Karnataka High Court
Abdul Kareem S/O Iftekar Hussain vs The State Of Karnataka on 17 February, 2020
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL PETITION NO.201564/2019
Between:
Abdul Kareem
S/o Iftekar Hussain
Age: 35 years, Occ: Business
R/o Yadgiri, Tq. & Dist: Yadgiri-585202
... Petitioner
(By Sri Sanjay A. Patil, Advocate)
And:
The State of Karnataka
Through Police, Town Police Station
Yadgiri
Dist: Yadgiri-585202
Represented by
Addl. State Public Prosecutor
High Court of Karnataka
Kalaburagi Bench-585107
... Respondent
(By Sri Mallikarjun Sahukar, HCGP)
This Criminal Petition is filed under section 438 of
Cr.P.C. praying to allow the petition thereby directing the
Crl.P.No.201564/2019
2
respondent police/Yadgiri Town Police Station, Dist.
Yadgiri, to enlarge the petitioner on bail in the event of his
arrest in connection with Crime No.95/2019 registered for
the offences punishable under sections 143, 147, 341,
323, 109, 504, 506 read with section 149 of IPC and
section 3 (1) (r) (s) of SC/ST (Prevention of Atrocities Act,
1989) as per FIR (now pending on the file of District and
Sessions Court, Yadgir).
This petition coming on for orders this day, the Court
made the following:
ORDER
The petitioner has sought for anticipatory bail under section 438 of Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as 'Cr.P.C.') in Crime No.95/2019 of Yadgiri Town Police Station, registered for the offences punishable under sections 143, 147, 341, 323, 109, 504, 506 read with section 149 of Indian Penal Code, 1860 (hereinafter for brevity referred to as 'IPC') and sections 3 (1) (r), 3(1) (s) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989 (hereinafter for brevity referred to as 'SC/ST Act'). Crl.P.No.201564/2019 3
2. The summary of the complaint lodged by one Sri Tulasiram S/o Tukaram Rathod before the respondent - Police on 20.11.2019 is that on 15.11.2019 at about 6.00 a.m., when he being the driver of a lorry bearing Reg.No.KA-33 A 9763 along with one Vinod who was said to be the cleaner of the said lorry were proceeding taking the said lorry near Don Bosco School, Yadgir, few persons came in a car and in two motor cycles and restrained this lorry from proceeding further. When questioned by the complainant, they disclosed their identity as Abdul Kareem, President of Tippu Sultan Sangha, Yadgiri, Abdul Kareem Nalvari and Saddam Hussain. However, the persons who came in the motor cycle did not disclose their identity.
Those people, after coming to know the identity of the complainant as Tulasiram Rathod, who was driving the lorry and also after coming to know that Crl.P.No.201564/2019 4 said Tulasiram Rathod was working for his employer Sri Narendra Rathod, a businessman in rice, abused the driver taking the name of his caste as Lamani and called him a son of bitch and warned him to caution his employer/master that he should not do business in rice. The complainant has further stated that when the police were summoned to the spot after telephoning them, they took the lorry along with the complainant to the station and registered a case against the driver of the lorry in their Crime No.93/2019 for the offences punishable under sections 3 and 7 of Essential Commodities Act and under section 465 of IPC. The complainant has further stated that since he was sent to the jail in the said Crime No.93/2019, he could not lodge the complaint immediately, as such, after coming out from the jail he has lodged the complaint. The said complaint was registered against the present petitioner and three Crl.P.No.201564/2019 5 more accused for the offences punishable under sections 143, 147, 341, 323, 109, 504, 506 read with section 149 of IPC and sections 3 (1) (r) and 3 (1) (s) of SC/ST Act.
3. Learned counsel for the petitioner, in his argument, submitted that a reading of the complaint in its entirety, nowhere go to show that the accused had ever intended to insult either the complainant or his master because they belong to a particular caste which is said to be falling under Scheduled Caste category. Even according to the complainant, it is only an alleged business rivalry which is said to have resulted into some altercation. However, the inordinate delay in lodging the complaint clearly go to show that since the complainant was arrested in Crime No.93/2019 of the respondent - Police under the Essential Commodities Act, as a revenge, a false complaint has been lodged against the petitioner. In Crl.P.No.201564/2019 6 such a circumstance, the petitioner deserves his enlargement on anticipatory bail. He also submits that co-accused nos.2 to 4 have already been enlarged on the relief of anticipatory bail by the jurisdictional Sessions Court.
4. Learned High Court Government Pleader, while reiterating the contentions taken up by him in his statement of objections, submitted that in view of the bar under section 18A of the SC/ST Act, the petitioner does not deserve to be enlarged on the relief of anticipatory bail. However, he concedes that other three accused in this crime have already been enlarged on the relief of anticipatory bail.
5. Sections 18 and 18A of the SC/ST Act read as below:
"18. Section 438 of Code not to apply to persons committing an offence under the Act - Nothing in section 438 of the Code shall Crl.P.No.201564/2019 7 apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.
18A. (1) For the purposes of this Act, -
(a) preliminary enquiry shall not be required for registration of a First Information Report against any person; or
(b) the investigating officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply.
(2) The provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court."
