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Karnataka High Court · body

2018 DIGILAW 180 (KAR)

H. v. Hanumantharayappa VS State of Karnataka

2018-02-08

R.B.BUDIHAL

body2018
JUDGMENT : 1. This petition is filed by the petitioners/accused Nos.1 and 2 under Section 438 of Cr.P.C. seeking anticipatory bail, to direct the respondent-police to release the petitioners on bail in the event of their arrest for the offences punishable under Sections 448, 323, 324, 504, 354(A), 354(B), 506, 341 r/w Section 34 of IPC and also under Section 3(1)(X) of the SC/ST(Prevention of Atrocities) Act, 1989 registered in respondent police station Crime No.367/2017. 2. One Smt. Sowmya is the complainant in this case. She is a widow. For her livelihood she is doing tailoring work. On 17.9.2017 at 9.00 a.m. when she was alone in the house accused No.1 suddenly trespassed into her house, abused her taking the name of her caste stating that she has got a Trust registered against him. She belong to lower caste and abused her in filthy language and also stated that she should be kept outside the village. So abusing, he assaulted her with his hands. Ravi-Accused No.2 S/o accused No.1 who had come with him also abused her in filthy language taking the name of her caste. The petitioners insulted her, dragged her by holding her tuft and touched her body and private part and lowered down her reputation. They have also threatened her that if she continued the Trust she will be set fire by pouring kerosene. They also assaulted her with chappals. When she cried loudly, public going in front of the house came and after seeing them the accused persons ran away from the said place. On the basis of the said complaint, case was registered against the petitioner/accused Nos.1 and 2. 3. Heard the arguments of the learned counsel appearing for the petitioners/accused Nos.1 and 2 and also the learned High Court Government Pleader appearing for the respondent-State. 4. Learned counsel for the petitioners during the course of his arguments submitted that petitioners have not criminally trespassed into the house of the complainant nor they have abused her by taking the name of the caste. In fact no such incident has taken place as alleged in the complaint. Learned counsel submitted that the Trust in the name of Sree Durga Devi Devalaya Trust was formed on 25.3.2017 by the petitioner No.1 and he is the President of the said Trust. In fact no such incident has taken place as alleged in the complaint. Learned counsel submitted that the Trust in the name of Sree Durga Devi Devalaya Trust was formed on 25.3.2017 by the petitioner No.1 and he is the President of the said Trust. There was a rival Trust formed by the complainant on 14.9.2017 after the lapse of seven months, for which, the complainant is the Joint Secretary. Earlier to the complaint filed by the complainant, there are two complaints filed by the petitioners as against the complainant, one is dated 6.11.2017 and another is dated 17.11.2017. As such, the complainant has filed false complaint as against the petitioner herein. There is no offence committed even under Section 3(1)(X) of the SC/ST(POA) Act. Hence, he has submitted to allow the petition and to admit the petitioners to anticipatory bail. 5. Per contra, learned High Court Government Pleader during the course of his arguments submitted that this petition is under Section 438 of Cr.P.C. seeking anticipatory bail and in view of the bar under Section 18 of the SC/ST (POA) Act, petition itself is not maintainable. He submitted that for the offence under the provisions of SC/ST(POA) Act, there are prima facie allegations against both the accused persons. Hence, it is submitted to dismiss the petition. 6. I have perused the grounds urged in the bail petition, FIR, complaint and other materials placed on record. 7. The materials on record produced by the learned counsel for the petitioners show that a Trust in the name of Sree Durga Devi Devalaya Trust is registered and the present petitioner is the President of the said Trust. It is also the contention of the learned counsel that a rival Trust is formed and registered on 14.9.2017 in which the complainant is serving as Joint Secretary. This prima facie shows that the relationship between the two is not cordial. Apart from that, two complaints are filed by petitioner No.1 dated 6.11.2017 and 17.11.2017, which were first in time and earlier to the filing of the complaint by the complainant herein. When the petition is under Section 438 of Cr.P.C. and one of the offences alleged is under the provisions of the SC/ST(POA) Act, the Court has to consider about the maintainability of the petition in view of the bar under Section 18 of the Act. When the petition is under Section 438 of Cr.P.C. and one of the offences alleged is under the provisions of the SC/ST(POA) Act, the Court has to consider about the maintainability of the petition in view of the bar under Section 18 of the Act. In order to ascertain whether the petition is maintainable and whether really the bar under Section 18 of the SC/ST (POA) Act is applicable to the present petition, the Court is under the duty to examine the materials produced in the case to ascertain whether the allegations and the materials produced by the prosecution side really constitute offence under the provisions of the SC/ST(POA) Act. The materials produced by the petitioners shows that there is a difference of opinion between the petitioners and the complainant with regard to formation of the Trust. The Trust registered in the name of Sree Durga Devi Devalaya Trust is first in time which was seven months earlier to the rival Trust formed by the complainant's side and the petitioner No.1 was working as President of the said Trust. 8. Looking to the complaint averments, though there are allegations that on 17.9.2017 both the petitioners criminally trespassed into the house of the complainant and assaulted and abused her by taking the name of the caste, to attract the provisions of the SC/ST(POA) Act, the complainant has to establish that the said incident has taken place in a public place and with a deliberate intention on the part of the petitioners to lower her reputation. Said ingredients are not at all present in the complaint averments, because, even according to the complainant the incident took place inside the house wherein the complainant alone was staying according to her own contention. It is no doubt true that it is mentioned by the complainant that when she screamed loudly, the persons who were passing in front of her house came inside. However, the details of the said persons are not mentioned. Though she has stated that she has sustained injuries and taken treatment, no material is produced to support her contention. Further, she has also not mentioned in her complaint as to which caste the petitioners belong to. Because the bar under Section 18 of the SC/ST(POA) Act is not applicable if the said abusive words are used by the person belonging to SC/ST, against a person belonging to the same caste. Further, she has also not mentioned in her complaint as to which caste the petitioners belong to. Because the bar under Section 18 of the SC/ST(POA) Act is not applicable if the said abusive words are used by the person belonging to SC/ST, against a person belonging to the same caste. The materials prima facie shows that it will not constitute the offence under the provisions of SC/ST(POA) Act. Therefore, Section 18 of the said Act cannot be a bar to entertain the petition for grant of anticipatory bail. 9. So far as the allegations under the IPC offences are concerned, petitioners herein have denied the same contending that there is a false implication. They have also undertaken to abide by any reasonable conditions to be imposed by the Court. Except the offence under the provisions of the SC/ST(POA) Act, all other IPC offences are triable by the Magistrate Court and are not exclusively punishable with death or imprisonment for life. Hence, it is a fit case to exercise the discretion in favour of the petitioners. 10. Accordingly, petition is allowed. The respondent-Police are directed to enlarge the petitioners on bail in the event of their arrest for the alleged offences punishable under Sections 448, 323, 324, 504, 354(A), 354(B), 506, 341 r/w Section 34 of IPC and also under Section 3(1)(X) of the SC/ST(Prevention of Atrocities) Act, 1989 registered in respondent police station Crime No.367/2017, subject to the following conditions: (i) Petitioners shall execute a personal bond for a sum of Rs.50,000/- each and shall furnish one surety for the like sum to the satisfaction of the arresting authority. (ii) Petitioners shall not tamper with any of the prosecution witnesses, directly or indirectly. (iii) Petitioners shall make themselves available before the Investigating Officer for interrogation, as and when called for and to cooperate with the further investigation. (iv) Petitioners shall appear before the concerned Court within 30 days from the date of this order and to execute the personal bond and the surety bond.