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2022 DIGILAW 1257 (KAR)

Gopal Atmaram Naidu v. State of Karnataka

2022-09-22

SHIVASHANKAR AMARANNAVAR

body2022
JUDGMENT 1. This appeal is filed by accused No .1 challenging the order dtd. 6/6/2022 passed in Criminal Miscellaneous No .235/2022 by the II Additional District and Sessions Judge, Uttara Kannada, Karwar whereunder the petition filed by the appellant/accused No.1 under Sec. 438 of The Code of Criminal Procedure, 1973 (hereina fter referred to as the 'Cr.P.C .', for brevity) seeking anticipatory bail in respect of Crime No .41/2021 of Ankola Police Station registered for the offences punishable under Ss. 498A, 323, 504, 506 of the Indian Penal Code (hereinafter referred to as the 'IPC', for brevity) and Ss. 3(1)(r)(s)(2)(va) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989 (hereina fter referred to as 'SC & ST (POA) Act', for brevity), came to be rejected. 2. Heard learned counsel for the appellant, learned counsel appearing for respondent No.2 and learned High Court Government Pleader for respondent No.1-State. 3. The case of the prosecution is that one Smt. Manjula W/o . Gopal Naidu has filed the complaint stating that her marriage was performed with the appellant/accused No.1 on 31 .08 .2014 and after her marriage she went to the house of her husband situated at Hosagadde village. It is further stated that on the first day itself her mother-in-law by name Baby has started ill treating her and behaved in a rude manner and thereafter they were not eating food prepared by her and throwing it in gutters and make her to go to starvation . After her husband leaving the house, her in-laws were abusing her by taking her caste and ill treating her stating that she has to hear them and even assaulted her on difference occasions. They were torturing her by making false allegations against her to her husband. It is further stated that after one month after completing Ashadha Masa she returned to her husband's house and when she entered the house her mother-in-law, father-in-law once again started ill treating her and provoking her husband to assault her for which she had taken treatment at Government Hospital, Kodligate. It is further stated that as the ill treatment was severe she did not sustain and she left the home of her husband in the month of February - 2015. It is further stated that on 15/6/2015 she has le ft to Dharwad to complete her Ph.D. course and she stayed in a hostel at Dharwad. It is further stated that as the ill treatment was severe she did not sustain and she left the home of her husband in the month of February - 2015. It is further stated that on 15/6/2015 she has le ft to Dharwad to complete her Ph.D. course and she stayed in a hostel at Dharwad. Her in-laws have blocked the mobile number of her husband. In the month of July-2015 she returned to Bangaluru, by that time her husband and family members left the house without intimating her. It is further stated that during June-2018 she called her husband on mobile phone, she came to know that her husband is in Dubai. It is further stated that she recently noticed that her husband found with another lady and on her hand she has a tattoo written as Ananya-Gopal. The said complaint came to be registered in Crime No.22/2021 of Mundgod Police Station for the offences punishable under Ss. 323, 498A, 504 read with Sec. 34 o f IPC and Ss. 3 and 4 of Dowry Prohibition Act, 1961. The said complaint subsequently transferred to Ankola Police Station which came to be registered in Crime No.41/2021 for the aforesaid offences. Ankola Police after the investigation filed the charge sheet against the appellant and three others for the offences punishable under Ss. 323, 498A, 504, 506 read with Sec. 35 of IPC and Ss. 3(1)(r)(s)(2)(va) of the SC and ST (POA) Act. The appellant/accused No.1 apprehending his arrest filed Criminal Miscellaneous No.235/2022 seeking anticipatory bail and the same came to be rejected by the II Additional District and Sessions Judge, Uttara Kannada, Karwar by order dtd. 6/7/2022. Therefore, the appellant/accused No .1 has challenged the said order in the instant appeal. 4. Learned counsel for the appellant would contend that the marriage of this appellant/accused No.1 with the victim ladycomplainant has been performed by the family members on 31/8/2014. It is his further submission that even though there is a love a ffair between this appellant and the complainant, the family members agreed and performed their marriage and it is a arranged marriage. It is his further submission that all the averments narrated in the complaint are alleged to have taken place prior to July-2015. The victim lady-complainant is not residing with the appellant/accused No.1 since July-2015 . It is his further submission that all the averments narrated in the complaint are alleged to have taken place prior to July-2015. The victim lady-complainant is not residing with the appellant/accused No.1 since July-2015 . It is his further submission that there is no allegation in the complaint and also in the statement of the complainant recorded under Sec. 164 of Cr.P.C. that this appellant/accused No.1 abused her touching her caste. The said allegation is only against accused Nos.2 to 4 . It is his further submission that there is no allegation against this appellant/accused No.1 attracting the provisions of SC and ST (POA) Act. When there is no prima facie case against the appellant, the bar contained under Sec. 18 of the SC and ST (POA) Act is not attracted. The other offense alleged against this appellant are not punishable with death or imprisonment for life. Without considering all these aspects the learned Sessions Judge has passed the impugned order which requires interference by this Court. With this, he prayed to allow the appeal. 