@JUDGMENTTAG-ORDER
K.N. Phaneendra, J.—The petitioner approached this court seeking grant of anticipatory bail in connection with Crime No. 35/2016 of Barke Police Station, Mangalore, for the offence punishable under section 302 read with Section 34 of IPC.
2. Subsequent to filing of the Petition, the 3rd party intervener approached this Court seeking permission to contest the petition, by 5 filing IA No. 2/2016 and he is also represented by Sri. N. Ravindranath Kamath, Advocate. The said IA No.2/2016 was allowed by this Court vide order dated 25.4.2016.
3. Heard Sri. M.S. Shyam Sundar, learned counsel for the petitioner, Sri. P.M. Nawaz, SPP-I and also Sri. N. Ravindranath Kamath, Advocate for intervener. Perused the records.
4. Learned SPP-I also made available � the case diary in connection with the case.
5. Before adverting to the grounds urged before this Court, as argued by the learned counsel for the petitioner and also the grounds urged by the State for contesting the petition, it is just and necessary to bear in mind few factual aspects of this case.
6. The record discloses that one Smt. Anuradha Baliga D/o. Sri B.R. Baliga of Kodialbail, Mangalore, lodged a report stating that, on 21.3.2016, her brother by name Vinayaka Baliga, working as Electrical Com tractor, used to go to Sri. Venkateshwara Temple everyday at 5.45 a.m., As usual on 21.3.2016 also, he left the house to go to temple at about 5.45 a.m., on his scooter bearing registration No. KA-19/ED-3098. After some time, the complainant received an information that one Dr.Subraya Pai, called the father of the complainant stating that some two persons came on a scooter and assaulted the deceased (Vinayaka Baliga) with deadly weapons. On hearing the said information, the complainant and her father along with Dr.Subraya Pai, went to that particular place. They saw Vinayaka Baliga near the temple compound on the scooter in a sitting posture in the pool of blood. Immediately, he was admitted to the hospital but later, he was succumbed to the injuries. Making such allegation''. against some unknown culprit, a report been filed.
7. It is not in dispute that during the course of investigation, the police have arrested three accused persons i.e., A1 to A3 and it appears on the information given by the said accused persons, the police have suspected the hand of the present petitioner. It is also evident from the case diary that the police have also recorded the statement of many number of witnesses and on the ground that they suspect the strong hand of the petitioner behind the incident. Therefore, the police are making attempts to arrest the petitioner. It is also the case of the prosecution that during the pendency of the investigation, they have also seized certain incriminating materials from A1 and A3. It is the case of the prosecution that they want the custody of the petitioner for custodial interrogation to un-earth the truth in the case. In this background, the petitioner approached this Court apprehending arrest at the hands of the police.
8. The learned counsel for the petitioner Sri. Shyam Sundar, strenuously contends before this Court that, the FIR lodged by Smt. Anuradha Baliga, who is no other than the sister of the deceased not expressed any suspicion against anybody in the complaint, much less against the petitioner. Though accused Nos. 1 & 2 were arrested on 27.3.2016, the said persons have also not disclosed anything about the role of the petitioner. He also drawn my attention to the remand applications filed by the police, wherein the police have also not expressed anything about A1 and A2 disclosing anything about the petitioner. He also contends that A3 - Shivaprasad, petitioner and one Srikanth are subsequently arrayed as accused persons in the case and the police have sought for issuance of NBW against these accused persons. In the said applications also, no substantial grounds are alleged as to how this petitioner is involved in the crime. The said applications also discloses that the press and media have glorified the incident, perhaps the police being persuaded by Press and media reports are making arrangements to arrest the petitioner. He also submitted that A3-Shivaprasad, was also arrested on 13.4.2016. He also not whispered anything about the petitioner. In the remand application of A3 also, there is no whisper about the petitioner. It is further contended that petitioner is have very good status in the society and he is a well known political figure in Dakshina Kannada District and he is have deep roots in the society and further he got sufficient business in the said area. The learned counsel further contended that, only clue that could be available in the case is that a vehicle which alleged to have been used by the petitioner Toyota Qualis which was alleged to have been used by the culprits prior to and immediately after the incident. But the said vehicle also shown to have been not belonging to the petitioner and the scooter which was used by the culprits belonging to one Rajesh Shetty. Therefore, looking from any angle in the materials available on record, there is no strong material available to connect the accused/petitioner. Further, the said Toyoto Qualis vehicle also does not belong to the petitioner. But it belongs to one Vignesh Nayak in the above said circumstances, there is no necessity for the police to arrest the petitioner, further they can investigate the matter by calling him and examining him without being arrested. The petitioner is always ready and willing to co-operate with the investigation. He would be available at any point of time for the purpose of investigation, interrogation etc., Therefore, in order to protect the interests of the petitioner and also to permit the police to go on with the smooth investigation, he prayed that it is not a case to reject the bail petition but contrary, the petition deserves to be allowed. The petitioner is ready and willing to offer substantial surety for his appearance either before the Court or before the Investigating Officer.
