IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.130 OF 2019 BETWEEN:
1. Rajappa, S/o. Byrappa, Aged about 60 years, 2. Ramesh, S/o. Byrappa, Aged about 58 years, 3. Pillappa, S/o. Byrappa, Aged about 48 years, 4. Muniraju, S/o. Millappa, Aged about 46 years, 5. Muniraju, S/o. Rajappa, Aged about 43 years, 6. Manjunatha, S/o. Doddanna, Aged about 25 years, All are residing at Malliyappanahalli Village, Kurgul Post, Vemgal Hobli, Kolar Taluk, Kolar – 563 101. … Petitioners (By Sri Rahul P. Advocate) AND:
1. State by Vemgal Police Station, Represented by State Public Prosecutor, High Court of Karnataka, Bengaluru-560 001.
2. Shiva Kumar, S/o. Narayana Swamy, Aged about 21 years, R/a Malliyappanahalli Village, Vemgal Hobli, Kolar Taluk, Kolar District – 563 101. ...Respondents (By Sri K.P. Yoganna, HCGP for R-1 R-2 served through police- unrepresented) 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.214/2018 of Vemagal Police Station, Kolar District for the offences punishable under Section 143, 147, 323, 324, 504, 506 R/w 149 of IPC and Section 3(1)(10) of SC/ST Act.
This Criminal Petition coming on for Orders, this day, the Court made the following:
O R D E R Heard learned counsel for the petitioners and learned High Court Government Pleader for the respondent-State. Though the complainant served with notice, remained absent.
2. The present petition has been filed by the petitioners-accused Nos.1 to 6 under Section 438 of Cr.P.C seeking to release them on anticipatory bail in the event of their arrest in Crime No.214/2018 registered in Vemagal Police Station for the offences punishable under Section 143, 147, 323, 324, 504, 506 R/w 149 of IPC and Section 3(1) (10) of the SC and ST (POA) Act.
3. The case of the complainant is that on 04.08.2018, the buffalo of the complainant went for grazing towards the tank, till evening it did not return home. The complainant and his sister’s son went in search of said buffalo near the tank. When they were searching, at that time accused No.1 by constituting an unlawful assembly, by holding deadly weapons came there and abused by taking the name of caste and when the complainant questioned, accused No.1 assaulted on her head by iron rod and accused No.2 assaulted on his left eye, lips and the remaining accused persons assaulted with hands and kicked the complainant and also threatened with dire consequence. On the basis of complaint, a case has been registered.
4. It is the submission of learned counsel for the petitioners that the provisions of Section 3(1)(10) are not attracted since the said provision has already been quashed. He further submitted that so many allegations have been made in so far as atrocities are concern and there is no specific overt-act is stated in this behalf. He further submitted that the offences alleged are not punishable with death or imprisonment for life and the injured has been discharged from hospital and he is out of danger. The accused-petitioners are ready to abide by any of the conditions that may be imposed on them by this Court and ready to offer sureties. On these grounds, he prays to allow the petition and to release the petitioners-accused on bail.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that the petitioners- accused abused the complainant and his son-in-law by taking the name of caste. There is bar under Section 18(A) of the Act to release the petitioners- accused on anticipatory bail. Further, the injuries suffered by the complainant are grievous in nature. If the accused petitioners are enlarged on bail, they may abscond and may not be available for the purpose of investigation and trial. On these grounds he prays to dismiss the petition.
6. I have carefully and cautiously gone through the contents of the complaint and perused the records.
7. On close reading of the case of the complainant, though in the complaint it has been alleged that the accused persons took the name of the caste and abused with filthy language, but the said complainant is vague and actually it does not disclose who abused by taking name of the caste out of two persons against whom the said abuse was made is not mentioned. It is well established principles of law that if there is no prima-facie case made out by the prosecution to attract the provisions of SC/ST Act, then this Court can exercise the power under Section 438 and release the accused petitioner on bail. The said proposition of law has been laid down by the Hon’ble Apex Court in the case of Dr.Subhas Kashinath Mahajan V/s State of Maharastra and another reported in 2018 (6) SCC 454.
8. In view of the above said facts and circumstances of the case, it is held that the bar which is there under Section 18(1) will not going to help the case of the prosecution. The alleged offence is not punishable with death or imprisonment for life and even the injured is discharged and out of danger. Even the wound certificate discloses the injuries suffered are simple in nature.
9. In the light of the discussion held above, the petition is allowed. The petitioners -accused are ordered to be released on bail in Crime No.214/2018 of Vemagal Police Station for the offences punishable under Section 143, 147, 323, 324, 504, 506 R/w 149 of IPC and Section 3(1) (10) of the SC and ST (POA) Act, subject to the following conditions:
1. Each one shall execute a personal bond for a sum of Rs.1,00,000/-(Rupees One Lakh Only) with two sureties for the likesum to the satisfaction of the Investigating Officer.
2. They shall surrender before the Investigation Officer within 15 days from today.
3. They shall not tamper with the prosecution evidence directly or indirectly and shall not threaten the prosecution witnesses in any manner.
4. They shall mark their attendance once in 15 days till the charge sheet is filed.
5. They shall not leave the jurisdiction of the Court without prior permission.
Sd/- JUDGE PN/-