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Judgment
L. Narayana Swamy
The Petitioner has preferred this petition with a prayer to grant anticipatory, bail in Special C.C. No. 136/11 (CCH No. 24) pending on the file of the learned Special Judge, Bangalore Urban District, Bangalore.
The complaint made by the 2nd Respondent came to be registered in PCR No. 3/2011 on the file of the Special Judge under. Chapter II of the Prevention of Corruption Act, 1988. The leaned Special Judge by order dated 8.8.2011 has issued summons U/s 204(b) of Cr.P.C. Procedure to the Petitioner for offences punishable under Sections 13(1)(d), 13(1)(e) of Prevention of Corruption Act punishable u/s 13(2) of the said Act and under sections 405, 406. 420, 463, 466, 468, 471 of IPC and under sections 3 and 4 R/w section 9 of the Karnataka Land (Restriction on Transfer) Act, 1991 R/w Section 120-B of IPC.
It is stated by the Petitioner that in view of issue of summons u/s 204(b) of Code of Criminal Procedure after forming an opinion that there are sufficient ''''grounds, for issue of process, the Petitioner apprehends imminent danger of his arrest and humiliation and no purpose would be served by his approaching the very Court for relief u/s 438 Code of Criminal Procedure and therefore, he has approached this Court directly.
The Petitioner has stated gist of the complaint in Para-8 of the petition as follows:
(a) The Chief Minister of Karnataka - Sri. B.S. Yeddyurappa has been arrayed as accused No. 1 and there are fifteen other accused persons named in the complaint. The tenor of the complaint is to the effect that the accused No. 1 abusing his post as a Chief Minister of Karnataka in alleged connivance with the accused persons has secured illegal pecuniary gain to his kith and kin. It is alleged that the accused No. 1 has flouted all rules, regulations and settled procedures causing irreparable damage to the exchequer of the State.
(b) It is stated in the complaint that the Complainant had approached the Superintendent of Police, Karnataka Lokayuktha to register a case against the accused persons on various dates. As the investigating agency refused to register the complaint and probe into the matter, he was constrained to approach His Excellency the Governor of Karnataka with a proposed complaint TO be filed before the Court of Law seeking sanction to prosecute the accused No. 1. As the Governor had accorded sanction to prosecute accused No. 1, the complainant is said to have filed the present private complaint alleging three specific instances of acts and commissions which are stated to have amounted to commission of offences under the Indian Penal Code and Prevention of Corruption Act, 1988 and other statutes. The alleged instances narrated in the private complaint are briefly extracted herein below:
i) Instance No. 1- Illegal de-notification of land measuring 2 acres 5 guntas in Sy. No. 81/3 of Arakere village, Kasaba Hobli, Bangalore South Taluk and subsequently purchased by persons as benamidars of the family members of A-l.
It is alleged in the complaint that under the preliminary and final notifications dated 08.09.1987 and 28.7.1990 the BDA had proposed to acquire 2 Acres 31 Guntas in Sy. No. 81/3 of Arakere Village, Kasaba Hobli, Bangalore South Taluk for the purpose of formation of BTM Layout 6th Stage, BDA had also passed an award in respect of the said land. It is alleged that one Smt. Sathyakumar (A.4) had purchased land measuring an extent of 2 Acres from its original owner Sri. P Mohanraj (A. 5) under a sale deed dated 15.4.1998. A.4 had thereafter made a representation to the Chief Minister (A. 1) on 22.6.2010 requesting for withdrawal of the land acquisition proceedings in respect of the said 2 acres out of total extent of 2 acres 31 guntas. Subsequently the original owner Sri. Mohanraj (A. 5) also submitted a representation seeking de-notification of 31 Guntas of land in Sy. No. 81/3 of Arakere Village, it is stated in the complaint that on consideration of the representations given by A.4 and A. 5 the Deputy Commissioner, BDA submitted a report stating that the award had already been passed and the land has been handed over to the Engineering Section and the notification u/s 16(2) of the Act has been published, and as such there is legal impediment to de-notify the land. However, it has been further noted in the file nothings of the Under Secretary, Department of Urban Development that the land is remaining vacant and layout has not been formed as per the inspection report of the surveyor. It is alleged that the Chief Minister (A. 1) passed an order on 05.08.2010 de notifying 2 Acres 5 Guntas in Sy. No. 81/3 on the ground that BDA has not formed the layout, only 21 Guntas of land has been utilized for formation of road and on humanitarian grounds. It is alleged in the complaint that after the de-notification order was passed, one Akka Mahadevi (A.9) purchased 27 and half guntas out of 2 acres in Sy. No. 81/3 under a sale deed dated 11.8.2010. Under another sale deed an extent of 20 guntas in the same survey number had been sold to one Mahabaleshwara (A.3). It is further alleged that A.4 and A.5 had made a separate application seeking the endorsement. in respect of de-notification of land in Sy. No. 81/3 to an extent of 2 acres 5 guntas to the Additional Land Acquisition Officer, BDA on the basis of the notification of the Government de-notifying the lands. In this background the complainant, alleges that the accused persons have committed offences under sections 3 & 4 of the Karnataka Land (Restriction and Transfer), Act, 1991, sections 415, 420, 471, of IPC and section 13(1)(d) of the Prevention of Corruption Act.
