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TMI Blog2020 (11) TMI 996X X X X Extracts X X X X X X X X Extracts X X X X ..... vities and has obtained tenders from various Departments of the State and Central Governments and BDA. In respect of four different contracts of BDA, an amount of Rs. 140 Crores was due to the complainant. It is further alleged that in the month of June, 2020, petitioner-accused No. 1 called the complainant and asked him to meet him in his office at Mathikere. Accordingly, the complainant went and met the petitioner-accused No. 1 and the complainant informed the petitioner-accused No. 1 that he wants to put up an advertisement hoarding at Yelahanka at A.P. Border Troll Road which his Company has developed. While discussing, petitioner-accused No. 1 also informed the complainant that he is very close to Mr. Amith Shah, the Hon'ble Minister of Home Affairs, Government of India and he is in touch with him on regular basis. He also claimed that he could help him in getting any work done either from State or Central Governments. It is further alleged in the complaint that the complainant was in constant touch with the petitioner-accused No. 1 and during 4th week of June, 2020 he was persuaded to discuss with him about a tender floated by New Mangalore Port Trust in respect of constr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it would help him. He further alleged that none of the conversation made by him with the petitioner-accused No. 1 is true. Later, the complainant started suspicious of the actual intent of the petitioner-accused No. 1. It is further alleged that the petitioner-accused No. 1 asked 5% of the amount and he also threatened that he will tarnish his reputation by misusing the tutored line and false statement which has been spoken against certain individuals. Because of the threat he paid an amount of Rs. 25 lakhs in cash on 22.8.2020. It is further alleged that on 2.9.2020 he was surprised to watch a programme telecasted in the Power TV Channel of the petitioner-accused No. 1 wherein he himself was a part of panel discussion and the petitioner-accused No. 1 was making several false allegations referring to the work undertaken by his Company. Subsequently, many episodes were also aired/telecasted by the petitioner-accused No. 1 through his Channel relating to the work done by the Company of the complainant linked with some politicians and his family members who had no connection with the work executed by the Company of the complainant. The petitioner-accused No. 1 also referred to severa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is his further submission that the provision of anticipatory bail enshrined in Section 438 of Cr.P.C. is conceptualized under Article 21 of the Constitution of India. It relates to personal liberty of a particular person and such a provision calls for liberal interpretation of Section 438 of Cr.P.C. in the light of Article 21 of the Constitution of India. In order to substantiate his contention, he relied upon a decision of the Hon'ble Apex Court in the case of Bhadresh Bipinbhai Sheth Vs. State of Gujarat & another, reported in (2016)1 SCC 152. It is his further submission that the petitioner-accused No. 1 is ready to abide by the conditions imposed by this Court and ready to offer sureties. On these grounds, he prayed to allow the petition and to release the petitioner-accused No. 1 on anticipatory bail. 7. Per contra, the learned SPP-I by substantiating the objections in this behalf has submitted that the conduct of the petitioner-accused No. 1 is not as a responsible prudent citizen of this country. It is his further submission that during the course of investigation, it was noticed that the petitioner-accused No. 1 was tested positive for pandemic Covid-19. Without fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayed to dismiss the petition. 8. On behalf of respondent No. 2-complainant learned Senior Counsel has vehemently argued and submitted that the petitioner-accused No. 1 has filed WP. No. 11169/2020 and the said writ petition came to be dismissed holding that there are no grounds made out for quashing. It is his further submission that when a finding has been given by a co-ordinate Bench, though it is not binding, it is having persuasive nature. Contrary to the said finding, this Court cannot say that there is no prima facie case as against the petitioner-accused No. 1. It is his further submission that petitioner-accused No. 1 has suffered a finding at the hands of this Court and now he cannot contend contrary to the said finding. It is his further submission that while granting the anticipatory bail, the Court has to look into autobiography of the petitioner-accused No. 1, antecedents and backdrop of the commission of the offence and the social effect of the said offence. It is his further submission that accused No. 1-petitioner is professional habitual offender extracting money by threatening the people. In case of habitual offenders, this Court cannot exercise the power vested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy." "72. We are conscious of the fact that the legislative intent behind the introduction of Section 438 CrPC is to safeguard the individual's personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual, rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights--safeguarding the personal liberty of an individual and the societal interest. It cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of law that presumption of innocence is a human right. The said proposition of law has been laid down by the Hon'ble Apex Court in the case of Dr. Subhash Kashinath Mahajan Vs. The State of Maharashtra & another, reported in AIR 2018 SC 1498. It has been observed that there cannot be presumption of guilt so as to deprive a person of his liberty without any opportunity before an independent forum or Court. At paragraph-65 of the said decision, the Hon'ble Apex Court has observed as under:- "65. Presumption of innocence is a human right. No doubt, placing of burden of proof on accused in certain circumstances may be permissible but there cannot be presumption of guilt so as to deprive a person of his liberty without an opportunity before an independent forum or court. In Noor Aga v. State of Punjab, it was observed: "33. Presumption