Research › Search › Judgment

Karnataka High Court · body

2020 DIGILAW 1406 (KAR)

Uday v. State Of Karnataka

2020-07-14

HANCHATE SANJEEVKUMAR

body2020
JUDGMENT Hanchate Sanjeevkumar, J. - This petition is filed by the petitioners/accused Nos.1 to 4 under Section 438 of Cr.P.C. seeking a direction to the respondent - Police to release them on bail in the event of their arrest. 2. Brief facts of the case as per FIS is as under; It is stated that the first informants are belonging to Scheduled Caste community. It is alleged in the FIS that on 14.12.2019, the first informants, who are totally 15 in numbers stated that the petitioners and other accused knowing fully well that these first informants are belonging to the Scheduled Caste community, intentionally insulted them by abusing with reference to their caste, criminally intimidated stating that they would put fire to their house besides stripping of the Sarees of the women belonging to their community, apart from that they have assaulted them. It is further stated in the FIS that because of the existence of Dr. B.R. Ambedkar Flag in the village, petitioners are feeling humiliation and therefore they were telling that they would put fire to said flag and abused the complainants with reference to by taking the caste of their community, in this regard FIS is lodged before the Police and on the basis of the same, a case in Crime No.189/2019 came to be registered for the offences punishable under Sections 295, 504 & 506 r/w Section 34 of IPC and Sections 3(1)(r), 3(2)(va) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), 1989 ( 'Act', for short). 3. The learned counsel for the petitioners argued that there is no prima facie case is made out in the FIS. Further submitted that on earlier occasion the petitioners have submitted a representation addressing to the Deputy Commissioner stating that the complainants were trying to destroy the existing water tank and intending to put up some construction. Therefore, to prevent that, they have submitted the representation. Being enraged with this, in retaliation, the first informants have lodged the present false first information statement (FIS) with a malafide intention and it does not depict any prima facie case so as to proceed under the provisions of the Act. Further submitted, that now the investigating officer has filed the charge sheet and in the gist of the charge sheet, story of the prosecution entered is totally different as that of the averments in the FIS. Further submitted, that now the investigating officer has filed the charge sheet and in the gist of the charge sheet, story of the prosecution entered is totally different as that of the averments in the FIS. Therefore, argued with reference to the prosecution case made out in the charge sheet besides arguing that there is an improvement and there is a complete deviated stand as that of the FIS. 4. In support of his argument, the learned counsel for the petitioners has relied upon the decisions of the Hon'ble Apex Court as well as co-ordinate Bench of this court, which are as follows; 1. Prathvi Raj Chauhan vs. Union of India And Ors, (2020) AIR SC 1036 2. Venkatachalaiah and Ors. vs. State of Karnataka, (2003) ILR(Kar) 3985 3. Appoji Reddy & Anr. Vs. The State of Karnataka in Crl.P.No.2433/2020 (DD:10.06.2020) Accordingly, prayed to allow the petition with any conditions as deemed fit by this court with which the petitioners are ready to abide by them. 5. On the other hand, learned High Court Government Pleader submitted that since as per the FIS and also charge sheet, there is a prima facie case to attract the offences foisted under the provisions of the Act and in such a way there is a prima facie allegation made. Therefore, under Sections 18 & 18-A of the Act create bar to entertain the anticipatory bail petition filed under Section 438 of Cr.P.C. Hence, prayed to reject the petition as not maintainable even otherwise on merits of the petition. 6. I have heard the arguments from both sides and having carefully gone through the entire prosecution papers made available to this court at this stage, the point regarding maintainability of petition under Section 438 of Cr.P.C. arises for my consideration, which is as follows:- "Whether the present petition filed under Section 438 of Cr.P.C. is maintainable and can it be considered in the light of the averments made in the First Information Statement and considering the averments made in column No.17 of the charge sheet of the present case" 7. In the present case, upon considering the averments made in the FIS lodged on 14.12.2019, which clearly depicts the allegations against the petitioners that they and other accused knowing fully well the caste of the first informants and abused them in a