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2023 DIGILAW 1156 (KAR)

Suresh R v. State of Karnataka

2023-10-03

SHIVASHANKAR AMARANNAVAR

body2023
JUDGMENT : Mr. Shivashankar Amarannavar, J. - Appellant Nos.1 to 3/Accused Nos.1 to 3 have filed this appeal praying to set-aside the order dated 30.06.2023 passed in Crl.Misc.No.4401/2023, by the LXX Additional City Civil and Sessions Judge and Special Judge, Bengaluru (CCH-71), where under, the anticipatory bail petition of the appellants sought in respect of Crime No.149/2023 of Kengeri Police Station for the offences under Sections 323, 324, 341, 448, 504 and 506 r/w Section 34 of the Indian Penal Code, 1860 (for short hereinafter referred to as 'IPC') and Sections 3(1)(r) and 3(1)(s) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short hereinafter referred to as "the Act"), came to be rejected. 2. Heard the arguments of learned counsel appearing for the appellants, learned High Court Government Pleader for respondent No.1 - State and respondent No.2/party-in-person. 3. Case of the prosecution is that; respondent No.2 has filed a complaint stating that he is residing in Flat No.404 of Kailasha Apartment, Kengeri and he belongs to Adi-Karnataka community and in the same apartment in the 5th floor in Flat No.504, the appellants/accused Nos.1 to 3 are residing. In the complaint, it is stated that on 02.05.2023 at about 11.20 pm, the complainant heard the sound of hitting with hammer from the house of the appellant No.1 - accused No.1. He came out of the house and standing in the balcony, told accused No.1 not to make noise as it causes trouble to them and asked them to stop the same and went inside the house and closed the door. After 2-3 minutes, he heard knocking sound of his door. When he opened the door, he saw accused Nos.1 to 3 and they abused him in filthy words, entered his house, assaulted with hands and legs and therefore, in order to protect himself, he took mudde stick which was in his house and accused No.1 snatched the same and assaulted with it on his left hand, fingers, on his back, right knee and he fell on the floor. At that time, accused No.2 kicked him and pulled his knicker and accused No.3 also kicked him. At that time, accused No.2 kicked him and pulled his knicker and accused No.3 also kicked him. At that time, his wife who was sleeping woke up and came for his help and at that time, accused No.1 assaulted on her head with the mudde stick and also on her thigh and accused Nos.2 and 3 have abused his wife in filthy language and accused Nos.2 and 3 held him and restrained him from helping his wife and they gave life threat and at that time, accused No.3 has recorded the incident in her mobile. Thereafter, he and his wife took treatment in Shreya Hospital, Kengeri. 4. The said complaint came to be registered in Crime No.149/2023 for the aforesaid offences. The appellants who were arrayed as accused Nos.1 to 3 in FIR, apprehending their arrest filed Crl.Misc.No.4401/2023 seeking anticipatory bail and the same came to be rejected by the impugned order dated 30.06.2023 which is challenged in this appeal. 5. Learned counsel for the appellants would contend that there is no allegation in the complaint that the offences have been committed on the ground that respondent No.2 - complainant belongs to Scheduled Caste. There is no allegation in the averment of the complaint that the appellants abused him touching his caste. The complainant is in the habit of filing the complaints under the provisions of the Act and making the claim for compensation. The complainant is a chronic litigant and he has not paid the maintenance charges of the Society. 6. Learned counsel for the appellant placed reliance on two decisions of the Hon'ble Apex Court, in the case of Khuman Singh v. State of Madhya Pradesh reported in (2020) 18 SCC 763 and in the case of Hitesh Verma v. State of Uttarakhand and Another reported in (2020) 10 SCC 710 , wherein it is held that, to attract the offence under Section 3(2)(v) of the Act, the offence must have been committed against the person on the ground that such a person is a member of the Scheduled Caste and Scheduled Tribe. 7. He contends that in the case on hand, there is no allegation that the offence has been committed on the ground that the complainant belongs to Scheduled Caste. Therefore, there is no prima facie case against the appellants for the offence under Section 3 of the Act. 7. He contends that in the case on hand, there is no allegation that the offence has been committed on the ground that the complainant belongs to Scheduled Caste. Therefore, there is no prima facie case against the appellants for the offence under Section 3 of the Act. Hence the bar under Sections 18 and 18A(2) of the Act are not attracted. Without considering these aspects, learned Special Judge has erred in rejecting the anticipatory bail petition of the appellants. With this, he prayed to allow the appeal and grant anticipatory bail to the appellants. 8. Per contra, learned High Court Government Pleader would contend that, the wound certificate reveal that wife of the complainant has sustained three simple injuries. There is a case and a counter case. On perusal of the complaint, there is a prima facie case against the appellants for the offence under Section 3 of the Act. As there is a bar under Sections 18 and 18A(2) of the Act, the Special Court has rightly rejected the petition seeking anticipatory bail. With this, he prayed to dismiss the appeal. 9. Respondent No.2 who appeared in person contended that the offences alleged against the appellants under IPC are in the Schedule of the Act and the police in order to help the appellants have not invoked Section 3(2)(v) of the Act. The alleged incident has been video recorded by accused No.3 and the police have failed to collect the said video. Accused No.2 has also filed a complaint against the complainant and his wife. The appellants are absconding since the date of incident. There are earlier complaints filed by the complainant against the appellants and therefore, there are series of cases against the appellants. 