IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18th DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION No.8298/2018 BETWEEN:
1. Venugopal Singh S/o late Govardhan Singh Aged about 29 years R/a No.08, 3rd Cross Jyothi Nagar, M.S.Palya Occupation: Car Driver Bengaluru-560 097.
2. Smt. Ahalya Bai W/o late Govardhan Singh Aged about 50 years R/a No.08, 3rd Cross Jyothi Nagar, M.S.Palya House Wife, Bengaluru-560 097.
3. Archana W/o Gurudev Singh D/o late Govardhan Singh Aged about 25 years R/a No.115, Gurukrupa C.M. Extension Near Rajanna House Kyathasandra Tumkur-572 104.
4. Gurudev Singh S/o Raghunandan Singh Aged about 31 years R/a No.115, Gurukrupa C.M. Extension Near Rajanna House Kyathasandra Tumkur-572 104.
(By Sri. Dilraj Rohit Sequeira, Advocate) AND:
The State by Kodigehalli Police Station Represented by the State Public prosecutor High Court Building Bengaluru-560 001.
…Petitioners (By Smt. B.G.Namitha Mahesh, HCGP) Sri Madhav Kashyap, Advocate for … Respondent Sri P. Prasanna Kumar, 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.176/2018 of Kodigehalli Police Station, Bengaluru, for the offences punishable under Sections 498A, 323, 341, 354, 406, 342, 417, 506 r/w Section 34 of Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act and Section 3(1)(r), 3(1)(s), 3(1)(z), 3(1) (za) of SC/ST (Prevention of Atrocities) 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 the petitioners/ accused Nos.1 to 4 under Section 438 of Cr.P.C. to release them on bail in Crime No.176/2018 of Kodigehalli Police Station for the offences punishable under Sections 498-A, 323, 341, 354, 406, 342, 417, 506 r/w Section 34 of IPC, and Sections 3 and 4 of Dowry Prohibition Act, 1961 and Sections 3(1)(r), 3(1)(s), 3(1)(z), 3(1)(zc) of the SC/ST (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the ‘Act’ for short).
2. I have heard the learned counsel appearing for the petitioners and the learned High Court Government Pleader appearing for the respondent-State and also the learned counsel for the complainant.
3. The gist of the complaint is that accused No.1 fell in love with the complainant and on 10.2.2012 they got married at Dharmasthala and it was registered on 13.2.2012 in the office of the Registrar of Marriages, Hebbal. Thereafter, accused No.1 started ill-treating and blackmailing the complainant and asked her to pay certain amount. It is further alleged that, accused No.1 started saying that since complainant and her family are belongs to Schedule Caste, he cannot take her to his house since accused Nos.2 and 3 would object the same. Thereafter, accused No.1 continued to have marital relationship with the complainant. When the parents of the complainant insisted accused No.1 to have arranged marriage, then accused No.1 demanded dowry and marriage expenses and thereafter the complainant’s family agreed for the same and performed marriage. Despite performance of the marriage, accused No.1 refused to take the complainant to the matrimonial home on the ground that she belongs to Scheduled Caste. It is further alleged that, thereafter accused Nos.1 and 2 called the complainant and the parents of the complainant to their home and a panchayath was also held in this behalf and in the said panchayath accused No.2 insulted the complainant by stating that she will never approve her son’s marriage with a person belongs to schedule caste. The accused Nos.2 to 4 abused the complainant and her family members and made a derogatory remarks against the complainant’s caste. The accused persons taunted the complainant for being Adi Karnataka Schedule Caste and stated that it is below their dignity to allow the complainant to live with them and when the complainant went to the matrimonial home, the accused persons stated that they had allowed to live with them only to prevent any legal action against them. Thereafter, again the ill-treatment and harassment continued and accused persons threatened the complainant that they will kill her if she intimate the ill- treatment and harassment caused by the accused persons. It is further alleged that it is accused Nos.3 and 4 abused the complainant by stating the name of the caste and threatened them in the public. It is further alleged that in spite of the efforts made by the complainant, ill-treatment and harassment continued and she has been threatened and sent out of the house. As such, she filed a private complaint.
4. It is the submission of the learned counsel for the petitioners/accused that instead of filing a complaint as contemplated under the law, she has filed a private complaint. That itself clearly goes to show, only to harass the petitioners/accused such a lengthy complaint has been filed. It is further submitted that accused Nos.3 and 4 are not residing along with the petitioner/accused No.1 and they are separately residing at Tumkur and there is no connection between them and the complainant. It is further submitted that the alleged offences are not punishable with death or imprisonment for life and only to wreck vengeance against petitioner/accused No.1 and others, complaint has been filed. He further submitted that there is no prima facie material as against the petitioners/accused. He also relied upon the decision of Dr.Subhash Kashinath Mahajan Vs. State of Maharashtra and Another reported in (2018) 6 SCC 454 and submitted that if no prima facie case has been made out, then under such circumstances, this Court can exercise power under Section 438 of Cr.P.C. and release the petitioners/accused on bail. On these grounds, he prayed to allow the petition and to release the petitioners/accused on bail.
5. Per contra, the learned High Court Government Pleader vehemently argued and submitted that there is a bar under Section 18(A) of the Act to release the petitioners/accused on anticipatory bail if there is prima facie material as against them. She further submitted that the ingredients of the complaint if it is clearly looked into, it is accused Nos.1 to 4 who have abused by taking the name of the caste and also insulted and have not allowed her to reside in the house, as she belongs to Adi Karnataka Community. She further submitted that petitioners/accused if they are released on bail, they may abscond and may not be available for the trial. On these grounds, she prayed to dismiss the petition.
6. The learned counsel for the complainant also by supporting the arguments of the learned High Court Government Pleader submitted that there is prima facie material as against the petitioners/accused and the petitioners/accused are not entitled to be released on bail.
7. I have carefully and cautiously gone through the contents of the complaint and the submissions made by the learned counsel appearing for the parties and perused the records.
8. This Court is conscious of the fact that there is a bar under Section 18(A) of the Act which reads as under:
“18A: (1) For the purposes of this Act,-
(a) preliminary enquiry 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”.
A close reading of the said Section there is a bar to release petitioners/accused on anticipatory bail. However, in the case of Dr.Subhash Kashinath referred supra, therein, the Hon’ble Apex Court has come to the conclusion 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.
9. Keeping in view the above said proposition of law, on close reading of the complaint it indicates that there is a prima facie material as against the petitioners/accused to show that they have abused the complainant by taking the name of the caste and they have also not allowed the - 10 -
complainant to reside in their house as she belongs to Adi Karnataka Scheduled Caste.
10. All these materials clearly goes to show that in the complaint, there is prima facie material and as such the provisions of Section 18(A) of the Act will come into play and the petitioners/accused are not entitled to be released on anticipatory bail.
Hence, the petition stands dismissed.
However, the petitioners are at liberty to approach the trial Court. After surrender and in the event of filing an application under Section 439 of Cr.P.C. to enlarge them on bail, the Court below is directed to expedite the said bail application expeditiously.
Sd/- JUDGE *AP/-