prosecutor, …Petitioner High Court of Karnataka, Bengaluru-560 001.
(By Sri H.S.Chandramouli, SPP for Smt. Namitha Mahesh B.G., HCGP;
Sri R. Kothwal, Advocate for Complainant) …Respondent This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.19/2019 by R.T.Nagar Police Station, Bengaluru City, for the offences punishable under Sections 120(B), 406, 463, 464, 468, 470, 471 and 420 r/w Section 34 of Indian Penal Code.
IN CRIMINAL PETITION No.1725/2019: BETWEEN:
Smt. Divya W/o Wilson Aged about 32 years R/o No.169, 2nd ‘A’ Cross Geleyarabalaga, Mahalakshmipuram, Bengaluru-560 086.
(By Sri Vijay Kumar T., Advocate (absent) AND:
State of Karnataka by R.T. Nagar Police, Bengaluru, Represented by State Public Prosecutor, High Court Building, Bengaluru-560 001.
(By Sri H.S.Chandramouli, SPP for Smt. Namitha Mahesh B.G., HCGP;
Sri R. Kothwal, Advocate for Complainant) …Petitioner …Respondent This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.19/2019 by R.T.Nagar Police Station, Bengaluru City, for the offences punishable under Sections 120(B), 406, 463, 464, 468, 470, 471 and 420 r/w Section 34 of Indian Penal Code.
IN CRIMINAL PETITION No.2039/2019: BETWEEN:
M.D.Multhani Ifthikar @ Multhan S/o Allabakash Aged about 23 years R/at No.46, 4th Cross, 4th Main, H.B.R.Layout, 4th Block, Hennoor Cross Bengaluru-560 043. …Petitioner (By Sri Rajesh Rao K., Advocate) AND:
State by R.T. Nagar P.S. Bengaluru, Represented by State Public Prosecutor, High Court Building, Bengaluru-560 001.
(By Sri H.S.Chandramouli, SPP for Smt. Namitha Mahesh B.G., HCGP;
Sri R. Kothwal, Advocate for Complainant) …Respondent This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.19/2019 by R.T.Nagar Police Station, Bengaluru City, for the offences punishable under Sections 120(B), 406, 463, 464, 468, 470, 471 and 420 r/w Section 34 of Indian Penal Code.
IN CRIMINAL PETITION No.1620/2019: BETWEEN:
Amjad Khan @ Amjad Pasha S/o late Ataulla Khan Aged about 31 years R/at No.22/8, 8th ‘C’ Main New Gurappanapalya Near KEB Layout Bengaluru-560 079.
(By Sri Nisar Sab, Advocate) AND:
State of Karnataka by R.T. Nagar P.S. Bengaluru, Represented by Government Pleader High Court Buildings, Bengaluru-560 001.
(By Sri H.S.Chandramouli, SPP for Smt. Namitha Mahesh B.G., HCGP;
Sri R. Kothwal, Advocate for Complainant) …Petitioner …Respondent This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.19/2019 by R.T.Nagar Police Station, Bengaluru City, for the offences punishable under Sections 120(B), 406, 463, 464, 468, 470, 471 and 420 r/w Section 34 of Indian Penal Code.
IN CRIMINAL PETITION No.1360/2019: BETWEEN:
Ms. Heena Kousar D/o Mr. Syed Mahboob Aged about 24 years Residing at No.22, Muneshwara ‘C’ Block Near Gangamma Temple, Mattadahalli Bengaluru-560 032.
(By Sri Naveed Ahmed, Advocate) AND:
State of Karnataka by Station House Officer, R.T.Nagar Police Station, Bengaluru, Represented by State Public Prosecutor High Court Building Bengaluru-560 001.
(By Sri H.S.Chandramouli, SPP for Smt. Namitha Mahesh B.G., HCGP;
Sri R. Kothwal, Advocate for Complainant) …Petitioner …Respondent This Criminal Petition is filed under Section 438 of Cr.P.C. praying to enlarge the petitioner on bail in the event of her arrest in Crime No.19/2019 of R.T.Nagar Police Station, Bengaluru, for the offences punishable under Sections 341, 120(B), 406, 471, 420, 470, 464, 463 and 468 r/w Section 34 of Indian Penal Code.
