IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21st DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL PETITION No.1329/2019 c/w.
CRIMINAL PETITION No.1424/2019 & CRIMINAL PETITION No.1441/2019 IN CRIMINAL PETITION No.1329/2019: BETWEEN:
Vijay R., S/o Rajappa Aged about 35 years Occ: Sub-Inspector of Police Sidlaghatta Rural Police Station R/o No.129, Bikkanahalli Sarjapura, Haldenahalli, Bengaluru-562 125.
(By Sri C.H.Hanumantharaya, Advocate) AND:
The State of Karnataka By Bandepalya Police Station Bengaluru City, Represented by State Public Prosecutor High Court Buildings Bengaluru-560 001.
(By Sri M.Divakar Maddur, HCGP) …Petitioner …Respondent This Criminal Petition is filed under Section 438 of Cr.P.C praying to enlarge the petitioner on bail in the event of his arrest in Crime No.196/2018 registered by Bandepalya Police Station, Bengaluru, for the offences punishable under Sections 341, 365 and 506 r/w Section 34 of Indian Penal Code and Section 3(1)(v), 3(1)(viii), 3(1)(ix) and 3 (1)(x) of SC/ST (POA) Act.
IN CRIMINAL PETITION No.1424/2019: BETWEEN:
N.M.Venkatesh S/o Munishamappa Caste: Scheduled Caste (Adi Karnataka) Occ: Second Division Assistant Chikkaballapur District Police R/o. Ambedkar Nagara Narasapura Village Kolar District-563 133 (By Sri B.Siddeswara, Advocate) AND:
The State of Karnataka By Bandepalya Police Station, Bengaluru City, Represented by State Public Prosecutor High Court Buildings Bengaluru-560 001.
…Petitioner …Respondent (By Sri M.Divakar Maddur, HCGP) This Criminal Petition is filed under Section 438 of Cr.P.C praying to enlarge the petitioner on bail in the event of his arrest in Crime No.196/2018 registered by Bandepalya Police Station, Bengaluru, for the offences punishable under Sections 341, 365 and 506 and Sections 3(1)(v), 3(1)(viii), 3(1)(ix) and 3 (1)(x) of SC/ST (POA) Act.
IN CRIMINAL PETITION No.1441/2019: BETWEEN:
R. Raghavendra Rao S/o R. Madhava Rao Aged about 64 years R/o No.1465, 17th A-Main, 2nd Phase, Bengaluru South, J.P. Nagar, Bengaluru-560 078.
(By Sri B.Siddeswara, Advocate) AND:
The State of Karnataka By Bandepalya Police Station Bengaluru City, Represented by State Public Prosecutor High Court Buildings Bengaluru-560 001.
…Petitioner …Respondent (By Sri M.Divakar Maddur, HCGP) This Criminal Petition is filed under Section 439 of Cr.P.C praying to enlarge the petitioner on bail in Crime No.196/2018 registered by Bandepalya Police Station, Bengaluru, for the offences punishable under Sections 341, 365 and 506 r/w Section 34 of Indian Penal Code and Section 3(1)(v), 3(1)(viii), 3(1)(ix) and 3 (1)(x) of SC/ST (POA) Act.
These Criminal Petitions coming on for Orders this day, the Court made the following:-
O R D E R Criminal Petition Nos.1329/2019 and 1424/2019 have been filed by petitioners/accused Nos.4 and 5 under Section 438 of Cr.P.C., Criminal Petition No.1441/2019 has been filed by petitioner/accused No.1 under Section 439 of Cr.P.C. to release them on anticipatory bail and bail in Crime No.196/2018 of Bandepalya Police Station, Bengaluru, for the offences punishable under Sections 341, 365 and 506 r/w Section 34 of Indian Penal Code and Section 3(1)(v)(viii)(ix) and (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
2. I have heard the learned Senior counsel Sri Hanumantharaya C.H. and learned counsel Sri B.Siddeswara appearing for the petitioners and the learned High Court Government Pleader appearing for the respondent-State.
The complainant is notified and he is present before the Court through the Learned High Court Government Pleader. He has also supported the complaint which he has filed.
