IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25th DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION No.8967/2018 BETWEEN:
1. Ravikumar D., S/o Doddaiah Aged about 33 years No.21, Near Maramma Temple Nagadevanahalli, Bengaluru South, Bengaluru-560 056.
2. Jayanna S/o Katappa Aged about 46 years Residing at No.116, 1st Cross, 1st Main Road, Nagadevanahalli Ring Road Bengaluru-560 056.
(By Sri. Balakrishna B., Advocate for Smt. Sharada C., Advocate) AND:
The State of Karnataka by Kengeri Police, Bengaluru, Represented by its State Public Prosecutor High Court Complex Bengaluru-560 001.
(By Sri K.P. Yoganna, HCGP) …Petitioners … Respondent 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.357/2018 of Kengeri Police Station, Bengaluru City, for the offences punishable under Sections 504, 506, 324 and 307 of Indian Penal Code and Section 3(1)(r), 3(1)(s), 3(1)(c) and 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
This Criminal Petition coming on for Orders, this day the Court made the following:-
O R D E R The present petition has been filed by the petitioners/ accused Nos.1 and 2 under Section 438 of Cr.P.C. to release them on anticipatory bail in Crime No.357/2018 of Kengeri police station for the offences punishable under Sections 504, 506, 324, 307 of Indian Penal code and Section 3(1)(r), 3(1)(s), 3(1)(c) and 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter called as ‘the Act’ for short).
2. I have heard the learned counsel appearing for the petitioners and the learned High Court Government Pleader appearing for the respondent-State.
Though notice is served to the complainant through police, he has remained absent.
3. The brief facts of the case of the prosecution are that the complainant is doing JCB business at a low rate and in this regard accused persons quarreling frequently with the complainant. In that light, on 25.9.2018 at about 8.45 p.m. accused No.2 called the complainant over phone and asked him to come to Nagadevanahalli. When the complainant and his father went there, at that time, accused persons picked up a quarrel and with an intention to take away the life of the complainant, assaulted him with iron pipes and rods and also abused him by taking the name of the caste. On the basis of the said complaint, a case has been registered.
4. It is the submission of the learned counsel for the petitioners that because of the JCB business a false complaint has been registered against the accused persons with an allegation that they have abused the complainant by taking the name of his caste. He further submitted that the alleged offences are not punishable with death or imprisonment for life. The petitioners are having aged parents and they are entirely depending upon the petitioners’ income. If the accused persons are taken into custody, it is going to cause greater hardship. He further submitted that, they are ready to co-operate with the investigation and ready to abide by the conditions imposed by this Court and ready to offer the sureties. On these grounds he prayed to allow the petition and to release the petitioners on bail.
5. Per contra, the learned High Court Government Pleader vehemently argued and submitted that the accused persons have caused grievous injuries by assaulting the complainant with an iron piece and rod with an intention to take away the life of the complainant. They also threatened with dire consequences, they have also abused by taking the name of the caste and as per Section 18A of the Act, there is clear cut bar to release the petitioners/accused on anticipatory bail. The petitioners/accused are absconding since from the date of registration of the case and they have not made out any good grounds to release them on anticipatory bail. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the contents of the complaint and the submissions made by the learned counsel appearing for the parties and perused the records.
7. As could be seen from the complaint, the alleged offences are not punishable with death or imprisonment for life and it is further submitted that the injured person has already discharged from the hospital and he is out of danger. But the only point which has to be considered by this Court is whether the Court can exercise the power under Section 438 of Cr.P.C. to release the petitioners/accused on anticipatory bail when there is bar under Section 18A of the Act.
Section 18(A) of the Act reads as under:
“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”.
8. On close reading of the said Section it is clear that there is a bar to grant anticipatory bail. However, in the decision of the Hon’ble Apex Court in the case of Dr.Subhash Kashinath Mahajan Vs. State of Maharashtra and another reported in (2018) 6 SCC 454, wherein it has been observed that there is no absolute bar against grant of anticipatory bail in cases under Atrocities Act if no prima facie case is made out or where on judicial scrutiny complaint is found to be prima facie mala fide.
9. In the light of the above said decision, on close reading of the complaint it discloses the fact that when the alleged incident has taken place, accused Nos.1 to 3 have assaulted the complainant with iron pipe and rod and abused by using filthy language and thereafter it is accused No.1 Ravi Kumar and accused No.3 Girish have specifically abused the complainant by taking the name of the caste. There are no material produced before the Court that the said complaint is a mala fide complaint. It is the contention of the learned counsel for the petitioners that because of the JCB business a false complaint has been filed, the same is not acceptable.
10. Insofar as petitioner/accused No.2 is concerned he has abused in filthy language, there is no specific allegation in the complaint to the effect that he has taken the name of the caste and abused the complainant. When the complaint itself has bifurcated as to who used the name of the caste and who has not used the name of the caste, then under such circumstances, if it is a mala fide complaint definitely the complainant could have also stated even the name of petitioner/accused No.2 Jayanna who has also abused by taking the name of the caste. In that light, there is a material as against accused No.1 to show that he has abused by taking the name of the caste. Insofar as accused No.2 is concerned, there is no such allegation in the complaint.
11. Keeping in view the above said proposition of law, I feel that if by imposing certain stringent conditions, if the petitioner/accused No.2 is ordered to be released on anticipatory bail, it is going to meet the ends of justice.
Insofar as petitioner/accused No.1 is concerned, it is not a fit case to exercise the power under Section 438 of Cr.P.C. in view of the bar under Section 18A of the Act.
12. Accordingly, the petition is partly allowed. The petition as against petitioner/accused No.1 is rejected and the petition as against petitioner/accused No.2 is allowed and petitioner/accused No.2 is ordered to be released on anticipatory bail in the event of his arrest in Crime No.357/2018 of Kengeri Police Station, for the offences punishable under Sections 504, 506, 324, 307 of Indian Penal Code and Section 3(1)(r), 3(1)(s), 3(1)(c) and 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, subject to the following conditions:
i) Petitioner No.2/accused No.2- Sri.Jayanna shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with two sureties for the likesum to the satisfaction of the Investigating Officer.
ii) He shall surrender before the Investigating Officer within 15 days from today.
iii) He shall not tamper with the prosecution evidence directly or indirectly.
iv) He shall mark his attendance in the jurisdictional police once in 15 days between 10.00 A.M. and 5.00 P.M. till the trial is concluded.
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v) He shall not leave the jurisdiction of the Court without prior permission of the Court.
*AP/-
Sd/- JUDGE