KUMARA ALIAS GUDI KUMARA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS petition is under Section 438, Cr.P.C. seeking direction to the Station House Officer of Extension Police Station, Hassan, to release petitioner in the event of his arrest.

(2.) NOT in dispute is the fact that on the basis of statement given by One Durga Prasad, S/o Neelappa, a case came to be registered in Cr. No.237/2010 for the offence punishable under Sections 504, 341, 323, 324 and 506 of IPC. He was arrested. He applied to jurisdictional Court, which granted him bail. During investigation Durga Prasad was treated at NIMHANS for sufferance of injury to fronto temporal parietel craniotony region and evacuation of right temporal contusion followed by left fronto temporal parietal craniotomy and evacuation of left temporal contusion was done. It had a devastating effect on brain. He was subjected to surgery in NIMHANS and doctors being of the opinion that he was out of danger, discharged him on 14-10-2010, after his admission on 09-09-2010. After discharge he returned to the village, but died on 29.12.2010.

(3.) THE learned counsel submits that there is apprehension of arrest and hence the provisions of Section 438 of Cr.P.C. is the only remedy. This is wholly erroneous approach. THE provisions of Section 438 of Cr.P.C. is available only when there is an apprehension of arrest during investigation, but it does not apply when a person has already been arrested during investigation and released under Section 439, Cr.P.C. Cancellation of bail is covered by Section 439 of Cr.P.C. and if such request is made by the prosecution, the petitioner has the right to oppose the same. Instead, he seeks grant of bail under Section 438 of Cr.P.C. This is impermissible.