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No anticipatory bail : Against whom a Non-bailable warrant & Proclamation is pending

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 27TH DAY OF JUNE, 2018

BEFORE

THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA

CRIMINAL PETITION No.2194 OF 2018

BETWEEN:

Balaji S.N.
S/o Nagarajan,
Aged about 38 years,
R/o No.23, Lalbagh Road,
8th Cross, Siddaiah Road, Bengaluru – 560 027. …Petitioner

(By Sri. V. Srinivasan, Advocate)

AND:

State of Karnataka,
Robertsonpet Police Station,
K.G.F., Bangarpet Taluk, PIN 563122,

Represented by Senior Public Prosecutor,
High Court Branch,Bengaluru – 560 001. …Respondent

(By Sri. S. Vishwa Murthy, HCGP)

****

This Criminal Petition is filed under Section 438
of Cr.P.C, praying to enlarge the petitioner on bail in
the event of his arrest in Crime No.177/2013 of
Robertsonpet Police Station, K.G.F. and in
C.C.No.998/2014 pending on the file of Senior Civil
Judge and Principal J.M.F.C., K.G.F. for the offences
P/U/Ss 406, 420 and 506 of IPC.

This Criminal Petition coming on for Orders this
day, the Court passed the following:

ORDER

This petition is filed under Section 438 of Cr.P.C. seeking Anticipatory bail in C.C.No.998/2014 pending before the Senior Civil Judge and Principal JMFC Court at Kolar District, K.G.F.

2. Heard the learned counsel for the petitioner and learned High Court Government Pleader.

3. The learned HCGP has not filed any statement of objection, but has orally opposed the petition.

4. Learned counsel for the petitioner submits that the petitioner was granted anticipatory bail by order of the Sessions Court in Criminal Misc. No.10/2016 dated 22.01.2016. However, as the petitioner met with an accident, he could not appear before the Magistrate on or before ten days prescribed in the said order. The petitioner on an erroneous impression moved another application under Section

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438 of Cr.P.C. The said petition came to be rejected on the ground that second petition under Section 438 of Cr.P.C. is not maintainable. Hence, the petitioner has come before this Court seeking appropriate order for his release on bail.

5. The learned High Court Government Pleader, has brought to my notice that in view of the continuous absence of the petitioner, NBW was issued against him on 01.10.2015 and proclamation has been issued on 13.09.2017. The warrant as well as the proclamation are pending against the petitioner and hence, he cannot be admitted to bail. The Honble Supreme Court in Lavesh vs. State (NCT of Delhi) reported in (2012) 8 S.C.C. 730 has held: Normally, when the accused is absconding and declared as a proclaimed offender, there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail.

6. In view of the above ratio, petition is liable to be rejected. However, since the petitioner had the benefit of the earlier order passed by the Sessions Court under Section 438 of Cr.P.C., the trial Court may consider the application for bail moved by the petitioner on the same day of his appearance before the Court. Accordingly, the criminal petition is rejected.

Sd/- JUDGE MH/-

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