IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.9368 OF 2018 BETWEEN:
Sri K M Riyaz Musthafa S/o. K M Musthafa @ Kunhikutti Aged about 22 years R/at 7th Hosakote Village Sunticoppa Hobli, Madikeri Taluk Kodagu District-571 201. ...Petitioner (By Sri C.V.George Kutty, Advocate-absent) AND:
The State of Karnataka By Suntikoppa P.S., Kodagu District-571 235 By State Public Prosecutor, High Court Complex, Bengaluru-560 001. ...Respondent (By M.Divakar Maddur, HCGP) This Criminal Petition is filed under Section 439 (1)(b) of the Code of the CR.PC praying set aside the order passed by the District and Session Judge in Crl.Misc.No.359/2018, Dated:27.10.2018 thereby modify the conditions by relaxing the condition No.5 in the bail order passed in Crl.Misc.No.283/2017 dated: 10.07.2017 and release the passport of the petitioner passport bearing no.L3385520 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 accused No.1-petitioner under Section 439(2) of Cr.PC praying this Court to set aside the order dated 27.10.2018 passed by the District and Session Judge in Crl.Misc. No.359/2018 and to modify the conditions by rejecting condition No.5 in the bail order passed in Crl.Misc.No.283/2017 dated 10.07.2017.
2. I have heard learned counsel for the petitioner-accused No.1 and learned HCGP for the respondent-State.
Though this case is repeatedly listed from 12.02.2019 on day to day basis, there is no representation for the petitioner.
3. I have carefully and cautiously gone through the contents of the petition.
4. As per the case of the petitioner, a case was registered against him for the offence punishable under Section 295(A) R/w 34 of IPC in Crime No.62/2017 and he approached the District and Session Judge for bail. The said petition was came to be allowed by the Principal District and Sessions Judge, Kodagu at Madikeri in Crl.Misc.No.283/2017 dated 10.07.2017. While allowing his petition, the learned District and Session Judge has imposed 6 conditions and the 5th condition is that the accused Nos.1 and 3 shall keep their passports in safe custody of concerned Court until further order or conclusion of trial. Thereafter, the accused No.1 moved the District Court in Crl.Misc.No.359/2018 for modification of the said condition. The learned District Judge after considering the facts and circumstances, has dismissed the petition.
Against the said order, the petitioner is before this Court.
5. It is the contention of the petitioner that the Investigating Officer has not yet submitted the final report even after lapse of one and half years as the petitioner and others have obstructed the free movement in the high way by burning the crackers. The petitioner is doing his business at Soudi Arebia, but due to registration of false case, his passport has been impounded and his movement is restricted, thereby violates the fundamental rights of the petitioner. On these grounds, the accused petitioner prays to allow the petition.
6. As the accused petitioner has filed the application under Section 439 (2) of Cr.PC, the impugned order cannot be set aside and the petition is not maintainable in this particular behalf. If he wants, he has to file Criminal Revision Petition instead of Criminal Petition.
Even there is no representation for the petitioner and the petitioner’s counsel. Inspite of giving sufficient opportunity, no documents have been produced to substantiate the fact that he is doing business in Soudi Arebia for which he has to move for the purpose of business. In the absence of the documents also, the petition is not maintainable and the same is liable to be dismissed. Accordingly, the petition is dismissed.
Sd/- JUDGE PN/-