IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.1200/2019 BETWEEN:
Sri.Chandrappa, S/o.Kare Kotappa, Aged about 52 years, Occupation: Agriculturist, Resident of Birenahalli, Katenahatty Village, Hiriyuru Taluk, Chitradurga District-572 143. ...PETITIONER (By Sri. N. Srinivas, Adv.) AND:
1. State by Hiriyur Rural Police Station, Hiriyur-572 143, Rep. SPP High Court of Karnataka, Bengaluru-560 001.
2. Sri.Srinivasa, S/o.Thimma Bhovi, Aged about 35 years, Occupation: Driver, Chuthaiahnahatty Village, Hiriyur Taluk, Chitradurga District-572 143. ...RESPONDENTS (By Sri.M.Divakar Maddur, HCGP for R1; R2 is served and unrepresented) 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.424/2018 of Hiriyur Rural Police Station, Chitradurga for the offence p/u/s 504 and 506 of IPC and Section 3(1)(r), 3(1)(s) and 3(2)(v-a) of SC/ST (POA) Act.
This Criminal Petition coming on for Orders, this day, the Court made the following:
O R D E R This petition has been filed by the petitioner – accused under S.438 Cr.P.C. to release him on anticipatory bail in Crime No.424/2018 of Hiriyur Rural Police for the offences punishable under Ss.504, 506 of IPC and Ss.3(1)(r), 3(1)(s), 3(2)(v-a) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, 'the Act').
2. I have heard learned counsel for the petitioner and learned High Court Government Pleader for the respondent – State.
3. The gist of the complaint is that the complainant had worked in petitioner’s agricultural land for which the petitioner accused on 25.04.2018 had paid Rs.6,000/- and had promised the complainant that he would pay the balance amount of Rs.3,000/- within 15 days. As the petitioner accused has not kept his promise, on 28.11.2018, at about 9.30 a.m., complainant in the presence of one Nagaraj and one Rangaswamy spoke to accused on his mobile by keeping the speaker on. The petitioner accused after receiving the call abused the complainant by taking the name of his caste and abused his wife in filthy language and also threatened that he will take away the life of the complainant. As the matter was taken to the elders of the village and as the matter was not resolved amicably, the complainant has filed the complaint.
4. It is the submission of the learned counsel for the petitioner - accused that the petitioner is innocent and he has not committed any offence. The alleged incident had taken place on 28.11.2018 at about 9.30 a.m. The complaint has been registered on 29.11.2018. There is delay in filing the complaint. He further submitted that the petitioner – accused and the complainant were not in amicable terms and there was some money transaction between them and only because of the said ill-will, a false complaint has been registered. He further submitted that the complaint itself is a make-believe affair. In the complaint itself it is specifically stated that in the presence of two witnesses the complainant had kept the speaker of the mobile phone on and spoke with the complainant and at that time, they have heard the accused abusing the complainant by taking the name of his caste which is not believable. In order to attract the provision of Section 3(1) of the Act, the abuse made must be in public view, then only the said act is punishable. The provision of S.438 Cr.P.C. can be invoked if the complaint is filed with a mala fide intention and that a false complaint has been filed. Learned counsel submits that the petitioner is ready to abide by the conditions that may be imposed and ready to offer sureties. On these grounds, he prayed to allow the petition.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that the petitioner – accused was due to pay some amount and when complainant insisted for the payment, the petitioner has abused him by touching the name of the caste and there is a clear cut bar under S.18A of the Act for release of the petitioner on bail. On these grounds, he prayed to dismiss the petition.
6. Though notice is served to the complainant, he has remained absent.
7. I have carefully and cautiously considered the submissions made by learned counsel for the parties and perused the record.
8. In order to exercise the power under S.438 of Cr.P.C., the Court has to see S.18A of the Act. Therein, there is a bar to grant anticipatory bail under various circumstances. But it is now well settled proposition of law made by 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, that there is no absolute bar against the 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. In view of the said proposition of law, let me consider the contents of the complaint and other material on record.
9. As could be seen from the contents of the complaint, the complaint itself has been filed on the next day of the incident. There is delay in filing the complaint. Though it is stated in the complaint that the complainant and the elders of the village tried to amicably settle the matter it was not settled and as such the complaint was belatedly filed. But as could be seen from the contents of the complaint two witnesses were said to be present i.e. one Nagaraju and one Rangaswamy and that complainant has kept the speaker of the mobile phone on while he was speaking with the petitioner – accused. How the complainant was aware of the fact that petitioner would abuse by taking the name of his caste and that same would be heard by these two witnesses. That itself clearly goes to show that the complaint itself is a make-believe affair and there is no prima facie material to show that the accused was abusing by taking the name of the caste of the complainant in a public view.
10. As held by the Hon’ble Apex Court quoted supra, from the complaint averments if it is shown that the complaint is filed with a mala fide intention and prima facie there is no material to prove the alleged offence under such circumstances, this Court can exercise power under S.438 Cr.P.C. and release the accused on bail with conditions. In that light, petitioner has made out a case. Even as could be seen from the complaint, there are no serious allegations. In that light I feel that by imposing some stringent conditions anticipatory bail could be granted to the petitioner to meet the ends of justice.
In that light, the petition is allowed. Petitioner – accused is ordered to be released on anticipatory bail in the event of his arrest in Crime No.424/2018 of Hiriyur Rural Police for the offences punishable under Ss.504, 506 of IPC and Ss.3(1)(r), 3(1)(s), 3(2)(v-a) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, with the following conditions:
(i) Petitioner shall execute a personal bond for a sum of Rs.1,00,000/- with two sureties for the like sum to the satisfaction of the Investigating Officer.
(ii) Petitioner shall surrender before the I.O. within twenty days from today. He shall appear before the I.O. as and when required.
(iii) Petitioner shall mark his attendance once in every fifteen days before the jurisdictional police till charge- sheet is filed.
(iv) Petitioner shall not indulge in similar type of criminal activities. Petitioner shall not tamper prosecution evidence in any manner.
(v) Petitioner shall not leave the jurisdictional court without prior permission.
sac* Sd/- JUDGE