A general reading of section 18A of SC/ST Act shows that there appears to be a total bar on the Crl.P.No.201564/2019 8 application of section 438 of Cr.P.C. for offences punishable under the SC/ST Act. However, the said provision of law i.e., section 18A of SC/ST Act came under scanning before the Hon'ble Apex Court in Prathvi Raj Chauhan vs. Union of India in Writ Petition (C) No.1015/2018 connected with Writ Petition (C) No.1016/2018, in its judgment dated 10.02.2020, was pleased to observe in paragraph nos.8, 9 and 10 as below:
"8. Concerning the provisions contained in Section 18A, suffice it to observe that with respect to preliminary inquiry for registration of FIR, we have already recalled the general directions (iii) and (iv) issued in Dr. Subhash Kashinath's case (supra). A preliminary inquiry is permissible only in the circumstances as per the law laid down by a Constitution Bench of this Court in Lalita Kumari v. Government of U.P., (2014) 2 SCC 1, shall hold good as explained in the order passed by this Court in the review petitions on 1.10.2019 and the Crl.P.No.201564/2019 9 amended provisions of Section 18A have to be interpreted accordingly.
9. The Section 18A(i) was inserted owing to the decision of this Court in Dr. Subhash Kashinath (supra), which made it necessary to obtain the approval of the appointing authority concerning a public servant and the SSP in the case of arrest of accused persons. This Court has also recalled that direction on Review Petition (Crl.) No.228 of 2018 decided on 1.10.2019. Thus, the provisions which have been made in Section 18A are rendered of academic use as they were enacted to take care of mandate issued in Dr. Subhash Kashinath (supra) which no more prevails. The provisions were already in Section 18 of the Act with respect to anticipatory bail.
10. Concerning the applicability of provisions of Section 438 Code of Criminal Procedure, 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 Crl.P.No.201564/2019 10
(i) shall not apply. We have clarified this aspect while deciding the review petitions."
While agreeing to the above judgment of Hon'ble two Judges of the Apex Court, the another Hon'ble Judge of the Apex Court, constituting the same Bench, in his concurring judgment at paragraph No.20 was pleased to observe as below:
"20. I would only add a caveat with the observation and emphasize 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 Crl.P.No.201564/2019 11 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."
6. From a reading of the above judgment, more particularly, the above extracted paragraphs would go to show that despite section 18A of the SC/ST Act, section 438 of Cr.P.C. can be applied in those cases where complaint does not make out a prima facie case for applicability of the provisions of the SC/ST Act. While considering any application seeking pre-arrest bail, the High Court has to balance the two interests, i.e., the power should not be used as to convert the Crl.P.No.201564/2019 12 jurisdiction into that under section 438 of Cr.P.C. and that it has to be used sparingly and such orders to be made in very exceptional cases where no prima face 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.
In the light of the above said guidelines, when the present complaint is analysed, it appears that even according to the complainant, when the accused are said to have restrained the complainant and the cleaner of the lorry, initially they were neither aware as to the identity nor the caste of the complainant and the cleaner of the lorry. After knowing the name, it appears that they presumed that the complainant as well his master pertain to a Lamani caste and they alleged to have warned the said driver and his master (through the said driver) that the master should not Crl.P.No.201564/2019 13 do the similar business in rice. In that process, they are said to have taken the name of the caste of the complainant and his master.
That being the case, a bare reading of the complaint, at this stage, does not show that the accused no.1 had any intention to insult the accused or his master, only because they belonged to a particular caste. However, their main concern appears to prevent the alleged master of the complainant from doing a similar business in rice, which the master of the alleged accused was also said to be carrying on in the same area. As such, it appears that due to the alleged business rivalry between the master of the accused and the master of the complainant, the alleged incident is said to have taken place.
Crl.P.No.201564/201914
7. Therefore, prima face and at this stage it cannot be considered that intentionally the accused insulted the complainant and his master by taking the name of his caste. However, the alleged intention, if any, and the true attraction and applicability of SC/ST Act in the case, can only be ascertained in a full- fledged investigation. As such, for the purpose of present petitioner, suffice it to say that the same falls in an exception observed by the Hon'ble Apex Court in the above referred judgment. As such, imposing reasonable conditions, the petitioner be granted the relief of anticipatory bail. Accordingly, I proceed to pass the following:
ORDER The Criminal Petition is allowed. In the event the petitioner namely Abdul Kareem S/o Iftekar Hussain is arrested by the respondent-Yadgiri Town Police Station, in Crime No.95/2019 for the offences Crl.P.No.201564/2019 15 punishable under Sections 143, 147, 341, 323, 109, 504, 506 read with Section 149 of Indian Penal Code, 1860 and sections 3(1) (r) and 3(1) (s) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, he shall be enlarged on the relief of anticipatory bail, subject to the conditions that:
i) The accused/petitioner shall execute a personal bond for a sum of `50,000/-
with two local solvent sureties for the likesum to the satisfaction of the enlarging authority/Court.
ii) The accused/petitioner shall
voluntarily appear before the
jurisdictional Magistrate before whom the case is pending, within ten days from today.
iii) The accused/petitioner shall appear before the Investigating Officer on every Thursday between 9.00 am and 1.00 p.m. and mark his attendance Crl.P.No.201564/2019 16 till the investigation is completed and the charge sheet is filed.
iv) The accused/petitioner shall not hamper or tamper the prosecution witnesses in any manner.
v) The accused/petitioner to give in
writing about the change in his
address, if any, to the Investigating Officer as and when such change occurs and obtain an acknowledgement in that regard.
Sd/-
JUDGE swk