Karnataka High Court
Sri. Sheik Sirajuddin @ Siraj Sheik vs State Of Karnataka on 5 September, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.A No. 1532 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5th DAY OF SEPTEMBER 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL APPEAL NO. 1532 OF 2023
BETWEEN:
SRI. SHEIK SIRAJUDDIN @ SIRAJ SHEIK
S/O SM KASIM, AGED ABOUT 68 YEARS,
OCC. POLITICIAN & EX-MLA,
R/AT.14TH WARD, KHB COLONY,
SANDUR, BELLARY,
KARNATAKA-583119.
... APPELLANT
(BY SRI. CHANDRAMOULI, SR. COUNSEL FOR
SMT. KEERTHANA NAGARAJ, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
BY THE POLICE OF HAGARI BOMMANAHALLI PS,
VISHAL VIJAYANAGARA DIST.-583212,
NINGAPPA R/BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA AT BENGALURU,
PATTIHAL KARNATAKA-560001.
Digitally signed by
VISHAL NINGAPPA 2. SRI. MANJUNATH SL. S/O SHETU NAIK,
PATTIHAL AGED ABOUT 32 YEARS,
Date: 2023.09.13 OCC. FARMER & CONGRESS PARTY WORKER,
12:26:48 +0530
R/AT. KALLAHALLI VILLAGE,
HOSAPETE TQ., VIJAYANAGARA DIST.,
KARNATAKA-583201.
... RESPONDENTS
(BY SRI. VENKAT SATYANARAYAN, HCGP FOR R1;
SRI. N.D. GUNDE, ADVOCATE FOR R2)
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CRL.A No. 1532 of 2023
THIS CRIMINAL APPEAL IS FILED U/S 14(A) (2) OF SC/ST
(POA) ACT, 2015 READ WITH SECTION 438 OF Cr.P.C. PRAYING TO
PASS AN ORDER SETTING ASIDE THE IMPUGNED ORDER
DT.19.08.2023, AND BE PLEASED TO PASS AN ORDER DIRECTIING
THE IO TO RELEASE THE APPELLANT ON ANTICIPATORY BAIL, IN
THE EVENT OF HIS ARREST IN CRIME NO. 0162/2023 OF HAGARI
BOMMANAHALLI PS, REGISTERED FOR THE OFFENCES PUNISHABLE
U/S.143, 147, 120B, 341, 354, 307, 109, 509, 504, 506, 149 OF IPC
1860, AND S. 3(1) (R) (S) AND 3(1) (W) (i) (ii), 3(2) (V) OF THE
SC/ST (POA) ACT, 1989, PENDING ON THE FILE OF THE LXXXI ADDL.
DIST. JUDGE COURT, BALLARI, IN THE INTEREST OF JUSTICE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMET ON 04/09/2023 AND COMING ON FOR PRONOUNCEMENT
OF ORDERS THROUGH VIDEO CONFERENCING AT DHARWAD BENCH,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The appellant/accused No.1 is before this Court seeking grant of anticipatory bail for it having been turned down by order dated 19th August, 2023 passed by the LXXXI Additional City Civil and Sessions Judge at Bengaluru in Criminal Miscellaneous No.7984 of 2023 arising out of Crime No.162 of 2023 registered for offences punishable under Sections 143, 147, 120B, 341, 354, 307, 109, 509, 504, 506, 149 of the IPC and Section 3(1)(r) & (s), 3(1) (w)(i)(ii), 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ('the Act' for short).
2. Brief facts are as follows:-
The 2nd respondent is the complainant and said to be maternal uncle of a former Member of Legislative Assembly of -3- CRL.A No. 1532 of 2023 Hagaribommanahalli Constituency. Certain flex banners were installed to welcome Mr. Zameer Ahmed, a cabinet minister for Housing, Wakf and Minority Welfare wherein the appellant's photo was not included. This gave rise to a squabble between the two groups - for and against the appellant. On 12-08-2023 at about 11.00 a.m. near the Railway gate of Vijayanagar District about 150 people gathered when the appellant arrived along with Mr. Zameer Ahmed. At that point in time certain abuses were hurled against the 2nd respondent's maternal uncle one Mr. Bhimanaik and it is further alleged that the appellant had abused a woman present at the occasion and had made certain gestures which were considered to be obscene.
