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2018 DIGILAW 646 (AP)

K. Srinivas v. State of Andhra Pradesh

2018-08-31

B.SIVA SANKARA RAO

body2018
ORDER : B. SIVA SANKARA RAO, J. 1. The petitioner is the accused with others, if any, in Crime No. 149 of 2018 on the file of Thulluru Police Station, Guntur District. The crime is registered on 28.07.2018, from the report of the de facto complainant of even date, for the offences punishable under Sections 420, 120B, 506 & 34 IPC and Sections 3(1)(r) & 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, "the Act"). 2. From the report of the de facto complainant by name Gaddam Israial, S/o. Subba Rao, Mandadam Village, he belongs to the SC community and living by agricultural works and cultivation. About fifteen years back Kethepalli Srinivas @ Sivaswamy, who is the petitioner to the present anticipatory bail application, lured him saying for the land of them he wants to provide alternative land of two times and also construct houses and he wants to construct temple in the land and give one of the shops to be constructed in the temple to them and also to give additional amount and obtained the registered document. Said Sivaswamy failed to comply with his promises. While so, few days back when he went to said Sivaswamy to ask in this regard, he abused the de facto complainant by touching his caste as allowing him being SC by caste into the temple is a sin for him and abused to do what he wants to do. Again on 28.07.2018 at about 10.00 A.M. (in the report the time originally not mentioned and later inserted in small letters) the de facto complainant along with some elders went to the temple to speak in regard to the land affair. Said Sivaswamy was having animosity; At his instance his followers stopped him at the entrance gate of the temple premises and abused them as "Madiga nakodukulu" and from their proposed entry the temple premises will become impure and they cannot allow to enter into the premises and with those words abused his caste elders with audacity and hence, to take action. It is also mentioned about the life threat to de facto complainant. The crime is registered from said facts. 3. The petitioner is now seeking anticipatory bail under Section 438 Cr.P.C. having filed the petition on 27.08.2018 with notice to the Public Prosecutor received by the Court on even date. It is also mentioned about the life threat to de facto complainant. The crime is registered from said facts. 3. The petitioner is now seeking anticipatory bail under Section 438 Cr.P.C. having filed the petition on 27.08.2018 with notice to the Public Prosecutor received by the Court on even date. The averments in the anticipatory bail application are that none of the ingredients of the penal provisions, for which the crime registered, are attracted and the registered Sale Deed No. 10029 of 2004 executed by the de facto complainant was on 23.12.2004 (13 1/2 years back) for valuable consideration. There Siva ksetham was developed by the petitioner to protect Hindu Dharma being a devotee to Hindu Dharma and to protect the cows and also providing nithya annadanam (daily feeding) and also running a Veda Patashala and initiated Viswa Dharma Parirakshana with social activities and the land along with other lands of him are using for all these purposes. It is contended that more than 13 1/2 years after the registered Sale deed supra for the first time rising the issue as if he went there to ask as if he was promised and the promises were not fulfilled, which are not even born by any record to give report and to register the crime without even proper reading and verification of the contents of the report by police, is outcome with dishonest intention and some ulterior motives with some one behind to the created false story including with the false allegation of the so-called second occurrence on the date of report of scolding by the followers of the petitioner by touching the caste. It is also averred that the de facto complainant is a Christian by religion also by his very name and he does not belong to the SC/ST community to attract the provisions of the Act even otherwise. It is further averred in addition to the facts touching the allegations supra of the petitioner previously expressed his protest against the appointment of TTD Chairman and on 16.07.2018 he tried to stage protest against Kathi Mahesh, who made comments on Lord Sri Rama. In view of the above two incidents, the present case it appears foisted by some one behind. It is also averred that he along with other Swamijis, Peethadhipates and devotees are intending to conduct Pada Yatra from Vijayawada to Tirupati. In view of the above two incidents, the present case it appears foisted by some one behind. It is also averred that he along with other Swamijis, Peethadhipates and devotees