Karnataka High Court
Afzal Pasha vs The State Of Karnataka on 30 June, 2022
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL No.792 OF 2022
C/w.
CRIMINAL APPEAL No.942 OF 2022
IN CRL.A. NO.792 OF 2022:
BETWEEN:
1. AFSAR PASHA,
S/O. BASHU SAB,
AGED ABOUT 58 YEARS,
[IN THE FIR, NAME IS SHOWN AS AFSAR PASHA]
2. JANAID PASHA,
S/O. APSAR PASHA,
AGED ABOUT 21 YEARS,
[IN THE FIR, NAME IS SHOWN AS JUNETH PASHA]
3. SHAHIDA BEGAUM,
W/O. AFSAR PASHA,
AGED ABOUT 44 YEARS,
[IN THE FIR, NAME IS SHOWN AS SHAHEEDA BEGUM]
ALL ARE R/AT D.NO.44/3B3,
AZAD NAGARA, NEAR NEW POLICE QUARTERS,
WARD NO.19, SHIDLAGHATTA,CHIKKABALLAPUR,
KARNATAKA - 562 105. ... APPELLANTS
[BY SRI. LETHIF B., ADVOCATE]
AND:
1. THE STATE OF KARNATAKA
SHIDLAGHATTA TOWN POLICE STATION,
CHIKKABALLAPURA DISTRICT,
REPRESENTED BY S.P.P.,
2
HIGH COURT BUILDING,
BANGALORE - 560 001.
2. SMT. SUMITHRA RAMESH C.M.,
W/O. RAMESH,
AGED ABOUT 37 YEARS,
MUNICIPAL PRESIDENT, SHIDLAGHATTA,
SHIDLAGHATTA TOWN - 562 105. ... RESPONDENTS
[BY SRI. R.D. RENUKARADHYA, HCGP, FOR R1.
SMT. SRUTHI CHAGANTI, ADVOCATE FOR R2]
IN CRL.A. NO.942 OF 2022:
BETWEEN:
AFZAL PASHA,
S/O. AFSAR PASHA,
AGED ABOUT 28 YEARS,
R/AT D.NO.44/3B3,
AZAD NAGARA, NEAR NEW POLICE QUARTERS,
WARD NO.19, SHIDLAGHATTA,
CHIKKABALLAPUR, KARNATAKA - 562 105.
[IN THE FIR, NAME IS SHOWN AS APSAL PASHA] ... APPELLANT
[BY SRI. LETHIF B., ADVOCATE]
AND:
1. THE STATE OF KARNATAKA
SHIDLAGHATTA TOWN POLICE STATION,
CHIKKABALLAPURA DISTRICT,
REPRESENTED BY S.P.P.,
HIGH COURT BUILDING,
BANGALORE - 560 001.
2. SMT. SUMITHRA RAMESH C.M.,
W/O. RAMESH,
AGED ABOUT 37 YEARS,
MUNICIPAL PRESIDENT,
SHIDLAGHATTA,
SHIDLAGHATTA TOWN - 562 105. ... RESPONDENTS
[BY SRI. R.D. RENUKARADHYA, HCGP, FOR R1.
SMT. SRUTHI CHAGANTI, ADVOCATE FOR R2]
3
THESE CRIMINAL APPEALS ARE FILED UNDER SECTION
14(A)(2) OF THE SC AND ST (POA) ACT, PRAYING TO SET ASIDE
THE ORDER DATED 19.04.2022 IN CRL.MISC. NO.279/2022 ON
THE FILE OF I ADDITIONAL DISTRICT AND SESSIONS JUDGE AT
CHIKKABALLAPURA, FOR OFFENCES PUNISHABLE UNDER
SECTIONS 143, 147, 148, 323, 324, 307, 427, 354(B), 504, 506
READ WITH 149, 353 OF IPC AND UNDER SECTIONS 3(1)(r)(s) OF
THE SC AND ST (POA) AMENDMENT BILL, 2015 IN CRIME
NO.46/2022 OF SHIDLAGHATTA TOWN POLICE STATION, PENDING
ON THE FILE OF I ADDITIONAL DISTRICT AND SESSIONS JUDGE,
CHIKKABALLAPURA DISTRICT AND RELEASE THE APPELLANTS ON
BAIL IN THE EVENT OF THEIR ARREST.
