THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI
CRIMINAL PETITION No.7183 of 2022
ORDER:-
This Criminal Petition is filed under Section 438 of the Code
of Criminal Procedure, 1973 ( for short, 'Cr.P.C.'), seeking
anticipatory bail, by the petitioners/A-1 and A-2 in Cr.No.177 of
2022 of Irla Police Station, Chittoor District, registered for the
offence punishable under Sections 323, 506 read with 34 of the
Indian Penal Code and Sections 3(1)(r), 3(1)(s), 3(2)(va) of
Scheduled Caste and Scheduled Tribes (Prevention of Atrocities)
Act.
2. The case of the prosecution, in brief, is that, on
03.09.2022 at about 3.30 p.m., while he was sitting on the sand
floor inside the grave yard near his house, the petitioners/ A1 and
A2 came there, abused him touching name of his caste and they
dragged and hit him on the ear and the 2nd petitioner/A-2 hit on
his back and threw him down and they both humiliated him
stating that how dare he not to stand on their arrival.
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The complaint of the de facto complainant is registered as the
above crime.
3. Heard Sri Javvaji Sarath Chandra, learned counsel for
the petitioners and Sri Sravan Kumar Naidana, learned Special
Assistant Public Prosecutor for 1st respondent-State.
4. The learned Special Assistant Government Pleader has placed on record the notice served on the 2nd respondent-de facto complainant in compliance of the requirement under Section 15 A (3)(5) of the Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989. However, he did not choose to enter his appearance.
5. Sri Javvaji Sarath Chandra, learned counsel for the petitioners, would submit that the petitioners are innocent of the offence and they were falsely implicated in this case and even if the contents of the FIR are taken into consideration at their face value, they do not attract any of the offence punishable under S.Cs. & S.Ts. (PoA) Act, since the offence did not take place in public view and further the allegations made against the petitioners are omnibus in nature.
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The learned counsel for the petitioners would further submit that the contents of the FIR do not disclose any intention on the part of the petitioners to insult, humiliate or intimidate the de facto complainant.
The learned counsel would further submit that dehors the offences under Sections S.Cs.&S.Ts. (PoA) Act, the other offence is bailable and triable by Magistrate of First Class.
The learned counsel would further submit that the petitioners are law abiding citizens with no criminal antecedents and if the petitioners are arrested their families will deprive of their livelihood and they would be put to starvation.
The learned counsel would further submit that substantial part of the investigation has already been completed and the petitioners will abide by any conditions imposed by this Court and that they would make themselves available to the Investigating Officer and cooperate for investigation.
On the above contentions, the learned counsel for the petitioners sought pre arrest bail to the petitioners and prayed to allow the petition.
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6. On the other hand, Sri Sravan Kumar Naidana, learned Special Assistant Public Prosecutor, would submit that the contents of the FIR make out the offences with which the accused are charged including S.Cs. & S.Ts. (PoA) Act and thus this petition filed for grant of pre arrest bail is not maintainable, as the same is barred by Section 18 of the Act and the instant petition is liable to be dismissed on that ground alone.
The learned Special Assistant Public Prosecutor would further submit that the investigation is in process and if the petitioners are granted pre arrest bail, they will tamper the prosecution evidence and they may not cooperate with the process of investigation.
On the above contentions, the learned Special Assistant Public Prosecutor opposed pre arrest bail to the petitioners and prayed to dismiss this petition.