ii) Instance No. 2- Criminal breach of trust committed by illegal de-notification at Sy. No. 51/1 of Devarachikkanahalli, by A. 1 for the benefit of securing pecuniary advantage and valuable thing for the henchmen and front men of the Chief Minister, Sri. M. Manjunath at the cost of Saira Education Society.
It is alleged in the complaint that an extent of 1 acre 7 guntas of land in Sy. No. 51/1 of Devarachikkanahalli, Begur Hobli, Bangalore South Taluk had been acquired under the final notification dated 3.11.1990 for the formation of BTM 4th Stage, Layout. It Is also alleged that pursuant to passing of the award the possession of the land was taken and the notification u/s 16(2) of Karnataka Land Acquisition Act was published on 5.8.2000. The Saira Education Society had applied for allotment of a civic amenity site in AECS Layout, Kundalahalli, Under the allotment letter dated 29.11.2002 the BDA had allotted the site measuring 2700 square meters in favour of the said education society for establishing educational institutions. However as the possession of the said site could not be handed over to the society, the BDA allotted an alternative civic amenity site bearing No. 4C in BTM Layout, 4th Stage. Accordingly, the lease agreement and the possession certificate were duly issued to the Saira Education Society and the said society after obtaining the building license and plan had started the construction of the school building. It is further alleged that BDA had invited applications for allotment of various civic amenity sites including site No. 4B in BTM 4th Stage Layout. The Saira Education Society pursuant to their application was allotted site No. 4B and the possession of the same was also handed over. Subsequently one Smt. Kamakshamma (A. 7) filed OS No. 25020/2008 claiming to be the owner of Sy. No. 51/l. sought perpetual injunction retraining the Saira Education Society from putting up any construction over the properties. Thereafter Smt. Kamakshamma (A. 7) made a. representation to the Chief Minister (A. 1) during April. 2010 requesting exclusion of 1 Acre 7 Guntas of land in Sy. No. 51/1 from the final notification. Acting on the said representation the Urban Development Department after obtaining a report from the Commissioner, BDA processed the file for the kind consideration of the Chief Minister. It is alleged that the Chief Minister (A. l) had passed an order de-notifying 1 Acre 7 Guntas of land in sy. No. 51/1. It is further alleged: by the complainant that Smt. Kamakshamma and her sons sold two portions from the de-notified extent of land in favour of M. Manjunath (A. 8) who is alleged to be the benamidar for the family members of A. 1. In this background it is alleged that the accused persons have committed the offence of criminal breach of trust.
iii) Instance No. 3 - Criminal Breach of Trust committed by illegal de-notification of Sy. No. 42/A2, 42/4A2 and 42/2B of Geddalahalli village by Al. for the benefit of securing pecuniary advantage and valuable thing for the henchmen and front men of the Chief Minister, namely. V. Manjunath and K. Shivappa.
