Karnataka High Court
Shivappa B C vs State Of Karnataka on 18 January, 2022
Crl.A.No.1817/2021
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL No.1817/2021
BETWEEN:
1. SHIVAPPA B.C.
S/O LATE PATEL CHANAPPA
AGED ABOUT 65 YEARS
R/O NO.476, 10TH MAIN
SHARADHA LAYOUT
RAILWAY LAYOUT
BOGADI, MYSORE - 570 026
3. MOHAN K.L.
S/O LAKSHMANA
AGED ABOUT 48 YEARS
R/O HULUSE VILLAGE
KODLIPET HOBLI
SOMWARPET TALUK
KODAGU DISTRICT - 571 201 ...APPELLANTS
(BY SRI A.G.SRIDHAR, ADVOCATE)
AND:
1. STATE OF KARNATAKA
SHO BY SOMWARPET POLICE
REPRESENTED BY PUBLIC PROSECUTOR
ATTACHED TO THIS HON'BLE COURT
2. SURENDRA B
POLICE SUB-INSPECTOR
CIVIL RIGHTS ENFORCEMENT
DIRECTORATE
MYSURU - 570 001 ...RESPONDENTS
(BY SRI.SHANKAR H S, HCGP FOR R1;
SRI.C.JAGADEESH, SPL.P.P. FOR R2)
Crl.A.No.1817/2021
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION
U/S.14-A(2) OF SC/ST (POA) ACT, 2015 PRAYING TO SET
ASIDE THE ORDER DATED 29.11.2021 PASSED BY THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE, KODAGU,
MADIKERI IN CRL.MISC.NO.280/2021 AND ENLARGE THE
APPELLANTS/ACCUSED NO.2-3 ON BAIL IN CR.NO.109/2021
on the file of the I ADDITIONAL DISTRICT AND SESSIONS
JUDGE, KODAGU, MADIKERI REGISTERED BY THE
RESPONDENT POLICE FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 197, 198, 420 OF IPC AND SEC.3(1)(Q) OF
SC/ST (POA) AMENDMENT ACT, 2015 UNDER SEC.5(B) OF
KARNATAKA SC/ST AND OTHER B.C (RESERVATION OF
APPOINTMENT) ACT-1990.
THIS CRIMINAL APPEAL COMING ON FOR ADMISSION
THIS DAY, THE COURT THROUGH VIDEO CONFERENCE
DELIVERED THE FOLLOWING:
JUDGMENT
Heard.
2. Aggrieved by the rejection of their application for grant of anticipatory bail, accused Nos.2 to 3 in Crime No.109/2021 of Somwarpet police station have preferred the above appeal.
3. Crime No.109/2021 was registered against the appellants and accused No.1 Vijay.R for the offences punishable under Sections 197, 198, 420 of IPC, Section 3(1)((q) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 Crl.A.No.1817/2021 3 M ('the Act' for short) and Section 5B of the Karnataka Scheduled Castes, Scheduled Tribes and other Backward Classes (Reservation of Appointment Etc.) Act, 1990 ('the Act, 1990' for short) on the basis of the complaint of Surendra.B., the Police Sub-Inspector of DCRE Cell, Mysuru.
4. During the year 2016, appellant Nos.1 and 2 were working as Tahsildar and village accountant in Somwarpet Taluka office. On the application of accused No.1, appellant Nos.1 and 2 conducted enquiry and issued certificate dated 22.08.2016 certifying that accused No.1 belongs to Bhovi community a Scheduled Caste. The Caste verification Committee of Kodagu, Madikeri passed the order dated 25.11.2020 holding that accused No.1 in collusion with the appellants has secured fake caste certificate to the effect that he belongs to Bhovi community, though he belonged to Naidu community which is not a scheduled caste.
5. The caste verification committee cancelled the caste certificate issued in favour of accused No.1. Further Crl.A.No.1817/2021 4 M respondent No.2 was directed to file complaint against the appellants and accused No.1 for granting false caste certificate. On that basis, he filed the complaint and the case was registered in Crime No.109/2021.
6. The appellants apprehending their arrest in the said case filed anticipatory bail petition before I Additional District & Sessions Judge and Special Judge, Kodagu, Madikeri in Crl.Misc.No.280/2021. The trial Court by the impugned order rejected the said application on the ground that Section 18A of the Act bars granting anticipatory bail in cases where the allegations against the accused prima-facie attract the provisions of the Act.
7. Sri A.G.Sridhar, learned Counsel for the appellants submits that the appellants issued caste certificate on conducting due enquiry based on the caste certificate issued by the competent authority as long as back in the year 1996 as per Annexure-C and other material placed before them during enquiry. Therefore he contends that prima-facie the provisions of the Act are Crl.A.No.1817/2021 5 M not attracted against the appellants. In support of his arguments, he relies on the judgments of the Hon'ble Supreme Court in Prathvi Raj Chauhan v. Union of India1 and Rahna Jalal v. State of Kerala2.
8. Per contra, Sri H.S.Shankar, learned HCGP for respondent No.1 and Sri C.Jagadeesh, learned Special Public Prosecutor for respondent No.2 submit that the appellants have not followed the due procedure as prescribed under Rule 3 the Karnataka Scheduled Castes, Scheduled Tribes and other Backward Classes (Reservation of Appointment Etc.) Rules, 1992 ('the Rules' for short). Therefore, they submit that there is prima-facie case against them and Section 18A of the Act is applicable. In support of the said contentions, they rely on the judgments of this Court in Smt.Jayanthi vs. State of Karnataka3 and Sri G.M.Sannamudaiah & Anr vs. The State of Karnataka and others4.
