JUDGMENT/ORDER

V Srishananda, J. - Heard Sri. Venugopal K, learned counsel for the petitioner and Sri. Vinayaka V.S., learned High Court Government Pleader for the respondent-State. Perused the records.

2. Present petition is filed under Section 439 of Cr.P.C. with the following prayer:

'WHEREFORE, the petitioner humbly prays that this Hon'ble Court be pleased to enlarge this petitioner on bail in C.C.No.5221/2018 in Crime No.299/2010 of Kyathasandra Police on the file of Hon'ble Prl.Civil Judge and JMFC, at Tumakuru for the alleged offence punishable under section 395 of IPC, in the interest of justice."

3. The brief facts of the case are as under:

A complaint came to be lodged by R.Malleshaiah S/o Rangadamaiah on 22.08.2010 with Kyathasandra Police Station, which was registered in Crime No.229/2010 for the offence punishable under Section 392 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC' for short) against unknown persons at the first instance.

4. The gist of the complaint averments reveal that on 21.08.2010 at about 2.00 p.m., the complainant and his friends viz., S.P.Somashekar, Paramashivaiah, S.Mahesh and M.B.Rajanna were proceeding in a Santro Car bearing Registration No.K.A.04.MA-4172. They were so proceeding to visit Chowdeshwari Temple at Siganduru, they reached Sagar. After finishing the pooja on 22.08.2010, they left the Temple at about 4.00 p.m., towards Bengaluru. At about 10.00 p.m., in a Toll Gate of Kyathsandra, since one of the wheels of the car got punctured, the inmates of the car got down and Paramashivaiah, C.Mahesha and M.B.Rajanna were waiting near the car and the complainant and another person were proceeding towards the Toll Gate for some help. At that juncture, 4 persons in the age group of 25-30 years intercepted them and on showing the knife, they demanded the valuables. One of them assaulted on the left hand of the complainant with the knife and snatched away one gold finger ring and one silver ring and cash of Rs.8,000/-. The group also snatched away 2 finger rings worn by Somashekar and cash of Rs.10,000/- and a chain.

5. Since the petitioner was not available to the police, a spilt charge sheet came to be filed against the petitioner. The case against the other accused persons went on for trial and it is submitted that all the accused persons were acquitted. Subsequently, the petitioner is arrested in this case on 26.12.2022 and remanded to judicial custody.

6. The attempt made by the present petitioner to obtain an order of grant of bail is turned down by order dated 09.01.2023 in Crl. Misc. No.1964/2023 on the file of II Additional District and Sessions Judge, Tumakuru District. Thereafter, the petitioner is before this Court.

7. Sri. Venugopal K., learned counsel for the petitioner reiterating the grounds urged in the petition vehemently contended that the petitioner was not absconded and he was in fact facing the trial in S.C.No.262/2012 and the investigation agency was required to obtain the presence of the present petitioner by filing necessary application under Section 267 of Cr.PC and instead of so doing, a split-up charge sheet came to be filed for no fault of the petitioner and therefore, sought for grant of bail.

8. Per contra, learned High Court Government Pleader reiterating the written objections opposes for grant of bail by contending that the petitioner is absconding.

9. In the light of the rival contentions, this Court perused the materials on record meticulously.

10. On such perusal of the materials on record, it is seen that after the case came to be registered, the petitioner was involved in yet another case in S.C.No.262/2012 and he was in judicial custody in the said case. Therefore, he could not have been treated as an absconding accused and the procedure available to the prosecution was to obtain the presence of the petitioner for the trail in S.C.No.270/2012 by resorting to the provisions under Section 267 of Cr.P.C. However, no such procedure has been followed b