Karnataka High Court
Mahesh M S vs State Of Karnataka on 1 December, 2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL PETITION No.6901/2020
BETWEEN:
1. Mahesh M.S.
S/o M.Shivarudrappa
Aged about 44 years
R/o Mariyala Village
Chamarajanagar Taluk & District.
2. Prasanna M.N.
S/o M.P.Nagaraju
Aged about 39 years
R/o Mariyala Village
Chamarajanagar Taluk & District.
3. Lokesh @ B.M.Manjesh
S/o Mallanna S.,
Aged about 40 years
R/o Puttadasu Street, Kanakapura
Ramanagara District.
Permanent Address:
Bedarapura Village, Heggotara Post,
Chamarajanagar Taluk & District.
4. Chandrappa @ Chandru S/o Mallanna S.,
Aged about 52 years
R/o Bedarapura Village
Heggotara Post
Chamarajanagar Taluk & District.
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5. Sundrappa @ Sundrappa M.,
S/o Mallanna S.,
Aged about 53 years
R/o Bedarapura Village
Heggotara Post
Chamarajanagar Taluk & District.
6. Nagraju M.P.
S/o late Puttamadappa
Aged about 63 years
R/o Mariyala Village
Chamarajanagar Taluk & District.
...Petitioners
(By Sri J.S.Halashetti, Advocate)
AND:
State of Karnataka
by Chamarajanagar Rural Police Station
Represented by State Public Prosecutor
High Court Building
Bengaluru-560 001.
...Respondent
(By Sri R.D.Renukaradhya, HCGP)
This Criminal Petition is filed under Section 438 of
Cr.P.C praying to enlarge the petitioners on bail in the
event of their arrest in Crime No.107/2020 of
Chamarajanagar Rural Police Station, Chamarajanagar
District, for the offences punishable under Sections 143,
147, 341, 323, 506 r/w Section 149 of IPC and Section
3(i)(r)(s) of SC/ST (Prevention of Atrocities) Act.
This Criminal Petition coming on for Orders, this day,
the Court made the following:-
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ORDER
The present petition has been filed by the petitioners-
accused Nos.1 to 6 under Section 438 of Cr.P.C. to release them on bail in Crime No.107/2020 of Chamarajanagar Rural Police Station for the offences punishable under Sections 143, 147, 341, 323, 506 r/w Section 149 of IPC and under Section 3(i)(r) and 3(i)(s) of SC/ST (Prevention of Atrocities) Act.
2. I have heard the learned counsel Sri.J.S.Halashatti for the petitioners-accused and the learned High Court Government Pleader Sri.R.D.Renukaradhya for the respondent-State.
Though notice has been served to the complainant, she has remained absent and there is no representation.
3. The gist of the case of prosecution in brief is that the complainant is the daughter of Dundamadaiah. It is alleged that the land bearing Sy.No.293/1A measuring 1 acre 19 guntas belongs to her grandfather one -4- Maridoddaiah and being cultivated by the grandfather. It is further alleged that the land in Sy.No.293/1B measuring 1 acre 17 guntas belongs to their ancestors and has been pledged with Shivarudrappa. It is further alleged that accused No.1 illegally got transferred the khatha of the said land in his name and accused No.2 illegally got transferred the khatha of Sy.No.296 measuring 2 acres 6 guntas in his name and were also obstructing the complainant for cultivating the said land. In that light, on 23.9.2020 the accused have put up the fence around the said land and on 24.9.2020 at about 9.00 a.m., accused No.3 was installing a gate to the fence and at that time complainant and her mother went near the said land and by seeing them accused persons abused by taking the name of the caste and have also assaulted and dragged the complainant by pulling her hairs and kicked her and her mother and have also put a life threat. On the basis of the complaint a case has been registered.
