IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.7456/2017 BETWEEN:
1. Smt Fatima @ Khatizabi W/o Sri Hasan Aged about 70 years 2. Sri Mazar Pasha S/o Sri Hasan Aged about 35 years Both are r/at No.66, 4th Cross Nagareshwara Nagenahalli S.R.K. Nagar Post Bangalore-77. ... PETITIONERS (By Sri Vishal Kumar, Adv.) AND:
State by Kothanur Police Station Bangalore City Represented by Special Public Prosecutor High Court of Karnataka Bangalore-560 001. ...RESPONDENT (By Sri Chetan Desai, HCGP) This Criminal Petition is filed under Section 438 of the Cr.P.C. praying to enlarge the petitioner on bail in the event of their arrest in Cr.No.140/2017 of Kothanur P.S., Bangalore, for the offences P/U/Ss 504, 506 read with Section 34 of IPC and Section 3(1)(X) of Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act.
This Criminal Petition coming on for Orders this day, the Court made the following:
ORDER This petition is filed by the petitioners/accused Nos.2 and 4 under Section 438 of Cr.P.C. seeking anticipatory bail, to direct the respondent-police to release the petitioners on bail in the event of their arrest for the offences punishable under Sections 504, 506 r/w Section 34 of IPC and also under Section 3(1)(10) of the SC/ST (POA) Act registered in respondent police station Crime No.140/2017.
2. Heard the arguments of the learned counsel appearing for the petitioners/accused Nos.2 and 4 and also the learned High Court Government Pleader appearing for the respondent-State.
3. Learned counsel for the petitioners during the course of his arguments submitted that there is a delay in lodging the complaint, which is not explained. Even after registration of the complaint there is a delay of two days in submitting the FIR before the concerned Magistrate Court and the same is also not property explained. Petitioners filed the complaint against the complainant and others much earlier i.e., in the year 2016 itself which was registered in Crime No.4/2016. Hence, in order to implicate the petitioners in the case, false allegations are made in the complaint. As there is no prima facie material against the petitioners, petition may be allowed and petitioners may be admitted to anticipatory bail.
4. Per contra, learned High Court Government Pleader during the course of his arguments submitted that there is an offence even under the provisions of the SC/ST (POA) Act and in view of Section 18 of the said Act, there is a bar to entertain the petition and to grant anticipatory bail. He has submitted that the complaint averments and other materials prima facie makes out a case against both the petitioners. Hence, petitioners are not entitled for anticipatory bail.
5. I have perused the grounds urged in the bail petition, FIR, complaint and other materials placed on record.
6. Looking to the materials and the submission made by the learned counsel appearing for the petitioners herein it is seen that the petitioners have also filed criminal complaint against the complainant and others on 3.1.2016 itself, which is registered in Crime No.4/2016. Hence, according to the learned counsel for the petitioner, complainant was waiting for an opportunity to implicate the petitioners and accordingly, on 8.7.2017 even though no such incident has taken place, making false allegations complaint has been filed against the petitioners.
7. As per the complaint averments, the petitioners and other accused persons have abused the complainant and her family members in filthy language by taking the name of her caste. But there is no specific allegation as to which accused person used the particular word. There is a general and omnibus allegation that all the accused persons abused the complainant and her family members by taking the name of her caste, which cannot be accepted at this stage that too in view of the earlier complaint filed by the petitioners against the complainant.
8. The petitioners have contended in the petition that there is a false implication. The alleged offences under Sections 504 and 506 are also triable by the Magistrate Court except the offence under the provisions of SC/ST (POA) Act. The materials on record does not constitute the offence under the provisions of SC/ST (POA) Act. Therefore, Section 18 cannot be a bar to entertain the petition for grant of anticipatory bail. Petitioners have undertaken to abide by any reasonable conditions to be imposed by this Court. Hence, I am of the opinion that petitioners can be granted with anticipatory bail.
9. Accordingly, petition is allowed. The respondent-police are directed to enlarge the petitioners on bail in the event of their arrest for the alleged offences punishable under Sections 504, 506 r/w Section 34 of IPC and also under Section 3(1)(10) of the SC/ST (POA) Act registered in respondent police station Crime No.140/2017, subject to the following conditions:
i. Petitioners shall execute a personal bond for Rs.50,000/- each and shall furnish one solvent surety for the likesum to the satisfaction of the arresting authority.
ii. Petitioners shall not tamper with any of the prosecution witnesses, directly or indirectly.
iii. Petitioners shall make themselves available before the Investigating Officer for interrogation, as and when called for and to cooperate with the further investigation.
iv. Petitioners shall appear before the concerned Court within 30 days from the date of this order and to execute the personal bond and the surety bond.
Sd/- JUDGE bkp