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Judgment
S Vishwajith Shetty, J
Accused Nos.1 and 2 in Crime No.85/2021, registered by Shivajinagar Police Station, Bengaluru city for the offences punishable under Section 420 read with Section 34 of Indian Penal Code, 1860 ('the IPC' for short) are before this Court seeking anticipatory bail.
Heard the learned counsel appearing for the petitioners and the learned HCGP appearing for the respondent.
The case of the prosecution is that on the basis of the complaint lodged by Mr.R.KotHwal, Shivajinagar Police, Bengaluru city have registered FIR in Crime No.85/2021 against three persons under Section 420 read with Section 34 of IPC. In the complaint it is averred that complainant's parents were tested positive for Covid-19 pandemic and they needed oxygen cylinder and for the purpose of supply of oxygen cylinder, the complainant had paid the amount to the accused persons. However, they had supplied him industrial oxygen cylinder, but the Doctors had advised not to use the same. Though the complainant had requested the accused persons to take back the industrial oxygen cylinder and supply domestic oxygen cylinder, which could be used for medical purposes, accused persons allegedly had not supplied him the medical oxygen cylinder and on the other hand avoided his phone calls and subsequently both the parents of the complainant had died in the hospital. It is under this background, the complainant had lodged the complaint based on which FIR was registered in Crime No.85/2021.
Apprehending arrest, the petitioners had filed Criminal Miscellaneous No.25142/2023 which was dismissed by XXVI Additional City Civil and Sessions Judge, Mayo Hall, Bengaluru, vide order dated 07.03.2023. It is under these circumstances, the petitioners are before this Court.
The learned counsel for the petitioners reiterates the grounds urged in the petition and submits that petitioners have only taken money from the complainant and had not supplied medical oxygen cylinder but they had instructed some other agency to supply medical oxygen cylinder.
Per contra, learned HCGP has seriously opposed the petition and submitted that the act of the petitioners has resulted in serious consequence and therefore the custody of the petitioners is necessary for interrogation and prays for dismissal of the petition.
From the perusal of the complaint averments, it is seen that the entire allegation which would attract the alleged offence is against petitioner No.2 herein. In the complaint, it is stated that online payment was made to the account of petitioner No.2 and the complainant was in contact over phone only with petitioner No.2. It is he who had promised to provide alternate oxygen cylinder to the complainant, but had thereafter failed.
Under these circumstances, I am of the view that petitioner No.1 who is a lady as against whom, there is no serious allegation in the complaint, is entitled for the discretionary relief of anticipatory bail. However, in the complaint, specific allegations are made against petitioner No.2, therefore, I am of the view that he is not entitled for grant of anticipatory bail. Hence, the following:
ORDER
Criminal petition is partly allowed.
The respondent - police or any other police in the State of Karnataka are directed to release the petitioner No.1 in the event of her arrest in Crime No.85/2021 registered by Shivajinagar Police Station, Bengaluru City for the offences punishable under Section 402 read with Section 34 of the IPC, subject to the following conditions:
a) Petitioner No.1 shall execute personal bond for a sum of Rs.1,00,000/- (Rupees One lakh only) with two sureties for the likesum, to the satisfaction of the Investigation Officer;
b) Petitioner No.1 shall regularly appear before the Trial Court without fail unless exempted by the Trial Court for valid reasons;
c) Petitioner No.1 shall not tamper with the prosecution witnesses and shall co-operate with the police for investigation and appear before them whenever called upon.
d) Petitioner No.1 shall not involve in similar cases in future.