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2020 DIGILAW 941 (KAR)

Madhu v. State Of Karnataka And Another

2020-06-02

H.P.SANDESH

body2020
JUDGMENT 1. This petition is filed under Section 438 of Cr.P.C seeking anticipatory bail of the petitioner/accused No.1 in Crime No.92/2019 of Honnavalli Police Station, Tumakuru for the offences punishable under Section 306 of I.P.C. and Sections 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (the SCST Act for short). 2. Heard the learned counsel for the petitioner and learned High Court Government Pleader appearing for the State/respondent No.2. 3. The factual matrix of the case is that the mother of the victim has lodged complaint stating that on 20.12.2019, her daughter committed suicide by hanging in her house and the reason for committing suicide by her daughter is not known. Based on that, the case in UDR No.13/2019 was registered. On 23.12.2019, they found the death note of the deceased while cleaning the room and in the said alleged death note, an allegation is made against this petitioner/accused No.1 that he cheated the victim. Earlier he promised that he would marry her in Dharmasthala, but later he declined to marry her and hence, she committed suicide. Based on the death note, one more complaint was lodged in the police station and based on that complaint, a case in Crime No.92/2019 came to be registered for the offence punishable under Section 306 of I.P.C. and Sections 3(2)(va) of the SCST Act. The investigation in the matter is not yet completed. 4. The contention of learned counsel appearing for the petitioner is that on 20.12.2019 when the first complaint was lodged, the reason for committing suicide by her daughter was not known and thereafter based on the second complaint which was lodged on 25.12.2019, the present case is registered. There is a delay of two days in lodging the complaint even after they could find the alleged death note. Learned counsel would further contend that there is no prima facie material to believe the case of the prosecution since the very death note itself is doubtful. There is no material to make out the case of the prosecution. 5. Learned counsel would also contend that the prosecution has invoked Section 3(2)(va) of the SCST Act and also in order to invoke the said offence, there is no any offence punishable under Section 306 of I.P.C. in the Schedule as mentioned in Section 3(2)(va) of the Act. There is no material to make out the case of the prosecution. 5. Learned counsel would also contend that the prosecution has invoked Section 3(2)(va) of the SCST Act and also in order to invoke the said offence, there is no any offence punishable under Section 306 of I.P.C. in the Schedule as mentioned in Section 3(2)(va) of the Act. Hence, the very invoking of Section 3(2)(va) of the SCST Act is only with an intention to bar the jurisdiction to invoke Section 438 of Cr.P.C. 6. Learned counsel, in support of his contention, has also relied upon the judgment in the case of Dr. Subhash Kashinath Mahajan v. State of Maharashtra and another reported in (2018) 6 SCC 454 and the recent judgment reported in 2020 SCC OnLine SC 159 in the case of Prathvi Raj Chauhan v. Union of India and Others . Referring the principles of these two judgments, learned counsel would also contend that the bar under Section 18 of the Act will not come in the way of exercising power under Section 438 of Cr.P.C. considering the material facts on record. 7. Per contra, learned High Court Government Pleader appearing for the State would contend that though the case in UDR No.13/2019 is registered at the first instance, subsequently, while cleaning the room the death note of the deceased was found on 23.12.2019 in the room in which the victim has committed suicide. In the said death note, a specific allegation has been made against this petitioner that he has cheated her by not marrying her and he aspires to marry other girl. Hence, she has taken the extreme step of committing suicide. 8. Learned High Court Government Pleader also would contend that the victim girl belongs to the SCST category and there is a specific bar under Section 18 of the SCST Act, and the recent amendment has been brought by the parliament under Section 18A of the SCST Act. Hence, this Court cannot exercise powers under Section 438 of Cr.P.C. 9. Having heard the arguments of the learned counsel appearing for the petitioner and learned High Court Government Pleader appearing for the State, this Court has to examine as to whether the petitioner has made out the ground to invoke Section 438 of Cr.P.C. 10. Hence, this Court cannot exercise powers under Section 438 of Cr.P.C. 9. Having heard the arguments of the learned counsel appearing for the petitioner and learned High Court Government Pleader appearing for the State, this Court has to examine as to whether the petitioner has made out the ground to invoke Section 438 of Cr.P.C. 10. Having considered the factual matrix of the case, it discloses that at the first instance, complaint was lodged stating that her daughter has committed suicide and the reason for her suicide is not known to them, but later i.e., on 23.12.2019, they found the alleged death note of the deceased and after two days, the second complaint was lodged and case was registered. The mahazar which was enclosed along with this petition was conducted on 21.12.2019 and it discloses that no material was found in the room in which the victim has committed suicide. It is rightly pointed out by the learned counsel for the petitioner that the death note came into existence in a doubtful circumstance and at this juncture also, this Court cannot express its opinion on that aspect. Whether the death note is in the handwriting of the deceased is to be looked into and there is no any material before the Court with regard to the same belonging to the victim. It is also very important to note that at the first instance, there is no whisper with regard to the love affair between this petitioner and the deceased. When such being the case, taking note of the material on record, this Court can exercise powers under Section 438 of Cr.P.C. and by doing so, no prejudice would be caused to the prosecution. 11. The other contention of learned counsel for the petitioner and also learned High Court Government Pleader appearing for the State with regard to invoking of Section 438 of Cr.P.C., there is a clear bar under Section 18 and 18A of the SCST Act. 12. Looking into the material on record, more particularly, the complaint averments and also the material collected by the investigating officer, except the fact that the deceased belong to Bhovi community, there is no other material placed before the Court and in the absence of any prima facie material, as held by the Apex Court in the judgments refereed supra by the learned counsel for the petitioner i.e., in Dr. Subhash Kashinath Mahajan v. State of Maharashtra and another; and Prathvi Raj Chauhan v. Union of India and Others , this Court has to apply its judicious mind as to whether the complaint averments fit in under Sections 18 and 18A of the Special Enactment. The Court while considering the bar has to look into the complaint and if the same does not make out a prima facie case, applicability of the provisions of the Act, 1989 does not arise and the bar created by Sections 18 and 18A shall not apply. The allegation on this petitioner that he has cheated the victim girl has to be decided in the trial. Taking into consideration of all these aspects, I do not find any bar coming in the way of exercising discretion of granting bail in favour of the petitioner. Hence, it is a fit case to exercise powers under Section 438 of Cr.P.C. taking note of the material on record and grant bail subject to the conditions in order to safeguard the interest of the prosecution. Accordingly, I pass the following:- ORDER The petition is allowed. Consequently, the petitioner/accused No.1 shall be released on bail in the event of his arrest in connection with Crime No.92/2019 of Honnavalli Police Station for the offences punishable under Section 306 of I.P.C. and Sections 3(2)(va) of the SCST Act, subject to the following conditions:- 1) The petitioner shall surrender himself before the Investigating Officer within Ten days from the date of receipt of a certified copy of this order and shall execute a personal bond for a sum of Rs.1,00,000/- with two sureties for the like-sum to the satisfaction of the concerned Investigating Officer. 2) The petitioner shall not indulge in tampering the prosecution witnesses. 3) The petitioner shall not leave the jurisdiction of the Court without prior permission, till the disposal of the case.