Karnataka High Court
Saddam And Ors vs The State Of Karnataka And Anr on 21 March, 2023
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CRL.A No. 200071 of 2023
IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH
DATED THIS THE 21ST DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE S RACHAIAH
CRIMINAL APPEAL NO.200071 OF 2023
BETWEEN:
1. SADDAM S/O KAREEM
AGE: 30 YEARS, OCC: AGRICULTURE LABOUR
2. TAKEEM S/O KHAJA SAB
AGE: 25 YEARS, OCC: AGRICULTURE LABOUR
3. MAHMOOD S/O MAHBOOB SAB
AGE: 24 YEARS, OCC: AGRICULTURE
ALL ARE R/O AMLAPUR VILLAGE
TQ. AND DIST. BIDAR-585401
...APPELLANTS
(BY SRI SANDEEP VIJAYKUMAR PATIL, ADOVCATE &
SRI GANESH NAIK, ADVOCATE)
AND:
Digitally signed
by KHAJAAMEEN 1. THE STATE OF KARNATAKA
L MALAGHAN
Location: High THROUGH GANDHI GUNJ POLICE STATION
Court of DIST.BIDAR, IT IS REPRESENTED BY
Karnataka
ADDL SPP, HIGH COURT OF KARNATAKA
AT KALABURAGI BENCH-03
2. MANJUNATH S/O PRABHURAO GOURE
AGE: 33 YEARS, OCC: AGRICULTURE
R/O AMLAPUR VILLAGE
TQ. & DIST. BIDAR-585401
...RESPONDENTS
(BY SRI GURURAJ V. HASILKAR, HCGP FOR R1;
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CRL.A No. 200071 of 2023
V/O DT.21.03.2023, NOTICE TO R2 IS DISPENSED WITH)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
14(A)(2) OF SC/ST (PA) ACT PRAYING TO SET ASIDE THE
IMPUGNED BAIL REJECTION VIDE ORDER DATED 07.02.2023
PASSED BY THE COURT OF THE ADDL. DISTRICT AND
SESSIONS JUDGE AT BIDAR IN CRL. MISC.NO.22/2023, BY
ALLOWING THIS APPEAL AND CONSEQUENTLY THERE BY
ENLARGE THE APPELLANTS ON BAIL IN CRIME NO.0005/2023,
REGISTERED BY GANDHI GUNJ POLICE STATION, BIDAR IN
THE EVENT OF THEIR ARREST FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 3(1)(R), 3(2)(V-A) OF SC/ST
(PA) ACT, 2015 AND SECTIONS 504, 324, 506 READ WITH
SECTION 34 OF IPC, FILE IS PENDING BEFORE THE COURT OF
THE ADDITIONAL DISTRICT AND SESSIONS JUDGE AT BIDAR.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The appellants are being apprehended of their arrest in Crime No.5/2023 registered by the Gandhi Gunj Police Station, Bidar for the offences punishable under Sections 324, 504, 506 read with Section 34 of Indian Penal Code and Sections 3(1) (r), 3(2) (v-a) of the Scheduled Castes -3- CRL.A No. 200071 of 2023 and Scheduled Tribes (Prevention of Atrocities) Act, 1989 approached this Court seeking for anticipatory bail.
2. It is the case of the prosecution that, on 14.01.2023, at about 06-15 p.m., the appellants being the residents of Amlapur village came in a bike and stopped their vehicle beside the house of the complainant and the appellant No.1 was urinating near the house of the complainant. When it was objected by the complainant, all the appellants abused the complainant in a filthy language and also abused by taking the name of the caste of the complainant in a public view. There was a quarrel between the complainant and the appellants. The brother of the complainant came to rescue the complainant, the appellants have assaulted him also. Thereafter, the matter was pacified and complaint came to be lodged against the appellants. The police have registered the FIR in Crime No.5/2023 for the offences stated supra.
