IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02ND DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE K.N.PHANEENDRA CRIMINAL PETITION NO.3234/2019 BETWEEN:
1. SRI DAYANAND N S/O. NARAYANAPPA AGED ABOUT 55 YEARS 2. SMT. VIJAYALAKSHMI W/O. DAYANAND N AGED ABOUT 45 YEARS BOTH ARE RESIDING AT NO.10, 1ST MAIN ROAD VINAYAKA LAYOUT YELAHANKA PUTTENAHALLI BENGALURU - 560064 ... PETITIONERS (BY SRI NANJUNDA GOWDA M.R., ADV.,) AND:
1. THE STATE OF KARNATAKA BY YELAHANKA NEW TOWN POLICE STATION, BENGALURU 2. P.V.JAINAPUR S/O. LATE VITTAL RAO JAINAPUR AGED ABOUT 68 YEARS RETIRED PUBLIC PROSECUTOR NOW ADVOCATE NO.301, 4TH FLOOR OM SAI RESIDENCY, 3RD CROSS KRISHNA LAYOUT HULIMAVU BENGALURU - 560076 (BY SRI HONNAPPA, HCGP FOR R1; R2-PARTY-IN-PERSON PRESENT) …RESPONDENTS 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 CR.NO.54/2019 OF YELAHANKA NEW TOWN POLICE STATION, BENGALURU CITY FOR THE OFFENCE P/U/S.420, 506 R/W SEC.34 OF IPC AND SEC.3(1)(S) OF SC/ST (POA) ACT.
THIS CRIMINAL PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT PASSED THE FOLLOWING:-
ORDER Heard the learned counsel for the petitioners, learned HCGP for the first respondent-State, respondent No.2-Party-in-person who is present before the Court and perused the records.
2. This Court on the earlier occasion vide order dated 11.07.2019, after hearing both the parties granted interim bail in connection with Cr.No.54/2019 of Yelahanka New Town Police Station, Bengaluru, for the offence punishable under Sections 420, 506 r/w 34 of IPC and under Sections 3(1)(s) of SC/ST (Prevention of Atrocities) Act.
3. Presently, the petitioners are on bail and there is no allegation of whatsoever by respondent No.1-State that accused have violated the conditions imposed by this Court.
4. Be that as it may. The factual matrix of this case are that respondent No.2 lodged a complaint before the first respondent police station stating that he belonged to scheduled caste and the accused belongs to Gowda community. They are known to each other and infact respondent No.2 is the tenant under the petitioners herein. In this context, it is stated that wife of respondent No.2 and petitioner No.2 were close to each other and on the basis of that closeness, petitioner No.2 persuaded respondent No.2 to pay a sum of Rs.25 lakh for the purpose of getting the post of PSI to the son of respondent No.2. Accordingly, it is stated in the complaint that on various occasions, respondent No.2 paid totally a sum of Rs.25 lakh to the petitioners. But the petitioners neither return the said money nor secured the job to the son of respondent No.2. It is further contended that in spite of repeated requests and demands by respondent No.2 to the petitioners to repay the money, they did not return the same. On the other hand, it is alleged that on 17.03.2019, at about 03:00 p.m. when respondent No.2 and his wife and others went to the house of the petitioners to ask for the amount, the petitioners threatened them with dire consequences and also came out from the house to the road and abused the complainant in filthy language by referring to their caste. At that time, some people came there and resolved the dispute. On the basis of the aforesaid allegations, a complaint has been registered.
5. Learned counsel for the petitioners submitted that the offence under Section 3(1)(s) of the SC/ST Act, is not attracted at this stage. Further, added to that considering the relationship between the parties and that the complainant is not an ordinary man and he is a retired Public Prosecutor and knowing fully well the consequences, he paid said amount to the petitioners, such consequences at this stage, has to be proved beyond reasonable doubt during the full dressed trial. Therefore, in order to prove that the complainant has paid the amount to the petitioners and that the petitioners have not repaid the same with an intention to cheat the respondent or whether actually said amount was received by the petitioners, are the factual aspects required to be thrashed out during the course of full fledged trial. Therefore, under the above said circumstances, he prayed for confirming the interim bail granted to the petitioners.
6. Respondent No.2/party-in-person who is present before the Court submitted that he with utmost faith believed the petitioners because of their congenial relationship maintained with his family.
Further, he contended that the petitioners had actually stated that they would repay the money as and when they receive the same by some other person if they could not get the job and that aspect creates a doubt that the petitioners have really intended to cheat the respondent or they paid the said amount to somebody and awaiting for recovery of the said amount from them. Therefore, this transaction and the intention of cheating by the petitioners has to be thrashed out during the course of full fledged trial.
7. Coming to the next point, respondent No.2 contended that Section 18 of the SC/ST (POA), Act is a bar to grant anticipatory bail to the petitioners. In this context, the attraction of provisions of Section 3(1)(s) of SC/ST Act, has to be looked into and it is stated therein that any person abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view in order to defame him in front of the public. The petitioners have abused respondent No.2 in filthily language by referring to his caste. Particularly, in this regard, it is stated by respondent No.2 that the alleged incident took place in the presence of friends and the names of those friends have not specifically mentioned in the complaint itself. Under the above said facts and circumstances, if the witnesses are close friends of the complainant and complainant being the retired public prosecutor, he knew about all the consequences of the information given in the FIR. Though, FIR is not an encyclopedia to consider minute details of the case. But when he knew the witnesses who were present at the time of incident, he should have mentioned the names of those persons. If incident happened in the public view, then only attracts Section 3(1)(s) of SC/ST Act. As it is a matter of fact to be proved beyond reasonable doubt during the course of full dressed trial and as the incident has not shown to had taken place within the public view, therefore, ingredients of Section 18 of SC/ST Act, is not attracted and hence, it is not a bar to grant bail to the petitioners. Accordingly, they are entitled to be continued on bail which was already granted by this Court on same conditions.
8. Therefore, the petition is allowed and there is no reason for this Court to disturb the interim bail granted by this Court earlier and the same is hereby made absolute.
Sd/- JUDGE HJ