Karnataka High Court
Sri Lakshmana Gowda M vs State Of Karnataka By on 18 September, 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE B.A. PATIL
CRIMINAL PETITION No.6386/2018
Between:
Sri Lakshmana Gowda.M,
S/o Sri Muniswamappa,
Aged about 43 years,
R/at No-148/8,
Beladingalu, 3rd 'A' Cross,
Ramakrishna Road,
M.V.Extension,
Hoskote Town,
Bangalore Rural District - 562 114. ...Petitioner
(By Mr. Amit Deshpande, Advocate)
And:
1. State of Karnataka by
Koramangala Police Station,
Represented by Public Prosecutor,
High Court Compound,
Ambedkar Veedhi,
Bengaluru - 560 001.
2. Mr. Sharath Kumar C.P,
S/o Sri Prem Kumar,
Age - 49 years,
2
Ground Floor, No-593,
Koramangala, 4th Block,
Bangalore - 560 034. ...Respondents
(By Mr. K.P.Yoganna, HCGP)
This criminal petition is filed under Section 438 of
Cr.P.C praying to enlarge the petitioner on bail in the
event of his arrest in Crime No.231/2018 of Koramangala
Police Station, Bangalore City for the offence P/U/S 448,
427, 506 of IPC and Section 4(2) (va) of the amendment of
SC/ST (POA) ACT.
This criminal petition coming on for orders, this day,
the Court made the following:
ORDER
Though notice issued to the respondent No.2 has been served, he has remained absent. In this regard, an endorsement has been issued by the Police Inspector, Koramangala Police Station stating that notice issued has been personally served on the respondent No.2.
2. The present petition has been filed by the petitioner-accused under Section 438 of Cr.P.C. praying to release him on anticipatory bail for the offences punishable under Sections 448, 427, 506 of IPC and 3 under Section 4(2)(va) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act ['the Act' for brevity] in Crime No.231/2018 of Koramangala Police Station.
3. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.
4. The brief facts of the case as per the complaint are that on 06.07.2018 at about 11.00 a.m., the accused petitioner alongwith his henchmen forcefully removed the gate of the house of complainant and dismantled the C.C. TV cameras by cutting the electrical wires and removed the name board and threatened the complainant with dire consequences. It is further alleged that inspite of a complaint already been lodged against the accused petitioner on 01.03.2018 itself, the accused petitioner taking law into his own hands, alongwith his rowdy elements came to the house of complainant and 4 threatened him and in view of the same, a complaint was registered. Thereafter, on the basis of it a case was registered in Crime No.231/2018.
5. It is the submission of the learned counsel for the petitioner that if the entire complaint is perused, no where in the complaint the complainant has whispered any words against the accused-petitioner attributing atrocity so as to attract the provisions of the Act. It is further submitted that there are civil disputes pending between the parties alleging fraudulent transactions have been made by the complainant in collusion with his family members. It is also submitted that the family members of the complainant have executed a sale deed in favour of the accused-petitioner and the same has been challenged by the accused-petitioner in a civil suit and therefore, only with that grievance, a false complaint has been registered against the accused-petitioner.
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6. The learned counsel further submitted by drawing the attention of the Court to the decision of the Hon'ble Apex Court in the case of DR.SUBHASH KASHINATH MAHAJAN v. THE STATE OF MAHARASHTRA AND ANOTHER passed in Criminal Appeal No.416/2018, that though there is a bar under Section 18 of the Act to grant anticipatory bail, but until it is proved that accused has committed an offence, there is no presumption of guilt so as to deprive the person of his liberty without an opportunity being given to him.
7. He further submitted that on an earlier occasion also, a complaint was filed by the complainant against the petitioner and he was released on anticipatory bail and thereafter, again one more complaint came to be filed against the petitioner-accused and he was released on regular bail and this is the third successive complaint filed by the complainant. He further submitted that these things clearly go to show that no prima facie case is made 6 out and patently a false case has been filed with a mala fide intention, in that context, the provision of Section 18 are not applicable, the accused petitioner can be released on anticipatory bail. He further submitted that the exclusion of anticipatory bail is applicable only if the case is shown to be bona fide and prima facie falls under the Act and not otherwise. By referring to the above decision, he further submitted that the accused petitioner herein is innocent and a false case has been registered against him by misusing the law and as such, he apprehends that in the event of arrest of petitioner, he is going to be humiliated and harassed. On these grounds, he prayed for allowing the petition and grant of anticipatory bail to the petitioner-accused.
8. Per contra, learned High Court Government Pleader appearing for the respondent - State strongly objected for allowing the petition. He submitted that there is a bar under Section 18 of the Act to grant anticipatory 7 bail to the accused petitioner herein. He further submitted that there is a prima facie material to show that the accused petitioner abused the complainant by using the name of caste, which attract the provisions of the Act. He also submitted that the investigation is not yet completed and accused-petitioner may be required for further interrogation and investigation and hence, if he is enlarged on anticipatory bail, he may tamper with the prosecution witnesses. On these grounds, he prayed for the dismissal of the petition.