It is alleged in the complaint that 1 acre 24 guntas in Sy. No. 42/lA2., 1 Acre 21 guntas in Sy. No. 42/2B and 35 Guntas in Sy. No. 42/4A2 situated in Geddalahalli village, K.R. Pur am Hobli, Bangalore East Taluk was acquired by BDA vide final notification dated 23.2.2004 for formation of Arkavathy Layout. It is alleged that one Smt. Shanthadevi (A. 11) on 24.7.2010 and 20.8.2010 had given representations to the Chief Minister (A. 1) stating that she was in possession, of 1 Acre 24 Guntas in Sy. No. 42/lA2 and that her family consists of 25 members who have cultivated a coconut garden in the said land and therefore requested to de-notify the said land. It is further alleged that one Smt. Shanthabai (A. 12) had given a representation on 10.8.2010 to the Chief Minister (A. 1) seeking de-notification of land measuring 1 Acre 21 Guntas in Sy. No. 42/2B and 35 Guntas in Sy. No. 42/4A2. On the basis of these representations the Urban Development Department had obtained a detailed report from the Commissioner, BDA pursuant to the recommendations of the concerned department the Chief Minister (A. 1) passed an order de-notifying the lands mentioned above. It is further alleged in the complaint that immediately after the de-notification the land owners sold 1 Acre 21 Guntas in Sy. No. 42/2B to V. Manjunath (A. 14) and K. Shivappa (A. 15). Similarly the land owners also sold 35 Guntas in Sy. No. 42/4A2 in favour of the above said persons. The complainant has alleged that these purchasers of the family members of A. 1. Therefore, the complainant alleges that the accused persons have committed offences punishable u/s 13(1)(d) of Prevention of Corruption Act.
The Respondent No. 1 filed objections to the petition contending that the trial court has neither referred the matter for investigation u/s 156(3) of Code of Criminal Procedure or for inquiry u/s 202 of Code of Criminal Procedure to the Public Officials under the Prevention of Corruption Act. The Special Court has ordered summons to all the accused persons, the said summons have been forwarded to the Respondent to serve and report. Thus there is no role of Respondent in the matter to submit any objection.
The Respondent No. 2 has also filed objection statement contending that the petition is not maintainable in law and more specially on the facts of the case. The petition makes reference to FIR. Complaint, other materials, concocted documents, created materials, sworn statement, order passed u/s 204 Code of Criminal Procedure but the said documents are not part of the petition thereby the Respondent is denied benefit of these materials. Even the summons is hot produced along with the petition. The Petitioner could not have come before this Court directly without first approaching the court below. The contention in Para 3 and 4 of the petition are very low in taste and very unbecoming statements. The Petitioner has not made out any exceptional circumstances to maintain a petition before this Court directly. The Petitioner would not flee from justice is doubtful since the Petitioner is a very influential person and he continues to enjoy immense political and extra-legal powers even though he has demitted the office of Chief Minister, The second Respondent took exception of expressions such as "two barefoot lawyers" and "tools in the hands of rival party opponents" in Para 3 and 4 of the petition.
I have heard the learned counsel for the Petitioner and the learned counsel for Respondents 1 and 2.
The learned senior counsel for the Petitioner submits that the complaint is politically motivated. The political battles cannot be allowed to be perpetuated in Courts. Since the Respondent No. 2, as per the complaint averments, has already collected all the documents, there is no question of necessity for custodial interrogation and lastly there is no prima facie linkage of allegations directly as against the Petitioner as the process of de-notification, which the Chief Minister is empowered, is the culmination of various office notes and proceedings, if any officer or official makes a wrong notes/submissions for that Chief Minister cannot be made liable directly. It is submitted that in the matter of de-notification any one is bound to be a beneficiary that is what governance is, the front men or family members of the Petitioner in the present case as alleged that cannot be a ground to treat the action of de-notification as illegal. At least at this stage, there is no prima facie case as against the Petitioner. It is further submitted that the trial court has already formed an opinion that there are sufficient materials for issue of summons and issued the summons, there is imminent apprehension of arrest and humiliation of the Petitioner and Petitioner with such a political background and status cannot flee away. It is also submitted that the Respondent, who is a private person taking the task of prosecution; is interested in the matter and therefore the statements made in the complaint cannot be taken at their face value as they are mere allegations.
The learned counsel for the Petitioner submitted that the complaint made by the Respondent No. 2 has been taken cognizance by the learned Special Judge after forming an opinion as to the sufficiency of materials to proceed and therefore it is futile to approach the same learned Judge for the relief of anticipatory bail. Hence he apprehends imminent danger of arrest and humiliation.
