Karnataka High Court
Subbanna @ Subramani.M vs State By Thirumalashettahalli Police ... on 24 August, 2020
Equivalent citations: AIRONLINE 2020 KAR 1893
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
IN THE HIGH COURT OF KARNATAKA AT BENGALURU R
DATED THIS THE 24TH DAY OF AUGUST, 2020
BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL PETITION NO.3432/2020
BETWEEN:
1. SUBBANNA @ SUBRAMANI.M.
S/O LATE MUNINANJAPPA @ MUGANNA,
AGED ABOUT 59 YEARS.
2. BHARATH @ BHARATH KUMAR.K.S,
S/O SUBBANNA @ SUBRAMANI.M,
AGED ABOUT 28 YEARS.
BOTH ARE R/AT
KHAJIHOSAHALLI VILLAGE,
JADIGENAHALLI HOBLI,
HOSKOTE TALUK,
BENGALURU RURAL DISTRICT,
BENGALURU - 560068. ...PETITIONERS
[BY SRI. SREENIVASAN M.Y., ADVOCATE]
AND:
1. STATE BY THIRUMALASHETTAHALLI
POLICE STATION,
BENGALURU RURAL DISTRICT,
BENGALURU,
R/P BY SPP, HCK,
BANGALORE - 560001.
2. PAPANNA S/O LATE BEERAPPA,
AGED ABOUT 55 YEARS,
R/AT KHAJIHOSAHALLI VILLAGE,
JADIGENAHALLI HOBLI, HOSKOTE TALUK,
2
BENGALURU RURAL DISTRICT,
BENGALURU - 560068.
...RESPONDENTS
[BY SRI. MAHESH SHETTY, HCGP.
SRI. SRIKANTH N.V, ADVOCATE FOR R-2]
***
THIS CRIMINAL PETITION IS FILED UNDER SECTION
438 OF CR.P.C., PRAYING TO ENLARGE THE PETITIONERS ON
BAIL IN THE EVENT OF THEIR ARREST IN CRIME NO.60/2020
OF THIRUMALASHETTAHALLI POLICE STATION, BENGALURU
DISTRICT FOR THE OFFENCE PUNISHABLE UNDER SECTION
323, 504, 506, 34 OF IPC AND SEC.3(1)(r), 3(1)(s) OF SC/ST
(POA) ACT.
THIS CRIMINAL PETITION COMING ON FOR ORDERS
THROUGH VIDEO CONFERENCE, THIS DAY THE COURT
PASSED THE FOLLOWING:
ORDER
Heard Sri. Sreenivasan M.Y. learned counsel for the petitioners and Sri. Mahesh Shetty, learned HCGP appearing for the respondent-State.
2. This petition is filed under Section 438 of Cr.P.C. seeking to enlarge the petitioners on bail in connection with Crime No.60/2020 of Thirumalashettahalli police station registered for the offences punishable under Sections 323, 504, 506 read 3 with Section 34 of IPC and Sections 3(1)(r), 3(1)(s) of SC/ST (POA) Amendment Ordinance 2014.
3. It is averred in the first information report that the complainant is a resident of Khajihosahalli of Hosakote Taluk and he belongs to Adi Karnataka which comes under schedule caste. Since eight months, he was paying chit amount to the accused/petitioners who were running a chit business. On 25.06.2020 at about 8.30 p.m., he went to the house of the accused to pay the chit amount. At that time, the accused/petitioners abused him in filthy language insulting his caste, pulled his hair and pushed him down, kicked him and also threatened him that all of them should be burnt as it was done in Kambalpalli.
4. Learned counsel for the petitioners submits that the entire allegations are false. He submits that in view of a dispute between the petitioners and the complainant with regard to some chit transaction, a false case has been foisted against the petitioners making reckless allegations. The dispute is with regard to money 4 matter and when the petitioners refused to give the chit amount, the complainant has made a false story. He further submits that the offences alleged under the provisions of SC & ST (POA) Act are not attracted as no offence has been committed even according to the complaint within the public view.
