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.1909/2017 BETWEEN:
1. SMT. VANAJAKSHI.C.G. W/O LATE. DEVEGOWDA.B, AGED ABOUT 60 YEARS, 2. SRI. KRISHNAMURTI J.G S/O LATE. GIDDEGOWDA, AGED ABOUT 53 YEARS, BOTH RESIDING AT KASKEBYLE VILLAGE, GONIBEEDU, HOBALI, MUDIGERE, CHICKMAGALUR, KARNATAKA-577132.
(BY SMT. N PADMAVATHI, ADV.) AND:
1. SMT. YASHODHAMMA, W/O PARASHURAMA, ANNAPURNESHWARI PLANTATION, KASKEBYLE VILLAGE, GONIBEEDU, HOBALI, MUDIGERE, CHICKMAGALUR, KARNATAKA-577132.
2. STATE OF KARNATAKA BY CHICKMAGALUR P.S. KARNATAKA-577101 REPRESENTED BY PUBLIC PROSECUTOR, …PETITIONERS HIGH COURT OF KARNATAKA, BANGALORE-560001.
(BY SRI. B.J.ESHWARAPPA, HCGP.) ...RESPONDENTS THIS CRIMINAL PETITION IS FILED UNDER SECTION 438 OF CR.P.C., PRAYING TO ENLARGE THE PETITIONER ON BAIL IN THE EVENT OF THEIR ARREST IN CR.NO.2/2017 OF GONIBEEDU P.S., CHIKKAMAGALURU DISTRICT FOR THE OFFECES P/U/S 143, 147, 148, 427, 435, 354B OF IPC ACT AND SEC.3(1)(10)(11) OF SC/ST (POA) ACT AND SEC.25 OF ARMS ACT AND ETC.
THIS CRIMINAL PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard the learned counsel appearing for the petitioners/accused and the learned High Court Government Pleader appearing for the respondent No.2 2. The respondent-police have registered a FIR in their Cr.No.2/2017 in respect of the offence punishable under sections 143, 147, 148, 427, 435, 354(B) r/w section 149 of IPC, under Section 25 of Indian Arms Act and under Sections 3(1)(x)(xi) of SC/ST (POA) Act, 1989 (for brevity ‘the Act’).
3. The allegation of the prosecution is, the complainant is the coolie under one Rathnakar Gowda and was residing in the cooli quarters of Coffee Plantation at Kaskebylu. On 5.1.2017 during the morning hours four named accused persons and ten others were indulged in removing the fencing poles. When questioned, the 1st petitioner hit on her chin, abused filthily by referring to her scheduled caste, the 2nd accused kicked her, 3rd accused poked with his gun point on her back. One Mallesh who tried to rescue the complainant was also assaulted, abused by referring to her scheduled caste and threatened to finish them off if they continue to work in the said plantation. The persons accompanying them pulled the stone poles, destroyed the coffee plantation and set fire.
4. Learned counsel for the petitioners submits that there is a civil dispute between the 1st petitioner and Sri.B.K.Rathnakar Gowda, the employer of the complainant. An injunction order is passed against Rathnakar Gowda restraining him from interfering with the possession of the suit property therein in favour of the 1st petitioner and her daughter (petitioner No.4). The 1st petitioner is a widow and disabled since she is paralysed. This is the second complaint lodged by this complainant against the 1st petitioner and the 3rd petitioner. In the previous petition filed by them, considering the falsity of the similar allegations made by this complainant, petitioners 3 and 4 were enlarged on bail. This time the complainant with some modification has filed the present petition. On the very face of it, it is a false complaint and Section 18 of the act is no bar for them to seek anticipatory bail. The petitioners apprehend arrest by the police in view of the non bailable offences registered against them. Hence, they may be enlarged on bail. In respect of the very same incident, the 1st petitioner has also lodged a complaint before the very same police. It was registered in Cr.No.3/17 in respect of the offences under sections 448, 504, 506, 109 r/w section 34 of IPC.
5. Learned Government Pleader while opposing the petition submits that in the case of Vilas Pandurang Pawar and another Vs. State of Maharashtra (2012)8 SCC 795 the Apex Court has observed that when a prima facie case is made out in a complaint in respect of an offence under Section 3 of the Act, the Court cannot exercise jurisdiction under Section 438 of Cr.P.C.
6. In the light of the above submissions, it emanates that in all probability it is a property dispute between the 1st petitioner, her daughter/4th petitioner and Sri. Rathnakar Gowda, the employer of the complainant. The previous complaint was filed in respect of the incident dated 31.8.2016. The prosecution has not placed any document to prove about the complainant suffered any injury during the incident. Having regard to the history of dispute between the complainant party and the accused party, at this stage, the complaint cannot be accepted as true version of the incident and it cannot be said that as of now a prima facie case is made out by the prosecution which is a bar for the petitioners to seek relief under Section 438 of Cr.P.C.
7. In the given circumstance, the petition is allowed. The petitioners are granted anticipatory bail in Cr.No.2/2017 for a period of three weeks. Within the above period, they shall surrender before the concerned Court and move for regular bail. Till disposal of their bail petition, this order will be in force. In the event of their arrest by the respondent-I.O. in respect of the above case, they shall be released on bail on each of them executing self bond for Rs.50,000/- with one surety for the likesum.
Dvr:
Sd/- JUDGE