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2022 DIGILAW 379 (KAR)

Yamunappa v. State of Karnataka

2022-03-16

JYOTI MULIMANI

body2022
JUDGMENT Jyothi Mulimani, J. - Sri. B.C. Jaka, learned counsel for appellants and Sri. Sharanabasappa M. Patil, learned High Court Government Pleader for respondent No. 1 have appeared in-person. 2. Counsel for appellants is seeking to allow the appeal and direct the respondent No. 1 to enlarge the appellants/accused Nos. 1 and 2 on anticipatory bail in the event of their arrest in connection with Crime No. 161/2021 registered by the Kembhavi Police Station against the appellants for the offences punishable under Sections 338 & 504 R/W Section 34 of IPC and also under Sections 3(1)(r) & 3(1)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'SC/ST(POA) Act'). 3. Sri. B.C. Jaka, learned counsel for appellants submits that the appellants are innocent of the allegations made against them by the complainant. The offences are not punishable with death or imprisonment of life. Next, he submitted that the appellants have nothing to do with the alleged offence directly or indirectly, as they have been falsely involved in order to cause harassment. A further submission is made that admittedly, the first appellant is also belongs to Scheduled Caste. Therefore, the Prevention of Atrocities Act will not be attracted. So far as second appellant is concerned, he has not at all abused the victim Sharanappa by taking his caste in a public place and it is only a created story of the complainant. Learned counsel vehemently urged that the ingredients of Sections 3(1)(r) and (s) of the SC/ST (POA) Act are not attracted as against the appellants. However, the police authorities have mechanically registered the FIR for the offences punishable under the SC/ST (POA) Act. Lastly, he submitted that the appeal may be allowed and respondent No. 1 may be directed to enlarge the appellants/accused Nos. 1 and 2 on anticipatory bail in the event of their arrest. 4. Learned High Court Government Pleader has opposed for the grant of anticipatory bail. Next, he submits that looking to the complaint averments, there is a prima facie case against the appellants for the offence punishable under Sections 3(1)(r) and (s) of the SC/ST (POA) Act and other offences punishable under the Indian Penal Code. 4. Learned High Court Government Pleader has opposed for the grant of anticipatory bail. Next, he submits that looking to the complaint averments, there is a prima facie case against the appellants for the offence punishable under Sections 3(1)(r) and (s) of the SC/ST (POA) Act and other offences punishable under the Indian Penal Code. A further submission is made that there is a bar under Sections 18 and 18A of the SC/ST (POA) Act from entertaining the petition under Section 438 of Cr.P.C. The District and Sessions Judge considering all these aspects has rightly rejected the anticipatory bail application and the order does not require any interference. It is also submitted that investigation is already completed and charge sheet is now filed. The offence alleged against the appellant is also under Section 304 (A) of IPC. Accordingly, he submits that this is not a fit case to grant anticipatory bail. Hence, the appeal may be dismissed. 5. Heard, the contentions urged on behalf of parties and perused the FIR, complaint and also the impugned order. 6. The complaint is lodged by one Basamma W/o Kamappa, the mother of deceased Sharanappa on 29.10.2021. It is stated that the deceased Sharanappa died due to current shock and the first appellant is responsible for the death. It is also alleged that there is a caste abuse by appellant No. 2 - Shrishaila Swamy. The complaint averments do not depict that there is a caste abuse by appellant No. 1. I have perused the complaint with utmost care. As could be seen from the complaint, there is no allegation of caste abuse by appellant No. 1. The Hon'ble Apex Court in Prathvi Raj Chauhan vs. Union of India and Others reported in (2020) 4 SCC 727 has held that if the complaint does not make out prima-facie case for applicability of provisions of the SC/ST (POA) Act, 1989, the bar created under Sections 18 and 18A shall not apply. The said aspect is contained in paragraph No. 11, which is extracted as under:- "11. Concerning the applicability of provisions of Section 438 Cr.P.C., it shall not apply to the cases under the 1989 Act. However, if the complaint does not make out a prima facie case for applicability of the provisions of the 1989 Act, the bar created by Sections 18 and 18-A(i) shall not apply. Concerning the applicability of provisions of Section 438 Cr.P.C., it shall not apply to the cases under the 1989 Act. However, if the complaint does not make out a prima facie case for applicability of the provisions of the 1989 Act, the bar created by Sections 18 and 18-A(i) shall not apply. We have clarified this aspect while deciding the review petitions". Suffice it to notice that the investigation is completed and the charge sheet has been filed. In the charge sheet appellant No. 1 is shown as accused No. 1 and appellant No. 2 is shown as accused No. 2 and accused No. 1 has been accused of offences punishable under Sections 304(A), 504 R/w Section 34 of IPC. He has not been charged with offence punishable under the SC/ST (POA) Act. As already noted above, the complaint does not depict that there is a caste abuse by appellant No. 1. Therefore, the District and Sessions Judge has failed to have regard to relevant considerations and disregarded relevant matters. In my considered opinion, the order passed by the District and Sessions Judge is unsustainable in law insofar as appellant No. 1 is concerned. Insofar as appellant No. 2 - Shrisaila Swamy is concerned, the complaint depicts that there is caste abuse by him. In the charge sheet also, he has been charged for the offences punishable under Sections 304(A), 504 R/w Section 34 of IPC and Sections 3(i)(r) & 3(i)(s) of SC/ST (POA) Act. Hence, he is not entitled for anticipatory bail. The main objection of the prosecution is that if the appellant No. 1 is granted anticipatory bail, he will tamper the prosecution witnesses. The said objection may be set right by imposing some stringent conditions. 7. On facts and in all the circumstances of the case, this Court is of the view that there are valid grounds for setting aside the impugned order and granting bail to appellant No. 1/accused No. 1 subject to terms and conditions. Hence, the Court passes the following: ORDER i. The appeal is allowed in part. ii. The order dated 14.12.2021 passed by the District and Sessions Judge, Yadgiri in Crl. Misc. No. 666/2021 is set aside insofar as appellant No. 1/accused No. 1 is concerned. Insofar as appellant No. 2/accused No. 2 is concerned, the appeal is rejected. Hence, the Court passes the following: ORDER i. The appeal is allowed in part. ii. The order dated 14.12.2021 passed by the District and Sessions Judge, Yadgiri in Crl. Misc. No. 666/2021 is set aside insofar as appellant No. 1/accused No. 1 is concerned. Insofar as appellant No. 2/accused No. 2 is concerned, the appeal is rejected. Appellant No. 1 shall be released on bail in the event of his arrest in connection with Crime No. 161/2021 registered by the Kembhavi Police Station for the offences punishable under Sections 3(1)(r) & 3(1)(s) of SC/ST (POA) Act, 1989 and Sections 338, 504 & 304 R/w Section 34 of IPC, subject to the following conditions:- 1. Appellant No. 1 shall execute a personal bond in a sum of Rs. 1,00,000/- (Rupees One Lakh only) with one surety for the like sum to the satisfaction of the Investigating Agency. 2. Appellant No. 1 shall not tamper with the prosecution witnesses/evidence either directly or indirectly. 3. Appellant No. 1 shall appear before the Trial Court on all dates of hearing without fail. The observations made herein are confined to the disposal of this appeal.