of innocence is a human right as envisaged under Article 14(2) of the International Covenant on Civil and Political Rights. It, however, cannot per se be equated with the fundamental right and liberty adumbrated in Article 21 of the Constitution of India. It, having regard to the extent thereof, would not militate against other statuto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal rights are concerned must be that the public interest in ensuring that innocent people are not convicted and subjected to ignominy and heavy sentences massively outweighs the public interest in ensuring that a particular criminal is brought to book... Hence the presumption of innocence, which serves not only to protect a particular individual on trial, but to maintain public confidence in the enduring integrity and security of the legal system. Reference to the prevalence and severity of a certain crime therefore does not add anything new or special to the balancing exercise. The perniciousness of the offence is one of the givens, against which the presumption of innocence is pitted from the beginning, not a new element to be put into the scales as part of a justificatory balancing exercise. If this were not so, the ubiquity and ugliness argument could be used in relation to murder, rape, car-jacking, housebreaking, drug-smuggling, corruption.... the list is unfortunately almost endless, and nothing would be left of the presumption of innocence, save, perhaps, for its relic status as a doughty defender of rights in the most trivial of cases." In view of the above, an accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence which he has committed and not for other's. In that light, the contention of the learned SPP-I is not having any force. Further, though it is contended by the learned Senior Counsel for the respondent-complainant that many more cases have been registered as against the petitioner-accused No. 1 and he is a habitual offender, it is the specific contention of the learned Senior Counsel for the petitioner-accused No. 1 that in two cases the petitioner-accused No. 1 has been acquitted and other cases have been got registered only to humiliate the petitioner-accused No. 1 and in one case, the police have submitted B-report. In so far as another case is concerned, the same has been registered after registering of the present case. Until and unless the petitioner-accused No. 1 has been tried and convicted for the alleged offence, he cannot be held as a habitual offender and till he is proved guilty, no presumption can be drawn about his guilt as observed in the case of Dr. Subhash Kashinath Mahajan Vs. The State of Maharashtra & another (cited supra). 17. While considering the bail application, the parameters which have to be considered has been stated in the case of Siddhara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty and it shall be given a liberal interpretation. This aspect has also been upheld by the Hon'ble Apex Court in the case of Bhadresh Bipinbhai Sheth Vs. State of Gujarat & another (cited supra), wherein at paragraph-21 it has been observed as under:- "21. Before we proceed further, we would like to discuss the law relating to grant of anticipatory bail as has been developed through judicial interpretative process. A judgment which needs to be pointed out is a Constitution Bench judgment of this Court in Gurbaksh Singh Sibbia v. State of Punjab [(1980) 2 SCC 565 : 1980 SCC (Cri) 465]. The Constitution Bench in this case emphasised that provision of anticipatory bail enshrined in Section 438 of the Code is conceptualised under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution. The Code explains that an anticipatory bail is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. The dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause he is absconding, no inference can be drawn about his guilt. Sometimes because of fear, ill-treatment and harassment at the hands of the police, the petitioner-accused No. 1 might have kept himself behind the curtain so as to avoid the said ill-treatment and harassment. The contents of the complaint clearly go to show that the complainant came in contact with the petitioner-accused No. 1 and some amount is due to the complainant. Whether the petitioner-accused No. 1 has claimed that he is very close to Mr. Amith Shah, Hon'ble Minister of Home Affairs, Government of India and got reposed confidence of the complainant and subsequently whether he called the Chief Engineer (Civil) of New Mangalore Port Trust and spoke to him with his mobile identifying himself as an Officer working in the office of the Hon'ble Minister of Home Affairs, Government of India, are all the matters which have to be considered and appreciated during the course of trial and it is in the form of document and evidence. If any further information is required, one of the conditions will be that the petitioner-accused No. 1 has to co-operate with the investigation and the Investigating Officer can inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court has also not come up with clean hands and it appears that all is not well. In that light, I am of the considered opinion that in order to ascertain the truth, a fair and unbiased investigation is necessary. In that light, by imposing some stringent conditions, if the petitioner-accused No. 1 is ordered to be released on anticipatory bail, it would serve both the ends. Accordingly, the petition is allowed and the petitioner-accused No. 1 is granted anticipatory bail. In the event of his arrest in Crime No. 135/20 of K.P. Agrahara Police Station, Bengaluru, for the offences punishable under Section 506, 120B, 465, 384, 419 of IPC, subject to the following conditions:- i) Petitioner-accused No. 1, namely Rakesh Shetty, shall execute a personal bond for Rs. 2,00,000/- (Rupees two lakhs only) with two sureties for the like sum to the satisfaction of the Investigating Officer. ii) He shall surrender before the Investigating Officer within twenty days from today, failing with this order shall automatically stand cancelled. iii) He shall co-operate with the Investigation as and when required. iv) He shall not tamper with the prosecution evidence in any manner. v) He shall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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