are intending to conduct Pada Yatra from Vijayawada to Tirupati. The petitioner's request for permission was rejected by the SDPO, Narasaraopet on 28.07.2018 on the ground that Section 30 of the Police Act, 1861 is in force from 15.07.2018 to 15.08.2018. The petitioner now intends to commence the same. He is likely to be apprehended and arrested by police to put him under great hardship and hence, to consider for grant of anticipatory bail as there is every apprehension of arrest to harass and malign him. 4. The further averments are that the bar under Section 18 of the Act is no way applicable to the present facts and there is no any prima facie case made out against the petitioner under the Special Act even from the reading of the entire F.I.R. allegations on the face value and thereby, he is entitled to the pre-arrest bail. 5. It is also mentioned that he filed W.P. No. 27458 of 2018 to quash the proceedings in Crime No. 149 of 2018 and another Bench of this Court by order dated 21.08.2018 disposed of the same directing the Police to follow the guidelines prescribed in Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 . It is averred ultimately that he is a respectable citizen and will not evade the ends of justice and is prepared to furnish suitable security and undertakes himself to be available for interrogation before the police and unless he be granted pre-arrest bail, he will be put to great hardship and hence, to grant. 6. The learned Special Assistant Public Prosecutor opposed the anticipatory bail application saying there is a bar from the prima facie accusation under Section 18 of the Act to grant anticipatory bail. 6. The learned Special Assistant Public Prosecutor opposed the anticipatory bail application saying there is a bar from the prima facie accusation under Section 18 of the Act to grant anticipatory bail. It is also drawn attention of the Court to the legislative amendment by the Union of India which came into force from 17.08.2018 and received the assent of the Hon'ble President to it known as The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018 by Act 27 of 2018 and Point (2) of which says Section 18 originally in the statute book by Act 1989 is amended by additional insertion of Section 18A with clauses (1) & (2). Section 18A of the Amended Act is reproduced hereunder: "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." The learned Special Assistant Public Prosecutor therefrom says the very anticipatory bail application under Section 438 Cr.P.C. as on the date of filing, which is subsequent to the date of coming into force of the amended Act, is not maintainable though the alleged occurrence covered by the report is prior to the date of the amendment came into force in question. 7. Whereas, it is the submission of learned counsel for the petitioner that the so-called amendment neither invalidates the judgment of the Apex Court in Dr. Subhash Kashinath Mahajan v. State of Maharashtra 2018 (2) ALT 50 SC nor makes it said judgment of no effect. For that the learned counsel placed reliance, particularly on paragraph No. 248 of the latest Five Judge Bench expression of the Apex Court in Kalpana Mehta v. Union of India (2018) 7 SCC 1 which reads as under: "The doctrine of separation restrains the legislature from declaring a judgment of a court to be void and of no effect. For that the learned counsel placed reliance, particularly on paragraph No. 248 of the latest Five Judge Bench expression of the Apex Court in Kalpana Mehta v. Union of India (2018) 7 SCC 1 which reads as under: "The doctrine of separation restrains the legislature from declaring a judgment of a court to be void and of no effect. However, in the exercise of its law-making authority, a legislature possessed of legislative competence can enact validating law which remedies a defect pointed out in a judgment of a court. While the legislature cannot ordain that a decision rendered by the court is invalid, it may by enacting a law, take away the basis of the judgment such that the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances." For that the Apex Court referred several earlier expressions in this regard. Apart from it one of the earlier Constitution Bench of the Apex Court in Danial Latifi v. Union of India AIR 2001 SC 3958 observed at paragraph No. 29 end and paragraph Nos. 32 and 34 as follows: 29. The important section in the Act is Section 3 .............................................................................. This contention, apart from supporting the view that the word 'provision' in Section 3(1)(a) of the Act incorporates 'mata' as a right of the divorced Muslim woman distinct from and in addition to mahr and maintenance for the iddat period, also enables 'a reasonable and fair provision' and 'a reasonable and fair provision' as provided under Section 3(3) of the Act would be with reference to the needs of the divorced woman, the means of the husband, and the standard of life the woman enjoyed during the marriage and there is no reason why such provision could not take the form of the regular payment of alimony to the divorced woman, though it may look ironical that the enactment intended to reverse the decision in Shah Bano's case, actually codifies the very rationale contained therein." 