IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.4734 OF 2018 BETWEEN:
The State of Karnataka By Kaggalipura Police Represented by the State Public Prosecutor High Court Building Bengaluru – 560 001. ... Petitioner (By Sri. H.S.Chandramouli, SPP) AND:
1. Kum. Rajani G. D/o Ganesh Aged about 19 years R/at Naganayakanahalli Uttarahalli Hobli Bengaluru South Taluk Bengaluru – 560 082.
2. Smt. Manjula @ Manjamma W/o Manjunath Aged about 25 years R/at Udipalya Kanakapura Road Somanahalli Bengaluru – 560 082. ... Respondents (By Sri. S. Girish, HCGP) This Criminal Petition is filed under Sections 439(2) and 482 of Code of Criminal Procedure Code praying to set aside and cancel the bail order dated 21.03.2018, passed by the learned II Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru in Criminal Misc.No.146/2018, for the offences punishable under Sections 366, 366(A), 114 of IPC and Section 4, 5(L), 6 of POCSO Act and Section 3(1)(w)(i)(ii) and 3(2)(v) 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 petitioner- State under Sections 439(2) and 482 of Code of Criminal Procedure praying this Court to set aside and cancel the bail order dated 21.03.2018 passed by the Court of II Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru in Crl.Misc.No.146/2018 for the offences punishable under Sections 366, 366(A), 114 of IPC and Section 4, 5(L), 6 of POCSO Act and Section 3(1)(w)(i)(ii) and 3(2)(v) of SC/ST (Prevention of Atrocities) Act (‘SC/ST’ Act for short).
2. I have heard the learned SPP for petitioner- State and learned counsel for the respondents-accused Nos.1 and 2.
3. It is the submission of learned SPP for the petitioner-State that the trial Court while exercising the power under Section 438 of Cr.P.C has erroneously passed an order without taking into consideration Section 18A of the SC/ST Act. He further submitted that Section 18A of the SC/ST Act clearly shows the bar to exercise the power under Section 438 of Cr.P.C. He further submitted that the Hon’ble Apex Court and this Court have reiterated the fact that there is no absolute bar. But while considering the bail application, the trial Court has to apply its mind to the facts of the case to ascertain whether there is prima facie case or not. Under such circumstances, the trial Court while exercising the power under Section 438 of Code of Criminal Procedure, without taking into consideration Section 18A of the SC/ST Act and without assigning any reasons has granted the anticipatory bail by allowing the petition cryptically. As such the impugned order is not sustainable. Therefore, he seeks to cancel the anticipatory bail.
4. Per contra, learned counsel for the respondents has vehemently argued and submitted that accused and the victim belong to the same caste. Hence, the provisions of Sections 3(1)(w)(i)(ii) and 3(2)(v) of SC/ST Act are not attracted. Considering the documents produced along with the criminal miscellaneous, the trial Court has passed the impugned order. He further submitted that the victim girl herself gone along with the accused No.1 and there was no force, as stated under Section 340 of IPC and the same does not attract. The trial Court has considered the material produced by the petitioner and granted the bail. There are no good grounds to interfere with the said order. Therefore, he seeks to dismiss the present petition.
5. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records. For the purpose of brevity, I quote Section 18A of the SC/ST Act, which reads as under:
“18A. (1) For the purpose of this Act,--
(a) preliminary shall not be required for registration of a First Information Report against any person; or (b) the investigating officer shall not require approval for the arrest, if necessary, of any person.
against whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply.
(2) The provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court”.
6. On close reading of the aforesaid Section, it clearly indicates that there is a bar to exercise the power under Section 438 of Cr.P.C. But, while dealing with the said aspect the Hon’ble Apex Court in the case of Dr. Subhash Kasinath Mahajan v/s State of Maharashtra reported in AIR 2018 SC 1498 has observed that there is no absolute bar against 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 to be prima facie mala fide, the court can grant anticipatory bail. As could be seen from the record, there is a prima facie material found as against accused Nos.2 and 3, the trial Court without considering the said aspect and without assigning the reasons so also without following the guidelines issued by the Hon’ble Apex Court has granted the bail to accused Nos.2 and 3. Under such circumstances, I feel that the State has made out good grounds to allow the petition.
7. Accordingly, Criminal Petition is allowed.
Anticipatory bail granted in Crl.Misc.No.146/2018 on 21.03.2018 is cancelled. However, the respondent- accused are directed to appear and surrender before the Court below on 26.03.2019. In the event of their surrender before the Court, the Court below is directed to consider the bail application afresh and pass the appropriate legal order, keeping in view of the provision of law, the proposition of law laid down by the Hon’ble Apex Court and by this Court expeditiously.
The Registrar (General) is directed to forward the copy of this order to the concerned.
Sd/- JUDGE NR/-