5. Per contra, learned High Court Government Pleader for respondent No.1 would contend that on perusal o f the entire charge sheet material there is a prima facie case against the appellant/accused No.1 for the offences alleged against him. There are specific allegations against the appellant in the statement of the victim lady recorded under Sec. 164 of Cr.P.C. CWs-6 to 11 are the eyewitnesses who are the neighbours of the appellant. It is his further submission that the medical certificate of the complainant shows that she has sustained four injuries when she was residing in Bengaluru and the said wound certificate is issued by Primary Health Center, Kodligate, Bengaluru East Taluk. The said wound certificate is of the year 2015. It is his further submission that considering all these aspects, the learned Sessions Judge has rightly passed the impugned order which does not call for any interference by this Court. With this, he prayed to dismiss the appeal. 6. Learned counsel for respondent No.2- complainant would contend that accused Nos.2 to 4 the family members of accused No.1 have abused the complainant touching her caste and at that time appellant/accused No.1 kept silence and therefore he also having the same intention which attracts the offence under Sec. 34 of IPC. With this, he prayed to dismiss the appeal. 6. Learned counsel for respondent No.2- complainant would contend that accused Nos.2 to 4 the family members of accused No.1 have abused the complainant touching her caste and at that time appellant/accused No.1 kept silence and therefore he also having the same intention which attracts the offence under Sec. 34 of IPC. The appellant/accused No.1 found with another woman in photo uploaded in the face-book which is seen by this complainant through her face-book and it appears that this appellant/accused No.1 has married another lady which attracts the offence under Sec. 494 of IPC. It is his further submission that on perusal of the entire charge sheet material there is a prima facie case against the appellant/accused No.1 for the offences alleged against him . considering all these aspects, the learned Sessions Judge has rightly passed the impugned order which does not call for any interference by this Court. With this, he prayed to dismiss the appeal. 7. Having regard to the submissions made by learned counsel for the appellant, learned counsel for respondent No.2 and learned High Court Government Pleader for respondent No.1- State, this Court has gone through the charge sheet records and the impugned order. 8. On perusal o f the entire averments of the complaint and the statement of the complainant recorded under Sec. 164 of Cr.P.C., there is no allegation against this appellant/accused No .1 of abusing the complainant touching her caste. Therefore, there is no prima facie case to attract the offence under Sec. 3 of SC and ST(POA) Act. The other offences alleged against the appellant are not punishable with death or imprisonment for life. Without considering all these aspects, learned Sessions Judge has passed the impugned order which requires interference by this Court. The main apprehension of the prosecution is that, if the appellant/accused No.1 is granted anticipatory bail, they will threaten the complainant and other prosecution witnesses and flee from justice, can be met with by imposing certain stringent conditions. 9. In the facts and circumstances of the case and submission of the counsel, this Court is of the view that there are valid grounds for setting aside the impugned order and to grant anticipatory bail. Hence, I proceed to pass the following: ORDER The appeal is allowed. The impugned order dtd. 9. In the facts and circumstances of the case and submission of the counsel, this Court is of the view that there are valid grounds for setting aside the impugned order and to grant anticipatory bail. Hence, I proceed to pass the following: ORDER The appeal is allowed. The impugned order dtd. 6/6/2022 passed in Criminal Miscellaneous No.235/2022 by the II Additional District and Sessions Judge, Uttara Kannada, Karwar, is set aside . Consequently, the petition filed by appellant/accused No.1 under Sec. 438 of Cr.P.C., stands allowed. The appellant/accused No.1 is ordered to be released on bail in the event of his arrest in Crime No. 41/2021 of Ankola Police Station, sub ject to the following conditions: i. The appellant shall execute a personal bond for a sum of Rs.1,00,000.00 (Rupees One Lakh Only) with one surety for the likesum to the satisfaction o f the jurisdictional Court. ii. The appellant shall not indulge in tampering the prosecution witnesses. iii. The appellant shall attend the Court on all the dates of hearing, unless exempted, and co-operate in speedy disposal of the case. iv. The appellant shall not leave India without prior permission of the Trial Court.