Section 438 Code of Criminal Procedure confers concurrent power both to High Court and the Sessions Court and the Petitioner has to choose on the basis of facts and circumstances. The Petitioner cannot be barred or disentitled from making a petition before this Court directly. In this regard, the learned senior counsel for the Petitioner relied upon the judgment reported in I.Y. Chanda Earappa Vs. State of Karnataka, and made submission that the Special Judge has already formed an opinion. It is submitted that though His Excellency Governor has given sanction to only 15 instances, the same has been split into many cases of which there was no sanction made by the Governor. Though it is alleged that the Petitioner has committed an offence u/s 13(1)(d) and (e), the Respondent No. 2 has not given particulars of assets which are disproportionate. The sanction made by His Excellency Governor is without there being any preliminary investigation. Absolutely there was no source of information with regard to disproportionate asset or income and the illegality which is said to have been committed by the Petitioner. The sanction made is very silent with regard to each individual case. It is submitted that the complainant has not made out any prima facie case before the Special Judge to take cognizance of the offences. The complainants are used in foisting false ease against the Petitioner and the complaint has been filed with a mala fide intention.
It is further submitted that His Excellency Governor had recommended twice the President Rule and had failed in his attempt to destabilize the popular Government, missed no opportunity to grab according sanction to prosecute the Petitioner. Such a sanction was accorded hurriedly and with a male fide intention to tarnish the image of the Petitioner. The learned Special Judge should have considered all these aspects and could not have taken cognizance mechanically and issued summons.
The case of the complainant is that the Petitioner has issued de-notification without following the legal procedure and against the office notes and thus committed an offence and caused loss to the State Exchequer. The learned senior counsel submitted that Section 48 of the Land Acquisition Act 1894 confers such a power on the head of the State to de-notify the acquisition of Land on valid grounds. When such a power is available and exercised, the same cannot be termed as an illegality. The complaint filed on the basis of sanction order by the Governor is with an object to cause humiliation to the Petitioner by his political opponents. The party president to which the complainant belongs during his tenure as Chief Minister since he had involved in large scale misappropriation in mining issue and land deals, when the Petitioner ventured to initiate action they started crying foul and instigating all tom dick and harry and having to initiate complaints one after the other finding loopholes and making reckless allegations in respect of Governmental decisions. The learned senior counsel submitted that in view of the fact that the complaint made by the second Respondent is taken cognizance by the Special Judge, no further investigation is required and hence the presence and participation in any enquiry also not required. Virtually no investigation is required. The complaint allegations made are not of high magnitude which warrants of his arrest and the second Respondent is the custodian of all the materials, the question of tampering also does not arise.
The Petitioner has devoted his political career and adorned the post of Chief. Minister, In case of his arrest, his personal liberty which, has been prized of an individual would be jeopardized. He is falsely implicated by foisting a false case for the purpose of disgracing them or for further purpose of getting them detained in jail for some days. By putting any conditions, the Petitioner may be granted anticipatory bail.
On the other hand, the learned Special Public Prosecutor and counsel for Lokayuktha submits that the trial court has already taken cognizance of the matter and summons is ordered and therefore the Lokayuktha has no role of further investigation in the matter.
The learned counsel for Respondent No. 2 submits that there is no imminent danger of arrest of the Petitioner as the summons is ordered against the Petitioner he can either appear in person or appear through a Counsel, there are no special circumstances made cut to entertain a petition directly before this Court. There is a prima facie case made out as against the Petitioner. There are 300 documents collected which are duly considered by his Excellency Governor while according sanction for prosecution and the trial court before taking cognizance of the offences.
It is submitted that along with the complaint, there were 300 certified copies which included government orders secured under RTI Act produced for the kind perusal of the Excellency Governor. His Excellency Governor in order to compare the Xerox copies or certified copies of the documents, has secured original file from the respective departments and satisfied himself and thereafter sanction has been ordered. Therefore, the say that there was no material and no investigation is made before a sanction is accorded cannot be accepted. Similar allegation mard as to the trial court taking cognizance cannot be accepted because 39 documents were produced and each and every document has been examined by the Sessions Judge before taking cognizance of the offences and ordering summons.