3. The learned counsel for the appellants submits that the appellants are innocent of the alleged offences -4- CRL.A No. 200071 of 2023 and the offences alleged to have committed by the appellants are neither punishable with death nor imprisonment for life. It is further submitted that there is delay in lodging the complaint. The appellants are not aware about the caste of the complainant. Though the complaint lodged against these appellants by invoking the provisions of the SC/ST (POA) Act, it is deliberate act and also the act of after thought. The appellants are the permanent residents of Amlapur village and they are doing agricultural coolie work and they will neither absconding nor co-operating the investigation. The appellants are ready to abide the conditions imposed by this Court in the event of their release on bail. As such, the learned counsel for the appellants prays to allow the appeal and grant anticipatory bail to them.
4. Per contra, learned High Court Government Pleader for respondent No.1/State vehemently opposed the appeal stating that the averments made in the complaint clearly discloses a prima facie case to attract the -5- CRL.A No. 200071 of 2023 ingredients of the provisions of the SC/ST (POA) Act and further submits that there is a bar under Section 18A of the SC/ST (POA) Act to grant anticipatory bail. Thus, the learned High Court Government Pleader prays this Court to reject the appeal.
5. Having heard the learned counsel for the respective parties and on perusal of the averments of the complaint, it appears that the appellants were travelling a in bike and they have stopped their bike near the house of the complainant and appellant No.1 was urinating to the compound wall of the complainant. When the same was objected, the appellants and other accused have assaulted and abused in a filthy language and also scolded by naming the caste of the complainant. On careful perusal of the said averments, it is very clear that the appellants have scolded the complainant by calling the name of the community in a public view. Now it is relevant to refer the provisions of Section 18A(2) of the SC/ST (POA) Act, which reads thus:
-6- CRL.A No. 200071 of 2023"18A. No enquiry or approval required.-
(1) for the purpose of this Act,-
(a) xxxxx
b) xxxxx
xxxxx
(2) The provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court."
6. On careful reading of the above provisions, it is also necessary to refer the judgment of the Hon'ble Supreme Court in the case of Prathvi Raj Chauhan vs. Union of India and others1. Paragraph Nos.25 to 27 and 34 read thus:
"25. It was to achieve this ideal of fraternity, that the three provisions-Articles 15, 17 and 24 were engrafted. Though Article 17 proscribes the practice of untouchability and pernicious 1 (2020) 4 SCC 727 -7- CRL.A No. 200071 of 2023 practices associated with it, the Constitution expected Parliament and the legislatures to enact effective measures to root it out, as well as all other direct and indirect, (but virulent nevertheless) forms of caste discrimination.
Therefore, in my opinion, fraternity is as important a facet of the promise of our freedoms as personal liberty and equality is. The first attempt by Parliament to achieve that end was the enactment of the Untouchability (Offences) Act, 1955. The Act contained a significant provision that where any of the forbidden practices "is committed in relation to a member of a Scheduled Caste" the Court shall presume, unless the contrary is proved, that such act was committed on the ground of "Untouchability". This implied that the burden of proof lies on the accused and not on the prosecution. The Protection of Civil Rights Act, 1955, followed. This too made provision for prescribing "punishment for the preaching and practice of - "Untouchability" for the enforcement of any disability arising therefrom". The enforcement of social practices associated with untouchability and disabilities was outlawed and made the subject matter of penalties. After -8- CRL.A No. 200071 of 2023 nearly 35 years' experience, it was felt that the 1955 Act (which was amended in 1976) did not provide sufficient deterrence to social practices, which continued unabated and in a widespread manner, treating members of the scheduled caste and tribe communities in the most discriminatory manner, in most instances, stigmatizing them in public places, virtually denying them the essential humanity which all members of Society are entitled to.
26. It was to address this gulf between the rights which the Constitution guaranteed to all people, particularly those who continued to remain victims of ostracism and discrimination, that the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter "the Act") was enacted. Rules under the Act were framed in 1995 to prevent the commission of atrocities against members of Schedules Castes and Tribes, to provide for special courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto. The Statement of Objects and Reasons appended to the Bill, when moved -9- CRL.A No. 200071 of 2023 in the Parliament, observed that despite various measures to improve the socio-economic conditions of Scheduled Castes and Scheduled Tribes, they remained vulnerable. They are denied a number of civil rights and are subjected to various offences, indignities, humiliation and harassment. They have been, in several brutal instances, deprived of their life and property. Serious atrocities were committed against them for various historical, social and economic reasons. The Act, for the first time, puts down the contours of 'atrocity' so as to cover the multiple ways through which members of scheduled castes and scheduled tribes have been for centuries humiliated, brutally oppressed, degraded, denied their economic and social rights and relegated to perform the most menial jobs.
