IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE K.N.PHANEENDRA CRIMINAL PETITION NO.8462/2018 BETWEEN Sri. P. Muneer, S/o. Muthammed Kunhi K., Aged about 43 years, R/at Kulathil House, Kalluravi Beach, Kanhangad South, Hosdurg Taluk, Kasaragod District, Kerala State – 671 531 (By Sri. Ajay Prabhu M., Advocate for Sri. Sachin B.S., Advocate) AND State of Karnataka Represented by Bajpe Police, D.K. Mangaluru By SPP High Court of Karnataka, Bengaluru – 560 001.
(By Sri. Honnappa, HCGP) …Petitioner …Respondent This Criminal Petition is filed u/s.438 of Cr.P.C., praying to enlarge the petitioner on bail in the event of his arrest in Crime No.161/2010 registered by Bajpe Police Station, D.K., Mangaluru for the offence p/u/s 419, 420 and 468 r/w Section 34 of IPC and Section 12(B)(D)(E) of Indian Passport Act.
This petition coming on for orders, this day, the Court made the following:
O R D E R Heard the learned counsel for the petitioner and also learned High Court Government Pleader. Perused the records.
2. The respondent-police have laid a chargesheet against the petitioner and other three accused persons in Criminal Case No.222/2013 on the file of I Additional Senior Civil Judge and C.J.M, Mangaluru, D.K. As Accused Nos.2 to 4 were absconding, split up chargesheet was registered against them in C.C.No.69/2017. Summons, warrants and proclamations have been issued against the petitioner who is arraigned as accused No.4. Inspite of that the Court could not secure the presence of the Petitioner/Accused No.4. Therefore, the trial Court proceeded against accused No.1 and recorded judgment of acquittal on 19.02.2019.
3. The allegations made against this petitioner who is arraigned as accused No.4 is that accused Nos.
1 and 2 have decided to impersonate accused No.3 and accused No.1 in the name of accused No.3 went to travel abroad. Therefore, he wanted a fake passport in the name of accused No.1. In this connection, accused Nos.1 and 2 have given an amount of Rs.7,500/- to this petitioner with 10 (ten) photographs and it is alleged that this petitioner has issued a fake passport to accused No.1 to travel abroad in the name of accused No.3 impersonating accused No.3. The above said allegations as could be seen from the records particularly the points for consideration formulated by the Trial Court in C.C.No.222/2013 shows that they are inseparable and indivisible in nature.
4. The trial Court, after considering the entire evidence on record has come to the conclusion that the prosecution has not proved the case against accused No.1 and even against the accused Nos.2 to 4. At paragraph 35, the trial court has categorically stated in the following manner:
“The uncorroborated evidence of emigration officials and department witnesses not helps to the case of prosecution as to securing of the accused, presence of the accused, recovery of documents from the possession of accused, having possession of such documents etc. The prosecution has not placed convincing evidence as to commission of offences by this accused No.1 along with other three accused by way of their involvement and having common intention to commit an offence alleged against them under the provisions of IPC and under the provisions of Passport Act. Therefore, the criminal liability could not be fixed on this accused No.1 and the personal liberty of this accused No.1 could not be infringed under the facts and circumstances of this case. The prosecution has not proved its case by placing convincing and cogent evidence. Hence this court hereby answers the Point No.1 to 4 in the negative.
Having come to that conclusion, accused No.1 was acquitted.
5. Merely because the petitioner/Accused No.4 was absconding, this Court cannot draw an inference that the accused has committed such an offence as alleged against him as one of the accused, i.e., Accused No.1 has already been acquitted by the trial Court. Mere abscondance itself is not an offence.
6. Looking to the above said facts and circumstances of the case, when there is no material to show that the accused had knowledge of the said proceedings being initiated against him and a criminal case was pending against him and inspite of knowing fully well, he deliberately not appeared before the Court. Unless that deliberate action on the part of the petitioner is shown, in my opinion, the valuable right of liberty of the accused cannot be curtailed by declining to grant bail. Under the above said circumstances, if the bail as prayed for is granted, it virtually facilitates the Trial Court to proceed with the matter as expeditiously as possible.
7. With these observations, I pass the following:
ORDER The petition is allowed. The petitioner shall surrender himself before the Trial Court in C.C.No.69/2017 on the file of I Additional Senior Civil Judge and C.J.M, Bengaluru and execute his personal bond for a sum of Rs.2,00,000/- (Rupees two lakhs only) with one surety for the like sum to the satisfaction of the Trial Court within ten days from the date of receipt of a copy of this order subject to the following conditions:
i) The petitioner shall not indulge in tampering the prosecution witnesses.
ii) The petitioner shall not leave the jurisdiction of the Trial Court without prior permission.
iii) The petitioner shall appear before the Trial Court on all the future hearing dates unless prevented by any genuine cause and exempted by the Court for genuine reasons.
iv) If the petitioner absents himself for any two consecutive hearing dates without intimation to the Court or without there being any exemption application filed, he shall be taken into custody and trial shall be proceeded with.
Sd/- JUDGE bnv