-5-4. It is the submission of the learned counsel for the petitioners that on perusal of the records, the contents of the complaint and other records does not disclose prima facie case as against the petitioners-accused. It is his further submission that in the complaint the caste of the complainant has also not been disclosed which is the mandate. It is his further submission that the alleged incident has taken place on 24.9.2020 and the complaint has been lodged on 5.9.2020. There is inordinate delay in filing the complaint. It is his further submission that the said complaint is a counter blast for having filed the complaint by accused No.1 as against the father of the complainant in Crime No.82/2020. It is his further submission that the complainant has been given in marriage to one Rachappa and she is residing in far of place and her presence at the place of the incident itself is doubtful. It is his further submission that the father of the complainant is in the habit of filing the complaint after complaint only with an intention to grab the property -6- belonging to the other persons. So in order to avoid the repeated complaint by him, he has called the complainant and has got registered the case. It is his further submission that the record of rights goes to show that the petitioner-accused No.1 is the owner of the said land.
Under such circumstances, they cultivating the land and in possession of the land does not arise at all. They are ready to abide by the conditions that may be imposed by this Court and ready to offer the sureties. On these grounds he prayed to allow the petition and to release the petitioners-
accused Nos.1 to 6 on anticipatory bail.
5. It is the specific contention of the learned High Court Government Pleader that as per Section 18 and 18A of the Act, there is a prohibition to grant anticipatory bail if there is prima facie case has been made out. The contents of the complaint clearly goes to show that the petitioners-
accused abused by taking the name of the caste, specially accused No.3 has made a specific allegation by taking the name of the caste. It is his further submission that when a -7- prima facie case has been made out, then the Court cannot exercise the power under Section 438 of Cr.P.C. and to release the petitioners-accused on anticipatory bail. 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. On perusal of the records it indicate that on 24.9.2020 at about 9.00 a.m. when the complainant came along with her mother, the accused persons abused by taking the name of the caste and have also assaulted and pulled her hairs and have kicked her. The alleged incident has taken place on 24.9.2020, but the records indicate that the complaint has been got registered on 5.10.2020 at about 11.00 a.m. Even it is the specific contention of the learned counsel for the petitioners-accused that earlier to the alleged incident accused No.1 has filed the complaint as against the father of the complainant in Crime -8- No.82/2020 and as a counter blast the present complaint has been filed.
8. On perusal of the records, the complaint filed by the accused No.1 has been got registered earlier and subsequently the complaint filed by the complainant has been got registered in Crime NOo107/2020, that too after a long delay of the alleged incident. If really the alleged incident has taken place as contended, definitely on the same day the complaint could have been got registered and even as could be seen from the contents of the complaint it appears that it is after thought and after quite deliberation only with an intention to mend the complainant in Crime No.82/2020 the present complaint has been filed. It is well settled proposition of law by the Hon'ble Apex Court that there is no absolute bar against the grant of anticipatory bail in a case under the Atrocities Act, if no prima facie case has been made out or whether on judicial scrutiny complaint is found to be prima facie mala fide. This proposition of law has been laid down by the Hon'ble Apex -9- court in the case of Dr.Subhash Kashinath Vs. State of Maharashtra and Another reported in (2018) 6 SCC 454.
