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Sri H D Kumaraswamy vs State Of Karnataka on 8 June, 2012
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7) The petition is opposed by the Respondent- Lokayuktha Police inter alia contending that at this stage there are reasonable grounds to believe that the petitioner is guilty of the aforesaid offences and having regard to the nature and gravity of offences alleged, the petitioner is not entitled for the relief of anticipatory bail. Therefore, the respondent sought for dismissal of the petition.

8) After hearing both sides, this Court on 20.04.2012 granted interim anticipatory bail directing the respondent-Lokayuktha Police to release the petitioner on bail in the event of his arrest in connection with the aforesaid case, subject to conditions contained therein.

17) In the case of BHARAT CHAUDHARY VS.

STATE OF BIHAR reported in (2003) 8 SCC 77, the Apex Court has held that, 'mere fact of taking cognizance or filing of charge sheet, is not by itself a bar against grant of anticipatory bail'. The relevant observations are found in Para-7 of the judgment, which reads as under:-

Even in a case where the jurisdictional Court orders issue of summons in respect of bailable or non-bailable offences, the accused persons, upon appearing before the Court pursuant to such summons, will have to seek bail, if he is already not on bail. Even at that stage, the jurisdictional Court has to decide whether the accused persons are entitled to bail or not, and if prayer for bail is rejected, such person could be taken to custody. Therefore, mere appearance of the petitioner before the learned Special Judge pursuant to the summons issued and execution of the self-bond as well as furnishing of surety as per the terms of interim anticipatory bail, in my opinion, has not rendered the prayer sought in this petition infructuous.

21) In the case on hand, admittedly, the petitioner has been arraigned as an accused alleging commission of non-bailable offences. Of course, during investigation, which started on the basis of the reference made by the Special Judge, it appears there was no attempt on the part of the Investigating Officer to apprehend and arrest the petitioner. Investigation is now over and the charge sheet has been filed and the learned Special Judge has taken cognizance. The petitioner has appeared before the jurisdictional Court and as per the interim anticipatory bail granted by this Court, has executed self bond and has furnished surety. But for the interim anticipatory bail order granted by this court, on his appearance, the petitioner ought to have moved for bail before the Special Judge and in the event of rejection of the prayer, there was every possibility of the Court ordering custody of the petitioner. Even now, if the relief in this petition is not granted and in the event of the Special Judge refusing to grant bail, the petitioner is likely to be arrested and remanded to custody. In Gurbaksh Singh Sibbia's case (supra), it has been ruled that, if an application for anticipatory bail is made to the High Court or the Court of Sessions, it must apply its own mind to the question and decide whether a case has been made out for granting such relief and it cannot leave the question for the decision of the Magistrate concerned under Section 437 of the Code, as and when an occasion arise. Therefore, the apprehension of the petitioner that he is likely to be arrested is well-founded, as such, this Court is required to consider as to whether the petitioner is entitled for the relief of anticipatory bail

29) In the light of the above discussion, I am of the considered opinion that the interim anticipatory bail granted to the petitioner deserves to be made absolute. It is necessary to note here that in Mhetre's case (supra) the Apex Court has held that the order of anticipatory bail if granted should ordinarily be in force till the conclusion of the trial unless it is recalled for justifiable reasons.

30) Hence, the petition is allowed. The interim anticipatory bail granted by this Court on 20.04.2012 is made absolute subject to the self-bond already executed and surety already produced before and accepted by the jurisdictional Court and also subject to other conditions imposed therein.