Karnataka High Court
Raju @ D Shekar vs State By Avalahalli Police on 31 August, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF AUGUST, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL PETITION NO.1487 OF 2020
BETWEEN:
Raju @ D. Shekar
Son of B. Dasharathappa
Aged about 39 years
R/at No.16, 8th Cross
M.V. Nagar, Ramamurthy Nagar
Bengaluru - 560 016 ... Petitioner
(By Sri. Ambrish V.N., Advocate for
Sri. Santhosh S. Nagarale, Advocate)
AND:
1. State by Avalahalli Police
Represented by
State Public Prosecutor
High Court Building
Dr. Ambedkar Veedhi Road
Bengaluru - 560 001
2. Vedamurthy M.U.
S/o. Umashankar M.R.
R/o. Maragondahalli Village
Bidrahalli Hobli
Bengaluru East Taluk
Bengaluru - 560 049 ...Respondents
(By Sri. H.R. Showri, HCGP for R1;
Sri. C.S. Hashim Saeed, Advocate for R2)
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This Criminal Petition is filed under Section 438 of
Cr.P.C praying to enlarge the petitioner on bail in the
event of his arrest in Crime No.369/2018 of Avalahally
Police Station, Bengaluru for the offences punishable
under Sections 143, 447, 504, 506 read with Section
149 of IPC and Section 3(1)(r)(s) of SC/ST (POA) Act.
This Criminal Petition coming on for Orders
through video conference this day, the Court made the
following:
ORDER
This petition has been filed by petitioner/accused No.1 under Section 438 of Cr.P.C., to enlarge him on anticipatory bail in the event of his arrest in Crime No.369/2018 (Spl. Case No.312/2019) pending on the file of the II Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru for the offences punishable under Sections 143, 447, 504, 506 read with Section 149 of IPC and also under Section 3(1)(r)(s) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter called as an 'Act').
-3-2. I have heard the learned counsel Sri.Ambrish V.N. by virtual hearing on behalf of Sri.Santosh S. Nagarale for petitioner/accused No.1 and the learned HCGP Sri.H.R.Showri for respondent No.1- State. Learned counsel for respondent No.2 has remained absent.
3. The genesis of the complaint are that the complainant belongs to the Scheduled Caste. It is further alleged that in Sy.No.35 (new Sy.No.35/P2 Phodi Sy.No.96) measuring 02 acres 20 guntas was granted to his grandfather by Special Deputy Commissioner. He has built a house in the said property and residing in the same house. It is further alleged that petitioner/accused No.1 along with other accused persons who are belonging to the upper caste came to the said land on 11.10.2018 at about 8:00 a.m., by trespassing into the property and when the complainant questioned the petitioner and other accused persons, -4- they abused the complainant by taking the name of his caste and they have further threatened with life by holding iron rods and long and they also threatened to transfer sites in favour of petitioner/accused No.1. On the basis of the said complaint, a case has been registered.
4. It is the submission of the learned counsel for petitioner/accused No.1 that though the alleged incident is said to have been taken place on 11.10.2018 at about 8:00 a.m., but the complaint has been registered belatedly on 13.10.2018 at about 2:30 p.m. No reasons have been assigned and explained for the said delay. It is his further submission that his further statement has also been recorded by the police on 13.10.2018 and in the said statement, he has clearly admitted that the Civil disputes are also pending between the parties and petitioner/accused No.1 is a real estate owner. He further submits that there is no -5- specific allegations made against petitioner/accused No.1 in the complaint so as to who has uttered by taking the name of the caste. The allegations made in the complaint are also general in nature and no specific allegations have been made who exactly abused by taking the name of the caste. It is his further submission that only taking revenge in respect of the civil dispute pending between the parties the present complaint has been registered only with an intention to harass petitioner/accused No.1. He is ready to abide by any of the conditions imposed by this Court and ready to offer the sureties. On these grounds, he prayed to allow the petition and to release petitioner/accused No.1 on bail.
