Karnataka High Court
Anil Patil And Anr vs The State on 23 July, 2020
Author: P.N.Desai
Bench: P.N.Desai
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF JULY, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.N.DESAI
CRIMINAL PETITION No.200386/2020
BETWEEN:
01. ANIL PATIL S/O NAGSHETTY
AGE: 42 YEARS OCC: AGRICULTURE/BUSINESS
R/O: CHIDRI VILLAGE, BIDAR
TQ & DIST: BIDAR-584 101.
02. HANMANTH S/O DASHRATH
AGE: 38 YEARS OCC: LABOUR
R/O: SATOLI VILLAGE
TQ & DIST: BIDAR - 584 101.
...PETITIONERS
(BY SHRI ANIL KUMAR NAVADAGI, ADVOCATE)
AND:
01. THE STATE THROUGH
GANDHI GUNJ POLICE STATION
TQ & DIST: BIDAR
BY THE ADDL. SPP, HIGH COURT OF KARNATAKA
KALABURAGI BENCH - 585 103.
02. ANILKUMAR S/O MARUTI RAO
AGE: 30 YEARS OCC: NIL
R/O: KEB COLONY, CHANDAPUR
TQ: CHINCHOLI DIST: KALABURAGI
PRESENTLY R/O: CHIDRI, BIDAR
TQ & DIST: BIDAR-585401.
... RESPONDENTS
(BY SRI S. M. PATIL, HCGP FOR R1)
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THIS PETITION IS FILED UNDER SECTION 438
OF CRIMINAL PROCEDURE CODE PRAYING TO
ALLOW THE PETITION AND GIVE A DIRECTION TO
THE RESPONDENT GANDHI GUNJ POLICE STATION,
BIDAR OF DIST: BIDAR TO ENLARGE THE
PETITIONERS ON BAIL IN THE EVENT OF THEIR
ARREST IN CRIME NO.86/2020 OF GANDHI GUNJ
POLICE STATION BIDAR OF DIST: BIDAR
REGISTERED FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 323, 504, 506, 342 AND 324 READ
WITH SECTION 34 OF INDIAN PENAL CODE AND
SECTIONS 3 (1) (r) AND 3 (2) (v-a) OF SC/ST P.A. ACT,
WHICH IS NOW PENDING ON THE FILE OF ADDL.
DIST. AND SESSIONS COURT, BIDAR.
THIS PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
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ORDER
The petitioners have filed this petition under Section 438 of Code of Criminal Procedure seeking grant of anticipatory bail in Crime No.86/2020 of Gandhi Gunj Police Station, Bidar for the offences punishable under Sections 323, 504, 506, 342 and 324 read with Section 34 of Indian Penal Code and Sections 3 (1) (r) and 3 (2) (v-a) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred as "the S.C. and S.T. (P.A.) Act, 1989).
02. The brief contention of the petitioners is that complaint was lodged by one Anilkumar alleging that he was staying as a tenant in the house of petitioner No.1. It is further alleged that on 14.05.2020 at 09.35 p.m. complainant was assaulted by his owner infront of a police constable. It is further alleged that on 15.05.2020 at 10.00 p.m. his owner and his wife-Vijayalaxmi called 4 him to their house but he refused. After repeated calls by them, he went to the house of their owner, wherein petitioner No.1, his brother-in-law and one Muslim person were consuming liquor. Petitioner No.1 abused the complainant by taking his caste and assaulted him with a Karate Lanch. The brother-in-law of petitioner No.1, assaulted the complainant on his face with a fist and Muslim person kicked him on his testicles. His wife came there and tried to rescue him. The complainant ran away from the said place. Complainant then came to his house, but accused chased him and assaulted and sent out of the house. The complainant called 108 Ambulance and his wife was at the house of accused only and when the complainant went to call his wife, the house was locked and wife was wrongly confined inside the house of the petitioner No.1 for two days. The complainant got admitted himself in the Hospital. On 16.05.2020, petitioners threatened his wife to go before the PSI and asked her to give a statement in writing to 5 the effect that, there was no assault on the complainant nor they were abused by taking his caste. So, wife of the complainant visited the complainant in the Hospital after two days and narrated about her ordeal to the complainant. So, the complainant has lodged the complaint on 22.05.2020. On the basis of complaint, the police have registered the case in Crime No.86/2020 at Gandhi Gunj Police Station, Bidar for the aforesaid offences.