At paragraph Nos.46 to 60 and 79.2 it has been observed as under:
46. In Balothia [State of M.P. v. Ram Kishna Balothia, (1995) 3 SCC 221 : 1995 SCC (Cri) 439] , Section 18 was held not to be violative of Articles 14 and 21 of the 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
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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 [State of M.P. v. Ram Kishna Balothia, (1995) 3 SCC 221 : 1995 SCC (Cri) 439] may need to be revisited in view of judgments of this Court, particularly Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] , 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 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
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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 reasonable grounds for believing that the accused was not guilty of such
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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
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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 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
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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 [State of M.P. v. Ram Kishna Balothia, (1995) 3 SCC 221 : 1995 SCC (Cri) 439] is that the perpetrators of atrocities should not be granted anticipatory bail so that they may not terrorise the victims. 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 [Vilas Pandurang Pawar v. State of Maharashtra, (2012) 8 SCC 795 : (2012) 3 SCC (Cri) 1062] and Shakuntla Devi
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[Shakuntla Devi v. Baljinder Singh, (2014) 15 SCC 521 : (2015) 4 SCC (Cri) 682] 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. State of U.P. [Hema Mishra v. State of U.P., (2014) 4 SCC 453, paras 21, 34-36 : (2014) 2 SCC (Cri) 363] , 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. [Lal Kamlendra Pratap Singh v. State of U.P., (2009) 4 SCC 437 : (2009) 2 SCC (Cri) 330] 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 [Kartar Singh v. State of Punjab, (1994) 3 SCC 569, para 368 (17) : 1994 SCC (Cri) 899] to the effect that jurisdiction under Article 226 is not barred even in such cases.
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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 of law. Doctrine of proportionality is well known for advancing the object of Articles 14 and 21. A procedural penal provision affecting liberty of 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 [Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955 : (1962) 2 Cri LJ 103 : 1962 Supp (2) SCR 769] 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 [Bengal Immunity Co. Ltd. v. State of Bihar, (1955) 2 SCR 603 : AIR 1955 SC 661] and R.M.D. Chamarbaugwalla v. Union of India [R.M.D. Chamarbaugwalla v. Union of India, 1957 SCR 930 : AIR 1957 SC 628] ]. 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
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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 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 [R.M.D. Chamarbaugwalla v. Union of India, 1957 SCR 930 : AIR 1957 SC 628] 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 Sections 4
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and 5 of the Act and Rules 11 and 12 framed thereunder, valid. The Court held that the penalty attached only to those 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."
(emphasis supplied)
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
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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 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 civilised 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
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the allegations are prima facie motivated and false, such exclusion will not apply.
58. The Gujarat High Court in Pankaj D. Suthar [Pankaj D. Suthar v. State of Gujarat, (1992) 1 Guj LR 405] 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 answered as follows: (GLR pp. 410-12, paras 4-6) "4. Now undoubtedly it is true that the alleged offence under the Atrocities Act is a very serious offence and if indeed the complaint is ultimately found to be truthful and genuine one, there cannot be any two views about the strictest possible view taken in such matter. Not only that but if the complaint is also found to be prima facie dependable one that is to say, free from doubt, then as warranted under Section 18 of the Atrocities Act, even the anticipatory bail to such accused has got to be refused. In fact, Parliament in its utmost wisdom has rightly evidenced great concern and anxiety over the atrocities which are going on unabatedly on SCs & STs by inserting the
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provisions under Section 18 of the Atrocities Act disabling the accused from obtaining the anticipatory bail under Section 438 of the Code.