5. Per contra, learned HCGP vehemently argued and submitted that as per Section 18A of the Act, there is bar to grant anticipatory bail and there are allegations as against petitioner/accused No.1 for -6- having abused by taking the name of the caste. Under such circumstances, the Court cannot release petitioner/accused No.1 on bail. In order to substantiate the said contention, he has relied upon the decision in the case of Prathvi Raj Chauhan v/s Union of India and others reported in 2020 SCC Online SC 159. It is his further submission that when a prima facie case has been made out as against petitioner/accused No.1 then under such circumstances, petitioner/accused No.1 is not entitled to be released on anticipatory bail.
He further submits that petitioner/accused No.1 is absconding and was not available for the purpose of investigation or interrogation. If petitioner/accused No.1 is enlarged on anticipatory bail, he may threaten the prosecution evidence and he may abscond. On these grounds, he prayed to dismiss the petition.
-7-6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
7. Before taking into the consideration the factual matrix of the case on hand, it is a well settled preposition of law that though there is a Bar under Section 18A of the Act to grant the anticipatory bail but it is held by the Hon'ble Apex Court in the case of Dr.Subhash Kashinath Mahajan V/s The State of Maharashtra and another reported in 2018 (6) SCC 454 that there is no absolute Bar against the grant of anticipatory bail in case under the Atrocities Act. If no prima facie case is made out or where on judicial scrutiny, complainant is found to be prima facie mala fide, then under such circumstances, the Court can grant anticipatory bail. At para Nos.46 to 60 and 79.2 it has been observed as under:
46. In Balothia, Section 18 was held not to be violative of Articles 14 and 21 of the -8- Constitution. It was observed that (at SCC p.
225, para 6) exclusion of Section 438 CrPC in connection with offences under the Act had to be viewed in the context of prevailing social conditions and the apprehension that perpetrators of such atrocities are likely to threaten and intimidate the victims and prevent or obstruct them in the prosecution of these offenders, if they are granted anticipatory bail. Referring to the Statement of Objects and Reasons, it was observed that members of SC and ST are vulnerable and are denied number of civil rights and they are subjected to humiliation and harassment. They assert their rights and demand statutory protection. Vested interests try to cow them down and terrorise them. There was increase in disturbing trend of commission of atrocities against members of SC and ST. Thus, the persons who are alleged to have committed such offences can misuse their liberty, if anticipatory bail is granted. They can terrorise the victims and prevent investigation.
47. Though we find merit in the submission of the learned Amicus that judgment of this Court in Ram Kishna Balothia may need to be revisited in view of judgments of this Court, particularly Maneka Gandhi, we consider it unnecessary to refer the matter to the larger Bench as the judgment can be clarified in the light of law laid down by this Court. Exclusion of anticipatory bail has been justified only to protect victims of perpetrators of crime. It cannot be read as being applicable to those -9- who are falsely implicated for extraneous reasons and have not committed the offence on prima facie independent scrutiny. Access to justice being a fundamental right, grain has to be separated from the chaff, by an independent mechanism. Liberty of one citizen cannot be placed at the whim of another. Law has to protect the innocent and punish the guilty. Thus considered, exclusion has to be applied to genuine cases and not to false ones. This will help in achieving the object of the law.
48. If the provisions of the Act are compared as against certain other enactments where similar restrictions are put on consideration of matter for grant of anticipatory bail or grant of regular bail, an interesting situation emerges. Section 17(4) of the Terrorist and Disruptive Activities (Prevention) Act, 1985 ("TADA", for short - since repealed) stated "17.(4) ...nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence punishable under the provisions of this Act..."
Section 17(5) of the TADA Act put further restriction on a person accused of an offence punishable under the TADA Act being released on regular bail and one of the conditions was: where the Public Prosecutor opposes the application for grant of bail, the court had to be satisfied that there were
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reasonable grounds for believing that the accused was not guilty of such offence and that he was not likely to commit any such offence while on bail.
