Sri. B.Y. Vijayendra, Sri. B.Y. Raghavendra and Sri. R.N. Sohankumar vs State of Karnataka

K.N. Keshavanarayana

As these two petitions filed u/s 438 of Cr.P.C. relate to one and the same case registered in Special C.C.No. 173/12 on the file of XXIII Additional City Civil & Sessions Judge and Special Judge constituted under the Prevention of Corruption Act, Bangalore, these petitions were heard together and are being disposed of by this Court common order. A private complaint u/s 200 Cr.P.C. came to be filed in PCR No. 18/11 by complainant Y.S.V. Datta, a sitting member of Legislative Council against B.S. Yediyurappa, former Chief Minister of the State alleging several offences punishable under the Prevention of Corruption Act, 1988 (for short "the P.C. Act"). The complaint was presented before the learned Special Judge constituted for trying the offences under the P.C. Act. The learned Special Judge referred the said complaint to the Lokayuktha Police u/s 156(3) of Cr.P.C. for investigation. Pursuant to the said reference, the Lokayuktha Police registered the case in Crime No. 33/11. After investigation the Investigating Officer filed a B-summary report. The learned Special Judge after considering the B-summary Report found that it was necessary to direct the Investigating Officer to conduct further investigation not only against the persons arraigned as accused in the complaint but also against few other companies. In that view of the matter, by order dated 26.5.2012, the learned Special Judge rejected the B-Summary Report and directed the Investigating Officer to conduct further investigation on the aspects mentioned in the order against the accused and also against M/s. Davalagiri Properties & Developers Pvt. Ltd., M/s. Sahyadri Health Care & Diagnostic Pvt Ltd., & M/s. Murudeshwara Power Corporation Ltd. The Investigating Officer conducted further investigation and again filed B-Summary Report stating that there are no materials to connect the petitioners herein and also the person arraigned as accused in the complaint to the offences alleged. Thereafter, the learned Special Judge by order dated 4.9.2012 rejected the B-Summary Report filed by the Investigating Officer and proceeded to take cognizance of the offences against the person arraigned as accused in the original complaint as also against the aforesaid three companies represented by these petitioners and ordered issue of summons to all of them. Apprehending that upon their appearance before the Court, pursuant to issue of summons they are likely to be taken to custody, the petitioners have presented these petitions seeking relief of anticipatory bail.

Sri. B.A. Belliappa, learned standing counsel who was directed to take notice on behalf of respondent-Karnataka Lokayuktha, appeared before the court and submitted that the petition is misconceived and there is no basis for the apprehension of the petitioners since the Special Court has merely ordered summons and not a warrant.

I have heard Sri. Ashok Haranahalli, learned Senior Counsel appearing for the petitioners in Crl.P.No. 5669/2012, Sri A.H. Bhagawan, learned counsel appearing for the petitioner in Crl.P.No. 5843/2012 and also Sri. B.A. Belliappa, learned standing counsel appearing for the respondent-Lokayuktha. Perused the records made available.

Sri. Ashok Haranahalli, learned Senior Counsel submitted that though the Special Court has ordered issue of summons only and not the warrant, the petitioners apprehend that they are likely to be remanded to judicial custody upon their appearance before the Court pursuant to the summons issued and that their apprehension is well founded. He also brought to the notice of this Court that this Court has granted relief of anticipatory bail to accused No.1 against whom similar allegations have been made, therefore, on the principles of parity, these petitioners are entitled for relief of anticipatory bail. He further contended that these petitioners had not been originally impleaded as accused in the complaint and no allegations had been made out as such there are no reasonable grounds to believe that these petitioners are guilty of any of the offences alleged.

Sri. A.H. Bhagawan, learned counsel reiterating the above submissions contended that the learned Special Judge while ordering issue of summons against the companies has chosen some of its functionaries to represent those companies though that power is left to the company itself. He further contended that the summons ordered against these petitioners as representatives of the companies against whom the cognizance is taken, is without any authority of law since the principles of vicarious liability is not applicable in the absence of any provision to that effect in the P.C. Act.

I have bestowed my anxious considerations to the submissions made on both sides. There is no dispute that the learned Special Judge has ordered issue of summons to these petitioners representing the respective companies to appear before the Court in the case registered for the offences punishable under Sections 8, 12, 13(1)(d) read with 13(2) of the P.C. Act. No doubt, the learned Special Judge has ordered only summons and not a warrant. The question that when a court orders issue of summons and not warrant in a case triable as a warrant trial and pursuant to such summons if the accused person appears before the Court, whether the court has power to take him to custody, has come up for consideration before different High Courts in the Country. The Kerala High Court in the case of Sreekumar Vs. State of Kerala, has held that upon appearance of the party so summoned, the court cannot take them to custody. However, the said view has not been accepted by the Delhi High Court in the case of Sharad Kumar Vs. Central Bureau of Investigation in Bail Application No. 723/2011 and connected cases disposed of on 8.6.2011.

Thus from the above, it is clear that the law in this regard is not settled. Therefore, the apprehension of the petitioners that upon their appearance before the learned Special Judge, pursuant to the summons, they are likely to be taken to custody and remanded to judicial custody cannot be termed as without any basis. It is well settled law that; even after issue of summons or warrant, the court has power to grant relief of anticipatory bail u/s 438 Cr.P.C. Therefore, having regard to the above, the apprehension of the petitioner that they are likely to be taken to custody upon their appearance before the learned Special Judge pursuant to the summons issued is well founded.

As noticed supra, these petitioners were not originally arraigned as accused in the complaint. The Investigating Officer to whom the complaint was referred for investigation, initially filed a B-Summary Report and again on being directed to conduct further investigation, after further investigation also he filed B-Summary Report. The learned Special Judge rejecting the B-Summary Report has proceeded to take cognizance against the three companies represented by these petitioners. This Court has already granted relief of anticipatory bail to accused No. 1 the sole accused at the time of presentation'' of the complaint. Having regard to the facts, and -circumstances of the case and the materials available on record, I am of the considered opinion that there are no reasonable grounds to believe that these petitioners are guilty of the aforesaid offences. In that view of the matter, the petitioners are entitled for relief of anticipatory bail. Accordingly, the petitions are allowed. The petitioners in the respective petitions are ordered to be released on bail upon their appearance before the Special Court, Bangalore City in Special C.C. No. 173/12 pursuant to the summons issued, on each of them executing personal bond for a sum of Rs. 1,00,000/- with one surety for the like sum to the satisfaction of the learned Special Judge, Bangalore subject to further conditions that,

i) the petitioners shall not tamper or terrorise the prosecution witnesses in any manner;

ii) the petitioners shall appear before the learned Special Judge on all hearing dates without fail and

iii) the petitioners shall not leave the Country without express permission thereof.