IN CRIMINAL PETITION No.1237/2019:
BETWEEN:
Mohammed IQBAL S/o Mohammed Basha Aged about 47 years No.17, 6th Main Road Palace Guttahalli Bengaluru-560 003.
(By Sri Muzaffar Ahmed, Advocate) AND:
State by R.T.Nagar P.S. Bengaluru, Represented by State Public Prosecutor High Court Building Bengaluru-560 001.
(By Sri H.S.Chandramouli, SPP for Smt. Namitha Mahesh B.G., HCGP;
Sri R. Kothwal, Advocate for Complainant) …Petitioner …Respondent This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.19/2019 registered by R.T.Nagar Police Station, Bengaluru, for the offences punishable under Sections 120(B), 406, 463, 464, 468, 470, 471 and 420 r/w Section 34 of Indian Penal Code.
These Criminal Petitions coming on for Orders this day, the Court made the following:-
O R D E R Criminal Petition No.1637/2019 has been filed by the petitioner/accused No.1, Criminal Petition No.1631/2019 has been filed by accused No.4, Criminal Petition No.1725/2019 has been filed by accused No.6, Criminal Petition No.2039/2019 has been filed by accused No.3, Criminal Petition No.1620/2019 has been filed by accused No.10, Criminal Petition No.1237/2019 has been filed by accused No.2 under Section 439 of Cr.P.C. and Criminal Petition No.1360/2019 has been filed by accused No.8 under Section 438 of Cr.P.C. to release them on bail and anticipatory bail in Crime No.19/2019 of R.T.Nagar Police Station, for the offences punishable under Sections 120B, 406, 420, 463, 464, 468, 470, 471 r/w Section 34 of Indian Penal Code.
2. I have heard the learned Senior Counsel Sri.Hashmath Pasha, learned counsels Sri. Raju C.N., Sri.Rajesh Rao K., Nisar Sab, Naveed Ahmed, Muzaffar Ahmed, appearing for the petitioners and the learned State Public prosecutor Sri.Chandramouli and learned counsel Sri. R.Kothwal for the complainant.
3. Before going to consider the submissions of the learned counsels appearing for the parties, gist of the complaint reveals that the respondent-police received the credible information on 26.1.2019 at about 6.20 p.m. that some persons involved in creating fake website with a login number of Karnataka Minorities Development Corporation and have opened fake bank account, by web-hosting the application got sanctioned educational loan and have misappropriated the said amount by getting it transferred to the private account. Immediately, they went to the spot and apprehended the accused and there they came to know that accused No.1 is employed in Minorities Development Corporation and he has been provided with login number of Minorities Development Corporation forwarding application for educational loan under the Scheme Arivu-2 and for this purpose colluded with other accused persons and opened an account in ICICI Bank, HRBR Layout, in the name of National Academy Management Institute of Technology College and have misappropriated the amount.
4. It is the submission of the learned Senior Counsel appearing for the petitioner/accused No.1 that the petitioner has been falsely implicated in the alleged crime. It is further submitted that Section 154 of Cr.P.C. enumerates that the police is duty bound to proceed to conduct investigation into a cognizable offence before registering information about commission of such an offence is not contemplated in law. If the information about cognizable offence is received by the Investigation Agencies, then it mandates that it must be registered in the station house diary and an FIR has to be issued and if the said mandate is not followed, it is fatal to the case of the prosecution. He further submitted that if the provisions of Sections 154 and 157 of Cr.P.C. are not followed, the entire proceedings are going to be vitiated. In order to substantiate his said contention he relied upon the decision in the case of L.Shankaramurthy and Others Vs. State by Lokayukta Police reported in (2012) 5 Kant LJ 545, he also relied upon yet another decision in the case of Lalita Kumari Vs. Government of Uttar Pradesh and Others reported in (2014) 2 SCC 1. It is his further submission that accused No.1 was working as Second Division Assistant, it is his only duty to forward the applications to the sanctioning authority, at the other end it will be opened and the sanction is going to be given. Accused No.1 is not a sanctioning authority who leaked the login number to the sanctioning authority and it is not within the knowledge of accused No.1. He further submitted that no case has been registered under the Prevention of Corruption Act and there is no records to show that the petitioner/accused No.1 has received any bribe and even there is no presumption that he has received the bribe. He further submitted that the offences levelled against the petitioner are triable by the Court of the Magistrate. The detention of the accused prior to the trial will amounts to nothing but pre-trial conviction. He is ready to abide by the conditions imposed by this Court and ready to offer the sureties.