49. The provisions of the Unlawful Activities (Prevention) Act, 1967 (for short "the UAPA Act"), namely, under Sections 43-D(4) and 43-D(5) are similar to the aforesaid Sections 17(4) and 17(5) of the TADA Act. Similarly the provisions of the Maharashtra Control of Organised Crime Act, 1999 (for short "the MCOC Act"), namely, Sections 21(3) and 21(4) are also identical in terms. Thus, the impact of release of a person accused of having committed the offences concerned under these special enactments was dealt with by the legislature not only at the stage of consideration of the matter for anticipatory bail but even after the arrest at the stage of grant of regular bail as well. The provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act") are, however, distinct in that the restriction under Section 37 is at a stage where the matter is considered for grant of regular bail. No such restriction is thought of and put in place at the stage of consideration of matter for grant of anticipatory bail. On the other hand, the provisions of the Act are diametrically opposite and the restriction in Section 18 is only at the stage of consideration of matter for anticipatory bail and no such restriction is available while the matter is to be considered for grant of regular bail. Theoretically it is possible to say that an application under Section 438 of the Code
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may be rejected by the court because of express restrictions in Section 18 of the Act but the very same court can grant bail under the provisions of Section 437 of the Code, immediately after the arrest. There seems to be no logical rationale behind this situation of putting a fetter on grant of anticipatory bail whereas there is no such prohibition in any way for grant of regular bail. It is, therefore, all the more necessary and important that the express exclusion under Section 18 of the Act is limited to genuine cases and inapplicable where no prima facie case is made out.
50. We have no quarrel with the proposition laid down in the said judgment that persons committing offences under the Atrocities Act ought not to be granted anticipatory bail in the same manner in which the anticipatory bail is granted in other cases punishable with similar sentence. Still, the question remains whether in cases where there is no prima facie case under the Act, bar under Section 18 operates can be considered. We are unable to read the said judgment as laying down that exclusion is applicable to such situations. If a person is able to show that, prima facie, he has not committed any atrocity against a member of SC and ST and that the allegation was mala fide and prima facie false and that prima facie no case was made out, we do not see any justification for applying Section 18 in such cases. Consideration in the mind of this Court in Balothia is that the perpetrators of atrocities should not be granted anticipatory bail so that they may not terrorise the victims.
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Consistent with this view, it can certainly be said that innocent persons against whom there was no prima facie case or patently false case cannot be subjected to the same treatment as the persons who are prima facie perpetrators of the crime.
51. In view of the decisions in Vilas Pandurang Pawar and Shakuntla Devi the learned ASG has rightly stated that there is no absolute bar to grant anticipatory bail if no prima facie case is made out inspite of validity of Section 18 of the Atrocities Act being upheld..
52. In Hema Mishra v. Stage of U.P., it has been expressly laid down that inspite of the statutory bar against grant of anticipatory bail, a constitutional court is not debarred from exercising its jurisdiction to grant relief. This Court considered the issue of anticipatory bail where such provision does not apply. Reference was made to the view in Lal Kamlendra Pratap Singh v. State of U.P. to the effect that interim bail can be granted even in such cases without the accused being actually arrested. Reference was also made to Kartar Singh v. State of Punjab to the effect that jurisdiction under Article 226 is not barred even in such cases..
53. It is well settled that a statute is to be read in the context of the background and its object. Instead of literal interpretation, the court may, in the present context, prefer purposive interpretation to achieve the object
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of law. Doctrine of proportionality is well known for advancing the object of Articles 14 and 21. A procedural penal provision affecting liberty to citizen must be read consistent with the concept of fairness and reasonableness.
54. A Constitution Bench of this Court in Kedar Nath Singh v. State of Bihar observed: (AIR p. 969, paras 26-27) "26. It is also well settled that in interpreting an enactment the Court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress [vide (1) Bengal Immunity Co. Ltd. v. State of Bihar and R.M.D. Chamarbaugwalla v. Union of India].
Viewed in that light, we have no hesitation in so construing the provisions of the sections impugned in these cases as to limit their application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.