It is further submitted that after recording sworn statement and taking cognizance summons is ordered u/s 204(b) which gives an opportunity to the Petitioner for his attendance and to answer the charge. He is required to appear either by person or through his pleader. The same has been construed by the Petitioner that he would be arrested in case of his appearance. The said apprehension of the Petitioner is not well-founded. On this count also, Section 438 cannot be invoked for anticipatory bail. Therefore, he prays for dismissal of the petition.
The office has made a note that the Petitioner has not approached the Sessions Court and raised an objection as to the maintainability of the petition directly before this Court. No doubt it is a concurrent power u/s 438 Code of Criminal Procedure to both the High Court and the Sessions Court and on the facts and circumstances of the case, the parties may choose any of the two forums. This does not mean that the parties can approach the court nearer to them nor cause inconvenience to the prosecution or to avoid a particular court.
This Court in a case repeated in 1985 Cri.L.J. 214 K.C. Iyya etc. v. State of Karnataka has held that Section 438 Code of Criminal Procedure gives concurrent power to both the court, the High Court has to exercise its discretionary power to accept, or reject, in case the party files a case directly to High Court. Exercise of discretionary power is on the basis of the facts and circumstances of the case narrated by the respective parties. It is held by this Court that:
It is desirable for more than one reason that that Court should be approached first in the matter. Referring the judgment reported in 1972 Cri.L J 1607 in Sher Singh''s case that such a practice would also oust the pressure of the High Court as otherwise the High Court would be flooded with cases which could be more appropriately disposed of by the inferior court''.
Further it has been observed by this Court that normally the persons seeking anticipatory bail u/s 438 of the code who approached the Court of Sessions in the first instance, this would serve the ends of justice, public interest and also the administration of justice.
In the light of the judgment referred supra, I am of the view that while approaching the High Court directly u/s 438 Code of Criminal Procedure it is the duty on the part of the Petitioner to assign reasons to the satisfaction of the Court. Here in this case, the Petitioner has stated that the Special Judge has mechanically taken cognizance of the case, even without ordering for investigation and enquiry. Hence he has already formed his opinion that there are sufficient grounds for issue of process, no purpose would be served in approaching the very. Court for. anticipatory bail. Hence it would be a futile exercise. The said submission of the Petitioner cannot be accepted in view of the fact that when a complaint is made under a particular provision of law, it shall be the duty of the Judge to examine it in the light of the materials placed/produced along with the complaint/petition. In the instant case, the Respondent No 2 has produced number of documents and as per the Respondent No. 2 there are 39 documents and also the sanction order issued by His Excellency Governor of Karnataka on 21.1.2011 permitting the complainant to prosecute the accused u/s 19(1) of the Prevention of Corruption Act. When such materials are available to the Special Judge and having satisfied the same, he has taken cognizance and ordered summons to the Petitioner to know about his version, which itself cannot be construed that the Special Court has already formed an opinion and it would be futile to approach that court for anticipatory bail. The said submission is totally unfounded and it is hereby rejected.
Though the Petitioner could be directed to approach the Sessions Court for anticipatory bail, but for the reason that 1 have heard the parties for about a day and also in view of the fact that sufficient materials and arguments have been made before this Court, on that basis, the office note is overruled. It does not mean that a party cannot approach the High Court directly without appearing before the Sessions Court u/s 438 Code of Criminal Procedure. This Court in 1985 Cri. L.J. 214 has held that normally the persons seeking anticipatory bail u/s 438 Code of Criminal Procedure should approach the court of Sessions in the first instance. In case of extraordinary or in extraneous circumstances, definitely this court can entertain petition u/s 438 Code of Criminal Procedure directly.
The action on the part of the Excellency Governor in according sanction with mala fide intention of tarnishing the image of the Petitioner to destabilize the popular government and this has been submitted in order to make out a prima facie case for granting the anticipatory bail. Earlier on two occasions. His Excellency Governor recommended for dissolution of the House ended in failure and he captured this opportunity when the complaint has been made by the second Respondent and accorded sanction and the said lawyers who obtained sanction from His Excellency Governor are referred as "barefoot lawyers". This statement was unwarranted. When the sanction is made by His Excellency Governor of Karnataka in exercising his power u/s 19(1) of the Prevention of Corruption Act, 1988 u/s 197 of Code of Criminal Procedure to prosecute a person which ordinarily and liberally cannot be termed as male fide. It is submitted by the learned senior counsel that before sanctioning for the prosecution, the Governor has not enquired and investigated the allegations made in the complaint.