9. I have carefully and cautiously gone through the contents of the complaint and other materials which have been produced alongwith the petition.
10. Before considering the submissions made by the learned counsels at the bar, I feel it just and proper to extract Section 18 of the Act, which reads as follows:-
"18. "Section 438 of the Code not to apply to persons committing an offence under the 8 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."
11. By a plain reading of the said Section, it clarifies that Section 438 of the Code shall not apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under the Act. But in the case of Dr.Subhash Kashinath Mahajan (quoted supra) with reference to the said Act, the provisions have been interpreted by the Hon'ble Court at paragraph Nos.65, 66, 68 and 74, which are extracted hereunder for the purpose of brevity:-
"65. Presumption of innocence is a human right. No doubt, placing of burden of proof on accused in certain circumstances may be permissible but there cannot be presumption of guilt so as to deprive a person of his liberty without an opportunity before an independent forum or Court. In Noor Aga versus State of Punjab59, it was observed:9
"33. Presumption of innocence is a human right as envisaged under Article 14(2) of the International Covenant on Civil and Political Rights. It, however, cannot per se be equated with the fundamental right and liberty adumbrated in Article 21 of the Constitution of India. It having regard to the extent thereof, would not militate against other statutory provisions (which, of course, must be read in the light of the constitutional guarantees as adumbrated in Articles 20 and 21 of the Constitution of India).
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35. A right to be presumed innocent,
subject to the establishment of certain
foundational facts and burden of proof, to a certain extent, an be placed on an accused. It must be construed having regard to the other international conventions and having regard to the fact that it has been held to be constitutional. Thus, a statute may be constitutional but a prosecution thereunder may not be held to be one. Indisputably, civil liberties and rights of citizens must be upheld.
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43. The issue of reverse burden vis-à- vis the human rights regime must also be noticed. The approach of the common law is that it is the duty of the prosecution to prove a person guilty. Indisputably, this common law principle was subject to parliamentary legislation to the contrary. The concern now shown worldwide is that Parliaments had frequently been making inroads on the basic presumption of innocence. Unfortunately, unlike other countries no systematic study has been made in India as to how many offences are triable in the court where the legal burden is on the accused. In the United Kingdom it is stated that about 40% of the offences triable in the Crown Court appear to violate the presumption. (See "The Presumption of Innocence in English Criminal Law", 1996, CRIM. L. REV. 306, at p. 309.)
44. In Article 11(1) of the Universal Declaration of Human Rights (1948) it is stated: "Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law...." Similar provisions have been made in Article 6.2 of the European Convention for 11 the Protection of Human Rights and Fundamental Freedoms (1950) and Article 14.2 of the International Covenant on Civil and Political Rights (1966).
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47. We may notice that Sachs, J. in State v. Coetzee [1997(2) LRC 593] explained the significance of the presumption of innocence in the following terms:
"There is a paradox at the heart of all criminal procedure in that the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional protections of the accused become. The starting point of any balancing enquiry where constitutional rights are concerned must be that the public interest in ensuring that innocent people are not convicted and subjected to ignominy and heavy sentences massively outweighs the public interest in ensuring that a particular criminal is brought to book.
...Hence the presumption of innocence, which serves not only to protect a particular individual on trial, but to maintain public confidence in the enduring integrity and 12 security of the legal system. Reference to the prevalence and severity of a certain crime therefore does not add anything new or special to the balancing exercise. The perniciousness of the offence is one of the givens, against which the presumption of innocence is pitted from the beginning, not a new element to be put into the scales as part of a justificatory balancing exercise. If this were not so, the ubiquity and ugliness argument could be used in relation to murder, rape, car-jacking, housebreaking, drug-smuggling, corruption ... the list is unfortunately almost endless, and nothing would be left of the presumption of innocence, save, perhaps, for its relic status as a doughty defender of rights in the most trivial of cases."
In view of the above, an accused is certainly entitled to show to the Court, if he apprehends arrest, that case of the complainant was motivated. If it can be so shown there is no reason that the Court is not able to protect liberty of such a person. There cannot be any mandate under the law for 13 arrest of an innocent. The law has to be interpreted accordingly.
66. We have already noted the working of the Act in the last three decades. It has been judicially acknowledged that there are instances of abuse of the Act by vested interests against political opponents in Panchayat, Municipal or other elections, to settle private civil disputes arising out of property, monetary disputes, employment disputes and seniority disputes60. It may be noticed that by way of rampant misuse complaints are 'largely being filed particularly against Public Servants/quasi judicial/judicial officers with oblique motive for satisfaction of vested interests'61.