3. The gist of the complaint is that the complainant is the police. He lodged the complaint alleging that on 5.10.2018 at about 7.30 a.m. while he was proceeding on his bicycle in front of KCDC nursery gate in Hosapalya road at H.S.R. Layout, he was wrongfully restrained by unknown persons and dragged him into a car and drove towards Marathahalli via HSR Layout and took him within the jurisdiction of Kolar Police Station and asked him to get down from the car near Ganesha Temple at about 4.00 p.m. and told him to stay there, otherwise they would kill him. The complainant waited there for an hour, but no one returns. Thereafter, with the help of one Manju he reached his home and lodged the complaint.
Subsequently, statement of the complainant was recorded when he was in judicial custody in Crime No.306/2018 on 14.12.2018. In his statement he has stated that he has forgotten to mention certain facts in his original complaint dated 7.10.2018 and wanted to make further clarification and he has stated that he had two acres 17½ guntas of land in Sy.No.46/1 of Hongasandra village and he continued in possession of the said property. During the year 2013 accused No.2 claimed 30 guntas of land, there are several cases pending against the complainant and accused No.2. Accused Nos.1 and 2 colluding with other accused persons abducted him on 5.8.2018, thereafter again accused persons kidnapped him on 8.11.2018 at about 5.00 p.m. when he was returning to home along with the cows and the accused persons falsely implicated him in Crime No.306/2018.
4. It is the submission of the learned counsel for the petitioners that when a complaint was registered, it is registered against unknown persons. The complainant was nurturing the grudge against accused Nos.1 and 2, as he has lost the civil suit in O.S.No.3815/2014 pending on the file of IX Additional City Civil and Sessions Judge, Bengaluru, by order dated 18.4.2015. They further submitted that when the complaint was filed on 7.10.2018 no such allegations have been made by the complainant and the accused persons have been roped only when the further statement of the complainant was recorded on 14.12.2018. In the complaint it has not been stated that the accused persons were also present and they have colluded with the other accused persons in order to grab the properties. They further submitted that the provisions of The Scheduled Castes and the Scheduled Tribes Act are not attracted, nowhere in the complaint it has been alleged that the accused persons have abused by taking the name of the caste or with that intention they have behaved. They further submitted that the case has been registered in Crime No.306/2018 under Section 379 of Indian Penal Code and under Sections 86 and 87 of the Forest Act. Only because of the said registration he is contending that a false case has been registered.
They further submitted that on the basis of the report given by the ASI - Laxmaiah a case has been registered and even in the further statement it has been recorded that there is no specific allegations made as against the accused, it is a omnibus statement made that accused persons have abused by taking the name of the caste, even if it is taken that the said statement is as against accused Nos.3, 6, 8 and 9. They further submitted that three times the complainant was produced before the Magistrate, if really the alleged incident has taken place as contended by the complainant, definitely he could have disclosed the said fact when he was produced before the Magistrate, non- disclosure of the said fact clearly goes to show that the complainant has intending to falsely implicate the accused persons. They further submitted that the alleged offences are not punishable with death or imprisonment for life. The petitioners/accused are working as Sub-Inspector of Police and Second Division Assistant and accused No.1 is also having permanent address, there are no chances of they being absconding and they will be available for the purpose of investigation or interrogation.
They are ready to abide by the conditions imposed by this Court and ready to offer sureties. On these grounds they prayed to allow the petitions and to release the petitioners on anticipatory bail and bail.
5. Per contra, the learned High Court Government Pleader vehemently argued on the instruction of the complainant that accused No.4 being the Police Official, accused No.5 being the Second Division Assistant in the police department have colluding with accused Nos.1 and 2 have kidnapped and restrained them to help them to dispossess the said land as per the instruction of accused No.2. He further submitted that the case has been registered falsely in Crime No.306/2018 under Section 379 of Indian Penal Code and Sections 86 and 87 of the Forest Act. It is his further submission that they have abused the process of law by using the power. He further submitted that the petitioners/accused have abused by taking the name of the caste of the complainant. There is a bar under Section 18A of the Scheduled Castes and Scheduled Tribes Act to release accused Nos.4 and 5 on anticipatory bail. He further submitted that Motorola mobile phone and other articles have been seized at the instance of the accuses persons. There is prima facie material as against the petitioners/accused to show that they are involved in a serious offence. On these grounds he prayed to dismiss the petitions.
