Karnataka High Court
Sri.Maruti S/O Gangaram Dhangar vs The State Of Karnataka on 16 September, 2020
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16 T H DAY OF SEPTEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION NO.100784 OF 2020
BETWEEN
1. SRI.MARUTI S/O GANGARAM DHANGAR
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: GOULIWADA, GULLALIGRAM,
TQ: KHANAPUR, DIST: BELAGAVI-591345
2. SRI.JANU S/O JANBHA DHANGAR
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: GOULIWADA, GULLALIGRAM,
TQ: KHANAPUR, DIST: BELAGAVI-591345
3. SRI.ANANT S/O JANBA DHANGAR
AGE: 20 YEARS, OCC: AGRICULTURE,
R/O: GOULIWADA, GULLALIGRAM,
TQ: KHANAPUR,DIST: BELAGAVI-591345.
... PETITIONERS
(BY SMT.NAGARATHNA S. PATTAR, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
THROUGH KHANAPUR POLICE STATION,
R/BY STATE PUBLIC PROSECUTOR,
HIGH COURT BENCH, DHARWAD.
2
2. SMT. TEJASWINI W/O TANAJI NAYAK
AGE:29 YEARS, OCC: HOUSEHOLD,
R/O AMTE VILLAGE, TAL:KHANAPUR,
DIST: BELAGAVI-591345.
... RESPONDENTS
(BY SMT.SEEMA SHIVA NAIK,HCGP FOR R1)
(RESPONDENT NO.2- NOTICE SERVED)
THIS CRIMINAL PETITION IS FILED U/SEC.438 OF
CR.P.C., PRAYED TO ALLOW THE PETITION, THE
PETITIONER MAY PLEASE BE RELEASED ON ANTICIPATORY
BAIL, IN KHANAPUR POLICE STATION ITS CRIME
NO.56/2020 FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 304, 202 OF IPC AND SECTION 3(2)(va), SC/ST
ACT 2015, SEC.25 OF INDIAN ARMS ACT.
THIS CRIMINAL PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the petitioners-accused Nos. 6 to 8 under Section 438 of Cr.P.C. seeking bail in Crime No.56/2020 of Khanapur Police Station registered for the offence punishable under Sections 304, 202 of IPC and 3 Section 3(2)(va), SC/ST Act, 2015 and Section 25 of Indian Arms Act.
2. The case of the prosecution is that one Tejaswini Tanaji Naik of Amate Village in Khanapur Taluk has filed complaint and in the said complaint, she stated that she is residing with other family members at Amate Village and they are having landed properties and are doing agricultural work. On 10.03.2020 at about 4 p.m. the mother-in-law of the complainant went for grazing the cattle to their land and while grazing, the cattle went in the forest and they have searched for the cattle but not traced out and she returned to her house. On 11.03.2020 at about 9 a.m. early in the morning once again the complainant's relatives went in for searching the cattle and the complainant went for washing the clothes at the nearby lake. At that time, one Dhondu Nayak has told that the complainant's husband is attached by bear and Devidas Rajaram Gaonkar informed the same to him. So, the complainant returned home and the people gathered 4 infront of her house and the complainant along with others went to the forest and observed her husband's body was lying in the forest and he sustained injury on his right ear, forehead and on the backside and he died. At that time it was 3 p.m. The complainant filed complaint and the same is registered in Crime No.56/2020 of Khanapur Police Station. And case came to be registered UDR and later the complainant learnt that her husband has been murdered and also coming to know that some bullets found in his body as per say of the doctor and the village people were also talking about the genuineness of the murder of her husband deceased Tanaji. It is further alleged that her husband was accompanying Accused No.1-Devidas Rajram Gaonkar, Accused No.2-Santosh Soma Gaonakar, accused No.3-Vitthal Ganapati Naik, accused No.4-Rama Ganapati Naik and Accused No.5-Prashant Sutar and some others and for unknown reason they have killed her husband and with an intention to suppress the genuine fact they have blocked the body and creates a false story that bear had 5 attacked her husband. The complainant requested the Police to take action against the above said accused. Police registered the case and arrested the accused Nos.1 to 5. The Police suspected that the present petitioners- accused Nos.6 to 8 have also accompanied accused Nos.1 to 5 and searching them. Therefore, the petitioners- accused Nos.6 to 8 filed application seeking anticipatory bail and the same came to be rejected by III Addl. District and Sessions Judge, Belagavi. Therefore, the petitioners are before this Court seeking anticipatory bail.
