P.Dhananjaya Naidu vs The State Of Andhra Pradesh
2022 Latest Caselaw 7143 AP

        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.
                                  2



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.

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.

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

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

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.."

. (2020) 4 SCC 727

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

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.

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

THE HON'BLE SRI JUSTICE RAVI CHEEMALAPATI

ALLOWED

CRIMINAL PETITION No.7183 OF 2022

Date : 19.09.2022 RR