Shabeer Pasha vs State Of Karnataka

S Vishwajith Shetty, J

Accused no.4 in C.C.No.2226/2022 pending before the Court of IX Addl. Chief Metropolitan Magistrate, Bengaluru, arising out of Crime No.165/2020 registered by Parappana Agrahara Police Station, Bengaluru, for the offences punishable under Sections 397 & 411 IPC, is before this Court under Section 438 Cr.PC.

Heard the learned Counsel for the parties.

On the basis of the complaint dated 30.06.2020 registered by Shiva Kumar, S/o Muni Achari, FIR in Crime No.165/2020 was registered by Parappana Agrahara police for the offence punishable under Section 397 IPC against three unknown persons.

In the complaint, it is averred that on 29.06.2020, the complainant had booked a Tata Indica Car bearing registration No.KA-41-B-4706 and when he was traveling in the said car towards Attibele on National Highway no.07, at about 11.20 p.m., near Electronic City Bus Stand, three unknown persons came in a two-wheeler and intercepted the car in which the complainant was traveling. They started abusing the driver of the car and also threatened him with dire consequences and showed him deadly weapons which they were holding. They allegedly pulled out the driver and snatched his mobile and cash. One amongst the said three persons came near the complainant and tried to snatch his mobile phone. When the complainant resisted, he was assaulted by the said person with a long which he was holding and as a result, complainant suffered grievous injury on his right hand little finger. The accused persons then took away cash of Rs.450/- from the pocket of the complainant and also his mobile phone, and thereafter, they threatened one pedestrian and even snatched his mobile and cash and left the place. It is in this background, a complaint was lodged, based on which FIR in Crime No.165/2020 was registered against unknown persons.

During the course of investigation, accused nos.1 & 2 were arrested and charge sheet was filed by the police against four accused persons for the offences punishable under Section 397 & 411 IPC. Petitioner is arrayed as accused no.4 in the charge sheet and is shown as absconding. The allegation against the petitioner is that he had purchased the mobile phones from the other accused persons. Apprehending arrest in the said case, petitioner had filed Crl.Misc.No.4797/2022 before the LXI Addl. City Civil & Sessions Judge, Bengaluru City, which was dismissed on 04.06.2022. It is under these circumstances, petitioner is before this Court.

Learned Counsel for the petitioner submits that the only allegation against the petitioner is that he had purchased the mobile phone, and therefore, only the offence under Section 411 IPC would be attracted against him. The maximum punishment for the said offence is only three years, and therefore, prays to allow the petition.

Per contra, learned HCGP has opposed the petition and submits that the petitioner is absconding throughout and the Trial Court has not only issued NBW to secure his presence, but also has issued proclamation against him and it is at this stage, the petitioner has approached the Court seeking anticipatory bail, for which he is not entitled.

The material on record would go to show that the police after investigation have filed the charge sheet against the accused persons on 06.10.2020. In the charge sheet, it is shown that accused nos.1 & 2 have been arrested and accused nos.3 & 4 are absconding. After filing of charge sheet, case was registered against the accused persons in C.C.No.14760/2020. Since accused nos.3 & 4 were absconding, a split-up case was registered as against the said persons and steps have been taken to secure them. The split-up case was registered in C.C.No.2226/2022 against accused nos.3 & 4. The Trial Court had issued NBW against accused nos.3 & 4 in the said split-up case. However, the presence of accused nos.3 & 4 could not be secured, and therefore, the Trial Court has issued proclamation against accused nos.3 & 4 as provided under Sections 82 & 83 of Cr.PC. It is at this stage, petitioner/accused no.4 has filed the application under Section 438 Cr.PC before the LXI Addl. City Civil & Sessions Judge, Bengaluru City, in Crl.Misc.No.4797/2022.

Petitioner is shown as absconding in the charge sheet and inspite of issuing NBW, his presence could not be secured by the Trial Court, and therefore, steps have been also taken to issue proclamation against him. The Hon'ble Surpeme Court in the case of STATE OF MADHYA PRADESH VS PRADEEP SHARMA - (2014)2 SCC 171, has held that the accused as against whom the Trial Court has issued NBW and proclamation, the said accused is not entitled for the discretionary relief of anticipatory bail. Under the circumstances, I am of the considered view that the petitioner is not entitled for the relief sought in the petition. Accordingly, the petition is dismissed.