This indeed is a welcome step and in accordance with the axiomatic truth viz. 'the disease grown desperately must be treated desperately else not'. The disease of commission of offences by way of atrocities against the members of SC and ST are unabatedly going on since last hundreds of years and in the recent past have become alarmingly increasing and has become so rampant, breathtaking and has reached such a desperate pass that it indeed needed a very stringent and desperate legislation which could help save the situation by effectively providing the legal protection to such cursed, crushed and downtrodden members of SCs & STs communities. Under such circumstances, it is equally the paramount duty of every court to see that it responds to legislative concern and call and ensure effective implementation of the Atrocities Act, by seeing that the provisions enshrined in the said Act are duly complied with. But then, what according to this Court is the most welcome step by way of collective
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wisdom of Parliament in ushering social beneficial legislation cannot be permitted to be abused and converted into an instrument to blackmail to wreak some personal vengeance for settling and scoring personal vendetta or by way of some counter-blasts against opponents some public servants, as prima facie appears to have been done in the present case. The basic questions in such circumstances therefore are-- Whether a torch which is lighted to dispel the darkness can it be permitted to set on fire the innocent surroundings? Whether a knife an instrument which is meant for saving human life by using the same in the course of operation by a surgeon, can it be permitted to be used in taking the life of some innocent? The very same fundamental question arises in the facts and circumstances of this case also viz. 'whether any statute like the present Atrocities Act, especially enacted for the purposes of protecting weaker sections of the society hailing from SC & ST communities can be permitted to be abused by conveniently converting the same into a weapon of wrecking personal vengeance on the opponents?' The answer to this question is undoubtedly and obviously 'No'. Under such
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circumstances, if the Courts are to apply such provision of Section 18 of the Atrocities Act quite mechanically and blindly merely guided by some general and popular prejudices based on some words and tricky accusations in the complaint on mere assumptions without intelligently scrutinising and testing the probabilities, truthfulness, genuineness and otherwise dependability of the accusations in the complaint, etc., then it would be simply unwittingly and credulously playing in the hands of some scheming unscrupulous complainant in denying the justice. Virtually, it would be tantamount to abdicating and relegating its judicial duty, function of doing justice in such matters in favour and hands of such unscrupulous complainant by making him a Judge in his own cause. This is simply unthinkable and therefore impermissible. Whether the provisions of any particular Act and for that purpose the rules made thereunder are applicable to the facts of a particular case or not, is always and unquestionably a matter which lies strictly and exclusively within the domain of 'judicial consideration-discretion' and therefore neither mere allegations made in
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the complainant by themselves nor bare denials by the accused can either automatically vest or divest the Court from discharging its ultimate judicial function--duty to closely scrutinise and test the prima facie dependability of the allegations made in the complaint and reach its own decision.
5. Now reverting to the contents of the complaint and attending circumstances highlighted by Mr Pardiwala, the learned Advocate for the petitioner-accused, the same prima facie clearly demonstrates that at this stage the story revealed by the complainant does not appear to be free from doubt. If that is so, very applicability of the Atrocities Act is rendered doubtful. If that is the situation, then to refuse the anticipatory bail on mere accusations and assumptions that the petitioner-accused has committed an offence under the Atrocities Act would be absolutely illegal, injudicious, unjust and ultimately a travesty of justice. No court can ever embark upon such hazards of refusing anticipatory bail on mere doubtful accusations and assumptions that Atrocities Act is applicable. No court could and should be permitted to be "spoon-fed" by the complainant whatever he wants to feed and swallow whatever he wants the Court to gulp down to attain and secure his unjust mala fide motivated ends. Section 18 of the Atrocities Act gives a vision, direction and mandate to the Court as to the cases where the anticipatory bail must be refused, but it does not and it
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certainly cannot whisk away the right of any court to have a prima facie judicial scrutiny of the allegations made in the complaint. Nor can it under its hunch permit provisions of law being abused to suit the mala fide motivated ends of some unscrupulous complainant. In this case also if indeed this Court been satisfied with the story revealed by the complainant as truthful and genuine, then anticipatory bail would have been surely rejected right forth as a matter of course, but since the submissions of Mr Pardiwala have considerable force, this Court has no alternative but to accept the same in the larger interests of justice to see that merely on the count of the first-hand prejudice attempted to be caused by allegations in the complaint, the petitioner-accused is not denied his precious right of the anticipatory bail.
6. In view of the aforesaid discussion, though in a way the learned APP is absolutely right when he submitted that no anticipatory bail can be granted to the petitioner-accused because of Section 18 of the Atrocities Act, in the opinion of this Court, his submission fails because at this stage it is too difficult to rule out the probability of the accusations levelled by the complainant against the petitioner- accused having committed an offence under the Atrocities Act being false, vexatious and by way of counter-blast as stemming from the ulterior motive to humiliate, disgrace and demoralise the petitioner-accused who is a public servant. When that is the result and position, there is no question of bypassing of Section 18 of the Atrocities Act arises as apprehended by the learned APP. Taking into consideration the facts and circumstances of this particular case, and in view of the aforesaid discussion, this
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miscellaneous criminal application for anticipatory bail deserves to be allowed and is allowed accordingly."
