Karnataka High Court
Smt Ahalya Bai vs The State on 4 September, 2020
Equivalent citations: AIRONLINE 2020 KAR 1987
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL PETITION NO.2048 OF 2020
BETWEEN:
Smt. Ahalya Bai
W/o. Late Govardhan Singh
Aged about 55 years
R/a No.08, 3rd Cross
Jyothi Nagar
Near Sambram College
Chikkabettahalli
Benagluru - 560 097 ... Petitioner
(By Sri. Dilraj Jude Rohit Sequeira, Advocate)
AND:
The State
By Kodigehalli Police Station
Bengaluru
Represented by the
State Public Prosecutor
High Court of Karnataka
Bengaluru - 560 001 ...Respondent
(By Sri. M. Divakar Maddur, HCGP)
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 Cr.No.176/2018 of Kodigehalli
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Police Station for the offences punishable under
Sections 498A, 323, 341, 354, 406, 342, 417, 506 read
with Section 34 of IPC and also under Sections 3 and 4
of the Dowry Prohibition Act, 1961 and Sections 3(1)(r),
3(1)(s), 3(1)(z), 3(1)(zc) of the Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities Act), 1989.
This Criminal Petition coming on for Orders
through video conference this day, the Court made the
following:
ORDER
This petition has been filed by the petitioner/accused No.2 under Section 438 of Cr.P.C., to release petitioner/accused No.2 on anticipatory bail in the event of her arrest in Crime No.176/2018 of Kodigehalli Police Station for the offences punishable under Sections 498A, 323, 341, 354, 406, 342, 417, 506 read with Section 34 of IPC and also under Sections 3 and 4 of the Dowry Prohibition Act, 1961 and Sections 3(1)(r), 3(1)(s), 3(1)(z), 3(1)(z)(c) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities Act), 1989 (hereinafter referred to in short as an 'Act'). -3-
2. I have heard the learned counsel Sri. Dilraj Jude Rohit Sequeira for petitioner/accused No.2 by virtual hearing and the learned HCGP Sri. M. Divakar Maddur for the respondent-State. It is submitted by the learned HCGP that the notice issued to respondent- complainant has been served. Though notice is served, complainant has remained absent.
3. The gist of the complaint is that accused No.1 fell in love with the complainant and on 10.02.2012 they got married at Dharmasthala and it was registered on 13.02.2012 in the office of the Registrar of Marriages, Hebbal. Thereafter, accused No.1 started ill-treating and blackmailing the complainant and asked her to pay certain amount. It is further alleged that, accused No.1 started saying that since complainant and her family are belongs to Schedule Caste, he cannot take her to his house since accused Nos.2 and 3 would object the same. Thereafter, accused -4- No.1 continued to have marital relationship with the complainant. When the parents of the complainant insisted accused No.1 to have arranged marriage, then accused No.1 demanded dowry and marriage expenses and thereafter the complainant's family agreed for the same and performed marriage. Despite performance of the marriage, accused No.1 refused to take the complainant to the matrimonial home on the ground that she belongs to Scheduled Caste. It is further alleged that, thereafter accused Nos.1 and 2 called the complainant and the parents of the complainant to their home and a panchayath was also held in this behalf and in the said panchayath accused No.2 insulted the complainant by stating that she will never approve her son's marriage with a person belongs to schedule caste. The accused Nos.2 to 4 abused the complainant and her family members and made a derogatory remarks against the complainant's caste. The accused persons taunted the complainant for being Adi Karnataka Schedule -5- Caste and stated that it is below their dignity to allow the complainant to live with them and when the complainant went to the matrimonial home, the accused persons stated that they had allowed to live with them only to prevent any legal action against them. Thereafter, again the ill-treatment and harassment continued and accused persons threatened the complainant that they will kill her if she intimate the ill- treatment and harassment caused by the accused persons. It is further alleged that it is accused Nos.3 and 4 abused the complainant by stating the name of the caste and threatened them in the public. It is further alleged that in spite of the efforts made by the complainant, ill-treatment and harassment continued and she has been threatened and sent out of the house. As such, she filed a private complaint.
