State of Karnataka By Nanjangud Town Police v. Dharmesh S/o Gopalashetty
2017-07-04
ARAVIND KUMAR
body2017
DigiLaw.ai
ORDER : Heard Sri. K. Nageshwarappa, learned HCGP appearing for the State and Sri. N.D. Manjunath, learned counsel appearing for the respondent/accused. Perused the records. 2. A complaint came to be lodged by Smt. Manjula M alleging that accused No.1 and herself were working in the NHE factory and they became close and their friendship had developed into intimacy; she has further stated that by misusing the friendship, on 20.04.2015 he took her behind the Citizen School of Nanjanagudu and committed rape on her; she further states that when she questioned accused No.1, he took her to Dharmasthala and in the presence of her family members and friends, he married her on 31.05.2015; she further states that accused No.1 later on under the pretext of meeting his uncle Jayaram, who is said to have met with accident, left the village and did not return and she made enquiries in the house of accused No.1 and at that time, parents of accused No.1 including brother of accused No.1 and other family members i.e., accused Nos.2 to 4 abused her by using her caste name and also threatened her not to visit their house as she was incapable of meeting their dowry demands. On these grounds, complaint came to be lodged. 3. Accused No.1 apprehending his arrest, filed a petition under Section 438 Cr.P.C., since complaint lodged by Smt. Majula M. had been registered in Cr.No.36/2016 for the offence punishable under Section 3(1)(r), 3(1)(s), 3(2)(v) of Schedule Casts and Schedule Tribes (Prevention of Atrocities) Act, 1989. Learned Special Judge, Mysore, by order dated 09.06.2016 passed in Crl. Misc. No.116/2016 allowed the petition and ordered the release of accused No.1 in the event of his arrest in Cr.No.36/2016 conditionally. 4. Said order is assailed by the prosecution contending that there is bar under Section 18 of Schedule Castes/Schedule Tribes (Prevention of Atrocities) Act, 1989, for grant of bail and as such, Sessions Court could not have granted bail. Learned HCGP has also contended that complainant has clearly stated that accused No.1 had committed rape on her and there was necessity for sending respondent to medical examination and as such, trial Court could not have granted bail. On these grounds, bail granted to accused persons are sought for being cancelled. 5.
Learned HCGP has also contended that complainant has clearly stated that accused No.1 had committed rape on her and there was necessity for sending respondent to medical examination and as such, trial Court could not have granted bail. On these grounds, bail granted to accused persons are sought for being cancelled. 5. A bare reading of Section 439(2) of Cr.P.C. would leave no manner of doubt regarding power available to this Court to cancel the bail granted to an accused, who has been enlarged on bail by committing him to judicial custody. For cancellation of bail, conduct subsequent to release on bail and supervening circumstances, which are extraordinary, alone are relevant and such circumstances cannot be narrated or stated as an abstract principle or there cannot be any straight jacket formula and it always depends on facts and circumstances of each case. In other words, facts obtained in a case will have to be examined as to whether accused, who has been enlarged on bail, has abused the discretion exercised in his favour or has violated the conditions so imposed by the jurisdictional Court granting the bail or continuance of liberty granted by the Court, is likely to interfere with the smooth conduct of trial or accused is likely to indulge in threatening the prosecution witnesses or is likely to abscond from justice system. These are the factors which would be taken note of while considering the plea for cancellation of bail when sought for. 6. For the above proposition, judgments relied upon by the respondent’s counsel, referred to herein supra, can be looked into. Apex Court in the case of Dolat Ram & Others Vs. State of Haryana reported in (1995) 1 SCC 349 has held as to what factors are to be taken into consideration while examining the plea for cancellation of bail and it would be satisfaction of the Court based on material placed by the prosecution in support of its prayer for cancellation of bail. It has been held that cancellation of bail already granted has to be considered and dealt with on different basis, for which very cogent and overwhelming circumstances are necessary. 7.
It has been held that cancellation of bail already granted has to be considered and dealt with on different basis, for which very cogent and overwhelming circumstances are necessary. 7. Keeping these principles in mind when the facts on hand are examined, it would clearly indicate that prosecution is seeking for cancellation of bail neither on the ground of conditions imposed in the order of bail having been violated or respondent having indulged in tampering with the prosecution witnesses or on the apprehension of his absconding. However, it is the specific case of prosecution that Section 18 of Schedule Castes/Schedule Tribes (Prevention of Atrocities) Act, 1989, acts as a bar for entertaining a petition under Section 438 Cr.P.C. and as such, application for anticipatory bail ought not to have been entertained and allowed. 8. Apex Court in the case of Vilas Pandurang Pawar & Another Vs. State of Maharashtra & Others reported in (2012) 8 SCC 795 has clearly held that Section 18 of the Schedule Castes/Schedule Tribes (Prevention of Atrocities) Act, 1989, though creates a bar for invoking Section 438 of Cr.P.C., a duty is cast on the Court to verify the allegations made in the complaint to find out whether offence under Section 3(1) of the Schedule Castes/Schedule Tribes (Prevention of Atrocities) Act, 1989, has been prima facie made out. In other words, if there is a specific averment in the complaint namely, insult or intimidation with intent to humiliate by using caste name, then accused would not be entitled for grant of bail. When an offence is registered against a person under the provisions of Schedule Castes/Schedule Tribes (Prevention of Atrocities) Act, 1989, no Court shall entertain an application for grant of anticipatory bail unless such complaint itself prima facie indicates that such an offence is not made out. Entering into the arena of examining as to whether complaint in question when read as a whole would disclose an offence under Section 3(1)(v) and 3(2)(v) of Schedule Castes/Schedule Tribes (Prevention of Atrocities) Act, 1989, or not, may cause prejudice to the rights of both the parties. As opined by the Apex Court it would suffice if the complaint is perused to ascertain the prima facie allegation. 9.
As opined by the Apex Court it would suffice if the complaint is perused to ascertain the prima facie allegation. 9. In this background, when the complaint in question is perused, it would clearly disclose that complainant has not made a specific allegation about accused having abused the complainant by using her caste name in public. In that view of the matter, entertaining the application for grant of anticipatory bail by the jurisdictional Court, cannot be found fault with. That apart, even on merits it is needless to state that prosecution has not alleged that petitioner is likely to abscond or is likely to indulge in any act, which would cause prejudice to prosecution’s case or conduct of trial. 10. For the reasons aforestated, this Court is of the considered view that petition lacks merit and is liable to be dismissed and accordingly, it is hereby dismissed.