(emphasis supplied)
59. The above view was reiterated in N.T. Desai [N.T. Desai v. State of Gujarat, (1997) 2 Guj LR 942] , after considering the judgment of this Court in Balothia [State of M.P. v. Ram Kishna Balothia, (1995) 3 SCC 221 : 1995 SCC (Cri) 439] . 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 inState of M.P. v. Ram Kishna Balothia [State of M.P. v. Ram Kishna Balothia, (1995) 3 SCC 221 : 1995 SCC (Cri) 439] 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
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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 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 !!"
(emphasis supplied)
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 [Pravinchandra N. Solanki v. State of Gujarat, 2011 SCC OnLine Guj 6848 :
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(2012) 1 Guj LR 499] . 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 out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in Pankaj D. Suthar [Pankaj D. Suthar v. State of Gujarat, (1992) 1 Guj LR 405] and N.T. Desai [N.T. Desai v. State of Gujarat, (1997) 2 Guj LR 942] and clarify the judgments of this Court in Balothia [State of M.P. v. Ram Kishna Balothia, (1995) 3 SCC 221 : 1995 SCC (Cri) 439] and Manju Devi [Manju Devi v. Onkarjit Singh Ahluwalia, (2017) 13 SCC 439 : (2017) 4 SCC (Cri) 662] ;
9. Even subsequently also the Hon'ble Apex Court in the case of Prathvi Raj Chauhan Vs. Union of India and Others reported in AIR 2020 SC 1036 it has been observed that, if the complaint does not make out a prima facie case for applicability of the provisions of Section 18 and 18A of the Act, the bar created by Section 18 and 18A
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shall not apply. At paragraphs 10 and 11 it has been observed as under:
10. concerning the applicability of provisions of section 438 Cr.PC, it shall not apply to the cases under Act of 1989.
However, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by section 18 and 18A (i) shall not apply. We have clarified this aspect while deciding the review petitions.
11. The court can, in exceptional cases, exercise power under section 482 Cr.PC for quashing the cases to prevent misuse of provisions on settled parameters, as already observed while deciding the review petitions. The legal position is clear, and no argument to the contrary has been raised.
10. Keeping in view the ratio laid down in the above decisions, on perusal of the records it creates that the said complaint has been filed with a malafide intention only after filing of the complaint by accused No.1 in Crime No.82/2020.
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11. In the light of the discussion held by me above, I am of the considered opinion that the petitioners-accused have made out a case so as to release them on anticipatory bail.
12. In that light, this petition is allowed. The petitioners-accused Nos.1 to 6 are ordered to be released on anticipatory bail in the event of their arrest in Crime No.107/2020 of Chamarajanagar Rural Police Station for the offences punishable under Sections 143, 147, 341, 323, 506 r/w Section 149 of IPC and under Section 3(i)(r) and 3(i)(s) of SC/ST (Prevention of Atrocities) Act, subject to the following conditions:
i. Each of the petitioners 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 Investigating Officer.
ii. They shall surrender before the Investigating Officer within 20 days from today, failing which this order automatically stands cancelled.
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iii. They shall not tamper with the prosecution witnesses directly or indirectly.
iv. They shall appear before the Investigating Officer as and when required and co-operate for investigation.
v. They shall mark their attendance before the Investigating Officer once in 15 days in between 10.00 a.m. and 5.00 p.m. till the charge sheet is filed.
vi. They shall be regular in attending the trial unless exempted by the trial Court for genuine reason.
vii. They shall not leave the jurisdiction of the Court without prior permission.
viii. If they violates any one of the above conditions, the anticipatory bail is liable to be cancelled.
Sd/-
JUDGE *AP/-