IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.9513/2018 BETWEEN:
1. Sri. K. Ramesha S/o late V. Krishnappa, Aged about 50 years, R/at: Behind Hesaraghatta Lake, Farm House, Bengaluru – 560 088.
2. Sri. H.V. Venkatesh S/o late Venkatswamy, Aged about 42 years, R/at:No.365, Vasanthanagar Beedhi, Hesaraghatta, Bengaluru – 560 088.
3. Sri. Rajeev S/o late Kempa Anjanappa, Aged about 50 years, 4. Sri. Anjanappa @ Anjaneya S/o late Venkata Swamy, Aged about 45 years, 5. Sri. Srinivasa S/o Anjaneya, Aged about 25 years, 6. Sri. Subramani S/o late Nettaiah, Aged: Major, Petitioner Nos.3 to 6 are R/at No.1555, Nagawara, Hesaraghatta, Bengaluru – 560 088.
...Petitioners (By Sri. B. Anand, Advocate) AND:
State of Karnataka By Soldevanahalli Police, Bengaluru Rural Disrict, Reptd., by State Public Prosecutor, The High Court of Karnataka, Bengaluru – 560 001.
(By Smt. B.G. Namitha Mahesh, HCGP) ... Respondent This Criminal Petition is filed under Section 438 of Criminal Procedure Code praying to enlarge the petitioners on bail in the event of their arrest in Crime No.304/2018 of Soladevanahalli Police Station, Bengaluru for the offence punishable under Sections 324, 307, 354, 363 read with 149 of IPC and Section 3(1)(r), 3(1)(s), 3(1)(w) of SC/ST (POA) Act.
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.1 to 6 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.304/2018 of Soladevanahalli Police Station for the offences punishable under Sections 324, 307, 354, 363 read with Section 149 of IPC and under Sections 3(1) (r), 3(1) (s), 3(1) (w) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘SC & ST Act’).
2. I have heard the learned counsel for petitioners and the learned High Court Government Pleader for respondent-State. In pursuance of the notice, complainant has engaged the services of Sri.G.Raghu, learned counsel and he has assisted the prosecution in arguing the case.
3. The gist of the complaint is that on 01.10.2018 at about 5.00 A.M, when the complainant was sweeping in front of her house, at that time the complainant’s daughter was sleeping inside the house and her husband had gone outside. The accused persons namely Ramesha, Venkatesh @ Andani, Rajeev, Anjanappa, Srinivas and Subramani of her village came in a white Scorpio car bearing registration No.KA-41- M33-21. The accused persons caught hold of the complainant by covering her face with bed sheet and when she tried to scream, all of them assaulted with their hands on her face and other parts of her body. They also abused the complainant with filthy language by taking out the name of her caste. It is further alleged that accused No.1-Ramesha assualted with a rod and accused No.2-Venkatesh assaulted with hands and bottle on her head and caused bleeding injuries. They also tried to commit murder of the complainant. It is further alleged that in the said car the accused persons tried to remove the pant of the complainant and also tried to outrage her modesty. It is further case of the complainant that the accused persons took her in the same car near Hesaraghatta tank and tried to gang rape her and kill her. They also told her that they would burn her house and threatened her with dire consquences. All of them brought her back in the same car near the milk booth near Hesaraghatta, at that time, the complainant shouted and public gathered. At that time, the complainant was pushed down from the car and all of them escaped. The complainant’s daughter saw the incident from the window and she was scared. Thereafter, the complainant got admitted to Government Hospital in Nelamangala. As the complainant was scared, she did not lodge the complaint immediately and subsequently, the complaint was lodged on 11.10.2018. On the basis of the said complaint, the case has been registered in this behalf.
4. It is the submission of the learned counsel for the petitioners that though the alleged incident has taken place on 01.10.2018, the complaint was registered on 11.10.2018. There is ten days delay in lodging the complaint. He further submitted that in the said complaint no motive or intention has been stated in this behalf. He further submitted that as per the case of the complainant, immediately after the incident and suffering with injuries, she got admitted in the Government Hospital at Nelamangala but no medico- legal case has been registered. If really the alleged incident has taken place as alleged, definetly the doctor could have intimated the said fact to the concerned police. That itself clearly goes to show that a fabricated case has been registered in this behalf and to take revenge against petitioners-accused Nos.1 to 6. Since case has been registered by the petitioners against the villagers, complaint has been planned and filed. He further submitted that as per the case of the complainant, the alleged incident has taken place in the car and the provisions of SC & ST Act are not attracted, as the alleged incident has not taken place in public. He also submitted that the complaint does not disclose actually to which caste the accused persons belongs. Unless the said fact is stated, the complaint itself is not sustainable in law and the entire material prima facie does not disclose the offence under SC & ST Act and as such, the bar under Section 18A is not going to attract. He further submitted that petitioners are ready to abide by any conditions that may be imposed on them by this Court and ready to offer sureties. On these grounds, he prayed to allow the petition and to release the petitioners/accused Nos.1 to 6 on bail.