9. Per contra, learned SPP-I and also Sri. N. Ravindranath Kamath have strenuously contested the bail petition. It is contended that the facts are still hazy and it is too premature to grant anticipatory bail. The affidavit of the father of the victim is also available on record, filed by the interveners advocate which shows that the petitioner been threatening the said witness and other witnesses in order to persuade them to square up the matter.
10. On facts, it is submitted by the learned SPP-I that the deceased Vinayaka Baliga was a known RTI activist and petitioner is involved in the activities of Sri. Venkateshwara temple in Mangalore City which is a very rich temple have crores of rupees income to the said temple. The petitioner who is involved in the management, joined hands with the persons who are looking after the affairs of the temple and misused the funds. In this connection, several suits have been filed by the deceased as a devotee of the said temple. In this context, the petitioner had very strong motive to do away with the life of the deceased. A1 and A2 who were arrested have disclosed the name of the petitioner and also stated about the conspiracy with another accused by name Srikanth, and there is strong suspicion with regard to the conspiracy between the accused persons and this petitioner. It is alleged that petitioner is the financier of the crime. The gravity of the case shows that there are as, many as 17 injuries on the deceased. He was brutally murdered by A1 to A3. A1 to A3 in their voluntary statement have implicated the petitioner. He also drawn my attention to the statement of some of the other witnesses who have supported the case of the prosecution and strengthened the suspicion on the petitioner. The investigation papers reveal that the petitioner is the master mind behind the incident. He is a very strong politician have money power and muscle power and if he is released on bail, there are chances of he interfering with the investigation and also tampering with the prosecution witnesses. Therefore, the custodial investigation is absolutely necessary. Hence, they prayed for dismissal of the petition.
11. Before adverting to the above said grounds urged, it is just and necessary to bear in mind the decision relied upon by the learned counsel for the petitioner. He strongly relies upon the decision of the Hon''ble Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and others reported in (2011) 1 SCC 694, wherein the Hon''ble Apex Court laid down certain principles to be followed while granting or refusing anticipatory bail which are briefly enumerated below:
"Section 438 of Cr.P.C. is not extraordinary in the sense that it should be invoked only in exceptional or rare cases. A great ignominy, humiliation and disgrace is attached to arrest. In cases where Court is of considered view that accused joined investigation and he is fully co-operating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided, and anticipatory bail should be granted.
The Role of, in protection of right to personal liberty - Essence of function involved in grant of bail, and measures to ensure proper performance thereof. Therefore, exercise of said jurisdiction requires maintaining of perfect balance between two conflicting interests viz. sanctity of individual liberty and interest of society.
The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the Court.
Society a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The law of bails dovetails two conflicting interests, namely, on the one hand, the requirements of shielding the society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand, absolute adherence to the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty.
There is no requirement that the accused must make out a "special case" for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 of Cr.P.C. to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restrains and conditions on his freedom, by the acceptance oI conditions which the Court may deem fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail."
In this context, this ruling of the Hon''ble Apex Court also been considered by the subsequent ruling in the case of Jai Prakash Singh v. State of Bihar and another reported in (2012) 4 SCC 379, wherein the Hon''ble Apex Court differed from the above said decision and laid down the following principles.
"Anticipatory bail - Grant of - Parameters for - Exercise of judicial discretion in exceptional cases after proper application of mind, and recording of reasons therefor - Necessity of - Murder case, Held, anticipatory bail can be granted only in exceptional cases where Court is prima facie of view that applicant was falsely enroped in crime and he is not likely to misuse his liberty - High Court erred in granting anticipatory bail in instant case without recording any reasons therefor and dehors parameters laid down in judicial pronouncements, without considering nature and gravity of offence - FIR, in which respondent-accused were named as assailants in murder case was lodged spontaneously, and thus lent assurance to its veracity - High Court also failed to consider whether custodial interrogation was required - Impugned judgment suffers from non-application of mind and hence, unsustainable - Further held, discretion under Section 438 should be guided by law, duly governed by rule and cannot be arbitrary, fanciful or vague - Court must not yield to spasmodic sentiment of unregulated benevolence."