27. We may also consider the legal position, as it should emerge, assuming that the main Section 124-A is capable of being construed in the literal sense in which the Judicial Committee of the Privy Council has construed it in the cases referred to above. On that assumption, is it not
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open to this Court to construe the section in such a way as to avoid the alleged unconstitutionality by limiting the application of the section in the way in which the Federal Court intended to apply it? In our opinion, there are decisions of this Court which amply justify our taking that view of the legal position. This Court, in R.M.D. Chamarbaugwalla v. Union of India has examined in detail the several decisions of this Court, as also of the courts in America and Australia. After examining those decisions, this Court came to the conclusion that if the impugned provisions of a law come within the constitutional powers of the legislature by adopting one view of the words of the impugned section or Act, the Court will take that view of the matter and limit its application accordingly, in preference to the view which would make it unconstitutional on another view of the interpretation of the words in question. In that case, the Court had to choose between a definition of the expression "Prize Competitions" as limited to those competitions which were of a gambling character and those which were not. The Court chose the former interpretation which made the rest of the provisions of the Act, Prize Competitions Act (42 of 1955), with particular reference to Sectiosn 4 and 5 of the Act and Rules 11 and 12 framed thereunder, valid. The Court held that the penalty attached only to those
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competitions which involved the element of gambling and those competitions in which success depended to a substantial degree on skill were held to be out of the purview of the Act. The ratio decidendi in that case, in our opinion, applied to the case in hand insofar as we propose to limit its operation only to such activities as come within the ambit of the observations of the Federal Court, that is to say, activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace."
55. In the present context, wisdom of legislature in creating an offence cannot be questioned but individual justice is a judicial function depending on facts. As a policy, anticipatory bail may be excluded but exclusion cannot be intended to apply where a patently mala fide version is put forward. Courts have inherent jurisdiction to do justice and this jurisdiction cannot be intended to be excluded. Thus, exclusion of court's jurisdiction is not to be read as absolute.
56. There can be no dispute with the proposition that mere unilateral allegation by any individual belonging to any caste, when such allegation is clearly motivated and false, cannot be treated as enough to deprive a person of his liberty without an independent scrutiny. Thus, exclusion of provision for anticipatory bail cannot possibly, by any
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reasonable interpretation, be treated as applicable when no case is made out or allegations are patently false or motivated. If this interpretation is not taken, it may be difficult for public servants to discharge their bona fide functions and, in given cases, they can be blackmailed with the threat of a false case being registered under the Atrocities Act, without any protection of law. This cannot be the scenario in a civilized society. Similarly, even a non-public servant can be blackmailed to surrender his civil rights. This is not the intention of law. Such law cannot stand judicial scrutiny. It will fall foul of guaranteed fundamental rights of fair and reasonable procedure being followed if a person is deprived of life and liberty. Thus, literal interpretation cannot be preferred in the present situation.
57. Applying the above well-known principle, we hold that the exclusion of Section 438 CrPC applies when a prima facie case of commission of offence under the Atrocities Act is made. On the other hand, if it can be shown that the allegations are prima facie motivated and false, such exclusion will not apply.
58. The Gujarat High Court in Pankaj D. Suthar considered the question whether Section 18 of the Atrocities Act excludes grant of anticipatory bail when on prima facie judicial scrutiny, allegations are found to be not free from doubt. The said question was
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answered as follows: (GLR pp. 410-12, paras 4-6)
59. The above view was reiterated in N.T. Desai, after considering the judgment of this Court in Balothia. It was observed that even taking Section 18 of the Atrocities Act to be valid, if the Court, prima facie, found the story of the complainant to be doubtful, the accused could not be allowed to be arrested. Doing so would be unjudicial. It was observed: (Guj LR pp.946-47, para 8) "8. To deal first with the preliminary objection raised by the learned APP Mr Desai, it may be stated that the Supreme Court's decision rendered in State of M.P. v. Ram Krishna Balothia stands on altogether quite different footing where the vires of Section 18 of the Act came to be decided. The Apex Court has ultimately held that Section 18 of the Act was not ultra vires. This Court is indeed in respectful agreement with the aforesaid decision of the Supreme Court. ... But then having closely examined the complaint more particularly in the context and light of the backdrop of the peculiar facts situation highlighted by the petitioner leading ultimately to filing of the complaint, this Court prima facie at the very outset is at some doubt about the complainant's story and yet if it readily, mechanically like a gullible child accepts the allegations made in the complaint at its face value, it would
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be surely blundering and wandering away from the path of bail-justice, making itself readily available in the hands of the scheming complainant who on mere asking will get arrested accused on some false allegations of having committed non-bailable offence, under the Atrocity Act, meaning thereby the Court rendering itself quite deaf, dumb and blind mortgaging its commonsense, ordinary prudence with no perception for justice, denying the rightful protection to the accused becoming ready pawn pliable in the hands of sometime scheming, unscrupulous complainants !!! This sort of a surrender to prima facie doubtful allegation in the complaint is not at all a judicial approach, if not unjudicial !!"
