Karnataka High Court
Yadhukumar vs State Of Karnataka on 12 July, 2021
Author: K.Somashekar
Bench: K.Somashekar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JULY, 2021
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL NO. 587 OF 2021
BETWEEN:
1. Yadhukumar
S/o S. Thimmegowda
Aged About 50 Years
(wrongly shown in the FIR as Yatisha)
2. T Ravidnrakumar
S/o S Thimmegowda
Aged about 45 years
(wrongly shown in the FIR as Ravi)
3. Hemanthkumar T
S/o S Thimmegowda
Aged about 40 years
(wrongly shown in the FIR as Hemanta)
4. Venkatesh K N
S/o Nagarajegowda
Aged about 36 Years
5. Prakash
S/o Late Neelegowda
Aged about 36 years
2
6. Prasannakumar
S/o Late Neelegowda
Aged about 38 years
(wrongly shown in the FIR as Prasanna)
7. Basavaraju
S/o Shivannegowda
Aged about 36 years
8. Chandankumar
S/o Shivanna
Aged about 27 years
(wrongly shown in the FIR as Chandana)
9. Susheelamma
W/o Nanjegowda
Aged About 60 Years
(wrongly shown in the FIR as Sushila)
10 . Chikkathayamma
W/o Neelappa
Aged about 60 years
11 . Kavitha
W/o Yadhukumar
Aged about 37 years
12 . Suma
W/o T Ravindrakumar
Aged about 34 years
13 . Shruthi
W/o Hemanthkumar T
Aged about 28 years
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14 . Ramesha
S/o Doddegowda
Aged about 50 years
15 . Ravigowda
S/o Madegowda
Aged about 43 years
16 . Venkatesha
S/o Krishnappa
Aged about 55 years
All the appellants are
R/at Kuttavadi Village
Bilikere Hobli
Hunsur Taluk
Mysuru District - 571 189
...Appellants
(By Sri. Prithvi Raj .B.N - Advocate)
AND:
1. State of Karnataka
By Bilikere Police Station
Mysore Dist, - 571105
Rep. by S.P.P.,
High Court of Karnataka
Bangalore - 1.
2. Swetha T.S
D/o. Swamy
Aged about 25 years
R/at Takkalu Haadi Village
Hunsur Taluk
Mysore Dist. 571189.
...Respondents
4
(By Sri. Rahul Rai - HCGP for R-1;
R-2 served - unrepresented)
This Criminal Appeal is filed under Section 14A(2)
of SC & ST (POA) Act, 1989 praying to, set aside the
impugned order dated 29.04.2021 passed by the
6th Addl. District and Special Judge, Mysuru District,
Mysore in Crl.Misc.793/2021 vide Annexure-A;
consequently allow this appeal by directing the R-1 -
Bilikere Police to release the appellants on bail in the
event of their arrest in Crime No.110/2021 registered
for the offences punishable under Sections 3(2)(v-a),
3(1)(f) of SC & ST (POA) Act, 1989 and Sec. 427, 506,
341, 504, 143, 149, 435, 447, 354 of IPC which is
pending before the 6th Addl. District and Sessions
Court, Mysore District, Mysore.
This Criminal Appeal coming on for Admission
this day, the Court delivered the following:
JUDGMENT
This appeal is preferred by the appellants/accused under Section 14A(2) of the SC/ST (Prevention of Atrocities) Act, 1989 by challenging the order passed by the VI Addl.District and Special Judge, Mysuru, in Crl.Misc.No.793/2021 dated 29.04.2021 rejecting the bail petition filed by the accused under Section 438 of Cr.P.C. in Crime No.110/2021 registered by the Bilikere 5 Police for the offence under Section 143, 447, 341, 427, 435, 354, 504, 506 r/w Section 149 of IPC and Sections 3(1)(f) and 3(2)(v-a) of the SC/ST (POA) Act, 1989.
2. Heard Sri Prithvi Raj.B.N., learned counsel for the appellant and learned HCGP for respondent No.1 are present before the Court physically. Though notice against Respondent No.2 - Smt.Swetha.T.S. is duly served, but remained absent. But it is relevant that under Section 301 of Cr.P.C that when once the crime has been registered by the concerned jurisdictional police then it is the domain vested with the prosecution to proceed in further to take care of the complainant. Accordingly, in this matter, learned HCGP for Respondent No.1 - State has to take care of the rights of Respondent No.2 who is a gravamen of the incident in Crime No.110/2021.
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3. It is transpired in the case of the prosecution that the father of the appellant Nos.1 to 3 namely S.Thimmegowda was granted 4 acres 35 guntas of land in Sy.No.33/119 of Kaduvaddaragudi village in the year 1980 under Darkhast scheme by the competent authority. The copy of the grant certificate dated 18.7.1980 is produced as per Annexure-D. Subsequent to granting of the land, the said S.Thimmegowda was cultivating the land. In the year 1990 there was some interference by Basavaiah and others. In this regard a suit for permanent injunction against them was instituted in O.S.No.229/1990 before the Court of Munsiff at Hunsur and the same came to be decreed in favour of plaintiff - Thimmegowda vide judgement dated 15.11.1990. However, the entire survey number 33 of Kaduvaddaragudi village measuring about 330 acres is a government land. But the defacto complainant namely Swetha started demanding the appellants to vacate their lands and hand it over to her as they are in 7 illegal occupation of the government lands. That on 08.04.2021, the defacto complainant registered a complaint before the first respondent and based upon her complaint, the crime has been registered and criminal law was set into motion but incident had taken place on 07.04.2021. The appellants/accused are the innocent persons and they did not commit the offences as alleged in the complaint. But the Special Court rejected the petition filed by the appellants/accused persons under Section 438 of Cr.P.C keeping in view the scope and object of Section 18 and 18A of the SC/ST (POA) Act, 1989 whereby held that the petition filed by the accused under Section 438 of Cr.P.C. was not maintainable.
