Subhas S/O Bhagvanth Salunke vs Shivaka W/O ...
2021 Latest Caselaw 5626 Kant

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           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

        DATED THIS THE 07 T H DAY OF DECEMBER, 2021
                          BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

           CRIMINAL APPEAL NO.100333 OF 2021

   BETWEEN:

   1.     SUBHAS S/O BHAGVANTH SALUNKE (HAVALI)
          AGE: 30 YEARS, OCC: AGRICULTURE,
          R/O: CHICHAKHANDI B.K., 587 313
          MUDHOL, DIST: BAGALKOT.

   2.   RAMACHANDRA S/O. SHANKAR SALAMANTAPI
        AGE: 37 YEARS, OCC: AGRICULTURE,
        R/O: CHICHAKHANDI B.K., 587 313
        MUDHOL, DIST: BAGALKOT.
                                         ...APPELLANTS
   (BY SRI. K.S. PATIL, ADV.)

   AND:

   1.     SHIVAKKA W/O. MAHADEVAPPA MALAMMANAVAR
          AGE: 45 YEARS, OCC: COOLIE,
          R/O: CHIKKALINGADALLI 581 110
          TQ AND DIST: HAVERI.

   2.   THE STATE OF KARNATAKA,
        THROUGH P.S.I., MUDHOL POLICE STATION
        MUDHOL 587 313
        REPRESENTED BY STATE PUBLIC PROSECUTOR
        HIGH COURT OF KARNATAKA, DHARWAD.
                                       ....RESPONDENTS
   (BY SRI. VIJEYENDRA BHEEMAKKANAVAR, ADV FOR R1;
       SRI. RAMESH B. CHIGARI, HCGP FOR R2)
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     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
14(A)(2) OF THE SCHEDULED CASTES AND SCHEDULED
TRIBES (PREVENTION OF ATROCITIES) ACT, 1989
SEEKING TO ALLOW THE APPEAL AND SET ASIDE THE
ORDER DATED 11.11.2021 PASSED IN CRL.MISC.
NO.541/2021 BY LEARNED II ADDL. DISTRICT AND
SESSIONS JUDGE, BAGALKOT AND DIRECT THE
RESPONDENT        NO.2      TO      RELEASE       THE
APPELLANTS/ACCUSED NO.4 AND 5 IN THE EVENT OF
THEIR ARREST IN MUDHOL P.S. CRIME NO.184/2021
PENDING ON THE FILE OF II ADDL. DIST. AND SESSIONS
JUDGE, BAGALKOT REGISTERED FOR OFFENCES UNDER
SECTIONS 143, 147, 148, 302, 384, 504, 149 OF IPC AND
SECTION 3(2) (v) OF SC AND ST ACT.

     THIS APPEAL IS COMING ON FOR ORDERS, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                    JUDGMENT

Accused Nos.4 and 5 have filed this appeal

challenging the order dated 11.11.2021 passed

in Crl.Misc.No.541/2021 by the II Additional

District and Sessions Judge, Bagalkot,

whereunder the petition filed by the appellants

under Section 438 Cr.P.C. in Mudhol Police

Station Crime No.184/2021, registered for the

offences punishable under Sections 143, 147,

148, 302, 384, 504 read with Section 149 of

the Indian Penal Code, 1860 and Sections

3(2)(v) of the Scheduled Caste and Scheduled

Tribes (Prevention of Atrocities) Act, 1989

(hereinafter referred to as 'the SC/ST (POA)

Act', for brevity), came to be rejected.

2. The case of the prosecution is that,

respondent No.1 - mother of the deceased

Santosh @ Shantappa has filed a complaint

stating that her son deceased Santosh @

Shantappa was aged 28 years and was selling

Cooker and Mixer around Mudhol for the last

four years for his living and was staying at

Mudhol and he was unmarried. He used to visit

his native frequently. For his business, he had

purchased Bajaj Pulsar motorcycle by availing

loan in the name of accused No.1 and it was

known to the complainant. About 20 days

earlier, deceased visited the village for festival

and stayed for six days. During that time, he

had told that accused No.1 was quarreling with

him and he was not threatening to take

motorcycle as the installments were not

properly paid. Thereafter he went to Mudhol.

On 19.10.2021 at 3.00 am, the complainant

received a phone call while she was sleeping.

