Karnataka High Court
Manjunath Jivaji Bagalakoti vs The State Of Karnataka on 18 June, 2021
Equivalent citations: AIRONLINE 2021 KAR 1189
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 18 T H DAY OF JUNE 2021
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO.100112/2021
BETWEEN:
1. MANJUNATH S/O. JIVAJI BAGALAKOTI,
AGE 52 YEARS, OCC: SECRETARY,
MEDUR GRAM PANCHAYAT,
TQ. RATTIHALLI, DIST. HAVERI.
2. KUMAR S/O. BASAVANNEPPA DAMBAL,
AGE 40 YEARS, OCC: TALUKA NODAL OFFICER,
TALUKA PANCHAYATH OFFICE, RANEBENNUR,
TQ. AND DIST. HAVERI.
... PETITIONERS
(BY SRI. LAXMAN T. MANTAGANI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
BY GUTTAL POLICE STATION,
REPRESENTED BY
S.P.P., HIGH COURT PREMISES,
DHARWAD - 580001.
2. BASAVARAJ D.C. S/O. DURAGAPPA,
AGE 58 YEARS, OCC: TALUKA EXECUTIVE
OFFICER, TALUKA PANCHAYAT OFFICE,
HAVERI, TQ. AND DIST. HAVERI - 581110.
... RESPONDENTS
(BY SRI. RAMESH B. CHIGARI, HCGP FOR R1;
R2 - SERVED)
2
THIS CRIMINAL APPEA L IS FILED UNDER
SECTION 14A(2) OF THE SC/ST (POA) ACT, 1989,
PRAYING TO SET ASIDE THE IMPUGNED ORDER DTED
29.04.2021 IN CRL. MISC. NO.218/2021 PASS ED BY
THE COURT OF I ADDITIONAL DISTRICT AND
SESSIONS JUDGE AND SPECIAL JUDGE, HAV ERI AND
ENLARGE THE APPELLANTS HEREIN ON BAIL, IN THE
EVENT OF THEIR ARREST FOR THE CASE REGISTERED
BY GUTTAL POLI CE, IN CRIME N O.22/ 2021 DATED
06.04.2021 FOR THE OFFENCES PUNISHABLE UND ER
SECTION 420, 465, 468, 471 R/W. S ECTION 34 OF I PC
AND SECTION 3( 2) (5a) , 3(2)( v) OF SC/ST (POA )
AMENDMENT ACT, 2015.
THIS CRIMINAL A PPEAL COMING ON FOR ORDERS
THIS DAY, T HE COURT MADE THE F OLLOWING:
JUDGMENT
Aggrieved by the order passed by the I Additional District and Sessions Judge and Special Judge, Haveri in Criminal Miscellaneous No.218/2021, dated 29.04.2021, the appellants are before this Court.
2. The appellants had filed Criminal Miscellaneous No.218/2021 before the I Additional District and Sessions Judge and Special Judge, Haveri, seeking anticipatory bail 3 under Section 438 of Cr.P.C. in Crime No.22/2021 of Guttal Police Station, registered for the offences punishable under Sections 420, 465, 468, 471 read with Section 34 of Indian Penal Code (hereinafter referred to as the 'IPC', for brevity) and Sections (3)(2)(5a), 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. (hereinafter referred to as the 'SC/ST (POA) Act, 1989, for brevity).
3. The case of the prosecution is that, one Basavaraj D.C., Taluka Executive Officer, Taluka Panchayat Office, Haveri has filed a complaint on 06.04.2021 alleging that the present Panchayat Development Officer of Karagund village Panchayat have filed a report that for the year 2016-2017 the 21 houses of Rs.23,58,700/- which are reserved for the 4 persons belonging to Scheduled Castes and Scheduled Tribes under Dr. B.R.Ambedkar Housing Scheme and 87 houses of Rs.1,02,58,000/- which are reserved for the persons belonging to Scheduled Castes and Scheduled Tribes under the Prime Minister Avas Scheme have been allotted to the persons belonging to the General Category in Bharadi and Kuragund villages. It is further stated that, the appellant Nos.1 and 2 have filed a report and taken sanction from the higher officials of Rajiv Gandhi Housing Corporation Limited and intentionally with a mala-fide intention have misappropriated the funds and allotted the houses of persons belonging to Scheduled Castes and Scheduled Tribes under the above two schemes to the persons belonging to General Category i.e. Kadu Kuruba and Alemari 5 Kuruba communities (2A categories). The said complaint came to be registered in Crime No.22/2021 of Guttal Police Station for the offences punishable under Sections 420, 465, 468, 471 read with Section 34 of IPC and Sections 3(2)(va) and 3(2)(v) of SC/ST (POA) Act, 1989 and the appellants have been shown as accused Nos.1 and 2 in the FIR. The appellants apprehending their arrest have filed Criminal Miscellaneous No.218/2021 under Section 438 of Cr.P.C., seeking anticipatory bail and the same came to be rejected by the I Additional District and Sessions Judge and Special Judge, Haveri by order dated 29.04.2021. The appellants have challenged the said order in the present appeal. 6
4. Notice to respondent No.2- complainant is served and he remained un- represented.
5. Heard the arguments of the learned counsel for the appellants and the learned HCGP for the respondent No.1-State.
6. Learned counsel for the appellants would contend that, the appellants are innocent, have not committed any offence as alleged and they have been falsely implicated in the case. On perusal of the entire averments of the complaint, the offence punishable under Section 3(2)(va) and 3(2)(v) of SC/ST (POA) Act, 1989 are not attracted. The other offence alleged against the appellants are not punishable with death or imprisonment for life. The appellants are government servants and 7 they are readily available for any investigation. The Special Court has ignored all these aspects and passed the impugned order. With this, he prays for allowing the appeal.