1 (2020) 4 SCC 727 2 (2021) 1 SCC 733 3 Crl.P.No.778/2021 DD 17.03.2021 4 W.P.No.6835/2021 (GM-CPC) DD 24.06.2021. Crl.A.No.1817/2021 6
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9. Section 18A(2) of the Act, which is relevant for the purpose of this case, reads as follows:
" Section 18A (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."
10. Reading of the above provision shows that nothing under Section 438 of Cr.P.C. relating to anticipatory bail shall apply in relation to any cases of accusation and commission of the offences under the Act. By insertion of Section 18A(2), it was intended to give overriding effect to the judgment of the Courts also.
11. The amending Act to include Section 18A came into effect from 20.08.2018. However, subsequent to that, the Hon'ble Supreme Court in Prathvi Raj Chauhan's case and Rahna Jalal's case referred to supra held that Sections 18 and 18A of the Act are not applicable, if prima-facie no case is made out against the accused involving the offences under the Act.
12. The aforesaid judgments have force of law by virtue of Article 141 of the Constitution of India. Under Crl.A.No.1817/2021 7 M the circumstances, this Court has to examine whether there is prima-facie case to exclude the provisions of Section 438 of Cr.P.C.
13. The complaint is filed alleging the commission of the offences under Section 3(1)(q) of the Act and Section 5B of the Act, 1990. Section 3(1)(q) of the Act applies to any person giving false and frivolous information to any public servant or causes such public servant to use his lawful power to the injury or annoyance of the members of the scheduled castes/scheduled tribes.
14. Section 5B of the Act 1990 deals with penalty for issuing a false caste certificate or income certificate which reads as follows:
"5B. Penalty for issuing a false Caste Certificate or Income and Caste Certificate.- If the Tahasildar intentionally issues a false Caste Certificate or Income and Caste Certificate, he shall on conviction, be punishable with rigorous imprisonment for a term which shall not be less than six months but which may extend upto two years and with fine which shall not be less than one thousand rupees but which may extend to five thousand rupees:Crl.A.No.1817/2021 8
M Provided that the Court may, for adequate and special reasons to be recorded, impose a sentence of imprisonment for a lesser term or lesser fine."
To attract liability under the above provision there should be intentional issue of false caste certificate.
15. In the case on hand, the appellants are not beneficiaries of the caste certificate in question. It was accused No.1 who was beneficiary. The records produced by the appellants show that accused No.1 produced the caste certificate issued in his favour by the Tahsildar, Somwarpet in the year 1996 to the effect that he belongs to Bhovi Community. He also produced caste certificates of his daughter and son issued by the Tahsildhar, Somwarpet on 22.08.2011 and the Transfer certificate of his daughter and son issued by the concerned authorities on 24.05.2012 and 07.05.2009. They also conducted local enquiry and issued the caste certificate.
16. Respondent No.2 or Civil Rights Enforcement Directorate have not filed any complaints against those Tahsildars who issued certificate in the years 1996 and Crl.A.No.1817/2021 9 M 2011. It was contended that enquiry as required under Rules 3A and 3B of the Rules was not held. The records produced at this stage show that the appellants relied on the school and caste certificates submitted by accused No.1, more so the caste certificate issued by the very same department about 10 years prior to 2016.
17. Therefore at this stage, it cannot be said that the appellants were not diligent or they intentionally issued false certificates. As certificates of 1996 and 2011 were not questioned, prima-facie case of intentionally issuing the caste certificate is not made out. Under such circumstances and in the light of the aforesaid judgments of the Hon'ble Supreme Court, Sections 18 and 18A are not attracted.
18. In Smt.Jayanthi's case referred to supra by learned Special Public Prosecutor, the beneficiary of the caste certificate herself was prosecuted. She had secured employment based on such false certificate. The judgment in Sri G.M.Sannamudaiah's case referred to supra did not relate to grant of anticipatory bail that Crl.A.No.1817/2021 10 M relates to the competence to prosecute such accused. In this case the appellants have not challenged their prosecution, but they are only seeking anticipatory bail. Therefore both those judgments cannot be justifiably applied to the facts of the case.
19. The offences alleged are not punishable with death or life imprisonment. Appellants have deep roots in the society. The alleged false certificates/documents are in the custody of respondent No.2. Therefore there is no scope for the appellants to tamper them. Under the circumstances, the trial Court was not justified in rejecting the anticipatory bail. Therefore the appeal is allowed.
The impugned order is hereby set aside. The appellants are granted anticipatory bail in Crime No.109/2021 of Somwarpet police station. If they are arrested in the said case they shall be released on bail subject to the following conditions:
(i) The appellants shall appear before the Investigating Officer within ten days from the date of receipt of copy of this order.Crl.A.No.1817/2021 11
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(ii) The appellants shall execute personal bond in a sum of Rs.25,000/- each and furnish two sureties in the likesum to the satisfaction of the Investigating Officer/Jurisdictional Court for their appearance.
(iii) The appellants shall not tamper the prosecution witnesses by threats, inducement or otherwise.
(iv) The appellants shall appear before the Investigating Officer/Court as and when required.
Sd/-
JUDGE KSR