IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION No.1336/2019 c/w CRIMINAL PETITION No.1915/2019 CRIMINAL PETITION No.1916/2019 IN CRIMINAL PETITION No.1336/2019: BETWEEN:
1. Siddik Basha @ Siddik S/o Basha Aged about 27 years R/at Nagireddy Extension Veerandahalli Village Gowribidanur Taluk Chikkaballapura District-561 208 2. Jabiulla Khan @ Jabi S/o Nyamath Khan Aged about 26 years R/at Mosque Road Gangasandra Village Gowribidanur Taluk Chikkaballapura District-561 208 …Petitioners (By Sri Arudi C. Manjunatha, Advocate) AND:
State of Karnataka by Bandepalya Police Station Bengaluru-560 068, Represented by State Public Prosecutor High Court of Karnataka Bengaluru-560 001.
(By Sri Nasrulla Khan, HCGP) …Respondent This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioners on bail in Crime No.196/2018 by Bandepalya Police Station, Bengaluru City, for the offences punishable under Sections 341, 365 and 506 r/w Section 34 of Indian Penal Code and Section 3(1)(v), 3(1)(viii), 3(1)(ix) and 3 (1)(x) of SC/ST (POA) Act.
IN CRIMINAL PETITION No.1915/2019: BETWEEN:
K.N. Inayath Ulla S/o Nabisab Aged about 38 years Occ: Head Constable of Police Sidlaghatta Rural Police Station R/o. No.36-E, Kote, Gauribidanur, Chikkaballapura, Karnataka-561 208.
(By Sri B.Siddeswara, Advocate) AND:
The State of Karnataka by Bandepalya Police Station, Bengaluru City, Represented by State Public Prosecutor …Petitioner High Court Buildings Bengaluru-560 001.
(By Sri Nasrulla Khan, HCGP) …Respondent 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.196/2018 registered by Bandepalya Police Station, Bengaluru, for the offences punishable under Sections 341, 365 and 506 r/w. Section 34 of IPC and Sections 3(1)(v), 3(1)(viii), 3(1)(ix) and 3 (1)(x) of SC/ST (POA) Act.
IN CRIMINAL PETITION No.1916/2019: BETWEEN:
Prathap R.B.
S/o R.T.Bachegowda Aged about 29 years R/o. Shidlagatta Road Melur, Chikkaballapura Karnataka-562 102.
(By Sri B.Siddeswara, Advocate) AND:
The State of Karnataka By Bandepalya Police Station Bengaluru City, Represented by State Public Prosecutor High Court Buildings Bengaluru-560 001.
…Petitioner …Respondent (By Sri Nasrulla Khan, HCGP) This Criminal Petition is filed under Section 438 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.196/2018 of Bandepalya Police Station, Bengaluru, for the offences punishable under Sections 341, 365 and 506 r/w Section 34 of Indian Penal Code and Section 3(1)(v), 3(1)(viii), 3(1)(ix) and 3 (1)(x) of SC/ST (POA) Act.
These Criminal Petitions coming on for Orders this day, the Court made the following:-
O R D E R Criminal Petition No.1336/2019 has been filed by accused Nos.6 and 7 under Section 439 of Cr.P.C., Criminal Petition Nos.1915/2019 and 1916/2019 have been filed by petitionerS/accused Nos.3 and 9 under Section 438 of Cr.P.C., to release them on bail and anticipatory bail in Crime No.196/2018 of Bandepalya Police Station, Bengaluru, for the offences punishable under Sections 341, 365 and 506 r/w Section 34 of Indian Penal Code and Section 3(1)(v)(viii)(ix) and (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. (Herein after referred to as ‘Act’ for short) 2. I have heard the learned counsels appearing for the petitioners and the learned High Court Government Pleader appearing for the respondent-State.
The complainant is also notified and he has submitted through the learned High Court Government Pleader in connected cases and in this case also.
3. The gist of the complaint is that the complainant is the police. He lodged the complaint alleging that on 5.10.2018 at about 7.30 a.m. while he was proceeding on his bicycle in front of KCDC nursery gate in Hosapalya road at H.S.R. Layout, he was wrongfully restrained by unknown persons and dragged him into a car and drove towards Marathahalli via HSR Layout and took him within the jurisdiction of Kolar Police Station and asked him to get down from the car near Ganesha Temple at about 4.00 p.m. and told him to stay there, otherwise they would kill him. The complainant waited there for an hour, but no one returns. Thereafter, with the help of one Manju he reached his home and lodged the complaint.
Subsequently, statement of the complainant was recorded when he was in judicial custody in Crime No.306/2018 on 14.12.2018. In his statement he has stated that he has forgotten to mention certain facts in his original complaint dated 7.10.2018 and wanted to make further clarification and he has stated that he had two acres 17½ guntas of land in Sy.No.46/1 of Hongasandra village and he continued in possession of the said property. During the year 2013 accused No.2 claimed 30 guntas of land, there are several cases pending against the complainant and accused No.2. Accused Nos.1 and 2 colluding with other accused persons abducted him on 5.8.2018, thereafter again accused persons kidnapped him on 8.11.2018 at about 5.00 p.m. when he was returning to home along with the cows and the accused persons falsely implicated him in Crime No.306/2018.