3. Heard the learned counsel for the petitioners- accused Nos.6 to 8 and learned HCGP for respondent- State.
4. It is the submission of the learned counsel for the petitioner-accused Nos.6 to 8 that complaint came to be filed on 11.03.2020 against unknown persons for unknown reasons and it is registered in UDR. It is her further submission that only during the postmortem examination of the dead body it was noticed by the doctor that there 6 are bullets found on the body and therefore, the complainant again filed complaint against accused Nos.1 to
5. It is her further submission that accused Nos. 1 to 5 came to be arrested on 15.03.2020 and Investigating Officer has recorded the voluntary statement of accused No.1 wherein he has stated the involvement of accused Nos.6 to 8 and therefore, the Investigating Officer has inserted the names of accused Nos.6 to 8 who are the petitioners herein in the charge sheet. After investigation Investigating officer has deleted Sections 302, 201 of IPC and inserted Section 304, 202 of IPC and Section 25 of the Indian Arms Act. It is her further submission name of the petitioners is not mentioned in the complaint and the FIR and it is only mentioned in the charge sheet. It is her further submission that on looking to the entire charge sheet, it is only the allegation that the accused Nos.6 to 8 who are petitioners herein have accompanied accused Nos.1 to 5 and no overt act is alleged against them. The only allegation made against accused Nos.6 to 8 is that 7 they went along with accused Nos.1 to 5 and shifted the dead body and placed under a tree. It is her further submission that the petitioners are from Gullali village and deceased is from Amate village and they are not aware of the caste of the deceased and therefore the provisions of Section 3(2)(va) of SC/ST Act 2015 is not attracted. It is her further submission that when there is no prima facie case under a provision of SC/ST (POA) Act, the court can grant anticipatory bail as held by Hon'ble Apex Court in the case of Prathvi Raj Chauhan Vs. Union of India and others reported in AIR 2020 SC 1036. With this she prayed to allow the petition.
5. Per contra, the learned HCGP contended that petitioners have gone for hunting with accused Nos.1 to 5 and hunting is illegal act. It is her further submission that accused No.1 shoots and the bullet enters the body of the deceased and thereafter the petitioners along with accused Nos.1 to 5 shifted the dead body from the spot and caused disappearance/screening of the evidence. It is her further 8 submission that the deceased belong to Schedule Caste and therefore Provision under Section 3(2)(va) of SC/ST act 1989 is attracted and there is a bar under section 18 and Section 18(a) of SC/ST(POA) Act for grant of anticipatory bail. With this she prays to reject the anticipatory bail application.
6. Having regard to the submission made by the learned counsel for the petitioners-accused Nos.6 to 8 and the learned HCGP, this Court has gone through the charge sheet records.
7. In Siddharam Satlingappa Mhetre v. State of Maharashtra reported in AIR 2011 SC 312, the Hon'ble Supreme Court after analyzing various previous judgments and guidelines, has enumerated the following factors and parameters that can be taken into consideration by courts while dealing with the anticipatory bail:
(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;9
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused's likelihood to repeat similar or other offences;
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(vii) The courts must evaluate the entire available material against the accused very carefully.
The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of sections 34 and 149 of the Penal code, 1860, the court should consider with even greater care and caution because over-implication in the cases is a matter of common knowledge and concern;
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(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be
considered and it is only the element of
genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
8. On looking to the accusations made in the charge sheet, the deceased and the accused Nos.1 to 9 went to forest area for hunting wild animals, the deceased Tanaji fired at a bear and thereafter it attacked him and at that time the accused No.1 fired at bear to save the deceased and the said gun shot hit the deceased and he died. 11 Thereafter, accused Nos.1 to 9 shifted the body from the said spot and placed it under the tree to show that he died of attack by bear and committed offence under sections 304, 202 IPC and Section 25 of the Indian Arms Act,1959. No overt acts are alleged against the petitioners-accused Nos.6 to 8. The only allegation is that they accompanied other accused and deceased for hunting and after death of deceased Tanaji, petitioners and other accused shifted the dead body from the spot and placed it under a tree to cause disappearance/screening of the evidence. Therefore, there is no role of the petitioners-accused Nos.6 to 8 in the death of deceased Tanaji.
9. Deceased Tanaji was belonging to Hindu Bedara caste. Therefore, the prosecution has invoked offence under Section 3(2)(va) SC/ST (POA)Act, 1989. The petitioners-accused Nos.6 to 8 are from Gullai village and they are not aware of the caste of the deceased who is from Amate village. Section 3(2)(va) SC/ST (POA)Act, 1989 is attracted if any offence under IPC is committed 12 with imprisonment for a term of ten years are more against the person knowing that such person is a member of Schedule Caste or Schedule Tribe. Petitioners are not aware of the caste of the deceased Tanaji. Therefore, there is no prima facie case against the petitioners- accused Nos.6 to 8 for the offence under Section 3(2)(va) SC/ST (POA)Act, 1989. In the case of Prathvi Raj Chauhan(supra), the Hon'ble Apex Court has observed at paragraph No.10 as under:
"Concerning the applicability of provisions of Section 438 of Cr.P.C., it shall not apply to the cases under Act of 1989. However, 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."
10. The charge sheet does not make out a prima facie case for applicability of the provisions of SC/ST(POA) Act, 1989. Therefore, the bar created under Section 18 and 18A(i) shall not apply. The main objection of the 13 prosecution is that in the event of grant of anticipatory bail, petitioners are likely to cause threat to the complainant and other prosecution witnesses and flee from justice and the said objection may be set right by putting some stringent conditions.
11. In the facts and circumstances of the case and submission of the counsel, this Court is of the view that there are valid grounds for grant of anticipatory bail subject to certain terms and conditions. Hence, I pass the following:
ORDER Criminal petition filed under Section 438 of Cr.P.C. is allowed. In the event of arrest, petitioners/accused Nos.6 to 8 are ordered to be released on bail in connection with Crime No.56/2020 of Khanapur Police Station with the following conditions:
I. Petitioners shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh Only) each with 14 one surety for the like sum to the satisfaction of the Investigating Officer/Court.
II. Petitioners shall surrender before the Investigating Officer/Court within fifteen days from today.
III. The petitioners shall not directly or indirectly make any inducement, threat or promise to any witness acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police Officer.
IV. The petitioners shall not obstruct or hamper the Police investigation and not to play mischief with the evidence collected or yet to be collected by the Police.
Sd/-
JUDGE Hm b