IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE ARAVIND KUMAR WRIT PETITION NO.53465 OF 2017 (GM-RES) BETWEEN:
MAHENDRA KUMAR AGARWAL AGED ABOUT 58 YEARS S/O SH.ARJUN LAL AGGARWAL R/O 210, SALT LAKE, BLOCK GD SECTOR-III, BIDHANAGAR (S) NORTH 24 PARGANAS WEST BENGAL- 700 096 (BY SRI.P.H.UMESH, ADV.,) AND:
1. CENTRAL BUREAU OF INVESTIGATION THROUGH ITS DIRECTOR 2. K.N.RAO OFFICER, CBI 3. K S M NATH OFFICER, CBI ALL ARE AT REGIONAL OFFICE AT:
36, BELLARY ROAD, DENA BANK COLONY GANGA NAGAR, BENGALURU KARNATAKA- 560 032 …PETITIONER … RESPONDENTS (BY SRI.MADHAV KAHSYAP FOR SRI.P.PRASANNA KUMAR, ADV. FOR R-1 TO R-3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE SUBORDINATE COURT TO RELEASE THE SURETY OF RS.40 LACS OF THE SH. MAHENDRA KUMAR AGARWAL WITH IMMEDIATE EFFECT AND SET ASIDE THE ORDER DTD: 3.11.2015 VIDE ANNEXURE-A ALSO DIRECTION MAY BE ISSUED TO THE SUBORDINATE COURT TO ACCEPT THE PERSONAL BOND OF THE LIKE AMOUNT AS ACCEPTED BY THE COURT IN REGARD TO THE OTHER PERSON AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN B GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner has sought for the following relief:
(i) Issue a writ of mandamus, directing the subordinate Court to release the surety of Rs.40 Lacs of Sh.Mahendra Kumar Agarwal with immediate effect and set aside the order dated 03.11.2015 vide Annexure-A, also direction may be issued to the subordinate court to accept the personal bond of the like amount as accepted by the court in regard to the other person.
(ii) Issue a writ of mandamus, directing to register as FIR against the erring officials of the CBI under the supervision of the court for abducting Mr.Mahendra Kumar Agarwal.
(iii) Issue a writ of mandamus, directing the respondent No.1 to take appropriate action against the respondent Nos.2 and 3 for violation of right of the petitioner while taking him in custody illegally and in violation of guidelines on 19.10.2015.
2. It is urged that amount of surety for grant of regular bail fixed under order dated 03.11.2015 is onerous and it would tantamount to denial of bail. It is also contended surety amount should not be prohibitively high and as such, he has prayed for grant of prayer No.1.
3. In support of prayer Nos.2 and 3, petitioner has contended that he has been illegally apprehended by officials of Central Bureau of Investigation - respondent Nos.2 and 3 and as such, a writ of mandamus is sought for appropriate action being taken against respondent Nos.2 and 3 by R-1 for violation of right of petitioner while taking into custody illegally and assigning it is in violation of guidelines laid down by the Hon’ble Apex Court in the case of D.K. Basu V. State of Bengal reported in AIR 1997 SC 610.
4. As rightly contended by Sri Madhav Kashyap learned counsel appearing on behalf of Sri P. Prasanna Kumar that on open ended warrant being executed by petitioner (accused No.5), he was brought before the jurisdictional Court at 1.15 p.m. and on enquiry made by the learned Sessions Judge, he has not complained of any ill-treatment and as such, Senior Trial Judge has proceeded to hear the application for grant of interim bail on the same day and pronounced the order for granting bail on the same day. The learned Sessions Judge has recorded as under:
A-5, who represents A-8 also, is brought under Warrant at 1.15 p.m. On enquiry, he submitted that the police arrested him at 10.00 a.m., today. He made no complaints of ill treatment by the Police. Heard. Records perused. Satisfied about the compliance of the Guidelines by the Complainant regarding the Arrest of the Accused – 5.
5. However, insofar as prayer No.1 is concerned, it is modification of the bail condition which the petitioner is seeking by approaching this Court under the extraordinary jurisdiction invoking Articles 226 and 227 of Constitution of India.
6. As seen from the above proceedings recorded by the learned Sessions Judge, the guidelines regarding arrest having complied by the respondent-authority and the fact that petitioner did not complain of any ill- treatment during the arrest, prior to arrest or after the arrest, question of issuing a writ of mandamus as sought for in prayer Nos.2 and 3 would not arise.
7. Petitioner is having alternate and efficacious remedy available under the Code of Criminal Procedure namely, 439(1)(b) to seek for relaxation of bail conditions and as such, reserving liberty to the petitioner to approach the jurisdictional Court for the said relief, this petition stands rejected.
Sd/-
JUDGE BS