P.H. Dayananda Huchanna vs State

B. Sreenivase Gowda, J. - Petitioners who are arrayed as accused Nos. 2, 4 and 6 in Crime No.80/ 2015 registered by respondent - Police for the offences punishable under Sections 13(1)(d) read with 13(2) of Prevention of Corruption Act and Sections 409, 468, 471, 420 of IPC and pending on the file of LXXVII Addl. City Civil and Sessions Court and Special Court, Bengaluru, have filed this petition under Section 439, Cr.P.C. seeking to enlarge them on bail.

Heard the learned Counsel for the petitioners and the learned Counsels appearing for the respondent - Karnataka Lokayukta Police, City Wing, Bengaluru.

Learned Counsel for the petitioners submits, accused No.2, who is the petitioner in Crl.P.No. 4640/2016 in the capacity as Secretary of Bhavani Housing Co-operative Society Ltd. without knowing the fact that site bearing No. 14, ''Q'' block formed in Sy.No. 132 and 133 (part of old Sy.No. 17), Kathriguppa village, now called BSK 3rd stage. Bangalore, (hereinafter referred to as site) was allotted in favour of one Smt. K. S. Sowmya alias Soundarya and an absolute sale deed dated 22-06-1999 was executed in her favour and she was put in possession of the site under possession certificate dated 11-07-2001, has re-allotted the site in favour of his sister-in-law Smt. Bhagyalakshmi - accused No.4. He submits, accused No.4 in turn sold the site in favour of Smt. Nagarathna - accused No.3 and that there was a suit filed by the complainant against accused No.3 in O.S.No.7246/ 2015 for recovery of possession of the site from accused No.3 with consequential relief of permanent injunction. Subsequently, accused No.4 - Bhagyalakshmi came to be impleaded as defendant No.2 in the suit. In the said suit, defendants 1 and 2 who are accused Nos.3 and 4 herein, immediately after coming to know the above facts have filed affidavits surrendering the possession of the site along with the key of the building constructed in the site in favour of the complainant and have stated that they have no objection for the Court to decree the suit in favour of the plaintiff. He submits, accused - petitioners have been in judicial custody ever since the date of their apprehension - 60 days in respect of petitioners in the first two petitions and 70 days in respect of petitioner in the last petition. He submits, even to this day, respondents have not filed any charge sheet and hence, they are entitled to be released on bail as a matter of right. However, petitioners are prepared to abide by any conditions that may be imposed by the Court while granting them bail. Therefore he prays for allowing the petition by granting bail to the petitioners.

Sri. B. S. Prasad, Sri. Venkatesh Dalawai and Sri. Venkatesh Arabatti, learned Counsel appearing for the respondents in the above petitions respectfully submit, accused No.2 -petitioner in Crl.P.No. 4640/2016 by misusing his position as Secretary of Bhavani Housing Co-operative Society Ltd. knowing fully well that the site was allotted in favour of one K. S. Sowmya alias Soundarya and an absolute sale deed dated 22-06-1999 was executed in her favour and she was put in possession of the site under possession certificate dated 11-07-2001, has re-allotted the site in favour of accused No.4, who in turn sold it in favour of accused No.3. Thereby accused No.2 has committed the offence alleged, in conspiracy with other accused persons. Learned Counsels submit, accused No. 2 and 4 petitioners in Crl.P.No. 4640/2016 and Crl.P.No. 4464/ 2016, against rejection of their anticipatory bail petition by the Sessions Court and this Court have approached the Hon''ble Supreme Court. The Hon''ble Apex Court disposed of their bail petition by directing them to surrender before the concerned Court and apply for bail. Their submission is, even after the order of the Supreme Court, petitioners had taken one month time to surrender themselves before the concerned Court. Therefore, their apprehension is, if the petitioners are released on bail they may not appear before the Police for further investigation of the crime, if any, and they may tamper the prosecution witnesses, and in such an event, it would affect fair trial. Therefore, they prayed for rejection of the bail petitions.

Learned Counsels submit, though respondent have completed the investigation and kept the report ready to be filed, they could not file charge sheet for want of sanction from the competent authority in respect of accused No. 1 as he has committed the offences in the capacity as public servant, as such, sanction from the competent authority is required to prosecute him and they are waiting for such sanction from the competent authority to prosecute him. They further submit, in the event of this Court granting bail to the petitioners on the ground that respondent has not filed charge sheet within 60 days from the date of their arrest, stringent conditions may be imposed, particularly on accused No.2 - the petitioner in Crl.P.No. 4640/2016.