32. As on the date the Act came into force the law applicable to Muslim divorced women is as declared by this Court in Shah Bano's case. In this case ............................................................... and other commentaries or other texts. As on the date the Act came into force the law applicable to Muslim divorced women is as declared by this Court in Shah Bano's case. In this case ............................................................... and other commentaries or other texts. When a Constitution Bench of this Court analysed Suras 241-242 of Chapter II of the Holy Quran and other relevant textual material, we do not think, it is open for us to re-examine that position and delve into a research to reach another conclusion. We respectfully abide by what has been stated therein (Shah Bano). All that needs to be considered is whether in the Act specific deviation has been made from the personal laws as declared by this Court in Shah Bano's case without mutilating its underlying ratio. We have carefully analysed the same and come to the conclusion that the Act actually and in reality codifies what was stated in Shah Bano's case ................................. If the language of the Act is as we have stated, the mere fact that the Legislature took note of certain facts in enacting the law will not be of much materiality." 34. The learned counsel appearing for the Muslim organisations contended .............................................................................. Shah Bano's case clearly enunciated what the present law would be. .................................... The enactment though purports to overcome the view expressed in Shah Bano's case in relation to a divorced Muslim woman getting something by way of maintenance in the nature of Mata is indeed the statutorily recognised by making provision under the Act for the purpose of the 'maintenance but also for provision'..................................... Therefore, we are of the view that the contentions advanced on behalf of the parties to the contrary cannot be sustained." It is ultimately concluded in saying the provisions of the Act do not offend the Articles 14, 15 & 21 of the Constitution of India. 8. It clearly laid down in Danial Latifi's case (supra) the expression of the Apex Court in Shah Bano's case holds good and rules the field and its impact cannot be wiped out by any legislation once the Constitution Bench expression laid down the law therein. The recent Constitution Bench expression in Kalpana Mehta's case (supra) at paragraph No. 248 though not referred the expression in Danial Latifi (supra), it clearly mentioned that the doctrine of separation restrains the legislature from declaring a judgment of a court to be void and of no effect. 9. The recent Constitution Bench expression in Kalpana Mehta's case (supra) at paragraph No. 248 though not referred the expression in Danial Latifi (supra), it clearly mentioned that the doctrine of separation restrains the legislature from declaring a judgment of a court to be void and of no effect. 9. The contention therefrom is what the sub-section 18A clause (2) of the provisions of Section 438 Cr.P.C. shall not apply to a case under the Act, notwithstanding any judgment or order or direction of any Court, wants to give no effect to the judgment of Dr. Subhash Kashinath Mahajan's case (supra) is not sustainable and running contrary to the constitution mandate by referring to paragraph No. 248 of Kalpana Mehta's case (supra) the Constitution Bench expression. Section 18A(1) so far as said amendment concerned, same runs contrary to the expression in Dr. Subhash Kashinath Mahajan's case (supra) as pointed out by the learned counsel for the petitioner. In fact that scope is now not fallen for consideration to go into it but for of Section 18A(2) and once it is observed supra of the application can be taken under Section 482 Cr.P.C. that bar has no application, leave about once the ingredients of Section 3 of the Act have no application, there is no bar of Section 18 of the Act as per settled law referred supra. The imposing of bar by a statutory amended provision on the power of the Court to exercise is unconstitutional as held on the scope of Section 32-A NDPS Act with reference to Section 389 Cr.P.C. by the Apex Court in Dadu @ Tulasi Das v. State of Maharastra 2000 Cr.L.J. 619 : (2000) 8 SCC 