State Of Karnataka vs Veeresh And Anr
2021 Latest Caselaw 6327 Kant

        IN THE HIGH COURT OF KARNATAKA
               KALABURAGI BENCH

   DATED THIS THE 17TH DAY OF DECEMBER 2021

                       BEFORE

       THE HON'BLE MR. JUSTICE H.P.SANDESH

        CRIMINAL APPEAL No.200232/2021

BETWEEN:

THE STATE OF KARNATAKA
BY JEWARGI P.S., RPTED BY ITS
ADDL STATE PUBLIC PROSECUTOR
HIGH COURT KALABURAGI.
                                           ... APPELLANT
(BY SRI SHARANABAPPA M. PATIL, ADVOCATE)

AND:

1. VEERESH S/O DATTUKOLAKUR
   AGE: 31 YEARS, OCC: AGRI
   R/O KOLAKUR VILLAGE, TQ. JEWARGI
   DIST KALABURAGI-585310.

2. JAYAPRAKASH
   S/O LAKSHMANRAV HANAKURE
   AGE 40 YEARS, OCC: GOVT OFFICIAL
   R/O KOLAKUR VILLAGE, TQ. JEWARGI
   DIST. KALABURAGI-585310
                                       ... RESPONDENTS

(BY SRI ARUNKUMAR AMARGUNDAPPA ADVOCATE FOR R1;
SRI.SHRAVANA KUMAR MATH, ADVOCATE FOR R2)

    THIS CRIMINAL APPEAL IS FILED UNDER SECTION 439(2)
OF CR.P.C PRAYING TO SET ASIDE AND CANCEL THE BAIL
ORDER DATED 25.06.2021 PASSED IN CRL.MISC.NO.1068/2021
BY THE COURT OF II ADDL. DISTRICT AND SESSIONS JUDGE
AT KALABURAGI, ARISING OUT OF IN CRIME NO.105/2021 OF
                               2



JEWARGI POLICE STATION REGISTERED FOR THE OFFENCES
PUNISHABLE U/S. 323, 353, 504, 506, AND SEC. 3(1)(r) OF
SCHEDULE CASTE AND SCHEDULE TRIBE (PREVENTION OF
ATROCITIES) ACT, 1989.


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


                        JUDGMENT

Heard the learned counsel appearing for the

appellant, the learned High Court Government Pleader

appearing for the State and the learned counsel appearing

for the second respondent.

2. The factual matrix of the case is that on

18.05.2021 at about 6.30 p.m. the complainant, who was

working as Village Accountant and also in-charge to

manage the COVID-19 duty, went to the market and gave

instructions to the villagers to maintain the social distance

to avoid spreading of COVID-19 across the area, but the

villagers did not heed to the request of the complainant,

hence, he started to record video of the said place. At that

time this petitioner snatched the mobile phone of the

complainant and quarreled with him and prevented him to

discharge his official duty and apart from that he abused

the complainant taking his caste name in front of the

general public knowing fully well that he belongs to

Samagara caste and humiliated him in a public place by

taking his caste name. The respondent No.1 herein has

approached the Sessions Court and obtained the

anticipatory bail even though the offence invoked under

Section 3(1)(r) of SC and ST (Prevention of Atrocities) Act,

1989 (for short 'SC/ST (PA) Act') and hence, the State has

filed this petition for cancellation of bail contending that

inspite of the specific allegation is made against the

respondent No.1 herein that he abused the complainant by

taking caste name knowing fully well that he belongs to

the particular community and there is a bar under Section

18(a) of the SC/ST (PA) Act. The Trial Court has exercised

its discretion and hence, it requires interference of this

Court.

3. The counsel appearing for the State as well as

the respondent No.2 would submit that when there is a

specific bar under Section 18(a) of the SC/ST (PA) Act and

when the complaint allegations are prima facie disclosing

committing of an offence under Section 3(1)(r) of the said

Act, the Trial Court ought not to have granted the

anticipatory bail in favour of the respondent No.1 herein

and hence, it requires interference of this Court.

4. Per contra, the learned counsel for the

respondent No.1 would submit that already investigation

has been completed and charge sheet has been filed and

the Trial Court also taken note of that the allegations made

in the complaint are not in serious in nature and whether

this petitioner was having the knowledge that the

complainant belongs to the particular community or not,

the matter requires to be investigated and hence, there

are no grounds to invoke Section 439(2) of Cr.P.C., to

cancel the bail.

5. Having heard the respective counsel for the

parties and also on perusal of the material on record, the

point that would arise for consideration of the Court is

Whether this Court can exercise the powers

under Section 439(2) of Cr.P.C., to cancel the

anticipatory bail granted by the Trial Court?

6. Having heard the respective counsel and on

perusal of record, it is clear that in the complaint allegation

is made subjecting the complainant for humiliating in the

presence of public view by taking caste name and there is

a specific bar under the Special Enactment. If the

complaint discloses committing of any offence against a

person who belongs to SC/ST and when the offence is

committed under this Act, provisions of Section 438 of

Cr.P.C., shall not be invoked. Having considered the

proviso of Section 18(a) of the Special Enactment, it is

clear that the provisions of Section 438 of Cr.P.C., shall

not apply to this Act when an offence is attributed against

the accused. Having considered the proviso of Section

18(a) of the Special Enactment, this Court has to look into

the contents of the complaint whether the complaint

discloses committing of the offence under the Special

Enactment. It has to be noted that the complainant is a

Village Accountant and he was entrusted with the work of

preventing spreading of COVID-19 and specific allegation

is made in the complaint that on 18.05.2021 when the

villagers are gathered in public place and he instructed

them to maintain social distance, at this juncture, the

respondent No.1 came and snatched the mobile phone of

the complainant at the time of recording video of the said

place and the place of incident is a public place and apart

from that the specific allegation is made that the

respondent No.1 not only abused him in a filthy language

but also took his caste name specifically mentioning that

he belongs to Samagara caste and humiliated him taking

his caste name and also assaulted on his cheek with his

hands and apart from that he also caused threat to him

how he will discharge the public duty.

7. Having taken note of the specific allegation

against the respondent No.1 that he took the caste name

and abused him in a public view and humiliated him in the

presence of general public. The Apex Court also in the

judgment of PRATHVI RAJ CHAUHAN vs UNION OF

INDIA reported in (2020)4 SCC 727 held that if the

complaint discloses prima facie attracting the offence

under the Special Enactment, the Court cannot exercise

the powers invoking Section 438 of Cr.P.C. Hence, in the

case on hand also the complaint prima facie discloses

committing of offences under Section 3(1)(r) of the Special

Enactment. Hence, the Sessions Judge ought not to have

invoked Section 438 of Cr.P.C., as there is a clear bar

under Section 18(a) of the Special Enactment. The Court

ought not to have exercised the discretion against the

statute when the statute bars invoking of Section 438 of

Cr.P.C., and judicial interpretation is also very clear that if

the complaint prima facie discloses committing of offence

under the Special Enactment and humiliated a person

belongs to a particular caste in a public view and discretion

should not be exercised against the statute. Hence, the

Trial Court has committed an error in invoking Section 438

of Cr.P.C., even though the complaint averments are

specific in referring the caste name and subjecting him for

humiliation in the public view and hence, it requires

interference by exercising the powers under Section

439(2) of Cr.P.C. Hence, the point answered as

affirmative.

8. In view of the discussions made above, I pass

the following:

ORDER

The petition is allowed. The order dated 25.06.2021

passed in Crl.Misc.No.1068/2021 is quashed and

anticipatory bail granted in favour of the respondent No.1

herein is set aside.

Sd/-

JUDGE

SAN