60. The above judgments correctly lay down the scope of exclusion as well as permissibility of anticipatory bail in cases under the Atrocities Act and are consistent with the view we take. Section 18 of the Atrocities Act has, thus, to be read and interpreted in this manner. At this stage, we may note that we have seen a contra view of the Division Bench of the said High Court in Pravinchandra N. Solanki v. State of Gujarat. We are unable to accept the said view for the reasons already given and overrule the same.
79.2. There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made
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out or where on judicial scrutiny the complaint is found to be prima facie malafide. We approve the view taken and approach of the Gujarat High Court in Pankaj D. Suthar and N.T. Desai and clarify the judgments of this Court in Balothia and Manju Devi;
8. Though the learned HCGP for respondent No.1-State has relied upon the decision in the case to Prathvi Raj Chauhan quoted supra, I have gone through the said decision, the said observation which has been made in the said decision is, while considering the case under Section 482 of Cr.P.C., and if the complaint does not make out a prima facie case for applicability of the provisions of the Act, the bar created shall not apply. Keeping in view the ratio laid down in the above said two decisions, on perusal of the complaint filed by the complainant, it indicates that there is no specific allegations made as to who uttered by taking the name of the caste. The allegations made are general allegations, whether they jointly abused by taking the
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name of caste or one after another who were there is lacking.
9. Be that as it may. Even as could be seen from the contents of the complaint the alleged incident has taken place on 11.10.2018 at about 8:00 p.m., and subsequently, the complaint has been registered on 13.10.2018 at about 2.30 p.m., and even the further statement which is said to have been recorded is on 13.10.2018 that therein also it has been specifically stated that some civil disputes are pending between the parties and in that light, if the entire factual matrix of the case if they are taken into consideration, the complaint which has been registered appears to be only in order to convert the civil litigation into a criminal and with a mala fide intention the alleged complaint has been made. Even the other offences which have been alleged against petitioner/accused No.1 are not punishable with death or imprisonment for life.
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10. Under such circumstances, I am of the considered opinion that if by imposing some stringent conditions if petitioner/accused No.1 is ordered to be enlarged on anticipatory bail, it is going to meet the ends of justice.
11. In the light of the discussion held by me above, the petition is allowed and petitioner/accused No.1 is ordered to be enlarged on anticipatory bail in the event of his arrest in Crime No.369/2018 (Spl. Case No.312/2019) pending on the file of the II Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru for the offences punishable under Sections 143, 447, 504, 506 read with Section 149 of IPC and also under Section 3(1)(r)(s) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, subject to the following conditions:
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i) Petitioner/accused No.1 shall execute a
personal bond for a sum of
Rs.2,00,000/-(Rupees Two Lakhs Only) with two sureties for the likesum to the satisfaction of the trial Court.
ii) He shall surrender before the trial Court within a period of 15 days from today.
iii) He is also directed to appear virtually before the Court and furnish the sureties. In the event, if it is not possible for him to appear physically before the trial Court then under such circumstances, he has to appear before Investigating Officer within 15 days from today.
iv) He shall not tamper with the
prosecution evidence directly or
indirectly.
v) He shall be available for the purpose of
further investigation as and when he is ordered to do so.
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vi) He shall not leave the jurisdiction of the trial Court without prior permission.
vii) He shall mark his attendance once in 15 days in between 10.00 a.m., to 5.00 p.m., before the jurisdictional Police till the charge sheet is filed.
Sd/-
JUDGE KG/SJK