27. The Report on the Prevention of Atrocities against Scheduled Castes 7 vividly described that despite enacting stringent penal measures, atrocities against scheduled caste and scheduled tribe communities continued; even law enforcement mechanisms had shown a lackadaisical approach in the investigation and
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CRL.A No. 200071 of 2023prosecution of such offences. The report observed that in rural areas, various forms of discrimination and practices stigmatizing members of these communities continued. Parliament too enacted an amendment to the Act in 2015, strengthening its provisions in the light of the instances of socially reprehensive practices that members of scheduled caste and scheduled tribe communities were subjected to. In this background, this court observed in the decision in National Campaign on Dalit Human Rights v. Union of India2 that:
"17. ...The ever-increasing number of cases is also an indication to show that there is a total failure on the part of the authorities in complying with the provisions of the Act and the Rules. Placing reliance on the NHRC Report and other reports, the Petitioners sought a mandamus from this Court for effective implementation of the Act and the Rules.
18. We have carefully examined the material on record and we are of the opinion that there has been a failure on the part of the concerned 2 (2017) 2 SCC 432
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authorities in complying with the provisions of the Act and Rules. The laudable object with which the Act had been made is defeated by the indifferent attitude of the authorities. It is true that the State Governments are responsible for carrying out the provisions of the Act as contended by the counsel for the Union of India. At the same time, the Central Government has an important role to play in ensuring the compliance of the provisions of the Act. Section 21(4) of the Act provides for a report on the measures taken by the Central Government and State Governments for the effective implementation of the Act to be placed before the Parliament every year. The constitutional goal of equality for all the citizens of this country can be achieved only when the rights of the Scheduled Castes and Scheduled Tribes are protected. The abundant material on record proves that the authorities concerned are guilty of not enforcing the provisions of the Act. The travails of the members of the Scheduled Castes and the Scheduled Tribes continue unabated. We are satisfied that the Central Government and State Governments should be directed to
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CRL.A No. 200071 of 2023strictly enforce the provisions of the Act and we do so."
34. It is important to reiterate and emphasize that unless provisions of the Act are enforced in their true letter and spirit, with utmost earnestness and dispatch, the dream and ideal of a casteless society will remain only a dream, a mirage. The marginalization of scheduled caste and scheduled tribe communities is an enduring exclusion and is based almost solely on caste identities. It is to address problems of a segmented society, that express provisions of the Constitution which give effect to the idea of fraternity, or bandhutva (बनधधतव) referred to in the Preamble, and statutes like the Act, have been framed. These underline the social - rather collective resolve - of ensuring that all humans are treated as humans, that their innate genius is allowed outlets through equal opportunities and each of them is fearless in the pursuit of her or his dreams. The question which each of us has to address, in everyday life, is can the prevailing situation of exclusion based on caste identity be allowed to persist in a democracy which is committed to equality and
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CRL.A No. 200071 of 2023the rule of law? If so, till when? And, most importantly, what each one of us can do to foster this feeling of fraternity amongst all sections of the community without reducing the concept (of fraternity) to a ritualistic formality, a tacit acknowledgment, of the "otherness" of each one's identity.
7. On careful reading of the dictum of the Hon'ble Supreme Court, it appears that there is no absolute bar to grant anticipatory bail in the cases registered under SC/ST (POA) Act. If the averments of the complaint do not disclose the ingredients of the provisions of the Act or judicial scrutiny, the complaint is found to be prima facie mala fide. In the present case, the averments of the complaint clearly discloses the ingredients of the provisions of the SC/ST (POA) Act and there are reasons to believe that the appellants are committed an offence under the Act. Such being the fact, it is not appropriate to grant anticipatory bail, as there is a bar under Section 18A(2) of the Act.
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CRL.A No. 200071 of 20238. In the light of observations made above, I proceed to pass the following:
ORDER The Criminal Appeal is dismissed.
Sd/-
JUDGE RSP LIST NO.: 1 SL NO.: 3