THESE CRIMINAL APPEALS COMING ON FOR ADMISSION
THROUGH VIDEO CONFERENCE/PHYSICAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals are preferred with a prayer to set aside the Order dated 19.04.2022 passed in Criminal Misc. No.279/2022 by the Court of I Additional District and Sessions Judge, Chikkaballapura, rejecting the prayer of the appellants seeking anticipatory bail and consequently to release them in the event of their arrest in Crime No.46/2022 of Shidlaghatta Town Police Station, Chikkaballapura, registered for offences punishable under Sections 143, 147, 148, 323, 324, 307, 427, 354(B), 504, 506, 353 r/w 149 of IPC and under Section 3(1)(r)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of 4 Atrocities) Amendment Act, 2015 [hereinafter referred to as 'SC and ST (POA) Act' for short].
2. Criminal Appeal No.792/2022 is preferred by accused Nos.1, 3 and 4 and Criminal Appeal No.942/2022 is preferred by accused No.2.
3. Heard the learned counsel for appellants, the learned High Court Government Pleader for respondent/State and the learned counsel for respondent No.2 and perused the material on record.
4. Brief facts: The complaint is lodged by one Smt. C.M.Sumithra Ramesh, alleging that she is the President of City Municipal Council [hereinafter referred to as 'CMC' for short], Shidlaghatta. A sum of `30 Crore was released under 'Nagarothana Scheme' for the development of 31 Wards to attend to the grievance of the Ward members. On 31.03.2022 at about 9.45 a.m., she along with the City Municipal Commissioner and other staff after inspecting Ward No.16, were proceeding to Ward No.29. When they were thus proceeding, accused Nos.1 to 4 along 5 with 10-15 others, forming an unlawful assembly armed with deadly weapons, started abusing her insulting her caste as 'K ªÀiÁ¢UÀ eÁw ªÀÄÄAqÉ AiÀiÁPÉ £ÀªÀÄä ªÁqïðUÉ §A¢gÉÆÃzÀÄ ¨ÉÆý ªÀÄÄAqÉ'. They threatened her with dire consequences saying that she should not be seen in the said ward. Accused No.1 slapped her and they pulled her saree in front of the public and pushed her on the ground and kicked her. Accused No.2 with an intention to do away with her life, lifted a size stone and dropped on her and at that time, her husband rescued her by pulling her holding the hand. Accused No.3 snatched the mobile phone from one Subash, s/o. Shankarappa, who was trying to video record the incident, and crushed the said mobile phone worth `15,000/- with a stone. Accused No.4 viz, wife of accused No.1 also held her clothes and dragged her holding her tuft and snatched the gold chain from her neck weighing about 40 gms. When the City Municipal Commissioner came to her rescue, he was also assaulted by the said accused. It is alleged by the complainant that the accused persons having conspired with each other, have assaulted her etc. 6
5. The learned counsel for the appellants has contended that the entire allegations are false and it is a concocted story. He contends that no such incident as alleged by the complainant has taken place. He submits that the complaint is politically motivated and appellants have been falsely implicated. He contends that in fact, it was the complainant herself who came near the house of the accused persons, near Ward No.29 and there was no occasion for the accused persons to criminally conspire or to form an unlawful assembly so as to commit the offence as alleged. He would point out that even according to the complainant, 10-15 persons were present and they abused the complainant and therefore, it is not specifically alleged as to who abused her referring to her caste. Therefore, he contends that there is no prima face case made out to attract the provisions of the SC and ST [POA] Act.
