IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV CRIMINAL PETITION No. 3335/2019 Between:
1. Mr. Pravin J. Moily Aged 34 years, S/o. Jagannath Moily, 2. Sri. Jagannath Babu Moily Aged 60 years, S/o. Babu Moily, 3. Smt. Bhageerathi J Moily Aged 58 years W/o. Jagannath Moily Nos. 1 to 3 are R/at 201A Wing, Walia Apartment, Naikwadi, Aarey Road, Goregaon (East), Mumbai 400 063. Maharashtra.
4. Mrs. Hemalata Viraj Rao Aged 36 years, W/o. Viraj Rao, R/at Flat No.1805, Chandak Paloma, Vishweshwar Nagar, Goregaon (East), Mumbai 400 063. Maharashtra.
… Petitioners (By Sri. P. P. Hegde, Advocate) And:
The State of Karnataka Through the Sub-Inspector of Police, Shankaranarayana Police Station, Rep. by the State Public Prosecutor, High Court of Karnataka, Bengaluru 560 001.
…Respondent (By Sri. S. Rachaiah, HCGP) ****** This Criminal Petition is filed under Section 439 of Cr.P.C., praying to quash condition No.2 imposed by the I Addl. District and Sessions Judge, Udupi (Sitting at Kundapura) in the order dated 26.04.2019 in Crl.Misc.Case 96/2019 (arising out of Crime No.47/2019) of Shankaranarayana Police Station and pending on the file of the I Addl. Civil Judge & JMFC, Kundapura, whereby the learned Sessions Judge has directed the petitioners to move for regular bail within 15 days from the date of the order.
This Criminal Petition coming on for orders this day, the Court, made the following:
ORDER Petitioners are seeking for modification of the condition imposed by the Sessions Court in Crl.Misc. No.96/2019 while enlarging the accused on anticipatory bail, whereby the condition No.2 reads as follows:
“The petitioners shall move regular bail within 15 days from the date of this order”
2. Learned counsel for the petitioners points out that the said condition imposed is contrary to the law laid down by the Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharastra and others – (2011) 1 SCC 694. The relevant paras are extracted herein below :
“112. The validity of the restrictions imposed by the Apex Court, namely, that the accused released on anticipatory bail must submit himself to custody and only thereafter can apply for regular bail. This is contrary to the basic intention and spirit of section 438 Cr.P.C. It is also contrary to Article 21 of the Constitution. The test of fairness and reasonableness is implicit under Article 21 of the Constitution of India. Directing the accused to surrender to custody after the limited period amounts to deprivation of his personal liberty.
113. It is a settled legal position crystallized by the Constitution Bench of this court in Sibbia's case (supra) that the courts should not impose restrictions on the ambit and scope of section 438 Cr.P.C. which are not envisaged by the Legislature. The court cannot rewrite the provision of the statute in the garb of interpreting it.”
The Hon’ble Court has thus categorically held that: “114. ……therefore, while determining the scope of Section 438, the court should not impose any unfair or unreasonable limitation on the individual's right to obtain an order of anticipatory bail. Imposition of an unfair or unreasonable limitation, according to the learned Counsel, would be violative of Article 21, irrespective of whether it is imposed by legislation or by judicial decision”.
3. In light of the settled position of law, directing the petitioner to obtain regular bail cannot be insisted upon and would be untenable. Accordingly, while upholding the order of the Sessions Court in Crl.P.No.9263/2018, condition No.2 stipulating that the petitioners shall move regular bail stands deleted.
4. Accordingly, the petition stands disposed of and the order of the Sessions Court granting bail is to be read sans condition No.2.
Sd/- JUDGE VP