Petitioner is accused no.1 in Cr.No.219/2013 registered in High Grounds Police Station, Bangalore City for the offences punishable under Sections 120B, 389 , 469 and 506 r/w 34 IPC .

2. Complainant is a practicing Advocate. Complainant was the owner of land bearing sy.no.49/2 and the same came to be acquired by the Karnataka Industrial Area Development Board and award came to be passed for a sum of Rs.1.24-crores. Before payment of the award amount to the complainant a suit was filed in O.S.No.1010/2007 on the file of Civil Judge at Devanahalli for partition and the same came to be dismissed as withdrawn. In the 3 meanwhile, the petitioner who is an Advocate initiated proceedings on behalf of Smt.Tulasamma and others before the Assistant Commissioner under the provisions of Karnataka Scheduled Caste and Schedule Tribe (Prevention of Transfer of Certain Lands)Act, 1978 against the complainant and the same came to be dismissed on 5.7.2013. Further the petitioner as an Advocate filed an appeal before the Deputy Commissioner. The petitioner and another Advocate by name Chokka Reddy (A3) appeared before the Land Acquisition Officer, KIADB and objected for payment of compensation to the complainant. On 17.07.2013 the LAO fixed a date of hearing and on that day no stay order was produced. Consequently, the LAO passed an order for payment of award amount to the complainant and accordingly the complainant had withdrawn the compensation amount.

3. It is further alleged that on 26.07.2013 one Srinivas who works as a Clerk in the Advocate office met one Badarinath who is working as FDA in the office of complainant's father and gave a copy of the writ petition which is proposed to be filed before this 4 court. This Advocate clerk Srinivas further informed Badarinath that petitioner and accused no.2 are interested in settling the matter out of court. In the copy of the writ petition wild allegations were made against complainant's father stating that he has influenced the Deputy Commissioner to tamper the stay order in the appeal filed before him. It is alleged that the intention of petitioner and other accused is not really to file writ petition but only to blackmail the complainant and to bring disrespect to his father who is a sitting Judge of this court. In the complaint it is alleged that on 29.07.2013 accused met the complainant and offered to give a cheque for Rs.1.24 crores and the complainant should agree before the Deputy Commissioner for allowing the appeal and remanding the same to the Assistant Commissioner. Since the complainant refused, the petitioner and other accused went away stating that they will file the writ petition on the next day. At that time the complainant's clerk Srinivas was present. Subsequently on the same day complainant and Srinivas went to the respondent police and lodged the complaint 5 and the same came to be registered in Cr.No.219/2013 for the above referred offences. The matter is under investigation.

4. Fairoz Khan is Accused 2 and he was arrested and now enlarged on regular bail under Section 439 Cr.P.C. Accused-3 Chokka Reddy who is an advocate filed a petition under Section 438 Cr.P.C. on the file of Fast Track Court, Bangalore city in Crl.Mis.4146/2013 and the same came to be rejected vide order dated 6.8.2013. Apprehending arrest the petitioner who is accused no.1 is before this court under Section 438 Cr.P.C.

5. The State Public Prosecutor appearing for the respondent has filed statement of objections opposing grant of bail. Complainant has filed an application under Section 301(2) Cr.P.C. seeking leave of this court to assist the public prosecutor and also filed an application under Section 482 Cr.P.C. questioning the maintainability of the petition filed by the petitioner and also an application opposing the claim of petitioner.

6. Heard Sri Ashok Haranahalli, learned senior counsel for the petitioner, Sri Doreraj, learned State Public Prosecutor and Sri Ravi B.Naik, learned senior counsel for the complainant and perused the entire petition papers.

7. Learned counsel for the respondent firstly contends that the offences alleged in FIR are under Section 506 , 34 , 120B , 389 and 469 IPC and they are bailable offences. Therefore, the petition under Section 438 Cr.P.C. for bailable offences is not maintainable. There is no dispute with regard to the legal position that a petition under Section 438 Cr.P.C. is maintainable only in respect of non-bailable offences. Learned counsel for the petitioner filed a memo with copy of statement of objections filed by the respondent police before the trial Court opposing the bail application filed by Accused No.2 and the same is not disputed by the respondent. In this objection statement it is stated that respondent police have added the offence under Sections 193 , 420 and 511 IPC. Further the petitioner has also produced the copy of remand 7 application in respect of accused no.2 wherein it is specified that the respondent police have added the offences punishable under Sections 193 , 420 and 511 IPC and the same is not disputed. The offence under Section 420 IPC is non-bailable. Subsequent to the registration of crime on 29.07.2013 in Cr.No.219/2013 the respondent police have added non-bailable offences. Therefore, the petition filed by the petitioner under Section 438 Cr.P.C. is maintainable.