5. Per contra, learned High Court Government Pleader on instructions on the counsel engaged by the complainant submitted that still the investigation is in progress. As the complainant suffered with injuries immediately, she went to Government Hospital, Nelamangala and got admitted. After recovery, she came and filed the complaint before the police. Even the case history which has been given in the hospital corroborates with the contents of the complaint. She further submitted that there is ample material to show that it is accused persons who kidnapped the complainant and thereafter, abused her in filthy language as well as taking the name of the caste. Thereafter, they tried to outrage her modesty and also tried to gang rape. She being a women has given the complaint in consonance with the fact which has happened in the car. The same is also corroborated with other material. She further submits that there is specific overt-act stated in the complaint and earlier the complaint was not registered, as such a complaint has been given in this behalf before the Assistant Commissioner of Police. At this juncture, if petitioners- accused Nos.1 to 6 are released on bail, under such circumstances investigation is going to tamper and there is clear cut bar under Section 18A of SC & ST Act to release the petitioners-accused Nos.1 to 6 on anticipatory bail. On these grounds, she prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submission of the learned counsel appearing for the parties and also the records made available during the course of the arguments. On close reading of the entire material which has been produced in this behalf discloses that if the alleged incident has taken place as contended by the complainant, there is no question of accused persons bringing back the victim in car to Hesaraghatta, they could have done there itself. The complaint does not disclose the clear wordings that has been used and who used those words, omnibus statement has been made on this behalf stating that they took her near Hesaraghatta tank and all the accused persons by refering to her used the name of the caste and insulted her. Be that as it may, she got admitted in the Government Hospital, Nelamangala and even the wound certificate which has been made available shows that there is history of assault and attempt to rape by a group of people at Hesaraghatta between 5.00 A.M to 6.00 A.M on 01.10.2018 and the name of the accused persons has also been mentioned. If really the history has been given in the fashion in which the wound certificate discloses, definitely the doctor ought to have intimated the said fact to the jurisdictional police. No intimation of the said fact has been given to the police. As could be seen from the contents of the complaint which is got typed, though it discloses that the daughter of the complainant saw the incident from the window, she has not screamed in this behalf. If really the daughter has seen the incident, immediately she could have intimated the alleged incident to their neighbour and she could have made hue and cry. This also has not been done. It is the submission of the learned counsel for the petitioners that earlier to the alleged incident there was a case registered by the accused persons against the villagers and in order to over come the said complaint, this complaint was got prepared and filed. No doubt during the course of arguments, learned HCGP by refering to Section 18A of SC & ST Act submitted that there is a bar to grant anticipatory bail but it is now well settled principles of law by the Hon’ble Apex Court in the case of Dr.Subhash Kashinath Mahajan V/s State of Maharastra reported in (2018) 6 SCC 454 that Section 18 of SC & ST Act is not an absoulte 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 prima facie malafide. Under such circumstances, the Court can exercise the power under Section 438 of Cr.P.C and release the petitioners-accused Nos.1 to 6 on bail. The said facts are applicable in the present case. Under such circumstances this Court is of the opinion that it can exercise the power under Section 438 of Cr.P.C and release the petitioners-accused Nos.1 to 6 on bail. In so far as offence other than SC & ST Act is concerned, they are not punishable with death or imprisonment for life. Even the wound certificate which was made available discloses the fact that she got admitted on 01.10.2018 and got discharged from the hospital on 06.10.2018. It appears that there is offence under Section 307 of Cr.P.C and she is out of danger. There is no risk to her life. Under such facts and circumstances, I feel, if by imposing stringent conditions the petitioners-accused Nos.1 to 6 may be ordered to be released on bail which is going to meet the ends of justice.
7. In the light of discussion held by me, petition is allowed and the petitioners/accused Nos.1 to 6 are ordered to be released on anticipatory bail, in the event of their arrest in Crime No.304/2018 of Soladevanahalli Police Station for the offences punishable under Sections 324, 307, 354, 363 read with Section 149 of IPC and under Sections 3(1) (r), 3(1) (s), 3(1) (w) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, subject to the following conditions:
1. In the event of their arrest, the Investigating Officer is directed to enlarge them on bail on each of them executing 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 Investigation Officer.
2. They shall surrender before the Investigation Officer within 15 days from today.
3. They shall co-operate with the Investigation Officer during the course of investigation and trial.
4. They shall not threaten the complainant and their family members during trial.
5. They shall not tamper with the prosecution evidence either directly or indirectly.
6. They shall mark their attendance once in 15 days between 10.00 a.m., to 5.00 p.m., before the jurisdictional police station till the trial is concluded.
Sd/- JUDGE UN