5. It is the submission of the learned counsel for the petitioner/accused No.4 that he has been falsely implicated in the case and he is not an employee, he is nothing to do with the activities of the other accused persons.
6. It is the submission of the learned counsel for the petitioner/accused No.8 that her name is not shown in the complaint or in any other records. She got engaged with accused No.4 about a month’s back, how the amount has been transferred in her name is not known to her by creating the documents, other persons have transferred the amount. He further submitted that accused No.8 is an innocent person.
7. The learned counsel for petitioner/accused No.2 also submitted that he is not an employee. He is an human activist. He only went there, because he was present he has been made as an accused. Nothing has been recovered from the possession of accused No.2.
8. It is the submission of the learned counsel for accused No.3 that he was the close friend of accused No.1 and only because he is a close friend he has been falsely implicated in this case.
9. It is the submission of the learned counsel for the petitioner/accused No.10 that he got married with accused No.7 and there is no participation or overt acts as against accused No.10. There is no direct or indirect evidence. He has been falsely implicated in the said case. It is his submission that accused No.7 has been released on bail. On the ground of parity, the petitioner is also entitled to be released on bail.
The learned counsels have supported the argument of learned Senior Counsel Sri.Hashmath Pasha.
10. The learned counsel for the petitioner accused No.6 has remained absent, but however, the contentions taken in the petition are similar to that of the other petitions. On these grounds they have prayed to allow the petitions.
11. Per contra, the learned State Public Prosecutor vehemently argued and submitted that the accused persons have been apprehended and the case has been registered under Section 120B of the Indian Penal Code. All the accused persons are held liable for conspiracy. He further submitted that the accused persons by taking advantage have entered into login and forwarded the applications. Thereafter, after getting the said loan sanctioned, the same has been misappropriated. He further submitted that the said Scheme Arivu-2 is made by the Government to give benefit for the poor and needy persons for the purpose of self reliance. But the petitioners/accused have misappropriated more than 2 Crores. He further submitted that still the investigation is in progress and this case is not an ordinary case of cheating, it is a serious economical offence. He further submitted by relying upon the decision in the case of Anil Mahajan Vs. Commissioner of Customs and Another reported in 2000 Crl.LJ 2094 that in case of economical offences the Court has to be very strict in granting the bail and such offences are considered to be grave and serious. He further submitted that undue sympathy and humanitarian considerations are not the criteria for granting the bail. He further submitted that by relying upon the decision in the case of L.R. Nagu @ Nagendramurthy Vs. State of Karnataka in Criminal Appeal No.559/2012 dated 4.12.2017 submitted that the Investigating Officer has acted in accordance with Section 157 of Cr.P.C. and no prejudice or failure of justice having been made out and there is no breach of mandatory requirements of law or jurisdiction in registering the case. In that light, merely because the Investigating Officer has visited the spot and thereafter registering the case is not having any impact. Now the case is at an ripen stage, still the investigation has to be conducted and custodial interrogation of the accused is necessary. During the investigation an amount of Rs.92 lakhs has been recovered from the possession of the accused. If at this juncture, if the petitioners/accused are enlarged on bail it would send a wrong signal to the Society. He further submitted that there is prima facie material as against accused persons for having committed a serious economic offence and as such he prays to dismiss the petitions.
12. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
13. Before going to consider the contentions it is relevant to note that it is well settled principles of law that presumption of innocence is a human right but there cannot be presumption of guilt so as to deprive a person of his liberty without an opportunity before an independent forum or Court. This proposition of law has been laid down by the Hon’ble Apex Court in the case of Dr.Subhash Kashinath Mahajan. Vs. State of Maharashtra reported in AIR 2018 SCC 1498, at para No.65 it has been observed as under:
“65. Presumption of innocence is a human right. No doubt, placing of burden of proof on accused in certain circumstances may be permissible but there cannot be presumption of guilt so as to deprive a person of his liberty without an opportunity before an independent forum or court. In Noor Aga v. State of Punjab, it was observed:
“33. Presumption of innocence is a human right as envisaged under Article14(2) of the International Covenant on Civil and Political Rights. It, however, cannot per se be equated with the fundamental right and liberty adumbrated in Article 21 of the Constitution of India. It, having regard to the extent thereof, would not militate against other statutory provisions (which, of course, must be read in the light of the constitutional guarantees as adumbrated in Articles 20 and 21 of the Constitution of India).
xxxx xxxx xxxx 35. A right to be presumed innocent, subject to the establishment of certain foundational facts and burden of proof, to a certain extent, can be placed on an accused. It must be construed having regard to the other international conventions and having regard to the fact that it has been held to be constitutional. Thus, a statute may be constitutional but a prosecution thereunder may not be held to be one. Indisputably, civil liberties and rights of citizens must be upheld.
xxxx xxxx xxxx 43. The issue of reverse burden vis-a-vis the human rights regime must also be noticed. The approach of the common law is that it is the duty of the prosecution to prove a person guilty. Indisputably, this common law principle was subject to parliamentary legislation to the contrary. The concern now shown worldwide is that Parliaments had frequently been making inroads on the basic presumption of innocence. Unfortunately, unlike other countries no systematic study has been made in India as to how many offences are triable in the court where the legal burden is on the accused. In the United Kingdom it is stated that about 40% of the offences triable in the Crown Court appear to violate the presumption. (See “The Presumption of Innocence in English Criminal Law”, 1996, CRIM.L.REV.306, at p.309.) 44. In Article 11(1) of the Universal Declaration of Human Rights (1948) it is stated:
“Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law…”
Similar provisions have been made in Article 6.2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and Article 14.2 of the International Covenant on Civil and Political Rights (1966).
xxxx xxxx xxxx 47. We may notice that Sachs, J. in State v. Coetzee [1997(2)LRC 593] explained the significance of the presumption of innocence in the following terms:
“There is a paradox at the heart of all criminal procedure in that the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional protections of the accused become. The starting point of any balancing enquiry where constitutional rights are concerned must be that the public interest in ensuring that innocent people are not convicted and subjected to ignominy and heavy sentences massively outweighs the public interest in ensuring that a particular criminal is brought to book… Hence the presumption of innocence, which serves not only to protect a particular individual on trial, but to maintain public confidence in the enduring integrity and security of the legal system. Reference to the prevalence and severity of a certain crime therefore does not add anything new or special to the balancing exercise. The perniciousness of the offence is one of the givens, against which the presumption of innocence is pitted from the beginning, not a new element to be put into the scales as part of a justificatory balancing exercise. If this were not so, the ubiquity and ugliness argument could be used in relation to murder, rape, car-jacking, housebreaking, drug-smuggling, corruption…. the list is unfortunately almost endless, and nothing would be left of the presumption of innocence, save, perhaps, for its relic status as a doughty defender of rights in the most trivial of cases.”
In view of the above, an accused is certainly entitled to show to the Court, if he apprehends arrest, that case of the complainant was motivated. If it can be so shown there is no reason that the Court is not able to protect liberty of such a person. There cannot be any mandate under the law for arrest of an innocent. The law has to be interpreted accordingly.”
14. The primary purpose of considering the bail in a criminal case is to relieve the accused from imprisonment and at the same time to keep the accused constructively in the custody of the Court assuring that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required. But at the same time the Court has to keep in mind the acquisitions made as against the accused and the gravity of the offence with which he has been charged.
15. Grant or refusal of the bail is entirely discretionary, but discretion should be used depending upon the facts and circumstances of each case. The Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others reported in (2011) 1 SCC 694 has observed as to what are the parameters that can be considered into by the Court while dealing with the bail application. Para No.112 reads thus:
“112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused’s likelihood to repeat similar or other offences;
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.”
16. Keeping in view the above said proposition of law and other aspects let me consider the case of the prosecution on hand.
