Karnataka High Court
Shri. Shamshuddin Anr vs The State Of Karnataka on 16 December, 2011
Author: Aravind Kumar
Bench: Aravind Kumar
-3_ caste name knowing that she belongs to Caste. Complainant is said to have H husband at about 7.30 p.m. on:2'5'.'l'0..2()All:v.l V alleged in the complaint that incident i.e., 26.10.2011 she'-._all'o_ng 11\}it.h'hcelr.:br-otl'1'er;in- " A law went to the house Accused'-No.. and 'i'nfO.!'lT1€Cl his father Khasim Sab son (A-1) to which A»2 started and her brother--in-lair:lb§J"l1c1sir:g touching upon their caste? iyell that they belonged to put them under life threat.ll" "the complaint given it was registered in / 2011 as referred to Supra. Sri. S. S. Mamadapur, learned l'c_o'u.n«se'l7app~earing for petitioners and Sri. Subhash Perused the records.
Mallllapi-;1:r'=learned HCGP appearing for the State. , -5- of bail, petitioners are not entitled of"
anticipatory bail. He would '1 mentioning in the complaint by tl1e"~compl8.inan't 'that' there was assault or use'_o--f._ force on 'any_'~-women 2 S' belonging to Scheduled with an intention to dishonorlorp is word attract Section 3(1) prayer for bail has a reading of the complaint._"Vgwouldjestalblishvg that ingredients of Section 3lV'{.[':§<i)_AV SlciieduledWC)astes and Scheduled Tribes (PreVen'ti.on"SoftAtrocities) Act 1989 is attracted and as such heVs:._1b1nits"SVthat submission of the Victim has,.ub'e takelnatvgitsp, face value and correctness of the contenti_on has to be proved by the prosecution of trial and as such petitioners would not"-be en'titled for grant of anticipatory bail. In order to R"".__V"*substantlate his contention, he draw the analogy of a it gV."vVsit11antion where lady who has been raped when "complains as such it is taken at its face Value and same V, situation would arise to the facts of the case and similar presumption has to be drawn where complaint Viuslfiled by a victim lady and provisions of Section Scheduled Castes and Scheduled:l'ribes_-{Prevention Atrocities) Act 1989 is attracted:'».:andAo_n ltaheise'-gro::u_nd.sAl he seeks for rejection of the"pet_ition.'~..
6. Having heard Advocates appearing for parties, I arn View that following poi1_its'jpare arises 'for"niy':c'on,sideration:
l. zl8:Ai'crevates an absolute 1 H bar .. 'for it ' the petition under Cr.P.C. when penal Vprovisionsl or-se_¢t1on 3 (1) (xi) of Scheduled " r_Castes_V and Scheduled Tribes (Prevention " of ._Atrocities) Act, 1989 is invoked by l' _ prosecution?
'\ZVE1ether in the facts and circumstances of " V the case, petition is liable to be dismissed or allowed by granting anticipatory bail'? Re-point No. 1:
Issue regarding jurisdiction of the Covurtiggto consider the petition or entertaining a peti_t:i"o'n.[u.nde_r4 Section 438 of Cr.P.C. was subjectgggmatteribyt Bench of this Court in the case (if T AND OTHERS V/S. STATESOE Kf1R1VATArv'K}§..p:reported if S. in ILR 2002 KAR 3303. -..Division'_:Ber'1ch was answering the refererioeg.,niad.e:, learned Single Judge who _had points for 1; 'S3 of Scheduled Castesandgg Sc:he_C1u.1'ed Tribes (Prevention "of' 1989, is a bar for entertain'ing. the petition under Section f 438 the Courts entertaining the under Section 438 of Cr.P.C. can meticulously examine the material on record and attempt to find out a prima facie case under the provisions of the Act at this stage? and
3. Whether only the High Court hast' ' jurisdiction to entertainiethe pe't'it'1on'_~ this nature filed under=__of Cr.P.C. excluding. _ the concliigrfdeint V jurisdiction of p ' Judge? ,' t. d'
7. The Divisif-or'i'-- analyzing the relevant provisions of considering the authorities cited":4at the the above referred ' a.» " do' concede that the bar 'consistently laid down the and various other Higl1._:Courts"-infgenuine cases which fall ajiunderu'"se~c-tron 3 of the Act, it would
--,__'cer.tainly not apply to situations in which :t1l_1v.e 'AV~l.prVovisions of the act have wrongly invoked or where the facts do not " _ justify it.
if The Court is required to address itself to it the simple question as to whether on a responsible judicial examination the C%(/"
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trial. The proposition made by learned HCGP with regard to a complaint lodged by a girl/lady whoa victim of alleged rape would stand on the sa;:'i'e«' of a complaint lodged as alleged inmthe fa,e't*sv-éioiin ph};inr,i "
wholly inapplicable and irrational for:
that apart from allegation there would be other mater_i_ai..:_like vefividence, medical certificate available on record to accept' or rejdect Such analogy cannot when provisions of Section Castes and Scheduled Act 1989 are invoked.
These provisions__ aregenacted with an intention to op'pre--s.sed caste which is used to be as "n:ot..as a sword and it would depend on facts of pcaisei. In that view of the matter, I am of the considered View that re-point No.1 formulated herein above is to be answered against the prosecution and in pV__favour of petitioners.
ck/to Srt Petitioners shall co--operate with appear before him when called uponato aipgjear». -- Petitioners shall appea.r.....b_e'fore_:' K"
Court on all the dates of=.Ahearinig.47,. ' l V Petitioners shall aTppea1°h..he~fore LO. once in fifteen'--,tl'ays i.."e.., 1?': of every month V_b€tVVCCI1_VVV:l"Q_.OQ a..rn'.' to p.m. till filing of theE*ha1Ege