12. Learned SPP-I also drawn my attention to the decision reported in 1985(2) SCC 597 Pokar Ram v. State of Rajasthan, wherein the Hon''ble Apex Court observed thus -
"Relevant considerations governing the Court''s decision in granting anticipator)'' bail under Section 438 are materially different from those when an application for bail by a person who is arrested in the course of investigation as also by a person who is convicted and his appeal is pending before the higher Court and bail is sought during the pendency of the appeal. Some of the relevant considerations for granting anticipatory bail are the nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant''s presence not being secured at the trial, a reasonable apprehension that witnesses will be tempered with and "the larger interests of the public or the State." Status in life, affluence or otherwise, are hardly relevant considerations while examining the request for granting anticipatory bail."
In another decision reported in 1987 (Supp) SCC 549 between Kiran Devi v. State of Rajasthan and another, therein the Hon''ble Apex Court observed thus -
"We are of the opinion that anticipatory bail should not have been granted in the murder case when the investigation was still incomplete. The proper course to adopt was to leave it to the trail Court to do the needful if and when the person concerned was arrested in the light of the record available at that point of time. The order passed by the High Court, is, therefore, set aside. It will be open to respondent 2 if and when he is arrested to apply for bail to the appropriate Court which will decide the matter on the basis of the available records in accordance with law. We have set aside the order under appeal on principle and we are not making any observation one way or the other on the merits of the case."
13. Bearing in mind the above said guidelines of the Hon''ble Apex Court, it is relevant to note here the Court to comprehend the facts and circumstances of each and every case depending upon the gravity and nature of allegations made and material collected. Thereafter the Court to exercise sound judicious discretion as to whether it is a fit case to grant anticipatory bail to the accused. There is no hard and fast rule as to under what and which particular facts, the Court to grant anticipatory bail. However, the Court to bear in mind, the gravity of the offence, nature of allegations made against the petitioner and his status in the society, his availability to the police for investigation and whether there are any chances of he tampering with the witnesses if he is released on bail and on the basis of the materials on record, whether custodial investigation is necessary and is warranted and whether accused would misuse the liberty that would be given to him are some of the important aspects to become in mind. Therefore, it all depends upon the facts in each individual case. In this background, now let me consider the materials on record.
14. Of course, in the complaint, there is no allegations made against anybody. Even suspicion is not expressed so far as this petitioner is concerned. As could be seen from the entire records, it reveals that the deceased Vinayaka Baliga was an RTI activist. It appears, he been working as a Watchdog of the society and collecting materials to expose illegal activities of many persons. Perhaps that may be the reason the complainant could not able to point out or suspect any person at that time, but it does not mean to say that during the course of investigation, the police cannot suspect the petitioner. In this background, the other materials available on record have to be looked into.
15. As argued by the learned counsel that A1 to A3 have not disclosed anything about the petitioner is not a correct observation made by him. Perhaps may be the reason, he had no opportunity to look into the voluntary statement of A1 to A3. In fact, the CD discloses that A1 to A3 have in fact implicated this petitioner as a person who would finance the crime by A1 & A2. A3 is the Mediator who to select the culprits for removal of the deceased. Another accused by name Srikantha, who is a close associate of the petitioner, is the person who contacted Shivaprasad and who in-turn engaged A1 and A2. The statement of A1 to A3 divulges some fact which indicate that there was some role attributed to the petitioner. What exactly transpired between the accused persons including the petitioner to be unearthed during the course of investigation. However, it cannot be said that there is no material at all in the voluntary statement of the accused persons. I am conscious of the legal proposition that the statement of the co-accused is not admissible in evidence unless corroborated. However, the police while recording the statement of the accused, if the accused persons divulges some facts, which can be used as a clue, for the purpose of further investigation, then such information cannot be in my opinion, called as a confession of (he guilt. However, it only remains as a discovery of factual aspect divulged by the accused enabling the police to further investigate into the matter.
16. Of course, in the remand application of A1 to A3, there is no whisper about the present petitioner. There is no need for the police to divulge those things in the remand application of the accused persons. It is only to be shown that why that particular accused who was produced before the Magistrate was arrested in connection with the case i.e., only the purpose of filing of the remand application.
17. The applications filed by the Investigating Officer for issuance of NBW produced before the Court by the learned counsel for the petitioner of course show that the police have categorically stated that the petitioner is'' also involved in the case and sufficient materials have been collected during the course of investigation against him. Therefore, his custodial investigation is absolutely necessary. The learned counsel high-lighted that the said application also discloses that the incident created sensation in the public and extensively discussed by the society in different manner. Therefore, the police might have been persuaded by such discussions in the society. Therefore, the petitioner might have been implicated in the case. But that itself is not sufficient to come to the conclusion as to whether police only on the basis of the media report are suspecting the petitioner. In this regard,'' the other material available on record also to be looked into.
