IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL CRIMINAL PETITION NO.9570 OF 2018 BETWEEN:
1. Sri Syed Afsar Pasha S/o Syed Mushthaq Sha Aged about 34 years R/at No.23/1, 1st Floor 1st Cross, Near R.K.P.Palace Kaveri Nagar, R.T.Nagar Bengaluru – 32 2. Ayeesha Siddiqua W/o Aijaz Ahamed Aged about 52 years R/at No.15, 5th Main S.K.Garden, Near Naval Mess Benson Town, R/at No.16 1st Cross, Bengaluru – 46 3. Mr. S.Rizwan Pasha S/o Abdul Sattar Aged about 55 years R/at No.08, KPTCL Officers Quarters Behind ESI Hospital HAL 2nd Stage, Indira Nagar Bengaluru – 38 ... Petitioners (By Sri Jayakumar S Patil, Senior Counsel for Sri Dayanand S.Patil, Advocate) AND:
The State of Karnataka by State Public Prosecutor High Court Building Bengaluru – 560 001 (Complaint by Kadugondanahalli Police Crime No.586/2018) ... Respondent (By Smt. Namitha Mahesh, B.G., HCGP for respondent- State; Sri H.P.Leeladhar, Advocate for complainant) 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.586/2018 of Kadugondanahalli Police Station, Bengaluru, for the offences punishable under Sections 143, 147, 447, 427, 354, 509, 323, 324 and 506 read with Section 149 of IPC and Section 3(1)(x)(xi) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
This criminal petition coming on for orders this day, the Court made the following:
ORDER Learned HCGP files memo reporting service of notice on the complainant.
2. The complainant’s counsel files statement of objection with copies of documents.
3. Petitioners are accused No.1, 2 and 4 in Crime No.586/2018 of Kadugondanahalli Police Station, Bengaluru City. The said case is registered against the petitioners and two others for the offences punishable under Sections 143, 147, 447, 427, 354, 509, 323, 324 and 506 read with Section 149 of IPC and Section 3(1)(x)(xi) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 on the basis of the complaint of one Manjulamma.
4. It is alleged that on 21.11.2018, at 9.00 am, the accused formed themselves into an unlawful assembly armed with stones and JCB No.KA-50 / P-7091, trespassed into the property of complainant, demolished their zinc- sheet compound wall and abused the complainant with reference to her caste in foul language and criminally intimidated. It is further alleged that the petitioners caused loss to the complainant party, to the tune of Rs.10 to 15 lakhs by destruction of property.
5. Sri Jayakumar S.Patil, learned Senior Counsel for the petitioners submits that the matter is purely civil in nature and the parties are agitating the matter in Writ Petition No.18316/2017 (LB-BMP) and petitioners have the benefit of an interim order against complainant party not to obstruct their ingress and egress in the disputed property. He further submits that there were earlier complaints also, where the offence under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act were not alleged and deliberately, after the interim order, filed complaint including such offences.
6. In support of his arguments, he seeks to rely on the judgment of the Hon’ble Supreme Court in Vilas Pandurang Pawar and another vs. State of Maharashtra and others reported in (2012) 8 SCC 795.
7. Per contra, learned HCGP for the respondent- State and Sri H.P.Leeladhar, learned counsel for the complainant contend that the petitioners high handedly demolished the properties of the complainant in violation of the High Court’s Order. They further contend that the provisions of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act bar the relief of anticipatory bail.
8. In support of her arguments, learned HCGP seeks to rely on the judgment of the Calcutta High Court in Debjyoti Bhattacharyya vs. The State of West Bengal reported in C.R.M.8302 of 2018.
9. From the submissions and records, it is found that the land in question was acquired for the benefit of the society called Vaiyalikaval House Building Society and some of the land owners challenged the said acquisition, which was quashed. However, the complainant was not a party to those proceedings. The complainant party claim to be the allottees of the sites under the said Society.
10. Complainant party is before this Court in WP.No.18316/2017 (LB-BMP) claiming benefit of order of quashing of the acquisition. Annexure-D to the petition shows that there is an order against demolition of the house and shops situated on the disputed site as well there is an order against obstructing ingress and egress of the allottees into the said property.
11. As rightly pointed out by the learned Senior Counsel for the petitioners, regarding the same incident, on 21.11.2018, the complainant’s nephew had filed a complaint against the first petitioner, one Bhanuprakash and Ramesh. Again relying the same incident, complainant files another complaint in the present case making the same allegation. The records at this stage does not indicate that the alleged entry of the petitioners in the property or incident was caste biased or caste based.
12. In Vilas Pandurang Pawar’s case as well as in Debjyoti Bhattacharyya’s case, it was held that the bar of Section 18 or 18A of the Act operates only on prima-facie case of caste based discrimination is madeout. In this case, prima-facie the dispute is regarding rights of the parties on the property and not on the issue of caste or with reference to that. All other offences are triable by the Magistrate.
13. However, by the photographs produced by both the parties, it is found that the parties were on the site with a JCB machine and some debris are found there. That indicates there was an attempt of demolition of some building. Under these circumstances, it is a fit case to grant anticipatory bail with stringent conditions.
14. Therefore, the petition is allowed. The petitioners are granted anticipatory bail in Crime No.586/2018 of Kadugondanahalli Police station. If they are arrested in the said case, they shall be released on bail on the following conditions:
(i) They shall appear before the Investigating Officer within ten days from the date of receipt of copy of this order.
(ii) They shall execute personal bonds in a sum of Rs.50,000/- each and furnish two sureties in the likesum to the satisfaction of the Investigating Officer/Court for their appearance.
(iii) They shall appear before the Investigating Officer/Court as and when required for the purpose of investigation/trial.
(iv) They shall not tamper the prosecution witnesses in any manner.
(v) They shall not visit the scene of occurrence till the completion of the investigation.
In view of disposal of this petition, IA Nos.1/2018 and 2/2018 do not survive for consideration and they are disposed of accordingly.
KMV* Sd/- JUDGE