4. It is the submission of learned counsel for petitioner/accused No.2 that already charge sheet has -6- been filed and while filing the charge sheet, accused Nos.3 and 4 have been dropped. It is his further submission that the complainant has not made out a prima facie case as against petitioner/accused No.2 so as to attract the provisions of the Act. It is his further submission that if there is no prima facie case made out as against petitioner/accused No.2 by reading the contents of the complaint, then under such circumstances, petitioner/accused No.2 can be released on anticipatory bail by exercising the power under Section 438 of Cr.P.C. In order to substantiate his said contention, he has relied upon the decision in the case of Dr.Subhash Kashinath Mahajan V/s The State of Maharashtra and another reported in 2018 (6) SCC 454. It is his further submission that petitioner/accused No.2 has not been involved in any serious offences and the alleged offences are not punishable with death or imprisonment for life. He further submits that she is ready to abide by any of the conditions imposed by this -7- Court and ready to offer the sureties. On these grounds, he prayed to allow the petition and to release petitioner/accused No.2 on anticipatory bail.
5. Per contra, learned HCGP vehemently argued and submitted that there is a Bar under Section 18A of the Act to release petitioner/accused No.2 on anticipatory bail, if there is a prima facie material as against petitioner/accused No.2. It is his further submission that petitioner/accused No.2 is absconding and already NBW has been issued as against her. Under such circumstances, this Court cannot grant anticipatory bail. He further submits that Section 18A of the Act has been enacted only with an intention to prevent the atrocities and if the complaint is diluted, the very purpose of provisions of Section 18A of the Act is going to be deprived. In order to substantiate his said contention, he has relied upon the decision in the case of Prathvi Raj Chauhan v/s Union of India and others -8- reported in 2020 SCC Online SC 159. It is his further submission that petitioner/accused No.2 is absconding since from the registration of the case and she was not available for the purpose of investigation or interrogation. If she is released on bail, she may abscond and she may not be available for the trial. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
7. It is the contention of the learned HCGP that there is a Bar under Section 18A of the Act to release petitioner/accused No.2 on anticipatory bail. This Court is conscious of the fact that there is a Bar under Section 18A of the Act. The said Section reads as under:
"18A. (1) For the purposes of this Act,--
(a) preliminary enquiry shall not be required for registration of a First Information Report against any person; or.-9-
(b) the investigating officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply.
(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".
8. A close reading of the said Section, there is a Bar to release petitioner/accused No.2 on anticipatory bail, if a prima facie case has been made out as against petitioner/accused No.2. However, in the case of Dr.Subhash Kashinath Mahajan referred supra, therein the Hon'ble Apex Court has come to the conclusion that there is no absolute Bar against the grant of anticipatory bail in case under Atrocities Act if no prima facie case has been made out or there on judicial scrutiny complaint is found to be prima facie with a mala fide intention.
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9. Keeping in view the above said preposition of law and on close reading of the contents of the complaint there is only allegation as against petitioner/accused No.2 to the effect that they used to tell that they belongs to the higher community and the complainant belongs to the Scheduled Caste and they are not going to accept as the daughter-in-law and they also used to ill-treat and harass. There is no specific averments have been made prima facie so as to attract the provisions of the Act.
10. Taking into consideration the decisions quoted supra that I am of the considered opinion that if by imposing some stringent conditions, if petitioner/accused No.2 is ordered to be released 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.2 is entitled to be enlarged on anticipatory bail in the
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event of her arrest in Crime No.176/2018 of Kodigehalli Police Station for the offences punishable under Sections 498A, 323, 341, 354, 406, 342, 417, 506 read with Section 34 of IPC and also under Sections 3 and 4 of the Dowry Prohibition Act, 1961 and Sections 3(1)(r), 3(1)(s), 3(1)(z), 3(1)(zc) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities Act), 1989 with following conditions:
i) Petitioner/accused No.2 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) She shall surrender before the Trial Court/Investigating Officer within 15 days from today, failing which, this order automatically stands cancelled.
iii) She shall not leave the jurisdiction of the Court without prior permission.
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iv) She shall not tamper with the
prosecution evidence directly or
indirectly.
v) She shall be regular in attending the
trial.
vi) She shall mark her attendance once in a month on every 1st in between 10.00 a.m. to 5.00 p.m., before the jurisdictional Police till the trial is concluded.
Sd/-
JUDGE KG/SJK