437 . Section 32-A is unconstitutional to the extent it took away the right of the Court to suspend the sentence of a convict under the Act subject to conditions spelt in Section 37 of the Act. It is in effect to say despite taking away the right of the Court to suspend the sentence pending appeal by Section 32-A of the Act, apart from same unconstitutional, the power of the Court subject to limitations under Section 37 to grant bail can be considered. It is in effect to say despite taking away the right of the Court to suspend the sentence pending appeal by Section 32-A of the Act, apart from same unconstitutional, the power of the Court subject to limitations under Section 37 to grant bail can be considered. In Hema Mishra v. State of Uttar Pradesh 2014 (4) SCC 453 the Apex Court observed that despite deletion of the very Section 438 Cr.P.C. by State amendment from the statute book in Cr.P.C. so far as State of U.P. the High Court got power and sometimes duty in appropriate cases to grant reliefs though it is not possible to pinpoint what are the appropriate cases, but for left to the wisdom of the High Court in exercising the constitutional jurisdiction. The Constitution Bench of the Apex Court in Gurbaksh Singh v. State of Punjab 1980 Crl.L.J. 417 (P&H) observed that a person who is not yet lose his freedom by being arrested asks for freedom in the event of arrest. That is the stage at which it is imperative to protect his freedom, in so far as one may, and to give full play to the presumption that he is innocent. In Joginder Kumar v. State of U.P. 1994 Cr L.J. 1981, the Supreme Court observed that no arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self esteem of a person. 10. Leave it as it is, there are settled expressions on the scope of the grant of anticipatory bail including under the Special Act, that once the ingredients of a penal provisions under the Special Act no way attracts to facts, there is no bar to grant anticipatory bail. 10. Leave it as it is, there are settled expressions on the scope of the grant of anticipatory bail including under the Special Act, that once the ingredients of a penal provisions under the Special Act no way attracts to facts, there is no bar to grant anticipatory bail. The learned counsel also placed reliance on the earlier expression of this Court in Paracha Mohan Rao v. State of Andhra Pradesh 2013 (2) ALD (Crl.) 535 (AP) wherein it is observed that the anticipatory bail application is maintainable despite bar under Section 18 of the Act from the purpose/object of the provision is to provide for protection against implication of opponents falsely in non-bailable offences by influential and powerful persons in society and to protect life and personal liberty of citizens from being jeopardized at the instance of unscrupulous elements. For that conclusion the expression referred several expressions of the Apex Court including Gorige Pentaiah v. State of Andhra Pradesh (2008) 12 SCC 531 and Asmathunnisa v. State of Andhra Pradesh 2011 (2) ALD (Crl.) 82 (SC) which include the expression of the Apex Court in Vilaspawar v. State of Maharashtra wherein it is clearly observed by the Apex Court that the Court is invested with the discretion to grant anticipatory bail is not precluded from examining the contents of F.I.R/complaint to find out whether prima facie an offence under the Special Act is made out or not. The Court however is not supposed to examine the veracity of the allegations mentioned in the F.I.R., but it can examine the limited question as to whether the offence under the Act is attracted or not even the allegations mentioned in the F.I.R./complaint are taken at their face value considering them to be true. 11. The Court however is not supposed to examine the veracity of the allegations mentioned in the F.I.R., but it can examine the limited question as to whether the offence under the Act is attracted or not even the allegations mentioned in the F.I.R./complaint are taken at their face value considering them to be true. 11. The other expression placed reliance of this Court in Karri Ramya Lathasri v. State of Andhra Pradesh 2014 (2) ALD (Crl.) 376 also referred the then latest expression of the Apex Court in Bachu Das v. State of Bihar (2014) 3 SCC 471 and Vilas Panduranga Pawar v. State of Maharashtra (2012) 8 SCC 795 , Shobhan Singh Khanka v. State of Jharkhand (2012) 4 SCC 684 besides Paracha Mohan Rao's case (supra) in saying from reading of the F.I.R. when the ingredients of the penal provisions of the Special Act have no application, there is no bar under Section 18 of the Special Act for grant of anticipatory bail. Once such is the case, even taken into consideration by virtue of the amendment against maintainability of the anticipatory bail application under Section 438 Cr.P.C. this can be considered as an application under Section 482 Cr.P.C. for this Court having the inherent power to exercise with all elasticity to the necessity as also laid down in the expression of this Court in Tamilnad Mercantile Bank v. M/s. Subbaiah Gas Agency [Crl.A. No. 1686 & 1687 of 2009 decided on 13.01.2015]. Further once the de facto complainant is a Christian, no doubt as held by this Court in Chinni Appa Rao v. State of Andhra Pradesh (2016) 1 ALD (Crl.) 545 AP the provisions of the Act have no application, but here except the oral say in the bail application averments of he does not belong to SC/ST, but a Christian, there is no further proof filed. 