8. It is contended that petitioner has not amended the criminal petition by incorporating the non-bailable offences and as such the petition is liable to be rejected. This contention is unacceptable to me. This criminal petition was filed on 31.07.2013 on the basis of FIR registered on 29.07.2013 and in that the non- bailable offences were not included. After filing the petition, the petitioner came to know from the statement of objections filed by the respondent police opposing the bail application of accused no.2 and the remand application wherein the non-bailable offences are added. 8 This subsequent development is brought to the notice of the court by way of filing a memo with copies of two documents by the counsel for the petitioner. Since the State Public Prosecutor has not disputed the correctness of the copy of the objections and the remand application filed in Cr.No.219/2013 before the trial Court, I am of the considered opinion that there is no need for amending the criminal petition filed by the petitioner. This subsequent development of adding non-bailable offences is to be considered by this court even in the absence of pleading.

9. Secondly, it is contended that the petitioner should approach the Sessions Judge at the first instance and therefore the present petition before this court under Section 438 Cr.P.C. is liable to be dismissed. In support of this contention learned counsel for the respondent relied on a judgment of this court in K.S.Iyya vs. State of Karnataka , 1985 Crl.LJ 214. Per contra learned counsel for the petitioner contends that under Section 438 Cr.P.C. concurrent jurisdiction is confirmed on this court. Therefore the petitioner is 9 entitled to approach this court at the first instance for anticipatory bail under Section 438 Cr.P.C. Further it is contended that the bail petition filed by accused no.3 Chokka Reddy came to be rejected by the Fast Track Court, Bangalore City in CrlMisc.4146/2013. The respondent police are bent upon arresting the petitioner. Petitioner is an advocate who has put in 30 years of practice and there are no antecedents. In these special circumstances the petitioner is entitled to maintain a petition under Section 438 Cr.P.C. before this court. In identical circumstances, a Division bench of this court in Chandra Earappa vs. State of Karnataka ILR 1989 Kar 2882 held as under:

Of course, there can be no doubt that as in the hierarchy, Court of Session is subordinate to the High Court; a party who makes an 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 Session, but not vice versa. In other words, if the party chooses to file an application under section 438 of the Code before the High Court and it is rejected he cannot thereafter approach the Court of Session under the same provision and on the same grounds. This position is conceded, in our opinion, rightly, by the learned counsel on both sides. For the aforesaid reasons, we find no substance in the construction of Section 438 of the Code, as suggested by the learned Advocate General. We receive support for this view from the following decisions : Mohan Lal v. Prem Chand, (FB ); Diptendu Nayak v. State of West Bengal , 11 (1989) 1 Cri LJ 424 (Cal) (SB). For these reasons, we answer the third question as follows :

In N.B.Bungarakoppa vs. State of Karnataka ILR 2002 Kar 3308 it is held as under:

It is true, in the hierarchical set up of Courts, the High court exercise superintendence and control over the Court of Sessions, the latter is subordinate to the former. Should such a subordination become a relevant factor in the interpretation of Section 438 ? The answer in our view, is emphatically in the negative, when the language of an enactment is plain, the intention must be gathered from the language itself and departure from this will be justified only if the literal meaning leads to absurdity or undermines the purpose of the enactment: K. Veeraswamy v.Union of India, 1991 (2) Scale 150 & 170. In the face of the express language of the provision conferring concurrent jurisdiction on the High Court and the Court of Session, we do not find any justification in the High Court declining to entertain the application under S.438 on the ground that the party has not moved the Court of Session in the first instance. Contrary to the legislative command there can be no rule of practice. If a 15 person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, under Section 438(1) it is open to him " to apply to the High Court or the Court Session" for anticipatory bail. The provision clearly implies that not only concurrent power is conferred on the High Court and the Court of Session but choice is given to the affected person to move either of the two fora. This concurrent jurisdiction and the choice given to the affected person cannot be impaired by any restrictive interpretation, contrary to the specific language, on the strength of rule of practice.

