IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.9227/2018 Between:
1. Sri K.G. Lokeshappa S/o. Late Govindappa Aged about 52 years 2. Smt. Kamalamma W/o. Sri K.G.Lokeshappa Aged about 46 years 3. Kumari Meghana D/o. K.G.Lokeshappa Aged about 21 years All are R/o. B.Kodihalli Village Kadur Taluk Chikkamagalur District – 577 548. ...Petitioners (By Sri Ravishankar S, Advocate) And:
State of Karnataka Birur Police Chikkamagalur District Rep by SPP High Court of Karnataka Bangalore – 560 001. ...Respondent (By Sri. K.P.Yoganna, HCGP) 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.126/2018 of Birur Police Station, Chikkamagaluru District for the offence punishable under Sections 376(2)(n), 417, 504 R/w 34 of IPC and Section 3(1(r), 3(1)(s), 3(1)(w)(i)(ii), 3(2) ) of SC/ST (POA) Act, 2015.
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.2 to 4 under Section 438 of Cr.P.C. praying this Court to release them on anticipatory bail in the event of their arrest in Crime No.126/2018 of Birur Police Station, Chikkamagaluru for the offences punishable under Sections 376(2)(n), 417, 504 R/w 34 of IPC and Section 3(1(r), 3(1)(s), 3(1)(w)(i)(ii), 3(2) ) of SC/ST (POA) Act, 2015.
2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for the respondent-State.
3. Though notice is issued to the complainant and served through police, she has remained absent.
4. The gist of the prosecution case is that the complainant belonged to scheduled caste. Accused No.1, under the pretext of being in love with complainant, had sexual act with her. Thereafter, he stopped contacting the complainant. On enquiry, he informed the complainant that he cannot marry her as she belongs to lower caste. The said fact was informed to the parents of accused No.1. On 28.09.2018, they came to the house of complainant’s grandmother and abused them in a filthy language by taking the name of caste. On the basis of the complaint, a case came to be registered.
5. It is submitted by the learned counsel for the petitioners that a reading of the entire complaint and other materials would go to show that there is no allegation to constitute an offence under Section 3(1(r), 3(1)(s), 3(1)(w)(i)(ii), 3(2) ) of SC/ST (POA) Act, 2015 (for short ‘Act’ ) as the said words have not been uttered by the petitioners and that it is not in public view. He further submitted that the said allegations as against accused No.1 is not punishable with death or imprisonment for life. He further submitted that the only allegation which has been made against the petitioners is that they told the complainant that she belongs to lower caste and as such they were not ready to take complainant as daughter-in-law, except that nothing is there. On these grounds, he prays to allow the petition.
6. Per contra, learned High Court Government Pleader vehemently argued and submitted that there are ample materials to show that the petitioners – accused Nos.2-4, along with the accused No.1, abused by taking the name of the caste of the complainant and accused No.1 has sexually assaulted the complainant. He further submitted if the accused – petitioners are enlarged on bail, they may tamper with the prosecution evidence and they may not be available for trial. It is further submitted that there is a bar under Section 18 of the SC/ST (POA) Act, 2015. As such, the said application is liable to be dismissed.
7. I have carefully and cautiously gone through the submission made by the learned counsel for the petitioners and other materials, which have been produced in this behalf.
8. As could be seen from the records, the only allegation which has been made against the petitioners – accused is that the complainant informed the parents of accused No.1 and they refused to take her in marriage as she belongs to the lower caste and that they had been to the house on 28.09.2018 and abused her in a filthy language. After perusal of the entire complaint, it is seen that there is no prima-facie case made out so as to attract the provisions of the Act. It is well settled principle of law that if there is no prima-facie material then under such circumstances, Section 18 of the SC/ST (POA) Act, 2015 will not operate and this Court can exercise the power under Section 438 of Cr.P.C. The alleged offences are not punishable with death or imprisonment for life.
9. Taking into consideration the above facts and circumstances, the petition is allowed and the petitioners – accused Nos.2 to 4 are ordered to be released on anticipatory bail in the event of their arrest in crime No.126/2018 of Birur Police Station for the offences punishable under Sections 376(2)(n), 417, 504 R/w 34 of IPC and Section 3(1(r), 3(1)(s), 3(1)(w)(i)(ii), 3(2) ) of SC/ST (POA) Act, 2015 subject to the following conditions:
1. In the event of arrest of accused Nos.2 to 4, the Investigating Agency is directed to enlarge them on bail on they executing a personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh Only) each with two sureties for the likesum to the satisfaction of the Investigating Officer.
2. They shall surrender before the Investigating Officer within 15 days from today.
3. They shall not tamper with the prosecution evidence directly or indirectly in any manner and shall not indulge in similar type of offence.
4. They shall not leave the jurisdiction of the Court without prior permission.
5. They shall co-operate with the Investigating Officer and shall mark their attendance once in 15 days between 10.00 a.m., and 5.00 p.m., before the jurisdictional police station till the charge-sheet is filed.
SD/- JUDGE nms