IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL 2017 BEFORE THE HON’BLE MRS. JUSTICE RATHNAKALA CRIMINAL PETITION No.1826 OF 2017 BETWEEN:
1. Sri. S.N.Gurushankar, S/o. Late. Nagamanju, Aged about 30 years, Misty Mount Home Stay, Resident of Athigundi Village, Chikkamagaluru Taluk-577101.
2. Sri. Ananda Murthy, S/o. Late. Nagamanju, Aged about 30 years, Misty Mount Home Stay, Resident of Athigundi Village, Chikkamagaluru Taluk-577101. ...Petitioners (By M/s N.Srinivas & Associates, Advs.,) AND:
State of Chikkamangaluru P.S. Rep. by State of Karnataka by SPP, High Court of Karntaka, Bengaluru-560001. …Respondent (By Sri. B.J.Eshwarappa, 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 Cr.No.39/2017 of Chikkamagaluru Rural District for the offence P/U/S 504, 323, 324, 307, 427, 506 R/w 34 of IPC and Sec.3(1)(x) of SC/ST (POA) Act.
This criminal petition coming on for orders this day, the court made the following:
O R D E R Heard the learned counsel for the petitioners and the learned HCGP for the respondent.
2. The respondent-police registered a FIR against the petitioners (accused Nos. 1 and 2) and two others in respect of the offence under Sections 504, 323, 324, 307, 427, 506 read with 34 of IPC and Section 3(1)(10) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. 1989 (hereinafter for short referred to as ‘the Act’).
3. The case of the prosecution is that, on the night of 21.1.2017 being enraged by one Sharukh who works as a Cook in the Home Stay which is situated in the Coffee Estate where the complainant is working, the complainant shouted at him. Then the first accused who runs the Home Stay slashed his chopper towards the complainant and abused him, referring to his SC community. However, the complainant rescued himself. Accused Nos. 2 to 4 inflicted blows on him. The first and second accused pelted stores on his head and caused bleeding injuries and damaged his window glass, put threat of dire consequences. The complainant was admitted to the Government Hospital, Chikkamangaluru. Though police had arrived at the hospital, the complainant decided to lodge a complaint after deliberating with the owner of the plantation. On the advice of the doctor he shifted to Shivamogga Sayadri Narayana Hrudayalaya Hospital and lodged the complaint on 24.1.2017.
4. Learned counsel for the petitioner submits that, in fact the complainant discharged from the Government Hospital, Chikkamangaluru, against medical advice and later got voluntarily admitted to the hospital at Shivamogga, and is discharged from the said hospital. The present complaint is filed to counter blast the complaint lodged against him by the first petitioner-Guru Shankar in respect of the very same incident on 21.1.2017. The very same respondent-police registered FIR in Crime No. 38/2017 dated 23.1.2017 against the present complainant. In fact, the petitioner was the victim of the incident and all the three petitioners herein suffered bleeding injuries.
5. Learned counsel would continue to submit that the bar under Section 18 of the Act is not attracted to the present facts and circumstances of the case for the simple reason that the incident occurred during the night hours near the Estate. The very delay in lodging the complaint would speak by itself that it is a false case. The complainant had joined duty in the Estate few months back and the petitioners had no knowledge of the community to which he belongs. In fact, the complainant was causing trouble to the first petitioner for running the Home Stay.
6. The learned HCGP for the State while opposing the petition submits that, whether the complaint averment is true or false, that could be unearthed only after investigation. As of now, from the complaint there is prima facie material against the petitioners for using criminal force against the complainant and abusing the complainant in the public place. Hence, the petitioners cannot circumvent Section 18 of the Act to get the benefit of Section 438 of Cr.P.C.
7. In the light of the above submissions and also perusal of the complaint registered by the very same respondent-police in their Crime No. 38/2017 (on the complaint of the first petitioner herein), it emanates that in respect of the incident of 21.1.2017, firstly petitioner lodged the complaint on 23.1.2017 and it is thereafter the complainant lodges his complaint on 24.1.2017. Though the complainant has suffered injuries during the incident, at this stage itself it cannot be said who is the real aggressor and who is the aggrieved. In that view of the matter, it cannot be said that the prosecution has a prima facie case against the petitioners for using criminal force against the complainant.
8. In so far as the allegation regarding abusing the complainant with reference to his caste, the very fact that complainant did not lodge the complaint immediately after the incident though police arrived in the hospital and only to discuss with his employees, possibly, that complaint is not the natural tone of the injured. Furthermore, the weapons alleged to have been used are the pebbles lying at the spot. In the given circumstances, it cannot be said that prosecution has a prima facie case in respect of the offence under the Act. Necessarily Section 18 of the Act is not a bar for the petitioner for seeking remedy under Section 438 of Cr.P.C. The Apex Court in the case of VILAS PANDURANG PAWAR AND ANOTHER vs STATE OF MAHARASHTRA AND OTHERS [(2012) 8 SCC 795] has clearly held that the Court has to find out whether a prima facie is made out by the complainant in respect of the offence under the Act. Having found that the prosecution has not made out a prima facie case, there is no impediment to allow the petition.
9. Accordingly, the petition is allowed. Petitioners are granted anticipatory bail for a period of three weeks. Within the said period they shall surrender before the concerned Court and move for regular bail. Till disposal of the regular bail, this order will be in force. If they are arrested by the investigating officer within the above period, they shall be released on bail on executing a self bond for a sum of Rs.50,000/- with one surety for the likesum.
Sd/- JUDGE ckl ct-bl