filthy language, criminally intimidated them. In the present case, upon considering the averments made in the FIS lodged on 14.12.2019, which clearly depicts the allegations against the petitioners that they and other accused knowing fully well the caste of the first informants and abused them in a filthy language, criminally intimidated them. The further allegation against the petitioners are that they would destroy the flag of Dr. B.R. Ambedkar by putting fire. Therefore, there is a clear cut accusation is made in the FIS as against the petitioners attracting the offences under Sections 295, 504 & 506 r/w Section 34 of IPC and Section 3(1)(r), 3(2)(va) of the Act. 8. It is worthwhile to extract the complaint averments made in the FIS, which is as under; 9. Further, the learned counsel for the petitioners submitted that in the charge sheet at column No.17, the story of the prosecution is different as that of the averments made in the FIS. Therefore, it is submitted that there is a complete deviated stand and improvement in the prosecution case. Therefore, the prosecution does not have any specific accusations as alleged against the petitioners concerned. Therefore, submitted that there is no prima facie as against the petitioners. Hence, prayed to enlarge the petitioners on anticipatory bail. 10. It is also worthwhile to extract the gist made out in the charge sheet as stated in column No.17, which is as under;- 11. It is made clear that at this stage, this court is only going to consider the maintainability of the petition filed under Section 438 of Cr.P.C. in connection with the present case in the background of the prosecution case made out as stated above, without going on merits of the petition and case. 12. Considering bar under Section 18 of the Act, is involved, for ready reference, Section 18 of the Act is extracted as under; "18. Section 438 of the Code not to apply to persons committing an offence under the Act.- Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act. 13. Section 438 of the Code not to apply to persons committing an offence under the Act.- Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act. 13. Further, for ready reference, Sub-section (2) of Section 18-A of the Act is extracted as under; "(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." 14. Therefore, when Section 18 is enacted in the original Act, there is a clear bar to entertain anticipatory bail petition under Section 438 of Cr.P.C. However, upon making interpretation of this Section, it is made interpretation that wherever upon a bare perusal of the complaint or FIS or FIR, if a prima facie case is not made out attracting the offences under the provisions of the Act, then Section 438 Cr.P.C. can be considered. The Hon'ble Supreme Court in the case of Dr. Subhash Kashinath Mahajan Vs. State of Maharashtra and Ors, (2018) 6 SCC 454 were pleased to laid down the law which reads as follows; "83. Our conclusions are as follows: i) Proceedings in the present case are clear abuse of process of court and are quashed. ii) There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in Pankaj D. Suthar, (1992) 1 GLR 405 (supra) and Dr. N.T. Desai, (1997) 2 GLR 942 (supra) and clarify the judgments of this Court in Balothia,1995 AIR SC 1583) (supra) and Manju Devi, (2017) AIR SC 1583 (supra); iii) In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention. Such reasons must be scrutinized by the Magistrate for permitting further detention. iv) To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated. v) Any violation of direction (iii) and (iv) will be actionable by way of disciplinary action as well as contempt. The above directions are prospective." 15. Thereafter, the Union of India had filed a Review Petition before the Hon'ble Supreme Court seeking review of the directions passed in the above stated judgment of Dr.Subhash Kashinath Mahajan's case stated supra. 16. Then Union of India has passed an Act by way of Act 27 of 2018 w.e.f. 20.08.2018 and inserted Section 18-A of the Act by way of Amendment made to the Act. Sub-section (2) of the Act clearly shows the provisions of Section 438 of Cr.P.C. shall not apply to a case under the Act, notwithstanding any judgment or order or direction of any court. This Sub-section (2) is enacted to nullify the directions issued in Dr.Subhash Kashinath Mahajan's case stated supra observed at para No.83. 17. Further, the Union of India had filed a Review Petition before the Hon'ble Supreme Court and after considering the Review Petition, the directions stated at para No.83 in Mahajan's case stated supra were reviewed and recalled the directions No.(iii) to (v), which is reported in AIR 2019 SC 4917 . 