IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE K. N. PHANEENDRA CRL.P. NO.7884/2018 BETWEEN SOMESHWARA @ SOMESH H.R. S/O H. RUDRAIAH AGED ABOUT 39 YEARS PETTY BUSINESS R/O THOPPINAGHATTA SHIVAMOGGA TALUK & DISTRICT- 577102 ... PETITIONER (BY SRI. ARUN ASHOK GADAG, ADV.) AND 1. STATE BY TUNGANAGARA POLICE STATION SHIVAMOGGA – 577 102 REP. BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU – 560 001 2. T. R. KIRAN KUMAR S/O RAMACHANDRAPPA AGED 32 YEARS KETS CONTRACTOR R/AT VIDHYANAGAR SUHAS NAGAR, 5TH CROSS SHIVAMOGGA (BY SRI. HONNAPPA, HCGP) AS PER COURT ORDER DATED 25.10.2018 ... RESPONDENTS THIS CRIMINAL PETITION IS FILED UNDER SECTION 438 CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN THE EVENT OF HIS ARREST IN CR.NO.446/2018 OF TUNGA NAGAR P.S., SHIVAMOGGA DISTRICT FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 323, 307, 504, 506 OF IPC AND SEC.3(2)(v-a) OF SC/ST (POA) ACT.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Though the second respondent is served, but he remained absent and not represented. Hence, notice issued to the second respondent is held sufficient.
2. Heard the learned counsel for the petitioner and the learned High Court Government Pleader for the first respondent State. Perused the records.
3. In an earlier bail petition filed by the petitioner u/s.438 of Cr.PC., before the I Additional Sessions Judge and Special Judge at Shimogga in Crl.Misc. No.546/2018 has rejected the bail petition on the sole ground that there is bar under Section 18 of the SC/ST Act to grant anticipatory bail.
4. The brief facts of the case are that:
The accused-petitioner has been running a petty beeda shop near Herige village bus stop in Shimoga District. On 16.05.2018 in the night hours at about 11.00 p.m., the complainant T.R. Kiran Kumar along with his friend Vijaya had been to the said beeda shop and they had taken beeda and Vijaya had given Rs.100/- note as he had no change, then accused asked them to give exact change as he had no change for Rs.100/-. Thereafter, Vijaya told accused as they are regular to the beeda shop, they will give money on the next day. In that context, the accused started abusing Vijaya in a filthy language and also tried to assault him. The said Vijaya being afraid of the act of the accused, ran away from the spot. The complainant Kiran Kumar, in fact tried to console the accused by saying that why he has to quarrel for such a small thing and also told that if Vijaya did not pay the amount, he would pay the amount on the next day. In that context, accused himself against the accused, abused him as bastard and by saying so, he has also assaulted with a knife on the neck portion, hand, ears, nose and also on the head and caused injuries. Thereafter, one Umesh came to the spot and took the injured to the Hospital. On these allegations, the police have registered a case in Crime No.446/2018 for the offences punishable under Sections 504, 506, 323 and 307 of IPC and also under Section 3(2)(v-a) of the SC/ST (Prevention of Attrocities) Act, 1989.
5. Learned High Court Government Pleader has provided the wound certificate of the injured. Of course, the injured has suffered 11 injuries which are all small abrasions and scratch marks and cut marks and the doctor who has treated the injured has opined that all those injuries were simple in nature. Perhaps, that may be the reason, the police have registered a case u/s.323 of IPC. There is nothing on record to show that those injuries or any one of the injuries are sufficient to cause death of a person in the ordinary course if treatment is not given immediately after the incident. Therefore, at this stage, it is very difficult to come to the conclusion that the provision of Section 307 of IPC is attracted. However, that has to be thrashed out during the course of full dressed trial.
6. Looking to the above said circumstances, the court has to see whether the offences invoked by the police u/s.3(2)(v-a) of the SC & ST (Prevention of Atrocities) Act, 1989, is attracted or not. In this regard, the said provision is extracted as follows:
“3(2)(va). Commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and shall also be liable to fine;] 7. On careful perusal of the above said provision, it clearly indicates that the accused must know that the injured belonged to SC/ST and only knowing fully well, that he belonged to SC/ST, if he commits any offence under IPC, then only the said provisions are attracted, otherwise it cannot be said that those provisions are attracted or not, and the same has to be examined during the course of trial, but on prima facie reading of the above said provision, it can be certainly said that those offences are not attracted. Therefore, there is no bar for this court to exercise power u/s.438 of Cr.PC., The Trial Court has not bestowed its attention so far as this aspect is concerned.
8. Looking to the above said facts and circumstances of the case, it appears that the incident happened in a spur of moment and absolutely there was no intention, therefore, it cannot be inferred that there was no such intention to cause the death of a person. And the quarrel took place between the two parties and thereafter the incident appears to have been happened. Under the above said circumstances, in my opinion, it is a fit case where the court can exercise its discretion u/s.438 of Cr.PC. Hence, the following:
ORDER The petition is allowed. Consequently, the petitioner shall be released on bail in the event of his arrest in connection with Crime No.446/2018 of Tunga Nagar Police Station, subject to the following conditions:
i) The petitioner shall surrender himself before the Investigating Officer within Ten days from the date of receipt of a certified copy of this order and he shall execute his personal bond for a sum of Rs.50,000/- [Rupees Fifty thousand] only, with one surety for the like- sum to the satisfaction of the concerned Investigating Officer.
ii) The petitioner shall not indulge in hampering the investigation or tampering the prosecution witnesses.
iii) The petitioner shall co-operate with the Investigating Officer to complete the investigation, and he shall appear before the Investigating Officer as and when called for.
iv) The petitioner shall not leave the jurisdiction of Bengaluru District without prior permission of the Court, till the charge sheet is filed or for a period of three months whichever is earlier.
v) The petitioner shall mark his attendance once in a week after the release i.e., on every Sunday between 10.00 am and 5.00 pm., before the Investigating Officer for a period of two months or till the charge sheet is filed, whichever is earlier.
PL* Sd/- JUDGE