7. In reply to the contention of the learned Special Assistant Public Prosecutor in relation to maintainability of pre arrest bail application, the learned counsel for the petitioners contended that since the offence alleged is not occurred in public 5 view, the offences alleged against the petitioners under S.Cs.&S.Ts. (PoA) Act are not attracted and further the FIR do not disclose any intention on the part of the petitioners to insult, humiliate or intimidate the de facto complainant. In support of his contention, he placed reliance on Sri Rithesh Pais vs. State of Karnataka (Criminal petition No.3597 of 2022) wherein the observations made by the Hon'ble Apex Court in Hitesh Verma v. State of Uttarakhand (2020) 10 SCC 710, regarding public view or a public place are reiterated. The same is extracted hereunder:
"11. It may be stated that the charge-sheet filed is for an offence under Section 3(1)(x) of the Act. The said section stands substituted by Act 1 of 2016 w.e.f. 26.01.2016. the substituted corresponding provision is Section 3(1)(r) which reads as under:
"3(1)(r) Intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view,"
12. The basic ingredients of the offence under Section 3(1)(r) of the Act can be classified as "(1) intentionally insults or intimidates with interest to humiliate a member of a Scheduled Caste or a Scheduled Tribe and (2) in any place within public view"
By relying on the above decision, it is the contention of the learned counsel for the petitioners that even if the contents of the 6 FIR in their entirety are taken to be true at their face value, none other except the petitioners and de facto complainant was present at the place of occurrence and thus it cannot be said to have been occurred in public view and the allegations in the FIR do not exhibit any intention on the part of the petitioners/A-1 and A-2 to insult or intimidate the de facto complainant with to humiliate him and hence the offences under S.Cs.& S.Ts. (PoA) Act are not attracted to the present case.
He further contended that when the offences under S.Cs.&S.Ts. (PoA) Act are not attracted, application filed for pre arrest bail is maintainable and the bar created by Section 18 of the Act will not apply. For his contention, he placed reliance on Prathvi Raj Chauhan v. Union of India1 and has drawn attention of this Court to Para-11 of the said judgment, which is extracted hereunder:
"11. Concerning the applicability of provisions of Section 438 CrPC, 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.."
1 . (2020) 4 SCC 727 7
8. Perused the record. The First Information Report prima facie discloses that except the de facto complainant and the accused, none other was present at the scene of the occurrence and thus the offence cannot be said to have been occurred in public view and that too with an intention to insult or humiliate or intimidate the de facto complainant hence the ingredients of the offences punishable under S.Cs.&S.Ts.(PoA) Act are not at all present as of now. Thus, the decisions relied on by the learned counsel for the petitioners squarely apply to the facts of the present case. Hence, the bar created by Section 18 of the Act is not applicable and thus, this petition is maintainable. If that was so, the other offences are bailable and triable by Magistrate of First Class.
9. In view of the above, taking into consideration the fact that substantial part of the investigation is completed and since the provisions of S.Cs.&S.Ts.(PoA) Act are not attracted to the present case, this Court is inclined to grant pre-arrest bail to the petitioners. However, keeping in view the apprehension of the 8 learned Special Assistant Public Prosecutor, by imposing the following conditions:
(i) the petitioners shall be released on bail in the event of their arrest in connection with Crime No.177 of 2022 of Irala Police Station, Chittoor District, on their executing personal bond for Rs.25,000/- (Rupees twenty five thousand only) each with two sureties each for likesum each to the satisfaction of the Station House Officer, Irala Police Station, Chittoor District;
(ii) On release, the petitioners shall appear before the Station House Officer, Irala Police Station twice in a week i.e. on every Tuesday and Saturday in between 10.00 a.m. and 12.00 noon, till filing of the charge sheet;
(iii) The petitioners shall not directly or indirectly contact the complainant or any other witnesses under any circumstances and any such attempt shall be construed as an attempt of influencing the witnesses and they shall not tamper the evidence and shall cooperate with the investigation. 9
Any infraction of the above conditions would entail cancellation of bail and the prosecution is at liberty to file application seeking cancellation of bail.
It is made clear that this order does not, in any manner, limit or restrict the rights of the police or the investigating agency from further investigation as per law and the findings in this order be construed as expression of opinion only for the limited purpose of considering bail in the above criminal petition and shall not have any bearing in any other proceeding.
Consequently, miscellaneous applications pending, if any, shall stand closed.
___________________________ JUSTICE RAVI CHEEMALAPATI Date : 19.09.2022 RR 10 THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI ALLOWED CRIMINAL PETITION No.7183 OF 2022 Date : 19.09.2022 RR 11