IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF JANUARY 2019 BEFORE THE HON'BLE MRS. JUSTICE K.S.MUDAGAL CRIMINAL PETITION NO.8763 OF 2018 BETWEEN:
1. Sri B S Chandrappa S/o Sri B Shankarappa Aged about 47 years Working as Assistant Executive Engineer No.2, Sub-Division Karnataka Slum Development Board No.55, Abhaya Complex, Risaldar Street Sheshadripuram, Bengaluru-560 020.
R/at No.26/51, 1st Floor 8th Cross, Swimming Pool Extension Malleshwaram,Bangalore-560 003.
2. Sri N P Balaraj S/o Late H V Puttaswamy Aged about 53 years Working as Technical Director-2, (In-Charge) Karnataka Slum Development Board No.55, Abhaya Complex Risaldar Street, Sheshadripuram Bangalore-560 020.
R/at No.101, 10th D-Main First Block, Jayanagar Bangalore-560 011. …Petitioners (By Sri. Srikanth M P, Advocate) AND:
BESCOM By Rajajinagar Police Station. ...Respondent (By Sri. K P Yoganna, HCGP) This Criminal Petition is filed under Section 438 of Cr.P.C. praying to enlarge the petitioners on bail in the event of their arrest in Cr.No.98/2014 (Spl.C.No.757/2018) of BESCOM, Rajajinagar Police Station, Bangalore city for the offence P/U/S 135 of the Electricity Act.
This Criminal Petition coming on for Orders, this day, the Court made the following:
ORDER The petitioners are accused Nos.1 and 2 in Spl.C.C.No.757/2018 on the file of the LXX Additional City Civil and Sessions Judge and Special Judge at Bengaluru. The petitioners and others were charge sheeted in the said case for the offence punishable under Section 135 of Electricity Act, 2003.
2. It was alleged that the petitioner and the other accused illegally facilitated the residents of Pantharapalya slum to tap electricity from the transformer causing loss of energy of Rs.1,58,67,808/- and compounding fees of Rs.16,92,000/- to BESCOM.
3. The petitioners were not arrested even when the charge sheet was filed. The Special Court issued summons to the petitioners and they appeared on 19.11.2018 and filed bail application. When the matter was taken up for hearing, the petitioners did not remain present before the Court. The Special Court has issued non bailable warrants to the petitioners.
4. The petitioners contend that the first petitioner fell ill and the second petitioner took him to hospital, therefore, they could not remain present before the Court. To substantiate the contention that on 19.11.2018 the petitioners had been to some hospital and the first petitioner was treated by the doctor, no material is produced.
5. Further, the bail application of the petitioners under Section 439 of Cr.P.C. is still pending before the Special Court. In the judgment of the Division Bench of this Court in Venkatachalaiah and others .vs. State of Karnataka, by Kadugodi Police, Bangalore and others ILR 2003 KAR 3985, relied upon by the counsel for the petitioners, it is held as follows:-
“This takes us to the next question as to whether on an issuance of warrant by the Magistrate, can a person approach the Court under Section 438(1) Cr.P.C. We would like to state that in the normal course where warrant is issued in pursuance of filing charge-sheet or issuance of summons and non-appearance of the party, the remedy under Section 438(1) Cr.P.C. is available. However, we would like to emphasis that where in a criminal proceeding a party has already appeared once or more than one date and thereafter does not appear in the Court, the Court in such circumstances issues non-bailable warrant and the said warrant issued is in view of the defaulting conduct on the part of the accused and we are of the view that in such cases a petitioner cannot invoke the jurisdiction of the Court under Section 438(1) Cr.P.C. and he is bound to obey the Court order or warrant by first appearing before the Court and than by satisfying the Court as to the sufficient cause for his absence, pray for bail under Section 439 Cr.P.C.”
(Emphasis supplied) 6. The above paragraph itself goes to show that once the party appears before the Court and his bail application is pending, he cannot maintain bail application under Section 438 of Cr.P.C.
7. Having regard to the aforesaid judgment and facts and circumstances of the case, the petitioners do not deserve relief of anticipatory bail. Hence, the petition is dismissed.
8. In view of the disposal of the main petition I.A.No.1/2018 does not survive for consideration and accordingly, disposed of.
Sd/- JUDGE alb*/