8. There is no provision in the Criminal Rules of Practice laying down that the Court of Session, in the first instance, should be approached under Section 438 . Even if there were to be a rule to that effect, it would not have any legal effect. When that being the position, we find little justification for the Registry to return the papers on the ground that the applications, in the first instance, are not maintainable in the High Court under Section 438 .

10. In view of the law laid down by this court and Andhra Pradesh High Court in the above referred decisions Section 438 16 implies not only concurrent power confirmed on the High Court and the court of Sessions but choice is given to the affected person to move either of the two forums. This concurrent jurisdiction and the choice given to the affected party cannot be diluted by restrictive interpretation to the language used in Section 438 Cr.P.C. Therefore, the petitioner is entitled to knock the door of this court at the first instance for anticipatory bail under Section 438 Cr.P.C.

11. Section 438 of Cr.P.C. specifies that the following factors are to be taken into consideration while considering a petition under Section 438 Cr.P.C.-

whether he has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

(iii) the possibility of the applicant to flee from justice; and

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested. 17

12. A perusal of the complaint specifies that there is a land dispute between the complaint on one side and Tulasamma and others on the other side in civil court, before the Assistant Commissioner and now before the Deputy Commissioner. In these litigations petitioner appeared as an Advocate for Tulasamma and others and against the complainant. In the complaint it is alleged that petitioner offered to pay a cheque for a sum of Rs.1.24 crores to the complainant for giving consent before the Deputy Commissioner for allowing the appeal and remanding the matter to the Assistant Commissioner. On refusal by the complainant, petitioner and accused no.2 stated that they will file a writ petition before the High Court. It is contended that petitioner has drafted the writ petition containing wild allegations against the complainant's father. There is no allegation that petitioner demanded money from the complainant for settling the dispute or for not filing the writ petition. Petitioner drafted the writ petition on the basis of instructions given by his clients. Now it is brought to my notice that another advocate has now filed the writ petition before this court on behalf of 18 Tulasamma and two others against the complainant questioning the tampering of interim order passed by the Deputy Commissioner. I do not propose to go into the merits of allegations made in the writ petition that is pending before this court. Merely because petitioner drafted a writ petition on the basis of instructions given by his clients it cannot be said that he has committed a serious crime disabling him to seek anticipatory bail. Having regard to the nature of allegations made in the complaint, I am of the considered opinion that petitioner is to be enlarged on bail.

13. Petitioner is an Advocate who has put in 30 years of practice. The prosecution has not placed any material on record in proof of antecedents of any conviction or indulging in committing any cognizable offence by the petitioner. Since the petitioner is having roots in the society at Bangalore as a Professional, I am of the considered opinion the possibility of fleeing from justice is absent.

14. Learned Public Prosecutor contend that after registration of the case the investigating officer seized a compact disc containing the voice recording of accused no2 and witness Srinivas. According to the Public Prosecutor this disc contains information relating to involvement of certain personalities and therefore the same is to be permitted to be played in the open court or in the chambers of the court. A perusal of the complaint specifies that the witness Srinivas accompanied the complainant at the time of lodging the complaint. In the complaint it is specifically stated that this witness Srinivas was present in the office of the complainant when conversation took place between the complainant and accused no.1 and 2. Surprisingly the voice recording of accused no.2 and witness Srinivas is not mentioned in the complaint. Further it is not stated from whom this CD is seized and on what date. Even if this CD contains some information relating to the crime then it is always open for the investigating officer to continue the investigation in accordance with law. It is not shown to me in what way the 20 information contained in the CD will come in the way of granting bail to the petitioner.

For the reasons stated above, the following:

with a solvent surety for the likesum to the satisfaction of the arresting authorities.

III) Whenever the investigating officer calls upon the petitioner he shall appear before him and cooperate for completion of investigation.

IV) The petitioner shall not in any manner tamper with the prosecution witnesses or investigation.

Violation of any of the above conditions will result in cancellation of the bail order.