There are six accused persons in the case. Of them, accused No.1 - K.H. Thimmaiah, is the retired Additional Registrar of Co-operative Societies and he has been granted bail by the trial Court. Accused No.2 in the capacity as Secretary of Bhavani Housing Co-operative Society Ltd., Chamarajpet, Bangalore, knowing fully well that the site was allotted in favour of K.S. Sowmya alias Soundarya and an absolute sale deed dated 22-6-99 was executed in her favour and she was put in possession of the site under possession certificate dated 11-7-01, after her death in an air crash occurred on 17-04-2004, her husband GS.Raghu, sold the site in favour of the complainant through a registered sale deed dated 24-09-2005, has re-allotted the site in favour of accused No.4 - Bhagyalakshmi, who is none other than his sister-in-law and executed an absolute sale deed in her favour on 14-08-2012 and accused No.4 in turn sold the site in favour of accused No.3 - Nagarathna on 18-03-2015. Thereafter, accused No.2 in order to cover up his misdeeds got filed a petition through accused No.5 - Chandrappa before accused No. 1 - Thimmaiah, the then Additional Registrar of Co-operative Societies, and managed to have the allotment of site made in favour of the vendor of the complainant cancelled, without service of notice either on the complainant or on her vendor. Thereby, accused persons in conspiracy with each other have committed the aforesaid offences. Petition filed in Cri.Misc. 724/2016 by accused No.2 and petition filed by accused No.4 for grant of anticipatory bail under Section 438 of Cr.P.C. in connection with Crime No.80/2015 were rejected by the trial Court Even Crl.P.No.2129 and 2159 of 2016 filed by accused Nos. 2 and 4 before this Court for grant of anticipatory bail under Section 438 Cr.P.C. were also rejected on 6-4-2016. Thereafter, they filed petition before the Hon''ble Apex Court for grant of anticipatory bail and it was rejected and they were directed to surrender before the trial Court. It appears, an attempt made by them forgetting the FIR registered against them quashed was also turned down by this Court. It was one month thereafter, they have surrendered and have been in judicial custody. It is unfortunate that in a case like this, concerned authority has failed to issue sanction, so as to enable the respondent -Police to prosecute accused No. 1 as he has committed the offence in the capacity as public servant and file charge sheet.

Learned Counsel appearing for the respondents submit, investigation is over and even final report is also ready and they are waiting for the sanction from the competent authority to prosecute accused No.1 and file charge sheet. Be that as it may, the lapse on the part of the concerned authority in not issuing sanction and consequently non-filing of charge sheet by the respondent within 60 days from the date of apprehension of petitioners, is indirectly helping the accused persons to be enlarged on bail. It is in this backdrop, the learned Counsel appearing for the respondents submit that accused persons may be granted bail by imposing stringent conditions, particularly on accused No.2 as the said accused by misusing his position as Secretary of the Society would certainly tamper the records relating to the site and may also tamper the prosecution witnesses and in such an event, it would affect fair trial.

As already stated, accused Nos. 1, 5 and 6 have already been granted bail. Petitioners are accused Nos. 2, 3 and 4 respectively. As per the prosecution, investigation is completed and even report is ready to be filed before the concerned Court and respondent could not file it for want of sanction from the competent authority to prosecute accused No. 1 who has committed the offence in the capacity as public servant. Accused 2 and 3 have been in judicial custody for the last 60 days and accused 4 has been in judicial custody for the last 73 days and charge sheet which was supposed to have been filed within 60 days from the date of apprehension of the petitioners has not been filed. As a result, petitioners are entitled to be enlarged on bail.

Hence, the following order:

<&szlig;>ORDER</&szlig;

The petitions are allowed.

The petitioners are granted bail in connection with Crime No.80/2015 on the file of respondent police, registered for the offences punishable under Sections 409, 468, 471, 420 r/w. 120(B) of IPC. subject to the following conditions:

i) The petitioners shall execute a personal bond for a sum of Rs. 1,00,000/- (Rupees one lakh only) each with one solvent surety for each one of them for the likesum to the satisfaction of the concerned Court.

ii) They shall furnish proof of their address and identity with photos such as ration card, voter identity card, aadhar card, driving licence, etc.

iii) They shall appear before the concerned investigating officer as and when they are called upon and extend full co-operation for further investigation of the crime, if any.

iv) They shall not hamper further investigation of the case, if any, and they shall not tamper the prosecution witnesses in any manner.

v) They shall appear before the concerned Court on all the future hearing dates.

vi) They shall not leave the jurisdiction of the concerned Court till conclusion of the trial, without prior permission of the said Court.

vii) The accused shall surrender their passports before the trial Court and the same shall be kept in safe custody till conclusion of the trial.

In addition to the above conditions, accused No.2 shall not participate in the business of Bhavani Housing Co-operative Society Ltd. till the conclusion of the trial of the case registered against the accused persons.

In the event of disobeyance of any of the above conditions, prosecution is at liberty to move the concerned Court for cancellation of the bail.