Karnataka High Court
P S Mahesh vs State Of Karnataka on 18 January, 2022
Crl.A.No.1815/2021
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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.1815/2021
BETWEEN:
1. P.S.MAHESH
S/O LATE P.C.SOMAIAH
AGED ABOUT 49 YEARS
R/O BOLUR VILLAGE
SOMWARPET TALUK
KODAGU DISTRICT - 571 201
2. VINU B.N.
S/O NIGNA NAIK
AGED ABOUT 42 YEARS
R/O IDIRA BADAVANE
KUSHALNAGAR
SOMWARPET TALUK
KODAGU DISTRICT - 571 201
3. MOHAN K.L.
S/O LAKSHMANA
AGED ABOUT 42 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
HIGH COURT OF KARNATAKA
BANGALORE - 560 001
Crl.A.No.1815/2021
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2. SURENDRA B
POLICE SUB-INSPECTOR
CIVIL RIGHTS ENFORCEMENT
DIRECTORATE
MYSURU - 570 028 ...RESPONDENTS
(BY SRI.SHANKAR H S, HCGP FOR R1;
SRI.C.JAGADEESH, SPL.P.P. FOR R2)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
U/S.14-A(2) OF SC/ST (POA) ACT, PRAYING TO SET ASIDE
THE ORDER DATED 29.11.2021 PASSED BY THE I ADDITIONAL
DISTRICT AND SESSIONS/SPECIAL JUDGE, KODAGU,
MADIKERI IN CRL.MISC.NO.279/2021 AND ENLARGE THE
APPELLANTS/ACCUSED NOS.2-4 ON BAIL IN CR.NO.110/2021
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 4 in Crime No.110/2021 of Somwarpet police station have preferred the above appeal.
3. Crime No.110/2021 was registered against the appellants and accused No.1 Vijay.R for the offences Crl.A.No.1815/2021 3 M 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 ('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 respondent No.2, the Police Sub-Inspector of DCRE Cell, Mysuru.
4. During 05.08.2017, appellant Nos.1 to 3 were working as Tahsildar, Revenue Inspector and village accountant in Somwarpet Taluka office. On the application of accused No.1, appellant Nos.1 to 3 conducted enquiry and issued certificate as per Annexure- C dated 13.12.2017 certifying that accused No.1 belongs to Bhovi community a Scheduled Caste.
5. 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 Crl.A.No.1815/2021 4 M Bhovi community, though he belonged to Naidu community which is not a scheduled caste.
6. The caste verification committee cancelled the caste certificate issued in favour of accused No.1. Further respondent No.2 was directed to file complaint against the appellants and accused No.1 for granting false caste certificates. On that basis, he filed the complaint and the case was registered in Crime No.110/2021.
7. 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 Cri.Misc.No.279/2021. 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.
8. Sri A.G.Sridhar, learned Counsel for the appellants submits that the appellants issued caste Crl.A.No.1815/2021 5 M certificate on conducting due enquiry and based on the caste certificate issued by the competent authority as long as back in the year 1996 as per Annexure-D and other material placed before them. Therefore he contends that prima-facie the provisions of the Act are 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.
9. 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 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 1 (2020) 4 SCC 727 2 (2021) 1 SCC 733 Crl.A.No.1815/2021 6 M judgments of this Court in Smt.Jayanthi vs. State of Karnataka3 and Sri G.M.Sannamudaiah & Anr vs. The State of Karnataka and others4.
10. 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."
11. 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 of commission of the offences under the Act. By insertion of Section 18A(2), by amending Act 2018 it was intended to give overriding effect to the judgment of the Courts also with effect from 20.08.2018.
12. 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 exclusion of Cr.P.C. by Sections 18 & 18A of the Act will not be 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.1815/2021 7
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13. The aforesaid judgments have force of law by virtue of Article 141 of the Constitution of India. Under the circumstances, this Court has to examine whether there is prima-facie case to exclude the provisions of Section 438 of Cr.P.C.
14. 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.
15. 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 Crl.A.No.1815/2021 8 M 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:
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 prima- facie there should be intentional issue of false caste certificate.
16. 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 years 1996 and 2011 to the effect that he belongs to Bhovi Community. He also produced his daughter's caste certificate issued by the Tahsildhar, Somwarpet on 27.08.2011 and the Transfer certificate of his daughter issued by the concerned authorities on Crl.A.No.1815/2021 9 M 20.04.2015. They also conducted local enquiry and issued the caste certificate.
17. Respondent No.2 or Civil Rights Enforcement Directorate have not filed any complaints against those Tahsildars who issued certificate in the years 1996 and 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 caste certificate issued by the very same department about 11 years prior to 2017 and the school certificates produced by accused No.1.
18. 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 view of the aforesaid judgments of the Hon'ble Supreme Court, Sections 18 and 18A are not attracted against the appellants.
Crl.A.No.1815/202110
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19. In Smt.Jayanthi's case referred to supra by learned Special Public Prosecutor, the person who secured employment based on false certificate was prosecuted. The judgment in Sri G.M.Sannamudaiah's case referred to supra did not relate to grant of anticipatory bail. That 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.
20. The offences alleged are not punishable with death or life imprisonment. Appellants have permanent 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.
Crl.A.No.1815/202111
M The impugned order is hereby set aside. The appellants are granted anticipatory bail in Crime No.110/2021 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.
(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