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TMI Blog2013 (3) TMI 865X X X X Extracts X X X X X X X X Extracts X X X X ..... of the I-Additional C.M.M., Bangalore, and C.C. Nos. 6414/2012, 6415/2012, 6416/2012 and 6417/2012 on the file of IV-Additional C.M.M., Bangalore City, whereas Criminal Petition Nos.4453/2012, 4258/2012, 4260/2012, 4261/2012, 4262/2012 are filed under Section 438 of Cr.P.C. seeking the relief of anticipatory bail, apprehending arrest in connection with the aforesaid criminal cases. 2) The 1st petitioner in all these petitions namely C.P. Yogeshwar is the common accused (A-1) in all the aforesaid criminal cases. His wife Manjukumari is Accused No.2 in C.C. No.6907/2012 and C.C. No.6417/2012. One Arun Charanthimath and his wife Sujatha Charanthimath are Accused Nos. 3 4 in C.C. No.6907/2012. C.P. Gangadhareshwar, brother of Accused No.1, is Accused No.2 in C.C. Nos. 6414/2012, 6416/2012 and Accused No.3 in C.C.No.6417/2012. P.Mahadevaiah and H.R.Ramesh are arraigned as accused Nos.3 4 in C.C.No.6907/2012 and Accused Nos.4 5 in C.C.No.6417/2012. One Sambashiv Rao is Accused No.6 in C.C. No.6417/2012. In each of these cases, the accused persons are alleged to have committed various offences under Indian Penal Code. The details of the offences and other particulars are as noted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in and to carry on all or any of the functions of proprietors of land, flats, maisonettes, dwelling houses, shops, offices, commercial complexes, factory shed and buildings and accommodation of all kinds etc. 5) On 04.03.1996, Arun Charanthimath and his wife Sujatha Charanthimath, submitted their resignations and C.P. Gangadhareshwar was inducted as Director in the year 1997. The MDBL became Public Limited Company in 1998 and the paid-up capital was raised to ₹ 6,00,000/- and some of the family members of C.P. Yogeshwar were inducted as Directors of the company. 6) In the year 1994-95, the MDBL launched a Residential Township Scheme called Vajragiri Township on Bangalore-Mysore Road, about to 20 to 25 Kms. from Bangalore City. At the time of launching the said project, MDBL published broachers/pamphlets highlighting the projects and all the four Promoters/Directors of the Company had signed the broachers/pamphlets of Vajragiri Township project. Two schemes were introduced and as per the schemes, members were given option to take 60 month or 66 month installments for the plot in Vajragiri Township. Pursuant to the wide publicity given by MDBL about Vajragiri Township pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken-up. 8) When the investigation in Crime No.255/2006 of Sampangiramanagar Police Station was in progress, the illegalities and irregularities alleged to have been committed by the functionaries of MDBL were brought to the notice of the Ministry of Corporate Affairs, Government of India, New Delhi. The Ministry of Corporate Affairs, Government of India, taking note of the serious allegations of illegalities and irregularities said to have been committed by MDBL, directed the Serious Fraud Investigation office attached to the Ministry, to conduct investigation into the affairs of MDBL. 9) During investigation, the investigators examined the various records pertaining to MDBL in relation to its functioning and also in relation to the Vajragiri Township project and found violations of various provisions of the Companies Act, Income-tax Act and also the offences punishable under the provisions of Indian Penal Code regarding forgery, misappropriation, cheating, etc. The investigation revealed that several agreements of sale said to have been entered into between the purported land owners and the functionaries of the company are all forged and there was siphoning of huge money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minal cases and ordering summons, the petitioners presented petitions under Section 482 of Cr.P.C. seeking to quash the prosecutions launched against them. 13) Apprehending their arrest in connection with the aforesaid criminal cases, pursuant to the process issued, the petitioners have also filed petitions under Section 438 of Cr.P.C. seeking the relief of anticipatory bail. 14) I have heard Sri. Tomy Sebastian, learned Senior Counsel appearing for the petitioners in all these petitions and Sri. B.P. Puttasiddaiah, learned counsel appearing for the common respondent. 15) Let me first deal with the cases filed under Section 482 of Cr.P.C. seeking to quash the prosecutions launched. Though several grounds and contentions have been raised in support of the prayer for quashing the prosecutions, during the course of the argument, learned senior counsel did not press any one of them. He only submitted that having regard to the fact that the prosecution launched on the basis of the five complaints lodged by the respondent relate to one and the same project launched by MDBL and the facts alleged in all these cases are inter-linked, and though for the convenience of the prosecutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence. 19) As per sub-section (1) of Section 210 Cr.P.C., if it is made to appear to a Magistrate during the course of an inquiry or trial held by him in a complaint case that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him in such complaint case, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. As per Sub-section (2), if a report is made by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. According to Sub-section (3), if the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) The petitioners in each of these petitions apprehending their arrest, pursuant to the process issued in the aforesaid cases, have sought for the relief of anticipatory bail. It is noticed that the petitioners have directly approached the High Court under Section 438 of Cr.P.C. without approaching the Sessions Court. The objection raised by the respondent is that these petitions are not maintainable since the petitioners have not approached the Sessions Court and have not exhausted that remedy. However, on the other hand, the learned senior counsel submitted that there is no bar for the petitioners to directly approach this Court under Section 438 of Cr.P.C. as both this court and the sessions court have concurrent jurisdiction under Section 438 Cr.P.C.. Therefore, the petitions cannot be termed as not maintainable. 24) This Court consistently has taken a view that it would be a sound exercise of judicial discretion not to entertain each and every bail application directly by the High Court bye-passing the court of sessions. In K.C.Iyya- Vs-State of Karnataka [1985 Crl.L.J.214], this court has held thus in para.7:- 7. Since both the courts-Court of Session and this Court-ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court of sessions is subordinate to the High Court, it was held in that decision that a party, who makes application under Section 438 of the Code before the sessions court, could approach the High Court, if his application had been rejected by the court of sessions and not vice-versa. Thus, from the said decision, it is clear that if a party chooses to file application under Section 438 of Cr.P.C. before the High Court and if it is rejected, he cannot thereafter approach the court of sessions under the same provision and on the same grounds. In Chandra Erappa's case, question as to whether a person apprehending arrest on an accusation of committing non-bailable offence could approach the High Court directly under Section 438 of Cr.P.C., did not arise for consideration. On the other hand, one of the questions that arose for consideration was whether a petition under Section 438 of Cr.P.C., is not maintainable before the High Court if a similar application has been made and rejected by the Court of Sessions. In this background, consistent view held by this court that a party generally should first approach the sessions court under Section 438 of Cr.P.C. and after exhausting the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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