12. 12. Having regard to the above, now to consider on facts as to whether there are allegations attracting any of the penal provisions of the Special Act to attract the bar under Section 18 of the Special Act or not; the learned Special Assistant Public Prosecutor opposed the bail from the instructions of the police with statements of ten witnesses already examined of clearly disclose the attracting of penal provisions under Section 3(1)(r) & (s) of the Special Act and thereby there is the bar under Section 18 of the Act and the petitioner is an influential person and will interfere with the witnesses and may not cooperate with the investigation. The other submission is once there is a Writ Petition filed under Section 482 Cr.P.C. and it was disposed of without quashing by saying the police strictly follow Section 41-A Cr.P.C. the present anticipatory bail application is not maintainable. This contention is untenable and thereby rejected for the reason that the scope of bail is different from the scope of quashing of the F.I.R. either in the quash petition or the Writ Petition as the case may be. If any observation earlier including of non-entitlement to the bail, leave about the entitlement the protection of Section 41-A Cr.P.C. when not a bar for application of res judicata is not there for bail application. 13. In that view also the anticipatory bail application is maintainable subject to consideration on the factual matrix of the ingredients of Section 18 of the Act are applicable to the case on hand or not so far as the petitioner is concerned, a perusal of the very statements of witnesses more particularly LWs 1 to 4, it is clear that on 28.07.2018 at about 10.00 A.M., the de facto complainant with these witnesses when went, they were prevented at the gate by the persons by name (i) Chintha Bhaskar (ii) Mogalikunta Srinivas (iii) Venkaiah and (iv) Rajesh who are the followers of Sivaswamy by saying not allowed them to go into the premises to meet Sivaswamy at inside by saying they belong to SC and untouchable and the Sivaswamy advised them not to allow them to meet him inside. 14. 14. Once such is the case, from the very report vis-à-vis the statements of witnesses so far as the alleged incident on 28.07.2018 morning at about 10.00 A.M. is concerned, the alleged abuse touching the caste of the de facto complainant in the presence of the other persons/witnesses supra is not by Sivaswamy much less in the presence of or at the aiding or instigation of Sivaswamy, but by the others. What the witnesses stated is Sivaswamy advised not to allow them to enter inside to meet him and thereby, they did not allow them from the gate to go inside to meet Sivaswamy. Thereby, the provisions of Section 3 of the Special Act have no application so far as the petitioner is concerned for the alleged incident on 28.07.2018. 15. Coming to the alleged incident on the date saying few days back to that without even time or date of Sivaswamy if at all abused, there is nothing to say any person present. Once there is no public view, the application of Section 3(1)(r) or (s) of the Act does not arise at all. Having regard to the above, the bar under Section 3(1)(r)(s) of the Act have no application. 16. Now, coming to any bar under Section 3(2)(va) of the Act, the very section reads committing any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and shall also be liable to fine. 17. The alleged purchase of the property was in 2004 even from the F.I.R. fifteen years prior to the alleged incident without date or time supra of the abuse of Sivaswamy. It is not even a case from the F.I.R. or from the statement of de facto complainant by and between he ever met the accused, the accused knows the caste and a purchase in 2004 is remotely even not enough to say he knows the caste and abused to attract Section 3(2)(va) of the Act, leave about no ingredients of Section 506 or 120-B IPC that attracts, even those are mentioned in the schedule of the Act to cover Section 3(2)(va) of the Act. 18. 