6. The learned counsel for the appellants would further contend that, appellant No.1 is the Vice President of the CMC, Shidlaghatta and he moved a no confidence motion against the complainant i.e, President of the CMC. 7 The resolution passed by the City Municipal Commissioner, Shidlagatta was challenged by the complainant, before this Court in W.P. No.1374/2022 and by virtue of the interim order passed in the said petition, the complainant is continued as the President. He contends that in view of the said enmity, as a counterblast, the complainant has instituted a false case. He further contends that a similar complaint was filed by the complainant against accused No.1 and other members of the CMC, which was challenged by them in Criminal Petition No.2004/2022 and this Court has passed an order of stay. He submits, in the said case, appellant No.1 has been enlarged on anticipatory bail by the learned Sessions Judge.
7. The learned counsel for the appellants has relied on a the Judgment of the Hon'ble Apex Court in the case of Hitesh Verma Vs. State of Uttarakhand and Another reported in (2020)10 Supreme Court Cases 710 to contend that even accepting the allegations in the complaint, it cannot be said that only on the ground that the complainant belongs to scheduled caste, the offence 8 was committed and therefore, ingredients of the SC and ST [POA] Act are not attracted. He therefore contends there is no bar to grant anticipatory bail.
8. The learned counsel for the appellants also submits that appellant No.1 has lodged a complaint against the complainant and her husband. He submits that the Police have registered an NCR. A copy of the NCR No.40/2022 dated 31.03.2022 has been produced. In the said complaint, it is alleged that the complainant without any justification came and started quarrelling with him stating that she has already filed an atrocity case against him and once again she will file a case and further, her husband and one Subash came and assaulted him as well as his son and also abused and threatened them with dire consequences.
9. The learned High Court Government Pleader has contended that, a plain reading of the complaint averments clearly disclose that all the accused with a common intention, abused the complainant in filthy language referring to her caste in public view and also assaulted her, 9 tried to outrage her modestly and gave threat to her life. He contends that in view of the specific averments in the complaint, there is a prima facie case against the appellants and therefore, in view of Sections 18 and 18A of the SC and ST [POA] Act, the appellants are not entitled for anticipatory bail. He further contends that accused No.2- Afzal Pasha is a rowdy sheeter.
10. The learned counsel appearing for respondent No.2 has vehemently contended that the accused knew about the caste of the complainant and on the date of incident, when the complainant and other officials of CMC were inspecting Ward No.29, all the accused came to the spot forming an unlawful assembly armed with deadly weapons and abused the complainant insulting her caste in public view. She contends that serious allegations are made in the complaint against the accused persons that they have outraged the modesty of the complainant by pulling her saree etc, and assaulted her and also attempted on her life by dropping a size stone on her. She further contends that the offence alleged against the appellants 10 clearly attracts Section 3(1)(r)(s) as well as Section 3(1)(m) of the SC and ST [POA] Act. She contends that there is a specific bar to grant anticipatory bail to the persons who are accused of committing an offence under the said Act and therefore, contends that the appellants are not entitled for the relief they have sought.
11. The learned counsel for respondent No.2 has further contended that since the accused/appellants are having personal knowledge about the victim, presumption would arise under Section 8(c) of the SC and ST [POA] Act that they are aware of the caste of the victim.
12. I have perused the complaint, wherein, it is averred that on 31.03.2022 at about 9.40 a.m., the complainant viz, President of the CMC, Shidlaghatta along with the City Municipal Commissioner and other staff after inspecting Ward No.16 were proceeding towards Ward No.29, for inspection in connection with the amount sanctioned under 'Nagarothana Scheme'. The City Municipal Commissioner went to the house of accused No.1 viz, Vice President of the CMC, to inform him. At that time, 11 accused No.1 along with accused Nos.2 to 4 and 10-15 others forming an unlawful assembly armed with deadly weapons came and started abusing the complainant as ''K ªÀiÁ¢UÀ eÁw ªÀÄÄAqÉ AiÀiÁPÉ £ÀªÀÄä ªÁqïðUÉ §A¢gÉÆÃzÀÄ ¨ÉÆý ªÀÄÄAqÉ' and threatened her with dire consequences stating that they will commit her murder. It is alleged that accused No.1 slapped her and they pulled her saree, pushed her on the ground and kicked her etc, in front of public. It is also alleged that accused No.2 with an intention to cause death, tried to drop a size stone on her. At that time, the complainant's husband rescued her. Further, accused No.4 pulled her clothes and also held her tuft/hair and snatched a gold chain weighing about 40 gms. from her neck etc. It is further stated that one Subash, S/o. Shankarappa tried to videograph the incident from his mobile phone, but it was snatched by accused No.3 and he crushed the said phone with a stone.