6. 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.
7. On close reading of the contents of the complaint it indicates that he has made certain allegations that at about 7.30 p.m. on 5.10.2018 when he was proceeding on a bicycle, at that time, a car came and he was pushed into the car and thereafter he has been taken and at about 4.00 p.m. he was taken on Chintamani road near the Ganesha Temple and he was made to alight from the car and he was threatened that he has to stay there, otherwise they are going to take away the life. If really the accused persons were intending to do away with the complainant, then under such circumstances they could not have made him to alight from the car near the Ganesha temple and they could not have warned that he should stay there, otherwise they would kill him and even though the accused persons could have made some persons to wait there to see that whether he is going to move away from that particular place. Under the said facts and circumstances I feel that Section 341 of the Act is not attracted. Even the provisions of Sections 365 and 506 are concerned they are the matters which have to be considered and appreciated at the time of trial. It is not just and proper to go into the merits of the case while considering the bail application. It is contended by the learned High Court Government Pleader that the provisions of Section 18A of the Act prohibits this Court to exercise power under Section 438 of Cr.P.C.
8. As could be seen from the contents of the complaint in the first instance the complaint was registered on 7.10.2018, not even a word has been whispered about the accused abused the complainant by taking the name of the caste. It is created and stated only when his further statement was recorded on 14.12.2018, that too when he was in judicial custody. All these material facts clearly goes to show that the said statement has been made only after deliberation and discussions and after giving a thoughtful act on the said aspect.
It is well settled proposition of law that the Hon’ble Apex Court in the case of Dr.Subhash Kashinath Mahajan Vs. State of Maharashtra and Another reported in (2018)6 SCC 454 it has been observed that 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. From the points which have been discussed above it clearly goes to show that on judicial scrutiny the complaint is found to be prima facie mala fide and it was an intentional inclusion of the said words so as to attract the provisions of the said Act.
10. Under the said facts and circumstances of this case this Court can exercise the power under Section 438 of Cr.P.C. to release the petitioners/accused on anticipatory bail. Even on consideration of all the other material facts it also clearly goes to show that some dispute is pending between the parties and civil suit has also been filed and the complainant has also lost the said civil suit and these are all the factors that clearly goes to show that he was nurturing the grudge against accused Nos.1 and 2 and in that light the complaint has been registered. Anyhow, that matter has to be heard and decided at the time of trial. At this juncture, the petitioners/accused Nos.4, 5 and 1 have made out a case to release them on anticipatory bail and bail.
11. In the light of the discussions held by me above, Criminal Petition Nos.1329/2019 and 1424/2019 are allowed and the petitioners/accused Nos.4 and 5 are ordered to be released on anticipatory bail in the event of their arrest in Crime No.196/2018 of Bandepalya Police Station, for the offences punishable under Sections 341, 365 and 506 r/w Section 34 of Indian Penal Code and Section 3(1)(v)(viii)(ix) and (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, subject to the following conditions:
i) Each of the petitioners shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties each for the likesum to the satisfaction of the Investigating Officer.
ii) They shall surrender before the Investigating Officer within 15 days from today.
iii) They shall not tamper with the prosecution evidence directly or indirectly.
iv) They shall mark their attendance in the jurisdictional police on 1st of every month between 10.00 A.M. and 5.00 P.M. till the trial is concluded.
v) They shall not leave the jurisdiction of the Court without prior permission of the Court.
Criminal Petition No.1441/2019 is allowed and the petitioner/accused No.1 is ordered to be released on bail in Crime No.196/2018 of Bandepalya Police Station, for the offences punishable under Sections 341, 365 and 506 r/w Section 34 of Indian Penal Code and Section 3(1)(v)(viii)(ix) and (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, subject to the following conditions:
i) The petitioner shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with two sureties for the likesum to the satisfaction of the trial Court.
ii) He shall not tamper with the prosecution evidence directly or indirectly.
iii) He shall mark his attendance in the jurisdictional police on 1st of every month between 10.00 A.M. and 5.00 P.M. till the trial is concluded.
iv) He shall not leave the jurisdiction of the Court without prior permission of the Court.
Sd/- JUDGE *AP/-