Somebody over phone informed to bring

Rs.40,000/- to bypass road and take Santosh,

who is in their custody, otherwise they would

finish him. But the complainant grew tense,

again phone started to ring and upon picking

up, it was again informed to bring Rs.40,000/-

to Hangal bypass and take her son. The

complainant got admitted to the Civil Hospital,

her son-in-law went to the bypass in his auto

rickshaw and saw Santosh, who was injured

and informed the same to the complainant over

phone. Immediately the complainant rushed

and saw Santosh, who was bleeding from his

penis. Persons accompanying him started to

demand Rs.40,000/-, as the surrounding

people started assembling, they fled in their

car. The complainant do not know the car

registration number, but she can identify the

persons accompanying her son deceased

Santosh. It is upon enquiry, Santosh informed

that on 18.10.2021 at 4.00 am, when he was

doing business at Mantur village, accused No.1

came there demanding him to properly pay

monthly installment of the motorbike, took him

to Masjid at Mudhol. The father of accused

Nos.1 and accused No.3, who were standing

there assaulted with stone over the stomach,

testicles causing injuries. Other accused

assaulted with hands. Santosh fell unconscious

and on regaining consciousness, he realized he

has been taken to Haveri. After hearing all the

incident, Santosh was admitted to the Civil

Hospital at Haveri. Thereafter, he was shifted

to KIMS Hospital, Hubballi for higher

treatment. On the way to Hubballi, he lost

consciousness. At about 5.45 pm on

20.10.2021 he died at KIMS Hospital, Hubballi.

The said complaint came to be registered

in Mudhol Police Station Crime No.184/2021 for

the aforesaid offences. Appellants/accused

Nos. 4 and 5, apprehending their arrest, have

filed Crl.Misc.No.541/2021 and the same came

to be rejected by the II Addl. District and

Sessions Judge, Bagalkot by order dated

11.11.2021. The appellants have challenged

the said order in the present appeal.

3. Heard the arguments of learned

counsel appearing for the appellants/accused

Nos.4 and 5, learned counsel for respondent

No.1 - complainant and the learned High Court

Government Pleader for respondent No.2 -

State.

4. Learned counsel for appellants/

accused Nos.4 and 5 would contend that, on

perusal of the complaint, it can be ascertained

that the motive rests with accused Nos.1 and

2. Serious overt acts are alleged against

accused Nos. 1 and 2. The overt act alleged

against the appellants/accused Nos. 4 and 5 is

that they assaulted the deceased with hands

and legs. Appellants/Accused Nos. 4 and 5 are

not armed with deadly weapons. The

provisions of SC/ST (POA) Act is not attracted

and therefore the appellants are entitled for

grant of anticipatory bail. Without considering

all these aspects, 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.2 would

contend that, one of the offences alleged

against the appellants is under Section 3 (2)

(v) of the SC/ST (POA) Act and there is bar

under Section 18 and 18A(2) of the

SC/ST(POA) Act, for entertaining the petition

under Section 438 of Cr.P.C. and for grant of

anticipatory bail. The investigation is still in

progress. If the appellants are granted

anticipatory bail, they will hamper

investigation and tamper the prosecution

witnesses and flee from justice. Considering

all these aspects, the learned Sessions Judge

has rightly passed the impugned order, which

does not require interference by this Court.

6. Learned counsel for the respondent

No.1 - complainant reiterates the arguments

advanced by the learned High Court

Government Pleader.

7. Having regard to the submissions

made by the learned counsel for the

appellants, learned High Court Government

Pleader and learned counsel for respondent

No.1 - complainant, this Court has gone

through the FIR, complaint and the order

passed by the Sessions Court.

8. The deceased Santosh belongs to

Hindu Madar caste coming under the Scheduled

Caste and the accused knew the same. As the

deceased Santosh did not repay the vehicle

loan availed by him in the name of accused

No.1, accused No.1 secured the deceased

Santosh and all the accused assaulted him and

caused severe injuries and deceased Santosh

died after two days, on 20.10.2021 at 5.45 pm.

One of the offences alleged against the

appellants is under Section 302 of the IPC and

punishment for the same is imprisonment for

life. The appellants knowing that the deceased

belongs to the Scheduled Caste, have alleged

to have committed the offences under the IPC

punishable with life imprisonment, which

clearly attracts offence under Section 3(2)(v)

of the SC/ST(POA) Act. As the offence under

Section 3 (2)(v) of the SC/ST(POA) Act is

attracted, the appellants cannot seek grant of

anticipatory bail under Section 438 Cr.P.C., as

there is bar under Sections 18 and 18A (2) of

the SC/ST(POA) Act.

9. Considering all these aspects, the

learned Sessions Judge has rejected the bail

petition of the appellants, which does not

require any interference by this Court.

Hence the appeal is devoid of merits and

it is dismissed.

Sd/-

JUDGE

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