4. Learned counsel for the appellants in this matter submitting that though the offence under the special enactment has been lugged against the accused but the ingredients has not been constituted in 8 commission of the offence. There is a delay in lodging the complaint by the complainant where the incident took place on 07.04.2021 at around 11.30 AM, but complaint was filed on 08.04.2021 at around 06.30 PM. But there shall be some due deliberation and discussion in filing the complaint with an intention to implicate these appellants in the alleged crime for the offences under the Indian Penal Code, 1860 and so also, the special enactment.
5. Whereas, subsequent to registration of the crime by the first respondent - police, they are making hectic efforts to apprehend these accused without there being any reasons for commission of offence and they are innocent of the alleged offences and moreover, they are ready to abide by any terms and conditions to be imposed by this Court while granting bail to them. 9
6. In support of his contention, learned counsel for the appellants has relied on a judgment of the Hon'ble Apex Court in Rahna Jalal vs. State of Kerala reported in (2021) 1 SCC 733 and Hitesh Verma vs. State of Uttarakhand reported in AIR 2020 SC 5584 wherein it is held that when there is a dispute about the possession of the land which is the subject matter of civil dispute between the parties and since the matter is regarding possession of property pending before the Civil court, any dispute arising on account of possession of the said property would not disclose an offence under the Act unless the victim is abused, intimidated or harassed only for the reason that she belongs to Scheduled Caste or Scheduled Tribe. But in the instant case, there was initiation of civil proceedings and the same ended by granting of decree as contended by the counsel for the appellants. On all these premises, counsel for the appellants seeking for allowing of the appeal and set-aside the impugned order passed by the 10 Court order and consequently, to grant the anticipatory bail to the accused as where they are ready to abide by any terms and conditions to be imposed by this Court.
7. Per contra, learned HCGP for respondent - State has referred to the substances in the FIR said to have been recorded by the Bilikere Police Station in Crime No.110/2021 and whereby the accused have been unlawfully assembled with an intention to commission of offence and accordingly, causing some damages and also committing fire mischief and so also, outraging the modesty of a women inclusive of extending life threat and so also, the offences under the special enactment which has wounded the feelings of the complainant by abusing her by holding the caste name. But there shall be some expressive bar under Section 18A of the SC/ST (POA)Act, 1989 for granting bail as sought for under Section 438 of Cr.P.C. On all 11 these premises, learned HCGP is seeking for dismissal of this appeal being devoid of merits.
8. It is in this context of the contentions as taken by learned counsel for the appellants and so also counter made by learned HCGP for the State by referring to the FIR recorded by the first respondent - police and so also, the averments made in the complainant as well as other documents which secured by the police after initiation of criminal prosecution against the accused by recording the FIR, the appellants are said to be arraigned as accused and they alleged to have destroyed the crops grown in the land and also outraging the modesty of a women. However, it is necessary to note Section 18A(2) of the SC/ST (POA)Act, 1989 which reads as under:
18A. No enquiry or approval required.--(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 12
(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.
9. Whereas under Section 18A it is made clear that notwithstanding any judgment or order or direction of any Court of law, there is an expressive bar for entertaining the petition filed under Section 438 of Cr.P.C. under the said enactment. However, the prima- facie materials relating to the offences under the special enactment and so also under the provisions of IPC, it is the domain vested with the investigating agency to investigate the case by following the requisite conditions under Section 173(2) of Cr.P.C. Therefore, it is deemed appropriate to state that the present appeal does not deserve for the relief as sought for under Section 438 of 13 Cr.P.C. for granting anticipatory bail. The special Court has rightly come to the conclusion relating to the role of the accused and so also each one of the offence committed by the accused persons and rightly rejected the bail petition as there is an expressive bar under Section 18A of the special enactment. Therefore, in terms of the aforesaid reasons and findings, it is opined that the appellants/accused are not deserving for relief of anticipatory bail as sought for. Accordingly, I proceed to pass the following:
ORDER Appeal preferred by the appellants/accused under Section 14A(2) of the SC/ST (POA) Act, 1989 is hereby dismissed. Consequently, the impugned order passed by the VI Additional District and Special Judge, Mysuru in Crl.Misc.No.793/2021 is hereby confirmed. 14
However, keeping in view the contentions of learned counsel for the appellants and that the civil proceedings in O.S.No.229/1990 has been decreed, it is deemed appropriate to state that keeping in view Article 21 of Constitution of India that is protection of personal life and liberty of a person even being arraigned as accused, but the case in Crime No.110/2021 has been registered by the first respondent - police against the accused. Therefore, the appellants/accused shall surrender before the Court of VI Additional District and Special Judge, Mysuru, within a period of three weeks and shall file regular bail application under the relevant provisions of Code of Criminal Procedure by furnishing a copy of the same to the Public Prosecutor in the said Court for enabling him to file response, if any, to the said bail application.
The investigating agency in Crime No.110/2021 that is the respondent - Bilikere police shall not 15 precipitate the matter till disposal of the bail application to be filed by the appellants/accused, in accordance with law.
It is made clear that the Court below shall not be influenced by any of the observations made in this order and shall dispose of the bail application to be filed by the appellants/accused on merits, on the same day, in accordance with law.
Sd/-
JUDGE DKB