It is alleged by the prosecution that the accused No.1 by creating a fake website with a login number of Karnataka Minorities Development Corporation forwarded the application of loan, thereafter they have opened fake bank account and got sanctioned educational loan and have misappropriated the said funds which is under the Scheme of Arivu-2. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the petitioners and State Public prosecutor for respondent-State.
17. By going through the records though the investigation is at an initial stage, as could be seen from the allegations made, without getting the sanction from the superior authorities it is highly impossible to open the login number and by creating a fake website and opening the bank account sanctioning the loan. There will be different methods to sanction such loan. The sanctioning authority will be having a different login number and he has to use the password and thereafter he has to sanction the loan and the same is going to be sent to the treasury Khajana-2 and there the treasury authority shall also verify about the sanction, thereafter the amount is going to be released. Mere forwarding of the application is not sufficient in this behalf. That does not mean that the accused persons have not involved in the alleged crime because of the reason that an amount of Rs.92 lakhs has been recovered from the possession of the accused. The accused has to explain under what circumstances he received such a big amount, even the other accused persons have also received the amount. Who opened the accounts in the bank and whether the bank authorities are also colluded is also a matter which has to be considered and appreciated after due investigation.
18. As could be seen from the records already accused Nos.1, 4, 6, 3, 10 and 2 are in custody. Already the Investigating Officer has interrogated them sufficiently and the recoveries have also been done. The investigation may take some more time. If the petitioners/accused are kept in prison, then it will amounts to nothing but pre-trial conviction which is not advisable.
Insofar as petitioner/accused No.8 is concerned he has applied for anticipatory bail and he has not been interrogated or investigated in this behalf. Under such circumstances when a serious allegations have been made, it is not a fit case to release petitioner/accused No.8 on anticipatory bail.
19. I have gone through the decisions in the case of Anil Mahajan and also L.R.Nagu @ Nagendramurthy quoted supra, therein it has been observed that in case of economic offences they constituted a class apart and need to be visited with a different approach in the matter of the bail. Because of the reason that the economic offences are having deep rooted conspiracies and involving huge loss of public funds need to be viewed seriously. But at the same time the Court has to keep in mind the nature of the acquisition, the nature of the evidence in support thereof, the severity of the punishment which conviction will maintain, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the time of trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public, State and other similar consideration. This proposition of law has also been laid down by the Hon’ble Apex Court in the case of Y.S.Jagan Mohan Reddy Vs. Central Bureau of Investigation reported in (2013) 7 SCC 439.
20. Keeping in view the ratio laid down in the above decisions, on perusal of the entire records, during the course of the investigation there are some lacunas. Without discussing much about the said aspect, I am of the considered opinion that the alleged offences are triable by the Court of the Magistrate and petitioners/accused are already in custody and they will be available for the purpose of further investigation or interrogation and even the alleged offences are not punishable with death or imprisonment for life. Apart from that accused No.1 is a Government Official and he fleeing away from justice or absconding is very rare. If by imposing stringent conditions, if the petitioners/accused are enlarged on bail, it is going to meet the ends of justice.
21. In the light of the discussions held by me above, Criminal Petition No.1360/2019 is dismissed.
Criminal Petition Nos.1637/2019, 1631/2019, 1725/2019, 2039/2019, 1620/2019, 1237/2019 are allowed and petitioners/accused No.1, 4, 6, 3, 10 and 2 are ordered to be released on bail in Crime No.19/2019 of R.T.Nagar Police Station, subject to following conditions:
i) Each of the petitioners shall execute a personal bond for a sum of Rs.5,00,000/- (Rupees Five Lakhs only) with two solvent sureties each for the likesum to the satisfaction of the trial Court.
ii) They shall not tamper with the prosecution evidence directly or indirectly.
iii) They shall mark their attendance in the jurisdictional police once in 15 days between 10.00 A.M. and 5.00 P.M. till the trial is concluded.
iv) They shall not leave the jurisdiction of the Court without prior permission of the Court.
v) They should be available for the purpose of investigation or interrogation as and when they are required to do so.
vi) They shall not leave the Country and they should surrender their passports to the jurisdictional Court before they are going to be released from the jail.
vii) They shall not indulged in similar type of criminal activities.
Sd/- JUDGE *AP/-