Though this is not the subject matter for this Court to decide, but while looking at the records, to find out whether there is a prima facie case against the Petitioner to proceed further, I have examined the order of His Excellency Governor dated 21.1.2011, which is produced along with a memo by the 2nd Respondent and the order passed by the Special Judge in PCR No. 3/2011. His Excellency Governor has examined all the 15 instances and at the end it is stated that:
documents produced included copies of the file nothings from the government files, copies of the Government Orders, copies of the sale deeds relating to the lands mentioned in the allegations, share holding patterns and financial statements of the Companies where family members of the Chief Minister have a stake to disclose the flow of funds into these companies from the beneficiaries of various decisions of the Chief Minister etc.
Whereas I have also obtained the official records from the State Government and got the veracity of the documents furnished by the Petitioners verified. In respect of all the records furnished by the Government, the documents furnished by the Petitioners have been verified and found to be genuine. Where government records were not readily available and in respect of others, the Petitioners were asked to produce documents they obtained under the RTI Act and certified copies etc., and they have produced those documents and they have been got verified and found to be genuine.
Thereafter His Excellency Governor satisfied himself that there is a prima facie case made out for according sanction for prosecution of the Chief Minister Sri. B.S. Yeddyurappa for the offence alleged.
When such being the case and when His Excellency Governor has examined each and every document produced by the complainant, compared them with the original records and having satisfied himself, sanction is accorded, in that view of the matter, it cannot be in any way termed as mechanical or mala fide sanction accorded by His Excellency Governor.
Further the learned Special Judge has taken cognizance without ordering for investigation and enquiry. While issuing summons to the Petitioner u/s 204 Code of Criminal Procedure, the Sessions Judge has examined the case independently. Further the instances No. 1 and 2 which are available in the PCR No. 3/2011 are extracted in the petition and submitted that these de-notifications referred were done in exercise of power u/s 48 of the Land Acquisition Act. It is not the Chief Minister alone did it and he has done it on the basis of the recommendations and process made by several officers/officials. When process is initiated and ended in de-notifying by the Petitioner who was in charge of the Department, that cannot be termed as illegal and this aspect has not been examined by the learned Special Judge, I have gone through the PCR No. 3/2011 in Special CC No. 157/2011. I have examined the instances No. 1 to 3.
In the first instance, after the acquisition is completed and possession has been taken and the land has been handed over to Engineering Section for forming a layout, the said land belongs to B.D.A. Quite contrary to the same, on the basis of the representation, made by none other than owner of the particular land, the Chief Minister has accorded sanction on 5.8.2010 by overruling the observation made by some officers, who have stated that land has already been handed over to Engineering Section and it is the Government Property. Thereafter the said land was de-notified and sold in favour of persons, who are alleged to be kin of the Chief Minister.
Similarly in the other instance also in respect of land in Sy. No. 42/1A2 measuring 1 acre 24 guntas and Sy. No. 42/2B measuring 1 acre 21 guntas and 35 guntas of Government land in Sy. No. 42/4A2 of Geddaiahalli village, K.R. Puram Hobli, Bangalore East Taluk were acquired for formation of Arkavathi Layout vide final notification dated 23.2.2004. Thereafter representation was made by one Shanthidevi (A. 11) to the Petitioner for de-notification of 42/1A2 which is a government land. Smt. Shanthi Bai (A. 12) made application for de-notification in respect of Sy. No. 42/2B and 42/4A2 which are a Government land. By order dated 20.8.2010 the Deputy Commissioner, B.D.A sent a detailed report stating that Sy. No. 42/1A2 and Sy. No. 42/4A2 are government lands and that in respect of Sy. No. 42/2B where award has already been passed. Despite the said remarks, the Petitioner, the then Chief Minister, de-notified on the ground that the said lands were only the source of livelihood for the Petitioners. Though it is not proper for this Court to say that these allegations are true or otherwise, such a serious allegations are made against the Petitioner and each instance has been gone into and examined by the learned Special Judge and decided to issue summons to the Accused Nos. 1 to 15. In these circumstances, it cannot be so lightly stated that the Special Judge has formed an opinion without there being sufficient materials before him. The materials are examined by the learned Special Judge and he has satisfied to proceed against the accused persons.