18. The case diary reveals that apart from'' the voluntary statement of the accused Nos. 1 to 3, who have actually implicated the petitioner as the Financier who would pay Supari money for killing the deceased, the statement of some of the other witnesses also discloses other facts. Though the Qualis car alleged to have been used by culprits is in the name of one Vignesh Nayak, but the witnesses have, categorically stated that was being used by the petitioner. The former owner of the said car is Sri. Santhosh B. Prabhu also stated that he actually sold the said Qualis Car to the petitioner, however, the RC was changed into the name of Vignesh Nayak but the petitioner was using the said Car. This version is also supported by other witnesses by name Chetan Kamath, Padmanabha Moola, who was working as a driver with the petitioner. The CD also discloses that the said car prior to and after the incident being used by the culprits. The police have also recorded the statements of other witnesses by name Ganapathi Baliga, Chandrakanth Kamath, Ratha and others have stated that petitioner is the active participant pertaining to Sri. Venkateshwara Temple and in fact in this regard, there was ill-will and hatred-ness developed between the '' petitioner and the deceased and in fact there was a quarrel between the petitioner and the deceased earlier to the incident. The records also discloses that the police have collected the material to show that the deceased was a known RTI activist and he raised several disputes regarding the affairs of Sri. Venkataramana Swamy temple. He filed OS No. 113/2013 and OS No. 321/2016 pending on the file of the judicial courts.
19. Looking to the above said factual aspects, it is not that the police have absolutely no material to suspect the petitioner as one of the culprits. However, the complicity of the petitioner to be unearthed by means of further and full investigation. At this stage, the Court cannot with all certainty say that custodial investigation is not all necessary.
20. It is the basic principles of criminal law that whenever there are no eye-witnesses to the incident or any direct materials are not available, the police would always proceed to investigate the matter on the basis of suspicion based on surrounding circumstances. In such an eventuality, it is the Investigating Officer, who is the right person to take a decision, as to whether custodial investigation is necessary or not in such cases.
21. In this regard, it is worth to mention here the decision of the Hon''ble Apex Court reported in (2005) 4 SCC 303 in the case of Adri Dharan Das v. State of West Bengal, wherein at paragraph 19 the Court observed in the following manner:
"Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance, to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well defined and the jurisdictional scope of interference by the Court in the process of investigation is limited. The Court ordinarily will not interfere with the investigation of a crime or with the arrest of the accused in a cognisable offence.
Further, the Court also observed in the said case at paragraph 7 in the following manner:
"The power exercisable under section 438 Cr. P.C. is somewhat extraordinary in character and it is only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty, then power is to be exercised under Section 438. The power being of important nature it is entrusted only to the higher echelons of judicial forums i.e. the Court of Session or the High Court. It is the power exercisable in case of an anticipated accusation of non-bail-able offence. The object which is sought to be achieved by Section 438 CrPC is that the moment a person is arrested, if he already obtained an order from the Court of Session or the High Court, he shall be released immediately on bail without being sent to jail."
22. In view of the above dictum it is abundantly clear that the Investigating Officer got absolute power even to arrest the suspect for the purpose of investigation, interrogation. It is not an absolute requirement or imperative that the person should be arrested in connection with a case, but it depends upon the facts and circumstances of each case. The Investigating Officer to take utmost care whether in a given circumstances, arrest of the particular accused is absolutely necessary. Therefore, the said domain of taking a decision whether accused to be arrested or not to be exercised by the Investigating Officer considering all the surrounding circumstances of the case. The Court unless it comes to a definite conclusion that custodial investigation is absolutely not at all necessary, the Court should not interfere with the statutory authority entrusted to the investigating officers. Therefore, in that line also, in my opinion, this Court do not want to interfere with the investigation by granting anticipatory bail.
23. It is an undisputed fact that the petitioner got very strong roots in the political line. He is a political leader and he is heading various institutions and a business tycoon in Mangalore. If anticipatory bail is granted as rightly contended by the SPP-I, that there may be chances of petitioner indulging in tampering the witnesses or even not co-operating with the investigation. Though it is not based on any factual aspects, but the fact remains that he is a powerful person.
24. Looking to the above said facts and circumstances of the case, in my opinion, the petitioner not made out any strong and compelling grounds for grant of anticipatory bail. Hence, the petition deserves to be dismissed.
25. Accordingly, dismissed.
