IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION No.9182/2018 BETWEEN:
1. SMT. SHALINI AGED ABOUT 59 YEARS W/O SRI KRISHNA NAIRY 2. SRI C K BHARATH, B.E., M.B.A. AGED ABOUT 29 YEARS S/O KRISHNA NAIRY BOTH ARE RESIDENTS OF NO.14 1ST CROSS, KALPATARU LAYOUT 8TH PHASE, J P NAGAR B K CIRCLE BENGALURU-560076.
3. SRI SHASHIKANTH NAIRY, M.A. B.ED., AGED ABOUT 43 YEARS S/O SADIYA NAIRY INDIRA NAGAR VARAMBALLI VILLAGE, BRAHMAVAR TALUK UDUPI DISTRICT-576213.
(BY SRI C V NAGESH, SR.COUNSEL FOR SRI RAGHAVENDRA .K, ADV.) ... PETITIONERS AND:
THE STATE OF KARNATAKA BY THE STATION HOUSE OFFICER BRAHMAVAR POLICE STATION BRAHMAVAR CIRCLE UDUPI DISTRICT-576213 REP. BY THE SPP HIGH COURT OF KARNATAKA BANGALORE-560 001.
(BY SMT. NAMITHA MAHESH, B.G., HCGP.) ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 438 OF CR.P.C. PRAYING TO ENLARGE THE PETITIONERS ON BAIL IN THE EVENT OF HIS ARREST IN CRIME NO.213/2018 OF BRAHMAVAR POLICE STATION, UDUPI FOR THE OFFENCE P/U/S 306 R/W 34 OF IPC AND ETC.
THIS CRIMINAL PETITION COMING ON FOR ORDERS, THIS DAY THE COURT MADE THE FOLLOWING:-
O R D E R The present petition has been filed by the petitioners/ accused Nos.1 to 3 to release the petitioners on anticipatory bail in Crime No.213/2018 registered by the Brahmavar Police Station, Brahmavar, for the offence punishable under Section 306 r/w Section 34 of IPC.
2. I have heard Sri C.V. Nagesh, learned Senior Counsel for the petitioners and Smt.B.G. Namitha Mahesh learned High Court Government Pleader for the respondent - State.
3. The gist of the complaint is that one Smt. Veena R. Nairy wife of the deceased Rathnakar alias Vasanth Nairy, filed a complaint alleging that her husband was allotted 23 cents of land from his father and he was residing along with the petitioners. Petitioners in collusion with each other got transferred the land and they also abused the deceased saying he is a beggar and why he requires the land and they also abetted him by saying ‘go and die elsewhere’. It is further stated in the complaint that on 19.10.2018 at about 12.30 p.m. the deceased by consuming poison committed suicide and on the basis of the complaint a case has been registered.
4. It is the submission of the learned Senior Counsel that the deceased was not having any avocation and he was also having debts. He was also indebted to Varalakshmi Credit Souharda Shakara Niyamitha Society, Basthipete, Kumta, North Karnataka. Even the said Society obtained a decree and filed an execution against the deceased and it is the 1st petitioner who paid the decreetal amount during the year 2016 and therefore, the deceased released his share of land in favour of the petitioners. He further submitted that the ingredients of Section 306 are not forthcoming in the alleged complaint and there is no abetment of the deceased to commit suicide. In order to substantiate the said contention he relied upon the decision of the Hon’ble Apex Court in RAJESH Vs. STATE OF HARYANA in Criminal Appeal No.93/2019 arising out of SLP (Crl.) No.8667/2016. He also relied upon the decision in M.C. CHAITHRA AND OTHERS VS. STATE OF KARNATAKA reported in ILR 2008 KAR 2710. He further submitted that mere using of the word ‘go and die’ will not constitute the basis of committing suicide as contemplated under Section 107 of IPC. He further submitted that on these grounds the petitioners/accused Nos.1 to 3 be released on anticipatory bail and they undertake to abide by the conditions to be imposed by this Court.
5. Per contra, learned HCGP vehemently argued and submitted that the petitioners and the deceased were staying together and petitioners obtained relinquishment deed by playing fraud and that within the close proximity the alleged incident has taken place. She further submitted that the deceased has left a death note which was found in his pocket. The same has to be compared with the admitted hand writing and signature as the investigation is still pending. Under such circumstances, if the petitioners/accused Nos.1 to 3 are enlarged on anticipatory bail, they may tamper the prosecution witnesses and on these grounds prays to dismiss the petition.
6. I have carefully heard the submissions made by the learned counsel for both the parties and I have perused the records. As could be seen from the contents of the complaint, the only allegation which has been made is that the deceased used to stay along with the petitioners and he used to tell the complainant that the petitioners have obtained his signature on blank paper and have got transferred the property in their name and he used to say he is going to die and on 19.10.2018 at 12.30 p.m. by consuming poison he died and on a reading of the said complaint, it is seen that the main ingredients which are necessary for the purpose of attracting the provisions of Section 107 of IPC are not specifically stated.
7. I am of the considered opinion, that the matter has to be considered and appreciated at the time of final adjudication of the case, but prima facie by a reading of the said complaint, it is seen that there is no intention or abetment and there is no ingredient attracting the provisions of Section 306 of IPC. Keeping in view the proposition of law laid down by the Hon’ble Apex Court in the decision cited supra, the petitioners have made out a case to release them on anticipatory bail. No doubt the learned HCGP submitted that still investigation is under progress and the admitted signatures are to be obtained and the said signatures have to be sent to the handwriting expert for comparison. Therefore, under the above said facts and circumstances, by imposing some stringent conditions if the petitioners/accused 1 to 3 are enlarged on anticipatory bail, it is going to meet the ends of justice.
8. Accordingly, the petition is allowed. The petitioners are ordered to be released on bail, in the event of their arrest in Crime No.213/2018 of Brahmavar Police Station, Udupi, for the offence punishable under Section 306 r/w Section 34 of IPC, subject to the following conditions:
i) Petitioners shall execute a personal bond for Rs.1,00,000/- (Rupees One Lakh only) with two sureties each for the like sum to the satisfaction of the Investigating Officer.
ii) They shall surrender before the Investigating Officer within fifteen days from today.
iii) They shall co-operate with the Investigating Officer as and when required.
iv) They shall not tamper with the prosecution evidence in any manner.
v) Petitioners 1 and 2 shall mark their attendance once in 15 days before the J.P.Nagar Police Station, Bangalore, i.e., on Saturdays in between 10.00 a.m. to 5.00 p.m.
vi) Petitioner No.3 shall mark the attendance once in 15 days before the Brahmavar Police Station, Udupi, i.e. on Saturdays in between 10.00 a.m. to 5.00 p.m.
vii) If the petitioners do not surrender before the Investigating Officer within 15 days as ordered, this order shall automatically stand cancelled.
I.A.No.1/2018 filed for interim bail does not survive for consideration. Accordingly, it is dismissed.
Sd/- JUDGE NG* CT: bms