5. Learned counsel for the petitioners has relied on a decision of the Hon'ble Apex Court in the case of Prathvi Raj Chouhan Vs. Union of India reported in (2020 SCC Online SC 159) and also an order passed by this Court in Crl.P.No.2433/2020 dated 10.06.2020 in support of his submissions and sought to allow the petition.
6. Learned counsel appearing for the respondent/State contends that the matter is at the stage of investigation. There are specific allegations made against the petitioners in the complaint attracting the provisions of SC/ST (POA) Act, 1985 and hence, in view of bar under Sections 18 and 18(A) of the SC & SC (POA) Act 1985, the 5 present petition is not maintainable. Accordingly, he seeks to reject the application.
7. Learned counsel appearing for respondent No.2/ defacto complainant has filed statements of objection opposing grant of bail to the petitioners contending in the same line as learned HCGP. He has further contended that in the event of grant of bail to the petitioners, they may threaten the complainant and other prosecution witnesses. Accordingly, he sought to reject the petition.
8. I have perused the complaint averments. It is stated that at about 8.30 p.m., on 25.06.2020, when the first informant went to the house of the petitioners to pay the chit amount, the petitioners have abused him by taking the name of his caste, insulted him and also kicked him and threatened him with dire consequences. 6
9. Sections 3(1)(r) and (s) reads 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".
Reading of the complaint does not indicate that except the first informant, there were other persons present at the spot. It cannot be said at this stage that the offence was committed within the public view and therefore, there is force in the arguments advanced by the petitioner's counsel.
10. The Hon'ble Apex Court in the case referred above, at para 10 of the judgment, has observed as under:
Para 10 - 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 7 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."
11. In view of the above dictum, it cannot be said that a petition under Section 438 Cr.P.C. is not maintainable. In a given case where the complainant does not make out a prima facie case for applicability of the provisions of the Act of 1989, a petition under Section 438 Cr.P.C., may be entertained. However, it depends on the facts of each case.
12. This Court in Crl.P.No.2433/2020 in a similar circumstance, after placing reliance on the decision of the apex court in Prathvi Raj Chouhan supra, has observed as under :
"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 & 18(A) of the Atrocities Act; the complaint needs to disclose a prima facie 8 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."
13. The other offences alleged by the petitioners are under Sections 323, 504, 506 read with Section 34 of IPC. These offences are not punishable with death or imprisonment for life. Petitioners have undertaken to fully cooperate with the investigation process and also abide by the conditions that may be imposed by this Court.
14. In the above circumstances, I am of the view that the relief sought by the petitioners can be granted by imposing suitable conditions. Accordingly, I pass the following:
ORDER Petition is allowed.9
Petitioners are ordered to be admitted to bail if and when apprehended in connection with Crime No.60/2020 of Thirumalashetty police station, registered for the offences punishable under Sections 323, 504, 506 read with Section 34 of IPC and Sections 3(1) (r), 3(1) (s) of SC/ST (POA) Amendment Ordinance 2014, subject to the following conditions:
(i) The petitioner shall appear before the Investigating Officer within a period of 10 days from the date of receipt of certified copy of this order and each of the petitioners shall execute a personal bond for a sum of Rs.50,000/- (Rupees fifty thousand only) with one surety for the like-
sum.
(ii) Petitioners shall cooperate with the investigation/inquiry at all times and appear before the jurisdictional police if and when so directed;
10
(iii) Petitioners shall not leave the jurisdictional limits of the trial court without its prior permission;
(iv) The petitioners shall not tamper the evidence or influence/deter the witnesses nor shall they do anything prejudicial to peace and order in the civil society;
(v) It is open to the jurisdictional police or the complainant to seek cancellation of bail if and when petitioners commit breach of any of the above conditions.
Sd/-
JUDGE snc