1. This petition is filed by the petitioner under Section 482 of Cr.P.C. praying to set-aside the order dated 22.07.2024 in Crl.Misc.No.501/2024 and restore the earlier order dated 04.12.2023, passed in Civil Misc.No.2031/2023, passed by the learned IV Addl. District and Sessions Judge, at Kalaburagi, sitting at Sedam and enlarge the petitioner on bail and to set aside the order dated 26.02.2024 in Crl.Misc.No.102/2024 passed by the learned IV Addl. District and Sessions Judge at Kalaburagi and allow the application filed by the petitioner under Section 439 (1)(b) of Cr.P.C. for relaxation of conditions No.2 and 4.

2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader for the respondent – State.

3. The case of the petitioner is that the respondent - Chittapur police have registered a FIR against the petitioner and others in Crime No.135/2023 for the offences punishable under Sections 143, 147, 353 and 249 of IPC. The petitioner name is shown as accused No.1. He was apprehending of his arrest in the hands of the police for having committed non-bailable offences. Hence, he approached the Sessions Judge for granting anticipatory bail by filing a petition under Section 438 of Cr.P.C. in Crl.Misc.No.102/2024. The learned Sessions Judge after hearing the arguments of both side, granted anticipatory bail by imposing conditions as under:-

“The application filed by the petitioner under Section 438 of Cr.P.C. is hereby allowed.

The petitioner in the event of his arrest by the respondent police authorities in above crime No.135/2023 shall be released on bail. The jurisdictional police are hereby directed to release the petitioner, subject to executing his personal bond for a sum of Rs.50,000/- with one surety for the likesum before the jurisdictional police / learned Magistrate on the following;

"CONDITIONS

I. The petitioner shall not indulge himself in any unlawful activities.

II. The petitioner shall appear before the I.O. for enquiry and investigation as and when required to do so and on every fortnightly Saturday’s between 11.00 a.m. to 03.00 p.m. he has to put his attendance before the I.O. without fail, till the filing of the charge sheet.

III. The petitioner directly or indirectly shall not tamper with the prosecution witnesses.

IV. The petitioner within a period of 03 weeks"

4. The petitioner said to be not able to comply the order as per conditions No.2 and 04 as the petition is said to be arrested by the police, the proceeding was initiated against him under Sections 107 / 109 of Cr.P.C, on 07.12.2023 he was sent to judicial custody for two days and released on 08.12.2023. Subsequently, the police have said to be issued a extornment show cause notice on 15.12.2023 and 19.12.2023. Therefore, he unable to comply with the condition No.02 and 04. Hence, he has filed application for relaxing the conditions by filing application under Section 439 (1) (b) of Cr.P.C. The State has also filed an application under Section 439 (2) of Cr.P.C. for canceling the anticipatory bail granted by the Court, mainly on the ground that there is a violation of conditions No.1 to 4. Therefore, bail should be cancelled and he should be sent to judicial custody.

5. The learned Sessions Judge after hearing the arguments vide impugned order in Crl.Misc.No.501/2024 cancelled the bail granted to the petitioner. Hence, this petitioner is before this Court.

6. The learned counsel for the petitioners has contended that though the anticipatory bail is granted on 04.12.2023 and within three weeks he unable to appear as he was arrested by the Wadi police under Section 109 Cr.P.C. proceedings. Subsequently, the extornment order has been passed by the District Authority for sending him out. Therefore, he unable to appear within the time. Hence, he has filed application for modification of the condition. But the Sessions Court has rejected the same. On the other hand, application filed by the State has been allowed without properly appreciating the grievance of the petitioner and he is ready to abide the conditions. He wants relaxation of condition imposed by the Trial Court, but the same was not followed. Hence, the order under challenge is perverse and should be set aside.

7. Per contra the learned Addl. SPP seriously objected the petition contending that he has violated the condition Nos.2 and 4. He has not at all appeared before the Investigating Officer. Therefore, the petitioner is required to be taken to custody is voice samples required to be collected by the Investigating Officer for the purpose of investigation. Therefore, he must be required for custody of the police. The District Judge after considering all the grounds made out by the State, has rightly cancelled the bail and it does not require for interference. Hence, prayed for rejecting the petition.

8. In reply, the learned counsel for the petitioner also contended that recently the petition once again arrested on 16.07.2024. He is in judicial custody for last almost 02 months un respect of Crime No.247/2023. Hence, prayed for allowing the petition.

9. Having heard the arguments and perused records. The points that arises for my consideration are as under:

I. Whether the State has made out grounds to show that the petitioner has not complied the conditions imposed by the learned Sessions Judge in Crl.Misc.No.102/2024 dated 26.02.2024, thereby the bail deserved to be cancelled.

II. Whether the order under challenge call for interference.

10. Having heard the arguments and on perusal of records which reveals that admittedly the petitioner was allegedly involved in Crime No.135/2024 for the offences punishable under Sections 143, 147, 353 and 295 (A) read with Section 149 of IPC. He was named as accused No.1. The Sessions Judge rightly granted bail on 26.02.2024 by imposing certain conditions. The condition No.2, the petitioner shall appear before the Investigating Officer for inquiry and investigation as and when required to do so, on every fortnightly Saturday between 11:00 a.m. and 03:00 p.m. and he has put his signature. The condition No.4, the petitioner within three weeks from receipt of the said order copy shall apply for regular bail before the consent Magistrate. Both the conditions especially condition No.2 required to be followed by the petitioner only if the petitioner was arrested by the police and released on bail. The very bail order itself read that the respondent / police is ordered to release him on bail in the event of his arrest. Then he shall be released with bond for Rs.50,000/- with one surety. It is an admitted fact that the police not chosen to arrest this petitioner from the date of granting the bail by the Sessions Judge, till he is said to be arrested in some other Crime on 16.07.2024.