Much emphasis has been made by the learned senior counsel that since cognizance has already been taken, no further investigation is required, custodial interrogation is not necessary and since the Respondent No. 2 is already in possession of all the documents, tampering the documents would not arise and further that a person like the Petitioner having tremendous background in the social life there is no chance of his fleeing away and therefore the Petitioner is entitled for anticipatory bail. In a case of this nature whether the Petitioner could be granted bail or not, the learned senior counsel has referred the judgment reported in Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others, , where the Hon''ble supreme Court referred the Law Commission Report in Para 31 of its 48th Report and it has been observed as follows:
The Statement of Objects and Reasons that the purpose of incorporating Section 438 in Code of Criminal Procedure was to recognize the importance of personal liberty and freedom in a free and democratic country. When we carefully analyze this section, the wisdom of the legislature becomes quite evident and clear that the legislature was keen to ensure respect for the personal liberty and also pressed in service the age-old principle that an individual is presumed to be innocent till he is found guilty by the Court.
This observation is made on the basis of the submission made that "some times influential people try to implicate their rivals in false cases for the purpose of disgracing them or for other purposes by getting them detained in jail for some days.
In para 54 of the judgment, it is further referred that "Life and Personal liberty are the most prized possession of an individual. The inner urge for freedom is a natural phenomenon of every human being. Respect for life, liberty and property is not merely a norm or policy of the State but an essential requirement of any civilized society".
The learned counsel for the Petitioner also referred the judgment reported in 1980 SCC (Cri.) 508 Niranjan Singh and Anr. v. Prabhakar Rajaram Kharote and Ors. and Shri Gurbaksh Singh Sibbia and Others Vs. State of Punjab,
In the light of the judgments referred and discussion made therein, the issue for consideration is between the two concepts that where personal liberty of an individual could be safeguarded or the social interest should be protected. When the choice arises between these two, it is very difficult to chose because since from the inception of Constitution of India, the Hon''ble Supreme Court in various judgments has held that the personal liberty and liberty which are unalienable requires to be protected and restraining a person unlawfully is construed as violation of constitutional policy. But when the question of Societal/State interest comes, definitely the court has to lean in favour of protecting the Societal/State interest. Because State and Society is bigger than an individual. The cases referred hitherto by both the parties and more particularly the provisions examined hitherto individual case and particular opinion, as to whether under what circumstance the cases are to be allowed for granting anticipatory bail. In fact, the Hon''ble Supreme Court in SIDDHARAM SATLINGAPPA MHETRE''s case referred to supra after referring to Constitution Bench decision in Shri Gurbaksh Singh Sibbia and Others Vs. State of Punjab, has held that High Court or the Sessions Court has to exercise their jurisdiction u/s 438 Code of Criminal Procedure by a wise and careful use of their discretion which by long training and experience they are Ideally suited to do. Further the Court must carefully examine the entire available record particularly which have been directly attributed to the accused and corroboration of those allegations by other material and circumstances on record.
Though the cognizance has been taken and no further investigation is required in this case and the Respondent is custodian of the documents which gives little bit scope to the Petitioner to obtain and tamper the documents of his decision and also the same government even after he is demitted as Chief Minister, is in power, it cannot be ruled out possibilities of influencing the witnesses. As per the statement of the Respondent No. 2, the witnesses are in large numbers, who are all Government servants working in various capacities including IAS officers. They may not be in a position to depose freely. In case of granting anticipatory bail, this court firmly believes that the Petitioner could definitely influence the witnesses.
In view of the above, and also on the basis of the fact that His Excellency Governor has sanctioned permission after satisfying himself that there is a case made out to prosecute the Petitioner and secondly the Special Court has taken cognizance after recording sworn statement and also discussed each and every document, it cannot be said that there is no prima facie case against the Petitioner, In the circumstances, I do not think, this is a fit case for grant of anticipatory bail.
Accordingly, the petition is hereby rejected.