18. Then the issue regarding Section 18 and 18-A of the Act, about creation of bar made to entertain the petition under Section 438 of Cr.P.C. came up before the Hon'ble Supreme Court in the case of Prathvi Raj Chauhan vs. Union of India and others, (2020) AIR SC 1036 . Their lordship were pleased to observe since the directions stated in Mahajan's case stated supra at directions No.(iii) to (v) were recalled and regarding interpretation of Sections 18 and 18-A of the Act has attained only an academic interest. Accordingly, the Hon'ble Supreme Court in Prathvi's case stated supra were pleased to consider all earlier judgments rendered in this regard and were pleased to clarify the law and their Lordships observed at para 10, as follows ;- "10. Concerning the applicability of provisions of section 438 Cr.P.C., it shall not apply to the cases under Act of 1989. Accordingly, the Hon'ble Supreme Court in Prathvi's case stated supra were pleased to consider all earlier judgments rendered in this regard and were pleased to clarify the law and their Lordships observed at para 10, as follows ;- "10. Concerning the applicability of provisions of section 438 Cr.P.C., it shall not apply to the cases under Act of 1989. However, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by section 18 and 18A (i) shall not apply. We have clarified this aspect while deciding the review petitions." 19. Further, Hon'ble S. Ravindra Bhat J., concurring with their Lordship has further more clarified the legal position in this regard and were pleased to laid down the principle of law at para No.31 and 32, as follows; "31. As far as the provision of Section 18A and anticipatory bail is concerned, the judgment of Mishra, J., has stated that in cases where no prima facie materials exist warranting arrest in a complaint, the court has the inherent power to direct a pre-arrest bail. 32. I would only add a caveat with the observation and emphasize that while considering any application seeking pre-arrest bail, the High Court has to balance the two interests: i.e. that the power is not so used as to convert the jurisdiction into that under Section 438 of the Criminal Procedure Code, but that it is used sparingly and such orders made in very exceptional cases where no prima facie offence is made out as shown in the FIR, and further also that if such orders are not made in those classes of cases, the result would inevitably be a miscarriage of justice or abuse of process of law. I consider such stringent terms, otherwise contrary to the philosophy of bail, absolutely essential, because a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament." 20. I consider such stringent terms, otherwise contrary to the philosophy of bail, absolutely essential, because a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament." 20. Therefore, considering the statutory provisions of Section 18 and Sub-section (2) of 18-A of the Act and applying the principle of law laid down by the Hon'ble Apex Court in the present facts and circumstances as more described in the preceding paragraphs, now at this stage, this court without expressing any opinion on the merits of the case as canvassed by the learned counsel for the petitioners, but, is only considering the prima facie aspect as made out by the prosecution in its FIS and the charge sheet materials. 21. While considering the anticipatory bail petition under Section 438 of Cr.P.C. now the law is very clear wherever in FIS/complaint, if there is no prima facie case is made out attracting the provisions of the Act and then only the petition under Section 438 of Cr.P.C. can be considered. 22. What is the meaning of "prima facie" can be referred with reference to Black's Law Dictionary (Ninth Edition), as under ;- "Prima facie ( prI -m fay -sh or fay -shee), adv. [Latin] (15c) At first sight; on first appearance but subject to further evidence or information the agreement is prima facie valid. [Cases: Evidence - 53, 85, 584(1).]" 23. But, in the present case as discussed above, whatever the allegations made in the FIS and at column No.17 of the charge sheet, it is clear that there exists prima facie materials which has been made out against the present petitioners with reference to the caste of the first informants, the case is lodged. Therefore, upon considering the prima facie case as made out by the prosecution in the present case as extracted above from the FIS and charge sheet the present bail petition filed by the petitioners under Section 438 of Cr.P.C. cannot be entertained, thus, not maintainable. Therefore, the present anticipatory petition filed under Section 438 of Cr.P.C. is hereby dismissed as not maintainable in the light of the principles of law laid down by the Hon'ble Supreme court stated supra and as per the observations made herein above, by this court.