4. It is the submission of the learned counsels for the petitioners that when a complaint was registered, it is registered against unknown persons. The complainant was nurturing the grudge against accused Nos.1 and 2, as he has lost the civil suit in O.S.No.3815/2014 pending on the file of IX Additional City Civil and Sessions Judge, Bengaluru, by order dated 18.4.2015. It is further submitted that when the complaint was filed on 7.10.2018 no such allegations have been made by the complainant and the accused persons have been roped only when the further statement of the complainant was recorded on 14.12.2018. It is further submitted that the accused persons were also not present, they have been roped by the complainant by invoking the provisions of The Scheduled Castes and the Scheduled Tribes Act. It is further submitted that the provisions of Scheduled Castes and Scheduled Tribes Act are not attracted, nowhere in the complaint it has been alleged that the accused persons have abused by taking the name of the caste or with that intention they have behaved. They further submitted that the case has been registered in Crime No.306/2018 under Section 379 of Indian Penal Code and under Sections 86 and 87 of the Forest Act. Only because of the said registration he is contending that a false case has been registered. They are ready to abide by the conditions imposed by this Court and ready to offer sureties. On these grounds they prayed to allow the petitions and to release the petitioners on bail and anticipatory bail.
5. Per contra, the learned High Court Government Pleader vehemently argued on the instruction of the complainant that accused No.4 being the Police Official, accused No.5 being the Second Division Assistant in the police department have colluded with accused Nos.1 and 2 have kidnapped and restrained them to help them to dispossess the said land as per the instruction of accused No.2. He further submitted that the case has been registered falsely in Crime No.306/2018 under Section 379 of Indian Penal Code and also under Sections 86 and 87 of the Forest Act. He further submitted that they have abused the process of law by using the power. He further submitted that the petitioners/accused have abused by taking the name of the caste of the complainant. There is a bar under Section 18A of the Act to release accused Nos.3 and 9 on anticipatory bail. He further submitted that the petitioners/accused are absconding and were not available for the purpose of investigation or interrogation. If they are released on bail, they may abscond and they may not be available for the trial. There is prima facie material as against the petitioners/accused to show that they have involved in a serious offence. On these grounds he prayed to dismiss the petitions.
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. On close reading of the contents of the complaint it indicates that he has made certain allegations that at about 7.30 p.m. on 5.10.2018 when he was proceeding on a bicycle, at that time, a car came and he was pushed into the car and thereafter he has been taken and at about 4.00 p.m. he was taken on Chintamani road near the Ganesha Temple and he was made to alight from the car and he was threatened that he has to stay there, otherwise they are going to take away the life of the complainant. If really the accused persons were intending to do away with the life of the complainant, then under such circumstances they could not have made him to alight from the car near the Ganesha temple and they could not have warned that he should stay there, otherwise they would kill him and even though the accused persons could have made some persons to wait there to see that whether he is going to move away from that particular place. Under the said facts and circumstances, I feel that, the provisions of Section 341 of is not attracted. Even the provisions of Sections 365 and 506 of IPC are concerned they are the matters which have to be considered and appreciated only at the time of trial. It is contended by the learned High Court Government Pleader that the provisions of Section 18A of the Act prohibits this Court to exercise the power under Section 438 of Cr.P.C. to release petitioners/accused Nos.3 and 9 on anticipatory bail.
8. As could be seen from the contents of the complaint in the first instance the complaint was registered on 7.10.2018, not even a word has been whispered about the accused abused the complainant by taking the name of the caste. It is created and stated only when his further statement was recorded on 14.12.2018, that too when he was in judicial custody. All these material facts clearly goes to show that the said statement has been made only after deliberations and discussions and after giving a thoughtful act on the said aspect.
The question of the bar under Section 18A of the Act come into picture only if the provisions of Section 3 of the Act are attracted. It is well settled proposition of law that 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 it has been observed that 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. From the points which have been discussed above it clearly goes to show that on judicial scrutiny the complaint is found to be prima facie mala fide and it was an intentional inclusion of the said words so as to attract the provisions of the said Act.
10. Under the said facts and circumstances of this case this Court can exercise the power under Section 438 of Cr.P.C. to release the petitioners/accused Nos.3 and 9 on anticipatory bail. On consideration of all the other material facts and circumstances the civil disputes are pending between the parties and even the alleged offences are also not punishable with death or imprisonment for life. Under the said facts and circumstances, I feel that, if by imposing some conditions, if the petitioners/accused are ordered to be released on bail and anticipatory bail, it is going to meet the ends of justice.
11. In the light of the discussions held by me above, Criminal Petition No.1336/2019 is allowed and the petitioners/accused Nos.6 and 7 are ordered to be released on bail in Crime No.196/2018 of Bandepalya Police Station, for the offences punishable under Sections 341, 365 and 506 r/w Section 34 of Indian Penal Code and Section 3(1)(v)(viii)(ix) and (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, subject to the following conditions:
i) Each of the petitioners shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties each for the likesum to the satisfaction of the trial Court.
ii) They shall not tamper with the prosecution evidence directly or indirectly.
iii) They shall mark their attendance in the jurisdictional police on 1st of every month between 10.00 A.M. and 5.00 P.M. till the trial is concluded.
iv) They shall not leave the jurisdiction of the Court without prior permission of the Court.
Criminal Petition Nos.1915/2019 and 1916/2019 are allowed and the petitioners/accused Nos.3 and 9 are ordered to be released on anticipatory bail in the event of their arrest in Crime No.196/2018 of Bandepalya Police Station, for the offences punishable under Sections 341, 365 and 506 r/w Section 34 of Indian Penal Code and Section 3(1)(v)(viii)(ix) and (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, subject to the following conditions:
i) Each of the petitioners shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties each for the likesum to the satisfaction of the Investigating Officer.
ii) They shall surrender before the Investigating Officer within 15 days from today.
iii) They shall not tamper with the prosecution evidence directly or indirectly.
iv) They shall mark their attendance in the jurisdictional police on 1st of every month between 10.00 A.M. and 5.00 P.M. till the trial is concluded.
v) They shall not leave the jurisdiction of the Court without prior permission of the Court.
Sd/-
JUDGE *AP/-