68. Accordingly, we have no hesitation in holding that exclusion of provision for anticipatory bail will not apply when no prima facie case is made out or the case is patently false or mala fide. This may have to be determined by the Court concerned in facts and circumstances of each case in exercise of its judicial discretion. In doing so, we are reiterating a well established principle of law that protection of innocent against abuse of law is part of inherent jurisdiction of the Court being part of access to justice and protection of liberty against any 14 oppressive action such as mala fide arrest. In doing so, we are not diluting the efficacy of Section 18 in deserving cases where Court finds a case to be prima facie genuine warranting custodial interrogation and pre-trial arrest and detention.
74. It is thus patent that in cases under the Atrocities Act, exclusion of right of anticipatory bail is applicable only if the case is shown to bona fide and that prima facie it falls under the Atrocities Act and not otherwise. Section 18 does not apply where there is no prima facie case or to cases of patent false implication or when the allegation is motivated for extraneous reasons. We approve the view of the Gujarat High Court in Pankaj D Suthar (supra) and Dr. N.T. Desai (supra). We clarify the Judgments in Balothia (supra) and Manju Devi (supra) to this effect".
12. By going through the provisions of the said Section and proposition of law laid down by the Apex Court, it clearly indicates that this Court can exercise power under Section 438 of Cr.P.C., if a case is patently false or mala fide or no prima facie case is made out as against the accused. Keeping in view the above said 15 proposition of law, let me consider the contentions of the petition by perusing the complaint.
13. As could be seen from the contents of the complaint, no where the complaint discloses the fact that complainant has been abused by the accused petitioner herein so as to attract the provisions of the Act. There is no whisper or a word in the complaint to show that petitioner-accused has used such words so as to attract the provision of the Act. Even the learned counsel for the petitioner has referred to the letter dated 17.07.2018 addressed by the Assistant Director, National Commission for Scheduled Castes, which reads as follows:-
"No: 49/APCR/7/18-RU Date:17/7/2018 To: The Assistant commissioner of police, Adugodi Division, Adugodi, Bangalore.
Sub: Non registration of Shri. C.P.Sharath Kumar, Complaint dated 8/7/2018 regarding.
Sir, With reference to the above subject, I am to say that the complaint dated 8/7/2018 submitted by 16 Shri.C.P.Sharath Kumar (SC), against one Lakshman Gowda in Koramangala police station is not registered under POA Act 1989 and 2016. Due to, the earlier inordinate delay in registration of Shri.C.P.Sharath Kumar. Complaints, Mr.Lakshman has succeeded in getting bail. The copy of complaint dated 8/7/2018 is enclosed.
In view of the above and the serious incident of the atrocity on 6/7/2018 on Shri.C.P.Sharath Kumar, his complaint dated 8/7/2018 shall be registered under POA Act 1989 and 2016 immediately and Shri.Laksman Gowda shall be arrested in the Sprit of Justice to SC's and ST's. Action taken may please be intimated to this office before 24/7/2018 for further assessment of the situation.
Yours faithfully, Sd/-
(A.Sathyanarayana) Assistant Director"
14. The said letter addressed to the Assistant Commissioner of Police, Adugodi Division, indicates that Koramangala Police Station has not registered a case under the Act due to the earlier inordinate delay in registration of complaint given by Shri C.P.Sharanth Kumar. Complaints, Mr.Lakshman has succeeded of in getting the bail and the complaint is also enclosed and a 17 direction has been issued in the said letter that immediately Shri Lakshman Gowda shall be arrested in Spirit of Justice to SC's and ST's and action taken may please be intimated to the said office before 24.07.2018. This itself clearly goes to show that though there is no prima facie material, only on the basis of the letter, the case has been registered in the above said Section. The said act of the Assistant Director, National Commission of Schedule Castes indicates that there is misuse of the power provided under the said Act.
15. Keeping in view the above said facts and circumstances and when the contents of the complaint does not whisper anything about the atrocity, when the materials also indicate that multiple cases are registered against petitioner, under such peculiar facts and circumstances and by keeping the ratio laid down in the decision quoted supra, I am of the considered opinion that this Court can exercise power under Section 438 of 18 Cr.P.C. and release the accused petitioner on anticipatory bail.
16. In that light, the petition is allowed and the petitioner is granted anticipatory bail. In the event of his arrest in Crime No.231/2018, the petitioner herein is ordered to be released on bail, subject to the following conditions:-
i) Petitioner shall execute a personal bond for Rs.2,00,000/- (Rupees two lakhs only) with two sureties for the like sum to the satisfaction of the Investigating Agency.
ii) He shall surrender before the Investigating Agency within fifteen days from today.
iii) He shall co-operate with the Investigating Agency as and when he is summoned.
iv) He shall not tamper with the prosecution evidence in any manner.
v) He shall not leave the jurisdiction of the trial Court without prior permission.19
vi) He shall not indulge in similar type of criminal activities.
Sd/-
JUDGE VGR ct:am