Karnataka High Court
Vivek@Vivekanand S/O Shivasharanappa ... vs The State Of Karnataka And Anr on 23 October, 2020
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MRS.JUSTICE M.G. UMA
CRIMINAL PETITION No.200767/2020
BETWEEN:
1. Vivek @ Vivekanand
S/o Shivasharanappa Malipati
Age: 40 Years, Occ: Agriculture
R/o Village Belakota, Mahagaon
Tq. Kamalapur, Dist. Kalaburagi - 585313
2. Basavaraj S/o Shivappa
Age: 34 Years, Occ: Agriculture
R/o Near Sidrameshwar Temple
Kamalapur, Dist. Kalaburagi - 585313
3. Siddappa S/o Basavaraj Goni
Age: 40 Years, Occ: Agriculture
R/o H.No.10/96/1, Bus-Stand Road
Kamalapur, Dist. Kalaburagi - 585313
... Petitioners
(By Sri Mahadev S. Patil, Advocate)
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AND:
1. The State of Karnataka
Through Mahagaon Police Station
Tq. & Dist. Kalaburagi
(Representing by learned Addl.
State Public Prosecutor, High Court
of Karnataka at Kalaburagi - 585105)
2. Ramesh S/o Ranappa
Age: 42 Years, Occ: Law Practitioner
R/o Village Belakota
Tq. Kamalapur, Dist. Kalaburagi - 585 313
... Respondents
(Sri Sharanabasappa M. Patil, HCGP for R1;
R2 served through memo)
This Criminal Petition is filed under Section 438 of
Cr.P.C, praying to allow the bail petition by issuing
direction to the respondent police to release the petitioners
on bail in the event of their arrest in Crime No.81/2020 of
Mahagaon Police Station, Dist. Kalaburagi, pending on the
file of V Additional Dist. & Sessions Judge, Kalaburagi, for
the offences punishable U/Sec.323, 504, 506 R/w Sec.34
of I.P.C. R/w Sec.3(1)(r) of SC/ST (Prevention of
Atrocities) Act.
This petition coming on for Orders this day, the
Court made the following:
ORDER
The petitioners - accused Nos.1, 3 and 4 are before this Court seeking grant of anticipatory bail under Section 438 of Code of Criminal Procedure (for short, referred to as 3 'Cr.P.C.') and to enlarge them on bail in the event of their arrest in Crime No.81/2020 of Mahagaon Police Station, registered for the offences punishable under Sections 323, 504, 506 read with Section 34 of Indian Penal code (for short, referred to as 'IPC') and 3(1) (r) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (for short, referred to as 'the ST/ST (PA) Act'), on the basis of first information lodge by the informant Sri Ramesh.
2. Brief facts of the case are that the informant Ramesh lodged the first information on 29.08.2020 at 04- 00 p.m., against accused Nos.1 to 4 stating that on the previous night at 12 O'clock accused No.1 came and abused the informant in filthy language by referring to his caste. Again at 1 O'clock in the night, accused No.1 came with other accused and again abused the informant referring to his caste and criminally intimidated him. Accused No.1 has also assaulted the informant with hands, and kicked him with legs. Therefore, he requested the 4 police to register the case and to initiate legal action. Accordingly, the police registered the case and undertaken the investigation.
3. Heard Sri Mahadev S. Patil, learned counsel for the petitioner and Sri Sharanabasappa M. Patil, learned High Court Government Pleader for the respondent - State. Perused the materials on record.
4. Learned counsel for the petitioners submitted that the petitioners are the accused Nos.1, 3 and 4 and they have not committed any offences as alleged. Even though specific allegations are made against accused No.1, he has not committed any offences. The only allegation against accused Nos.3 and 4 is that they have accompanied accused No.1, while committing the offences. There is no specific overt act alleged against the petitioners. The offences alleged are not punishable either with death or imprisonment for life. They are the permanent residents of the address mentioned in the cause title of the petition and they are ready and willing to 5 abide by any of the conditions that will be imposed by this Court. Hence, he prays for allowing the petition.
5. Per contra, learned High Court Government Pleader submitted that serious allegations are made against the petitioners for having committed the offences. The provision of SC/ST (PA) Act is invoked and there is bar for grant of anticipatory bail. There petitioners are absconding since the date of registration of the case. Therefore he prays for dismissal of the petition.
6. Perused the materials on record in the light of the submissions made by both the parties. The first information lodged by the informant discloses that it was the accused No.1, who abused the informant under the influence of alcohol by referring to his caste at 12-00 O'clock in the mid night and again at 1-00 O'clock. At the time of these incidents, accused Nos.3 and 4 who are the petitioner Nos.3 and 4 were also with him. On perusal of the first information, it cannot be made out that accused Nos.3 and 4 have abused the informant by referring to his 6 caste or to contend that they have committed any offence under the special enactment. However, there is specific allegation made against accused No.1 who is petitioner No.1 herein for having committed the offences.
7. The learned counsel for the petitioners drawn my attention to the decision in Prathvi Raj Chauhan vs Union of India and others1, wherein the Hon'ble Supreme Court held as under:-
"10. Concerning the applicability of provisions of section 438 Cr.PC, 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."
"32. I would only add a caveat with the observation and emphasize that while considering any application seeking pre-arrest 1 AIR 2020 SC 1036 7 bail, the High Court has to balance the two interests: i.e. that the power is not so used as to convert the jurisdiction into that under Section 438 of the Criminal Procedure Code, but that it is used sparingly and such orders made in very exceptional cases where no prima facie offence is made out as shown in the FIR, and further also that if such orders are not made in those classes of cases, the result would inevitably be a miscarriage of justice or abuse of process of law. I consider such stringent terms, otherwise contrary to the philosophy of bail, absolutely essential, because a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament."
8. Therefore, the position of law is very well settled. On consideration of the allegations made in the first information, it is found that the general allegations are made against all the accused while making specific allegations against accused No.1. This cannot constitute prima facie case against these accused.
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9. In view of the above, I am of the opinion that accused No.1/petitioner No.1 is not entitled for grant of anticipatory bail, since there is specific allegation made against him. But petitioner Nos.2 and 3 / accused Nos.3 and 4 are entitled to be enlarge on bail, since no prima facie materials available against these petitioners for having committed the offences punishable under the SC/ST (PA) Act.
10. In view of the discussion held above, I proceed to pass the following:
ORDER The criminal petition is allowed in part.
The petition filed by petitioner No.1 - accused No.1 is dismissed.
The petition filed by petitioner Nos.2 and 3 - accused Nos.3 and 4 is allowed and they are granted anticipatory bail directing the investigating officer to release them on 9 bail in the event of their arrest in Crime No.81/2020 of Mahagaon Police station.
The petitioner Nos.2 and 3 are directed to appear before the Investigating Officer within 15 days from the date of receipt of this order and on their appearance, the Investigating Officer shall enlarge them on bail subject to the following conditions:-
a. The petitioner Nos.2 and 3 shall furnish the bond in a sum of Rs.1,00,000/-
(Rupees One Lakh only) each with two sureties for the likesum to the satisfaction of the Investigating Officer;
b. The petitioner Nos.2 and 3 shall not commit similar offences;
c. The petitioner Nos.2 and 3 shall appear before the Investigating Officer as and when required; and d. The petitioner Nos.2 and 3 shall not threaten or tamper the prosecution witnesses.
Sd/-
JUDGE RSP