03. The learned counsel for the petitioners contended that the learned Additional District and Sessions Judge, at Bidar has rejected the anticipatory bail petition. So, petitioners have filed this petition on the ground that the allegations made in the complaint against the petitioners are absolutely false, baseless, highly motivated. There is no prima-facie material is made out against the petitioners to bring the case within the ambit of Section 3 (1) (r) (v-a) of the S.C. and S.T. (P.A.) Act, 1989. In fact the complainant is a tenant 6 in the house of petitioner No.1. Whenever petitioner No.1 asked for the rent of the house and asked to vacate the house for non-payment of arrears of rent, the complainant managed this incident and filed false and frivolous complaint to harass the petitioners and their family members. The complainant has got admitted himself in the Hospital for Superficial injuries, which he got inflicted on himself to create an incident. So, there is a delay in lodging the complaint. The petitioners are permanent resident of Bidar District and they have got their respective families and own movable and immovable properties and they have got deep roots in the society. The petitioners are ready to offer sureties. The petitioners are ready and willing to abide by any conditions. So, with these main grounds, the petitioners prayed to allow the petition.
04. Per contra, the learned High Court Government Pleader has filed objections contending that the offences are heinous in nature. The 7 complainant belongs to scheduled caste and he is the tenant under petitioner No.1. Despite being aware of the complainant's caste, the petitioners have intentionally abused and assaulted the complainant. It is further contended that when there is Section 18A of the S.C. and S.T. (P.A.) Act, 1989 clearly bars the application of under Section 438 of Code of Criminal Procedure Code, the petitioners are not entitled for anticipatory bail. If the petitioners are released on bail there is likelihood of tampering the prosecution witnesses and hampering the trial. Accordingly, the High Court Government Pleader prayed to reject the petition.
05. Heard Sri. Anil Kumar Navadagi, learned counsel for the petitioners and Sri. S. M. Patil, the learned High Court Government Pleader appearing for respondent - State. Perused the material produced before the Court.
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06. On perusing the complaint, FIR, petition and objections filed by the High Court Government Pleader it is evident that the learned Additional District and Sessions Judge, at Bidar rejected the anticipatory bail petition only on the ground that in view of decision of the Hon'ble Supreme Court in the case of Prithhviraj Chawan vs Union of India, when Section 18-A of the S.C. and S.T. (P.A.) Act, 1989 clearly bars application of 438 of Code of Criminal Procedure to a case registered for the offence under the provisions of the said Act, the petition is not maintainable.
07. The arguments advanced by the learned High Court Government Pleader that there is a bar under Section 18-A of the S.C. and S.T. (P.A.) Act, 1989 to consider the application under Section 438 of Criminal Procedure Code does not hold good, in view of the Hon'ble Supreme Court clarifying the applicability of Section 438 of Code of Criminal Procedure in the case of 9 Prithviraj Chawan vs. Union of India, reported in AIR 2020 Supreme Court 1036: AIR Online 2020 SC 225 (2020 SCC ONLINE SC 159). The Hon'ble Supreme Court considered its earlier decision in the case of Dr. Subhash Kashinath Mahajan vs State of Maharastrha reported in (2018) 6 SCC 454, wherein the said decision is nullified not only in review but also by the parliamentary Amendment Act 27/2018 w.e.f., 20.08.2018. The Apex Court in Prathvi Raj Chauhan vs. Union of India, having surveyed the law including the amendment mentioned above has observed at Paragraph No.10 as under:-
"Concerning the applicability of provisions of Section 438 Cr.P.C, 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".10
08. Thus, the right to Advance Bail otherwise availing to a person under Section 438 of Cr.P.C. cannot be defeated by merely and mechanically invoking Section 18 and 18(A) of the Atrocities Act; the complaint needs to disclose a prima-facie case for invoking its charging provisions; the version of the police as to invocability of the charging provisions of the Act may not always have presumptive value; courts need to scrutinize police view, keeping in mind the realities of life; the case made out by the petitioners falls within the above dicta of the Apex Court.
09. The charging provisions of the Atrocities Act namely, Section 3 (1) (r) and (s) read as under:-
"(r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;
(s) abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view."11
10. The Section 3(2)(v) of the S.C. and S.T. (P.A.) Act, 1989 which reads as under:-
"(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property (knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member), shall be punishable with imprisonment for life and with fine".
11. The said provision is not invokable since the IPC offences alleged against the petitioners apparently do not attract the punishment of imprisonment for ten or more years.
12. Lastly, the other acts alleged against the petitioners may amount to offences punishable under Sections 323 and 506 of Indian Penal Code; these offences are not punishable with death or life imprisonment.