10. He placed reliance on the decision of the Hon'ble Apex Court in the case of Prathvi Raj Chauhan reported in (2020) 4 SCC 727 contending that if there is a prima facie case for the offence under Section 3 of the Act, the petition under Section 438 of Cr.P.C is not maintainable in view of the bar under Section 18 of the Act. 11. 11. He also placed reliance on the decision of the Hon'ble Apex Court in the case of Harjit Singh v. Inderpreet Singh alias Inder and Another reported in 2021 SCC Online SC 633, contending that the criminal antecedents of the applicants required to be considered at the time of considering their prayer for grant of bail/anticipatory bail. 12. He further placed reliance on the decision of the Hon'ble apex Court in the case of State of Orissa v. Mahimananda Mishra reported in (2018) 10 SCC 516 , wherein the Hon'ble Apex Court held that the factors to be taken into consideration for grant of bail are prima facie case against the accused, the gravity of the allegations, position and status of the accused, the likelihood of the accused fleeing away from justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the Courts, as well as the criminal antecedents of the accused. 13. He also placed reliance on the decision of the Kerala High Court in the case of Abbas R.V v. State of Kerala reported in 2022 SCC Online Ker 4713, wherein it is held that, in order to attract the offence under Section 3(2)(va) of the Act, commission of the offence punishable under IPC shown in the Schedule should be committed by the accused against the member of the Scheduled Caste/Scheduled Tribe knowing that such person is a member of the Scheduled Caste/Scheduled Tribe. 14. He contended that considering all these aspects, learned Special judge has rightly rejected the anticipatory bail petition of the appellants. With this, he prayed to dismiss the appeal. 15. The complaint filed by respondent No.2 came to be registered in Crime No.149/2023 of Kengeri Police Station and the complaint filed by accused No.2 came to be registered in Crime No.150/2023 of Kengeri Police Station against respondent No.2 and his wife. The filing of complaint by respondent No.2 and accused No.2 show that some incident has taken place on 02.05.2023 at about 11.20 pm. The averments of the complaint reveal that the appellants and respondent No.2 are residing in the same block of the apartment building ie., respondent No.2 - complainant resides in Flat No.404 and the appellants in Flat No.504. The alleged incident has taken place with regard to hammer sound made by the appellants which was objected by respondent No.2 - complainant. The averments of the complaint reveal that the appellants and respondent No.2 are residing in the same block of the apartment building ie., respondent No.2 - complainant resides in Flat No.404 and the appellants in Flat No.504. The alleged incident has taken place with regard to hammer sound made by the appellants which was objected by respondent No.2 - complainant. On going through the entire averments of the complaint, there is no averment that the said abuse and assault alleged to have been made by the appellants to respondent No.2 and his wife is not because of respondent No.2 belongs to Scheduled Caste, but with regard to hammer sound made in the house of the appellants which caused disturbance to respondent No.2. The entire averment made in the complaint does not indicate that the appellants abused respondent No.2 touching his caste. When there is no allegation of abuse of touching the caste or taking the caste name in the averment of the complaint, the offences under Sections 3(1)(r) and 3(1)(s) of the Act are not attracted. The police have not registered the case for the offence under Section 3(2)(va) of the Act. In view of the same, the bar contained under Section 18 of the Act is not attracted. 16. The Hon'ble Apex Court in the case of Prathvi Raj Chauhan v. Union of India and Others reported in (2020) 4 page 727 has held that when there is no prima facie case made out for the offence under Section 3 of the Act, the bar under Section 18 of the Act is not attracted and the Court can consider the petition seeking anticipatory bail. 17. The other offences alleged against the appellants are not punishable either with death or imprisonment for life. The injuries said to have sustained by the wife of respondent No.2 are stated to be simple in nature. The appellants have undertaken to co-operate with the police in the investigation. Respondent No.2 has not produced any document to show that the appellants are having criminal antecedents. The appellants have made out grounds for setting aside the impugned order and grant of anticipatory bail. In the result, the following; ORDER The appeal is allowed. The impugned order dated 30.06.2023 passed in Crl.Misc.No.4401/2023 by the LXX Additional City Civil and Session Judge and Special Judge, Bengaluru (CCH-71), is set-aside. Crl.Misc.No.4401/2023 stands allowed. The appellants have made out grounds for setting aside the impugned order and grant of anticipatory bail. In the result, the following; ORDER The appeal is allowed. The impugned order dated 30.06.2023 passed in Crl.Misc.No.4401/2023 by the LXX Additional City Civil and Session Judge and Special Judge, Bengaluru (CCH-71), is set-aside. Crl.Misc.No.4401/2023 stands allowed. The appellants/accused Nos.1 to 3 are ordered to be released on bail in the event of their arrest in Crime No.149/2023 of Kengeri Police Station, subject to the following conditions; (i) The appellants - accused Nos.1 to 3 shall execute a personal bond for a sum of Rs.1,00,000/- (One lakh only) each, with one surety for the likesum to the satisfaction of the Investigating Officer. (ii) The appellants - accused Nos.1 to 3 shall co-operate with the police in the investigation. (iii) The appellants - accused Nos.1 to 3 shall voluntarily appear before the Investigating Officer within fifteen days from the date of receipt of a certified copy of this order and execute the bail bonds and furnish the surety. (iv) The appellants - accused Nos.1 to 3 shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case, so as to dissuade him from disclosing such facts to the Court or to any police officer.