Karnataka High Court
Abdul Rafeeq vs The State Of Karnataka on 4 June, 2019
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF JUNE 2019
BEFORE
THE HON'BLE MR. JUSTICE ASHOK G. NIJAGANNAVAR
CRIMINAL PETITION No.200541/2019
Between:
Abdul Rafeeq S/o Abdul Rajak
Umrani, Age: 32 years
Occ: Medical Practitioner
R/o. Sakaf Roza Street
Vijaypura-586101
... Petitioner
(By Sri Ashok B. Mulage, Advocate)
And:
The State of Karnataka
Through Jala Nagar P.S.,
Vijayapura, through Addl.
SPP, High Court of Karnataka
Kalaburagi Bench-585107
... Respondent
(By Sri Mallikarjun Sahukar, HCGP)
This Criminal Petition is filed under Section 438
Cr.P.C. praying to allow the petition and direct the
respondent police to release the accused/petitioner on
bail, in the event of his arrest in Crime No.25/2019 of
Jala Nagar Police Station, Vijayapura pending before
District and Sessions Judge, Vijayapura for the offences
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punishable under Sections 323, 355, 504, 506 read
with Section 34 IPC and Section 3(1) (r) (s), 3(2) (Va)
SC/ST (PA) Amendment Act, 2015.
This petition coming on for Orders this day, the
Court made the following:
ORDER
This petition is filed by the petitioner under Section 438 Cr.P.C. seeking anticipatory bail in the event of his arrest in Crime No.25/2019 of Jala Nagar Police Station, Vijayapur for the offences punishable under Sections 323, 355, 504, 506 read with Section 34 IPC and Section 3(1) (r) (s), 3(2) (Va) SC/ST (PA) Amendment Act, 2015.
2. The facts briefly stated are that on the complaint filed by Ravi Chavan, the respondent- Police have registered the case. The allegations are that the complainant had borrowed loan of Rs.80,000/- from the accused. In that connection, the accused had assaulted the complainant in the previous year. Therefore, the complainant was admitted to the Government Hospital 3 for Medical Treatment for the injuries sustained in the said assault and he had given a police complaint. At that time, the PSI Babaleshwar Police Station had settled the dispute and had directed the accused/petitioner to grant ten months time for repayment of loan. Later, after ten months, the accused has stanched Rs.50,000/- from the complainant and also Mangalasutra from his wife and compelled the complainant to pledge it in a jewelry shop. He has also threatened to take away his life, if he files a police complaint. After registering the case, the police officials are making attempt to arrest the petitioner.
3. Learned counsel for the petitioner submits that the provisions of SC/ST (PA) Act are not applicable to the facts of this case. The offences alleged are not punishable with death or life imprisonment. The complainant has filed a false complaint in order to avoid repayment of hand loan. The petitioner is working as a 4 Medical Practitioner in Jeelani Hospital, Vijayapur. In the event of his arrest, he would be put to great hardship and injustice.
4. Per contra, learned High Court Government Pleader submits that the complaint averments clearly goes to show that the petitioner has committed the alleged offences. At this stage, there are no grounds to show that the petitioner has been falsely implicated in this case.
5. Learned High Court Government Pleader has produced the Wound Certificate of the complainant, furnished by the Investigating Officer. According to their certificate, the complainant has sustained four injuries, which are abrasions on the face, eye, chest and on the back. According to the opinion of the Medical Officer, these injuries are simple in nature. 5
6. It is an admitted fact that the complainant belongs to Scheduled Tribe community and the main allegations are that the petitioner has committed atrocities by assaulting and abusing him for recovery of the loan amount. The main contention of learned counsel for the petitioner is that the complaint is filed with sole intention to avoid repayment of loan.
7. In a decision reported in (2018) 6 SCC 454 in the case of Dr.Subhash Kashinath Mahajan vs. State of Maharashtra and Another, the Hon'ble Supreme Court observed as under:
"B. SCs, STs, OBCs. and Minorities - Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - S. 18- Issue of exclusion of anticipatory bail in case of Atrocities Act in view of S.18 - Reference to larger Bench not necessary, as position can be clarified on basis of law already laid down
- Held, no absolute bar against grant of anticipatory bail in cases under Atrocities Act 6 if no prima facie case is made out or where on judicial scrutiny complaint is found to be prima facie mala fide.
S.18 of Act excluding application of S.438 Cr.P.C. reiterated, valid and can be justified to protect victims of perpetrators of crime and does not violate Arts. 21 and 14 of the Constitution - However, S.18 cannot be read as being applicable to cases where individuals are falsely implicated for extraneous reasons - Access to justice being a fundamental right, grain has to be separated from chaff - Liberty of one citizen cannot be place at whim of another - Law has to protect innocent and punish guilty - Thus, exclusion of S.438 Cr.P.C. in S.8 of Act can be applied to genuine cases and not to false one
- This will help achieve object of law - Judicial notice of abuse of Act in last three decades - Inherent powers of court cannot be taken away by legislature - Court has inherent power to grant interim bail even if there is no provision for anticipatory bail - Legislation could not have intended to exclude 7 judicial function of going into correctness of criminal allegations - Criminal Procedure Code, 1973 - Ss.482, 348, 41 and 41-A - Constitution of India Arts.21 and 14."
8. In view of the aforesaid decision, the Court has got inherent power to grant anticipatory bail, even there is a specific bar for granting bail.
9. Anticipatory bail is granted in anticipation of arrest in non-bailable cases. But, that does not mean that the regular Court, which is to try the offender is sought to be bypassed. As such, the anticipatory bail orders can be granted for a limited duration. The power to refuse anticipatory bail has not be exercised as if the punishment before trial is imposed. The only material consideration in such situations are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with the evidence. 8
10. In the instant case, the main objection of the prosecution is that in the event of granting bail, the accused petitioner is likely to abscond and tamper the prosecution witnesses. It is pertinent to note that the accused is a Medical Practitioner at Vijayapur, as such there may not be any chance of fleeing away or absconding. The objection raised by the prosecution may be set right by imposing certain stringent conditions. Submission of learned counsel for the petitioner and prosecution records available at this stage, goes to prove the apprehension of the petitioner regarding his arrest and detention.
11. Considering the grounds urged, this petition deserves to be allowed. Hence, I proceed to pass the following:
ORDER The petition is allowed. The petitioner is directed to surrender before the Investigating Officer within ten 9 days from the date of receipt of certified copy of this order and on his appearance, the Investigating Officer shall interrogate and enlarge him on bail within a reasonable time subject to following conditions:
(i) The petitioner shall furnish a personal bond in a sum of Rs.1,00,000/- (Rupees One Lakh) with two sureties for the like sum to the satisfaction of the Investigating Officer;
(ii) The petitioner shall appear before the Investigating Officer as and when required;
(iii) The petitioner shall co-operate in the Investigation;
(iv) The petitioner shall not threaten or allure the prosecution witnesses;
(v) In the event of registration of any other criminal case in respect of commission of similar offence, the present bail order shall stand cancelled;
(vi) If the petitioner is found to have violated any of the bail conditions, the present bail order shall stand automatically cancelled;10
(vii) The petitioner shall mark his attendance in respondent - Jala Nagar Police Station, Vijayapur on every Monday till submission of the final report.
Sd/-
JUDGE Srt