3. On the same day, when the meeting was taking place at the Junior College premises, the appellant is said to have addressed a group of party workers and others who had gathered there where in certain remarks against Bhimanaik were made. It is alleged that the 2nd respondent finally comes to the spot when the appellant is alleged to have attempted to strangulate him. Accordingly, the criminal law is set in motion by registering the crime in Crime No.162 of 2023 for the afore- quoted offences. An attempt was made to challenge the said -4- CRL.A No. 1532 of 2023 registration of crime in a petition filed before this Court under Section 482 of the CrPC which was withdrawn to pursue the petition under Section 438 of the CrPC. By then, the concerned Court had also rejected the Criminal Miscellaneous Petition filed by the appellant in Criminal Miscellaneous No.7984 of 2023 on the score that there was a prima facie case made out against the appellant and Section 18 of the Act would be a bar for grant of anticipatory bail. The petition seeking such anticipatory bail comes to be rejected. The rejection of anticipatory bail by the concerned Court is what has driven the appellant to this Court in the subject appeal.
4. Heard learned senior counsel Sri M.S. Chandra Mouli appearing for the appellant and the learned senior counsel Sri Ravi Varma Kumar representing the respondent/complainant and learned Government Pleader Sri. Venkat Satyanarayan for respondent No.1.
5. The learned senior counsel for the appellant would submit that grant of an anticipatory bail in a case where there is no prima facie material against the appellant, he ought to have been granted such bail and since there is no prima facie -5- CRL.A No. 1532 of 2023 case made out, the bar under Section 18 of the Act would not become applicable to the case at hand. He would further contend that the appellant could be put on stringent conditions for grant of anticipatory bail. He would further seek to contend that the complaint is a well drafted document whereby it is projected that there has been a grave offence committed by appellant. It is his contention that such projection in the complaint should not weigh in favour of the complainant to reject the anticipatory bail of the appellant.
6. On the other hand, the learned senior counsel for the respondent/complainant Sri Ravi Verma Kumar would refute the submissions to contend that every one of the offences under the provisions of the Act that is alleged against the appellant are present in the case at hand. The abuses are hurled in broad day light in front of 150 people taking the name of the caste of the complainant which is without doubt intentional. In such cases, the bar under Section 18 of the Act would operate and even this Court cannot grant anticipatory bail to the appellant. It is for him to surrender and then seek regular bail.
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7. I have given my anxious consideration to the submissions made by the respective learned senior counsel and have perused the material on record.
8. The offences alleged against the appellant under the Act are under Sections 3(1)(r)&(s), 3(1)(w)(i)(ii) and 3(2)(v). The primary offence alleged is under Section 3(1)(r) & (s). It reads as follows:
3. Punishments for offences of atrocities.--
[(1) Whoever, not being a member of a Scheduled 7 Caste or a Scheduled Tribe,--
... .... ...
(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;
... ... ..."
Section 3(1)(r) would require the abuses to be hurled in a public place and Section 3(1)(s) in a place of public view. Whether the complaint by the 2nd respondent would meet the ingredients of those offences is required to be noticed. The complaint is in great detail. The complaint narrates minute -7- CRL.A No. 1532 of 2023 happenings on the said date and to the abuses that are hurled against the complainant taking the name of the caste as also attempt to strangulate the complainant. The maternal uncle of the complainant was an ex-member of the Legislative Assembly. Squabble arose between the followers of the ex- member of the legislative assembly and the appellant on the photograph of the appellant not being displayed in the flex board that was exhibited to receive the District in-charge Minister. For grant of an anticipatory bail section 18 of the Act places an embargo and though it is not an embargo that is inflexible, it would depend upon prima facie being made or not in an offence alleged under the Act. Section 18 of the Act reads as follows:
"18. Section 438 of the Code not to apply to persons committing an offence under the Act.-- Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.