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13. According to the materials placed before this Court, the complainant is the tenant under petitioner No.1. So, learned counsel for the petitioners contended that if the petitioner No.1 has got any bad intention or hatredness about Scheduled Castes or Scheduled Tribes he would not have given the house on rent to the complainant who belongs to SC/ST Caste. So, that itself indicates that he has no such intention to humiliate any such caste. When he has given his house on rent to the complainant though complainant belongs to SC/ST Caste, that itself indicates that he has no intention to humiliate such caste. It is also evident that as per FIR, the alleged incident has taken place on 14.05.2020 and 15.05.2020. The FIR came to be registered on 22.05.2020 and it was sent to the Court on 23.05.2020. So, there is a long delay in lodging the FIR. Even on perusing the FIR, it is alleged that on 14.05.2020 there was assault on the complainant infront of police constable. If at all there was assault on him infront of 13 police constable, why the police did not take any action?. Even on perusing the complaint, it appears that the said incident had taken place in the house of the complainant, but not in a public view or any public place with public view. The other offences are under Sections 323, 504, 506, 342 and 324 read with Section 34 of Indian Penal Code and none of the offences are punishable with death or imprisonment for life. On the other hand, it is contention of the petitioners that, as the complainant was not paying the rent and petitioners asked the complainant to vacate the house for non- payment of arrears of rent of the house, this false case came to be filed. Admittedly, the medical report was not produced by the prosecution to show that what is the nature of the injuries. The complainant was admitted in the Hospital on 15.05.2020. On perusing FIR, it is mentioned that on 16.05.2020 the police have received MLC from the Bidar Hospital. So, the head constable visited the Hospital. But according to this endorsement 14 the complainant told police that he would go police station only after taking treatment. So, he has taken treatment up to 22.05.2020. Then he telephoned the police and called them to come and record his statement. So, the Investigating Officer has recorded his statement. This type of narration appears to be most unnatural and raises lot of suspicious about veracity of this complaint. Why police acted as per direction of complainant to register the case as and when he wishes is very strange. Because, it is the duty of the police to register the FIR if they received the credible information about commission of cognizable offence immediately. So, looking to the contents of the petition, nature of objections, relationship between the petitioners and complainant and also nature of offences alleged against the complainant, in my considered view there are no prima-facie materials before the Court, at this stage to hold that petitioners are guilty of the offences punishable under Sections 3 (1) (r) and 3 (2) (v-a) of the 15 S.C. and S.T. (P.A.) Act, 1989. The other offences under Indian Penal Code are not punishable with death or imprisonment for life.
14. It is settled principle of law that bail is a rule and rejection is an exception. While granting or rejecting the bail application, the Court will have to take into consider, (1) the nature and seriousness of the offence, (2) character of the accused, (3) circumstances which are peculiar to accused, (4) reasonable probabilities of presence of the accused not being secured at trial, (5) reasonable apprehension of witnesses being tampered with and (6) larger interest of public or the state and similar other considerations, which arise when a court is asked to admit the accused to bail in a non-bailable offence. The apprehension of the prosecution can be meted by imposing stringent conditions on the petitioner.
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15. Hence, keeping in mind the above settled principles, in my considered view the petitioners are entitled to be enlarged on anticipatory bail. Accordingly, I proceed to pass the following...
ORDER The petition filed by the petitioners under Section 438 of Code of Criminal Procedure is allowed.
Consequently, the petitioners by name (1) Anil Patil s/o Nagashetty R/o: Chidri Village Tq & Dist: Bidar and (2) Hanmanth s/o Dashrath R/o: Satoli Village Tq & Dist: Bidar, is ordered to be enlarged on anticipatory bail in the event of their arrest in connection with Crime No.86/2020 of Gandhi Gunj Police Station, Bidar for the offences punishable under Sections 323, 504, 506, 342 and 324 read with Section 34 of Indian Penal Code and Sections 3 (1) (r) and 3 (2) (v-a) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 by executing a self bond for Rs.50,000/- each with a surety for the likesum, on the following conditions. 17
i) The petitioners shall not try to tamper the prosecution witnesses directly or indirectly.
ii) The petitioners shall surrender before the concerned police or Investigating Officer within fifteen days from the date of this order and the Investigating Officer shall complete the investigation as expeditiously as possible and on completion of interrogation and recovery of material objects if any, then the petitioner shall be released on bail by the Police on the terms and conditions mentioned in this order.
iii) The petitioners shall not commit similar offences of which they are accused or commission of which they are suspected.
iv) The petitioners shall appear before the Station House Officer of Gandhi Gunj Police Station, Bidar and mark their attendance once in a fifteen days for a period of three months or till filing of charge sheet whichever is earlier.
Sd/-
JUDGE KJJ