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2021 DIGILAW 537 (AP)

Palika Veeralakshmi v. State of Andhra Pradesh

2021-08-11

LALITHA KANNEGANTI

body2021
JUDGMENT This Criminal Petition is filed under Section 438 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) seeking pre-arrest bail to the petitioners/A-2 to A-4 in the event of their arrest in connection with Crime No.155 of 2021 of the Station House Officer, Timmapuram Police Station, East Godavari District registered for the offences punishable under Sections 419, 420, 376 and 506 r/w 34 of the Indian Penal Code, 1860 and Sections 3(1)(r) and 3(1)(s) of Scheduled Casts and Scheduled Tribes (Prevention Of Atrocities) Amendment Act-2016 (for short ‘SC & ST (POA) Act’). 2. A report was lodged on 19.07.2021 by the de facto complainant stating that the accused used to follow her from the year 2016 on the pretext of love and in the month of September 2016, the accused took her to a old building at GPR Housing Layout situated at the outskirts of Vunduru Village and enjoyed her sexually forcibly by promising her to marry her. Later the accused took the victim to various villages and kept her in rental houses and lead conjugal life and caused pregnancy to her and then he tried to avoid her. On 02.02.2021 the de facto complainant went to the house of A-1, A-2 to A-4 pounced upon her, beat her with hands and insulted her in the name of her caste. She blessed with a female baby on 04.04.2021. Basing on the said report, the present crime was registered and the petitioners were arrayed as accused. 3. Heard Sri V.Sai Kumar, learned counsel for the petitioners and learned Public Prosecutor for the respondent-State. 4. Learned counsel for the petitioners submits that in the entire complaint, the allegations are against A-1 and as far as these petitioners are concerned, in view of the disputes between A- 1 and the de facto complainant, when she came to the house of accused, all the accused abused in the name of case. He submits that even as per the complaint, there is no previous acquaintance with the family members of A-1 and the de facto complainant. Hence, the question of prior knowledge about the caste of the de facto complainant itself is doubtful. He further submits that the petitioners were abused her in their house. He further submits that the petitioners are implicated in this case only with an intention to settle the dispute between A-1 and the de facto complainant. 5. Hence, the question of prior knowledge about the caste of the de facto complainant itself is doubtful. He further submits that the petitioners were abused her in their house. He further submits that the petitioners are implicated in this case only with an intention to settle the dispute between A-1 and the de facto complainant. 5. Learned Assistant Public Prosecutor submits that there are clear allegations of abusing the de facto complainant in the name of caste and in view of the bar under Section 18 of the SC & ST Act, this petition for pre-arrest bail is not maintainable. As the investigation is pending, the petitioners are not entitled for pre- arrest bail. 6. A perusal of the complaint shows that A1 and the petitioner are friends and all the allegations are made against A1. As far as the allegations under the provisions of SC ST (POA) Act are concerned, it is clearly mentioned in the complaint that the alleged abuse in the name of caste is within the house which shows that the said abuse is not in a public eye, as such there is no bar under Section 18 of SC ST (POA) Act. 7. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by Appellants 2 and 3 (by calling him a “chamar”) when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression “place within public view” with the expression “public place”. A place can be a private place but yet within the public view. We must, therefore, not confuse the expression “place within public view” with the expression “public place”. A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies. (Swaran Singh & Ors. v. State through Standing Counsel & Ors., (2008) 8 SCC 435 ) 8. The Hon’ble Apex Court in Writ Petition (C) No.1015 of 2018 and in Writ Petition (C) No.1016 of 2018 between Pruthvi Raj Chauhan and Union of India has considered the scope of Section 18 of the SC ST (POA) Act and observed that: “…concerning the applicability of provisions of Section 438 Cr.P.C., shall not apply to the Act. However, if the complainant does not make out a prima facie case for applicability of the provisions of the Act the bar created by Section 18 and 18A (i) shall not apply.” “… … It would only add a caveat with the observation and emphasize that while considering any application seeking pre-arrest bail, High Court has to balance two interests i.e. the power is not so used to convert the jurisdiction under Section 438 of Cr.P.C., 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 if such orders are not made in similar cases, the result would inevitably be a miscarriage of justice or abuse of process of law. Therefore, 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.” 9. In view of the above discussion and taking into consideration that there are no specific allegations against the petitioners and only omnibus allegations are made and further even as per the alleged abuse in the name of caste is not within public eye, this Court deems it appropriate to grant pre-arrest bail to the petitioners. 10. Accordingly, this Criminal Petition is allowed. 10. Accordingly, this Criminal Petition is allowed. The petitioners/A-2 to A-4shall be released on bail in the event of their arrest in connection with Crime No. 155 of 2021 of the Station House Officer, Timmapuram Police Station, East Godavari District on condition of executing self bonds for Rs.20,000/- (Rupees twenty thousand only) each with two sureties for a likesum each to the satisfaction of the Station House Officer, Timmapuram Police Station, East Godavari District. Consequently, miscellaneous applications pending, if any, shall stand closed.