Section 18 of the Act has been interpreted by the Apex Court in a challenge to its vires in PRATHVI RAJ CHAUHAN v. UNION OF INDIA - (2020) 4 SCC 727 wherein it is held as follows:
"11. Concerning the applicability of provisions of Section 438 CrPC, it shall not apply to the cases under -8- CRL.A No. 1532 of 2023 the 1989 Act. However, if the complaint does not make out a prima facie case for applicability of the provisions of the 1989 Act, the bar created by Sections 18 and 18-A(i) shall not apply. We have clarified this aspect while deciding the review petitions.
... ... ...
33. I would only add a caveat with the observation and emphasise that while considering any application seeking pre-arrest 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."
The issue that arose was whether the bar under Section 18 of the Act was valid. The validity is upheld save in circumstances where there is no prima case even made out in the complaint. A perusal at the complaint and the materials in the complaint would clearly narrate every one of the ingredients being present in the incident that has happened on 12-08-2023. It may have been well drafted complaint. Nonetheless it is a complaint that contains prima material against the accused/appellant. Therefore, the bar under Section 18 would operate and it is for the appellant to appear before the -9- CRL.A No. 1532 of 2023 concerned Court, surrender and seek regular bail under Section 439 of the CrPC.
9. A perusal at the impugned order by which the concerned Court rejects the anticipatory bail does not suffer from any legal infirmity as it is backed by cogent reasons. Though for rejection of an anticipatory bail the elaboration with which the concerned Court has passed the order would not be required, the arguments advanced before the concerned Court have resulted in the order being elaborate. The reason so rendered by the concerned Court can be gathered at paragraph 15 which reads as follows:
"15. To sum up the averments made in the complaint would indicate that on the aforesaid date the complainant who knew about the caste of the complainant as well as his maternal uncle Sri Bhim S Naik that they belonged to Scheduled Caste had abused them in filthy language by taking the name of his caste and also it is noticed from the complaint that the abuses were hurled in public view within the notice of the general public and in particular near Junior College of Hagaribommanahalli wherein it was specifically stated that the complainant and his uncle belonged to Banjara Community and they were not having any roots in their tribe and also he had abused them by making utterance amounting towards of sexual nature towards woman belonging to Scheduled Caste and also had intended to assault the complainant and strangulate him by abusing with filthy wards attracting the rigors of the SC/ST (POA) Act. The other aspect of existence of political rivalry being the motive for lodging the complaint is a matter which is required to be considered only on culmination of investigation and with respect to the news paper reports and other complaint being lodged by the complainant's maternal uncle against the accused persons for not supporting him in the general election is also a matter which requires consideration in
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the subsequent stage. At this stage, the court has only appreciated the existence or otherwise of prima facie case. Since a prima facie case is made out, the authorities which is relied upon by the learned senior counsel is not relevant to the facts of the above case. As such the bar under Section 18 of the Act is attracted which disables the petitioner from seeking anticipatory bail. However, it is made clear that the aforesaid observations are made only to ascertain the existence of prima facie case. Under these circumstances, the point No.1 is answered as negative and sequentially, I proceed to pass the following:
ORDER The bail application filed under Section 438 is hereby dismissed."
In so far as the judgment relied on by the learned senior counsel for the appellant in the case of MANIVANNAN v. DEPUTY SUPERINTENDENT OF POLICE - Crl.O.P.(MD) No.1201 of 2023 decided on 23-01-2023 rendered by the High Court of Madras would not be applicable to the fact situation. Therefore, it need not bear any consideration.
10. For the aforesaid reasons, I pass the following:
ORDER The appeal stands rejected. The appellant is at liberty to move the concerned Court for grant of regular bail on his surrender.
Sd/-
JUDGE Kmv Ct:Bck