11. Even though the petitioner was taken to custody by Wadi Police in a 107 proceedings on 07.12.2023 and release on 08.12.2023. Then an extornment show-cause notice is said to be served on the petitioner, but the police also said to be served notice under Section 41 (A) of Cr.P.C. to the petitioner, but they are not chosen to arrest the petitioner if he has not complied the Section 41 (A) of Cr.P.C. notice issued by the police. Once the notice under Section 41 (A) of Cr.P.C. was issued, which is served on him, then the police have power to arrest the petitioner for a non-bailable offence. Admittedly, till date the police have not chosen to arrest the petitioner in present Crime No.135/2023.

12. That apart, when the petitioner was in custody in Crime No.247/2023 for almost two months, even then the police have not chosen to file an application in the said crime number seeking body warrant from the concerned Magistrate as required under Section 267 of Cr.P.C. Therefore, when the police have failed to arrest the petitioner and even they failed to take him custody by issuing notices, but simply filing application before the Sessions Judge for cancellation of bail for not complying the condition No.02 and 03, does not arises. Of course the condition No.04 was after rest of the order the petitioner shall appear before the Magistrate and seek regular bail. In order to get the regular bail, first the petitioner required to be released by the police on the anticipatory bail. Based upon the anticipatory bail, the Magistrate can grant bail.

13. It is well settled by the Hon’ble Supreme Court in catena decisions that once anticipatory bail is granted that will continue until completion of the trial and need not approach the Court for seeking regular bail. It is only a formal bail application required to be filed after filing the charge-sheet, if the accused was summoned by the Magistrate to appear before it, in the case. The condition No.4 is not at all required. However, the condition No.2 will applicable only if the petitioner was arrested by the police and released on bail, then he shall appear once fortnightly and as and when called by the Investigating Officer for the purpose of investigation. For that the police required to issue notice to him summoning him to appear for the purpose of investigation. But no such attempt was made by the Investigating Officer for summoning him for the purpose of either investigation or attempt made for arresting him in this crime number for the purpose of investigation. Such being the case, merely directly go to the Sessions Judge for cancelling bail is not correct.

14. That part, the learned Sessions Judge also dismissed the application for relaxing the conditions by very bail order passed by the same Court. Therefore, I am of the view that the Sessions Judge not properly appreciated the document and its own order not properly read and the police have also misread the conditional order passed by the Sessions Judge in Crl.Misc.No.102/2024. Therefore, which needs to canceling the bail, which is not correct.

15. It is well settled by the Hion’ble Supreme Court in the catena of decisions that ‘bail is a rule, rejection is an exception’ and the criteria for canceling bail is more than the rejection of bail. Once the bail is granted, the Court must be slow to cancel the bail until a strong material and grounds are urged before the Court in order to cancel the same. But in my view, there is no such grounds made out by the Investigating Officer or the State for canceling the bail, except propaganda that he has violated the condition of the bail and not appeared before the Investigating Officer, but they have themselves failed to arrest the petitioner and the condition No.02 will not come into existence until he has arrested and released on bail. Such being the case, the order of cancel in the bail required to be set aside.

16. However, the petitioner sought for canceling the conditions No.02 and 04, which cannot be allowed. The Court granted anticipatory bail only to avoid him from sending to the judicial custody. When once the bail is granted, the Sessions Court must have stated that the accused shall surrender voluntarily within 15 days or in the event of arrest, he shall be released on bail. But the order is only half portion that in the event of arrest, he shall be released. Therefore, the accused voluntarily appearing before the Investigating Officer for the purpose of arrest, does not arises in this case. Therefore, the once the bail is granted, if within the time the police not arrested within the reasonable time, the petitioner could have voluntarily appeared before the Investigating Officer by obliging the condition of the Sessions Judge. But without doing so, he wants cancel the condition Nos.02 and 04, which cannot be allowed. He has to undergo for the interrogation and assist and cooperate with the Investigating Officer for the purpose of investigation. Therefore, this condition No.2 cannot be cancelled. However, condition No.4 can be relaxed. He can appear before the Court as and when called by or summoned by the Magistrate after filing the charge-sheet. Accordingly, I proceed to pass the following;

O R D E R

I. The petition is allowed in part.

II. The order of canceling the bail in Crl.Misc.No.501/2024, is hereby set aside. III. The order of granting bail in Crl.Misc.No.2031/2023 is hereby restored. However, the petitioner is directed to surrender before the police within 15 days from the date of receipt of copy of this order.

IV. The State is at liberty to move an application for seeking the body warrant under Section 267 of Cr.P.C. for the purpose of investigation, if he is in custody in some other case.

V. However, after the interrogation, he shall be released as per the order passed by the Sessions Judge in Cril.Misc.No.2031/2023.

VI. He shall cooperate with the Investigation Officer.

VII. He should comply with the condition No.2, after his release.