13. A plain reading of the complaint would clearly disclose that it was not only these 4 appellants, but there were 10-15 others who had formed an unlawful assembly 12 and came to the spot holding deadly weapons. Omnibus allegations are made that all of them abused the complainant as ''K ªÀiÁ¢UÀ eÁw ªÀÄÄAqÉ AiÀiÁPÉ £ÀªÀÄä ªÁqïðUÉ §A¢gÉÆÃzÀÄ ¨ÉÆý ªÀÄÄAqÉ'. It is not specifically stated as to which of the accused abused and insulted the complainant referring to her caste in public view. It is specifically stated that the Commissioner, CMC, Shidlaghatta was also present at the time of incident in question and it is alleged that when he came to rescue the complainant, he was also assaulted by the accused persons.
14. In connection with the incident, the Commissioner of CMC, Shidlaghatta has given a report to the Deputy Commissioner, Chikkaballapura District, narrating the incident. A reading of the said letter does not give an indication that there was any abusive words used by the accused insulting the caste of the complainant. However, it is stated that on 31.03.2022 at about 9.40 a.m., when they visited Ward No.29 for inspection, at that time, the Vice President as well as his son and others came to the spot and shouted against the President and 13 also abused them in filthy language and threatened her etc. It is stated that one woman came and slapped on the face of the complainant etc. The Commissioner, CMC, has not stated that the accused persons have either pulled the saree of the complainant, pushed her on the ground and kicked and assaulted her etc. Admittedly, there are no visible injuries in the wound certificate of the complainant.
15. It is not in dispute that the complainant is the President and accused No.1 is the Vice President of Shidlaghatta City Municipal Council. It appears that there was a meeting convened on 19.01.2022, with regard to no confidence motion moved against the complainant, which was mooted by accused No.1. Hence, it has been contended that there was enmity between the parties. The facts and circumstances of the case would show that the alleged incident has not taken place on the ground that the complainant belongs to Scheduled Caste. In Hitesh Verma's case (supra), the Hon'ble Apex Court has held that 'all insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is 14 only on account of victim belonging to Scheduled Caste or Scheduled Tribe'.
16. In so far as allegation of attempt made on the life of the complainant is concerned, it cannot be said at this stage that there was any intention for the accused to do away with the life of the complainant.
17. In the above facts and circumstances, it cannot be held that there is a prima facie case made out against the appellant under the SC and ST [POA] Act at this stage. However, it is for the prosecution to establish its case in due course. The appellants have undertaken to abide by condition/s and to cooperate with the investigation. Hence, the following:
ORDER Both the appeals are allowed.
The Order dated 19.04.2022 in Criminal Miscellaneous No.279/2022 passed by the Court of
I Additional District and Sessions Judge, Chikkaballapura, is set aside.15
The appellants/accused Nos.1 to 4 shall be released in the event of their arrest in Crime No.46/2022 of Shidlaghatta Town Police Station, Chikkaballapura, subject to following conditions:
(1) They shall appear before the Investigation Officer within a period of one week from the date of receipt of a certified copy of this Order/Judgment and shall execute a personal bond in a sum of `1,00,000/- [Rupees One Lakh] each with two sureties for likesum.
(2) They shall furnish proof of their residential address and shall inform the Investigation Officer regarding change in the address, if any.
(3) They shall make themselves available for the purpose of investigation as and when called for and shall, cooperate with the investigation.
(4) They shall not tamper with the prosecution witnesses either directly or indirectly and shall not put any threat 16 or inducement to the complainant in any manner.
(5) They shall not involve in any criminal activities.
(6) They shall be regular in attending the Court proceedings.
If any of the above conditions are violated, the prosecution or the first informant are at liberty to move for cancellation of bail.
Sd/-
JUDGE Ksm*