7. Per contra, learned HCGP contends that, the offences alleged against the appellants are serious offence affecting the rights and benefits of the suppressed class i.e. SC/ST. On perusal of the averments of the complaint, the provisions of SC/ST (POA) Act are attracted. Therefore, the bar under Section 18 & 18-A(2) of SC/ST (POA) Act are attracted and petition under Section 438 is not maintainable. The investigation is still in progress and if the appellants are granted anticipatory bail, they will tamper the prosecution witnesses and hamper the investigation. The Special Judge considering all 8 these aspects has rightly passed the impugned order. With this, he prayed to dismiss the appeal.
8. Having regard to the submissions made by the learned counsel for the appellants and the learned HCGP, this Court has gone through the complaint, FIR and the impugned order.
9. The accusations leveled against the appellants is that, they filed report and taken sanction from higher officials of Rajiv Gandhi Housing Corporation Limited and intentionally with mala-fide intention have misappropriated the funds and allotted the houses to the persons belonging to SC/ST under Dr. B.R.Ambedkar Housing Scheme and Prime Minister Avas Scheme to the persons belonging 9 to General Category i.e. Kadu Kuruba and Alemari Kuruba communities (2A category) and committed offence under Section 420, 465, 468, 471 read with Section 34 of IPC and Section 3(2)(va) and 3(2)(v) of SC/ST (POA) Act, 1989. The Apex Court, in the case of Prathvi Raj Chauhan Vs. Union of India and others reported in (2020) 4 SCC 727 has held that, if the complaint does not make out a prima-facie case for applicability of provisions of 1989 Act, the bar created under Section 18 & 18-A(i) shall not apply. The relevant portion at paragraph No.11 is quoted as under:
"Concerning the applicability of provisions of Section 438 Cr.P.C., it shall not apply to the cases under the 1989 Act. However, if the complaint does not make out a prima facie case for applicability of the provisions of the 1989 Act, the bar created by Sections 10 18 and 18-A(i) shall not apply. We have clarified this aspect while deciding the review petitions."
10. The offence alleged against the appellants are Section 420, 465, 468, 471 read with Section 34 of IPC and Section 3(2)(va) and 3(2)(v) of SC/ST (POA) Act, 1989. To attract the offence under Section 3(2)(va), a person not a member of Scheduled Castes and Scheduled Tribes has to commit any offence under Indian Penal Code, punishable with imprisonment for a term of 10 years or more against a person or a property, knowing that, such person is a member of Scheduled Castes or Scheduled Tribes or such a property belongs to such member, shall be punishable with imprisonment for life and with fine. The offences alleged against the appellants under the Indian Penal Code are Sections 420, 465, 11 468 and 471 read with Section 34 of IPC. The punishment for the offences under Section 420 is imprisonment for seven years and fine, for Section 465 imprisonment for two years or fine or both, for Section 468 imprisonment for seven years and fine and for Section 471 imprisonment for seven years and fine. Therefore, the offence alleged against the appellants are not punishable with life or 10 years imprisonment and hence, the offence punishable under Section 3(2)(v) of SC/ST (POA) Act is not attracted.
11. The another offence alleged against the appellants is under Section 3(2)(va) of SC/ST (POA) Act. To attract Section 3(2)(va), a person who is not a member of Scheduled Caste or Scheduled Tribe has alleged to have committed any offences specified in the 12 schedule, against a person or property, knowing that such person is a member of a Scheduled Castes or a Scheduled Tribes. The offences contained in the Schedule are Sections 120A, 120B, 141, 142, 143, 144, 145, 146, 147, 148, 217, 319, 320, 323, 324, 325, 326B, 332, 341, 354, 354A, 354B, 354C, 354D, 359, 363, 365, 376B, 376C, 447, 506 and 509 of IPC. The offences alleged against the appellants under Sections 420, 465, 468, 471 read with Section 34 of IPC, are not in the schedule. Therefore, the offence under Section 3(2)(va) is also not attracted. When the provisions of SC/ST (POA) Act, 1989 are not attracted, the accused can maintain a petition under Section 438 of Cr.P.C. and the bar contained in Section 18 & 18-A(2), does not apply. The offences alleged against the 13 appellants are not punishable with death or imprisonment for life. The case of the prosecution is based on the documents. The appellants/accused Nos.1 and 2 are government servants and they are easily available for investigation and trial. There are no criminal antecedents of the appellants. The Special Judge, ignoring all these above aspects, has passed the impugned order and therefore, it requires to be set aside and appeal requires to be allowed. In the result, the following order:
ORDER The appeal is allowed.
The impugned order dated 29.04.2021 passed in Criminal Miscellaneous No.218/2021 by the I Additional District and Sessions Judge and Special Judge, Haveri is set aside. The 14 petition filed by the appellants under Section 438 of Cr.P.C. is allowed.
i) In the event of arrest of
appellants/accused Nos.1 and 2 in
Crime No.22/2021 of Guttal Police
Station, they shall be released on bail on their executing personal bond for a sum of Rs.1,00,000/- with one surety for the likesum to the satisfaction of the investigating Officer/jurisdictional Court.
ii) The appellants shall voluntarily appear before the Investigating officer/jurisdictional Court, within one month and execute personal bond.
iii) The appellants shall co-operate with the investigation and make themselves available for interrogation whenever required.
iv) The appellants shall not directly or indirectly make any inducement, threat or promise to any witness 15 acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police Officer.
v) The appellants shall not obstruct or hamper the Police investigation and not to play mischief with the evidence collected or yet be collected by the Police.
Sd/-
JUDGE *Svh/-