18. Having regard to the above, anticipatory bail can be granted as the bar under Section 18 of the Act has no application to the present facts from the settled law, leave about the expression of the Apex Court in Dr. Subhash Kashinath Mahajan's case (supra) cannot be wiped away nor taken away by virtue of the amended provision of Section 18(A) of the amended Act 27 of 2018 from the expression of the Apex Court in Danial Latifi's case (supra) and Kalpana Mehta's case (supra). It is made clear that these observations are made for the purpose of anticipatory bail application as part of duty of the Court to meticulously examine the record on facts in deciding role of accused and propensity of the crime and the observations will not prejudice in the event of filing any final report, the working out of the legal remedies. 19. Accordingly and in the result, this Criminal Petition is allowed and anticipatory bail is granted to the petitioner with the following conditions: [1] Petitioner-accused shall within fifteen (15) days from today submit before the S.H.O. concerned and execute a self-bond for Rs. 50,000/- [Rupees fifty thousand only] with two sureties for like sum each to the satisfaction of the arresting authority, otherwise giving liberty to the petitioner to submit within said 15 days from now before the Special Judge having the jurisdiction, for taking to custody and to enlarge as above. The bond to be obtained is not only to appear before the Court pending investigation and after filing of final report in the form of charge sheet or the like for enquiry or pre-committal enquiry before said Court, but also thereafter on committal before the Court of Sessions or by virtue of any transfer of proceedings for want of jurisdiction or otherwise before any other Court and even after trial before such Court to appear before revisional or appellate Court or other superior Court - vide decision - Pre-Legal Aid Committee, Jamshedpur v. State of Delhi 1982 [2] APLJ 43 (SC); so that at stage of committal or other proceedings obtaining of fresh bond from accused and even affidavits of sureties of bonds and solvency earlier produced are ratifying and in existence and enforceable, without even insisting his further presence, serves the purpose. Such recourse quickens the proceedings at such committal or other stages without loss of time and it also to some extent complies with the requirement of Section 437A Cr.P.C. [2] Petitioner-accused shall report before the Station House Officer concerned, as and when required in writing for purpose of investigation, between 10.00 and 11.00 AM for assurance of his availability and non-interference in any manner with the witnesses. [3] Petitioner-accused shall attend before the Court of law regularly in enquiry and trial without fail, if not his bail shall be cancelled forthwith, without any further order so that, the trial Judge can also issue NBW by cancelling the bail from the power under section 439 [2] Cr.P.C. delegated to the learned trial Judge by this order. [4] Petitioner-accused shall not leave the country pending enquiry/trial without prior permission of the Court of concerned trial Judge. [5] Petitioner-accused shall furnish his full address with property and Bank Account particulars and submit his passport if any, after enlargement of bail on the next hearing date before the trial Judge concerned (for collecting by police as part of their duty to investigate-also the means of accused and to furnish the same in the final report of investigation to enable the trial court in the event of considering the need of awarding compensation under section 357 Cr.P.C. So to award from such material and evidence, apart from securing presence and obtaining of bond with sureties under section 437A Cr.P.C. etc.), failing which it is open to the learned trial Judge concerned by virtue of the power conferred by this order to cancel the bail. [6] The bail now granted is since a regular one till end of trial (without prejudice to the right to cancel meanwhile in case of need and/or for non-compliance of conditions supra) any absence of petitioner as accused for hearing/enquiry or trial, issuance of non bailable warrant-NBW (unless cancelled before execution) and even its execution and production of accused as per the NBW; that does not tantamount to cancellation of bail including from the wording of Sec. 439(2) Cr.P.C. and as such in such event no fresh bail application can be entertained. As it tantamounts to only cancellation of bail bonds earlier executed, (leave about the power of the court to issue surety notices by forfeiting bonds and for imposing penalty on the bonds forfeited); the proper course is to direct the accused to work out the remedy to pay penalty on the previous forfeited bonds as per Section 441 to 446 Cr.P.C. and to submit fresh solvency with self bond for enlarging his by release from custody on payment of penalty of the earlier bonds forfeited without need of enforcing against earlier sureties again.