Karnataka High Court
Harisha vs State By Medigeshi Police Station on 2 July, 2021
Author: K.Somashekar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2021
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL NO. 638 OF 2021
CONNECTED WITH
CRIMINAL APPEAL NO. 719 OF 2021
IN CRL.A. NO.638/2021:
BETWEEN:
1. Harisha
S/o. Lakshminarasappa
Aged about 23 years
R/o Kanthanahalli Village
I.D. Halli Hobli, Madhugiri Taluk
Tumkur - 572124.
2. Suresha @ Suri @ Suryanarayana
S/o. Narayanappa
Aged 27 years
R/o Badakanahalli Village
Puravara Hobli, Madhugiri Taluk
Tumakuru - 572 175.
...Appellants
(By Sri. Nataraj D - Advocate)
AND:
1. State by Medigeshi Police Station
Rep. by State Public Prosecutory
2
High Court of Karnataka
Bangalore - 560 001.
2. Suvarnamma
W/o. Nagaraju
R/at: Thadi Village
ID Halli Hobli
Madhugiri Taluk
Karnataka - 572124.
...Respondents
(By Sri. Rahul Rai .K, HCGP for R-1)
This Criminal Appeal is filed under Section 14A(2)
of SC & ST (POA) Act, praying to, set aside the order
dated 05.05.2021, in Crl.Misc.P.No.470/2021 which is
passed by the III-Addl. District & Sessions Judge,
Tumkur District, Tumkur and enlarge the appellants by
granting Anticipatory Bail and direct the respondent
police to immediately release the appellants on
Anticipatory Bail in the event of their arrest in
Cr. No.45/2021 of Respondent Medigeshi Police Station
for the offences punishable under Sec. 323, 324, 504,
506 r/w 34 of IPC and under Sections 3(1)(r)(s), 3(2)(va)
of SC & ST (POA) Amendment Act 2015, by the III-Addl.
District & Sessions Court, Tumkur District, Tumkur.
3
IN CRL.A. NO.719/2021:
BETWEEN:
1. Vijay Kumar
S/o. Nagaraju
Aged about 31 years
2. Nagaraju
S/o. Late Anjinappa
Aged 55 years
Both are
R/at: Kamthanahalli Village
I.D. Halli Hobli, Madhugiri Taluk
Tumakuru - 572 124.
...Appellants
(By Sri. Nataraj D - Advocate)
AND:
1. State by Medigeshi Police Station
Tumakuru
Rep. by State Public Prosecutory
High Court of Karnataka
Bangalore - 560 001.
2. Suvarnamma
W/o. Nagaraju
R/at: Thadi Village
ID Halli Hobli
Madhugiri Taluk
Karnataka - 572124.
...Respondents
(By Sri. Rahul Rai .K, HCGP for R-1)
4
This Criminal Appeal is filed under Section 14A(2)
of SC & ST (POA) Act, praying to, set aside the order
dated 05.05.2021, in Crl.Misc.P.No.470/2021 which is
passed by the III-Addl. District & Sessions Judge,
Tumkur District, Tumkur and enlarge the appellants by
granting Anticipatory Bail and direct the respondent
police to immediately release the appellants on
Anticipatory Bail in the event of their arrest in
Cr. No.45/2021 of Respondent Medigeshi Police Station
for the offences punishable under Sec. 323, 324, 504,
506 r/w 34 of IPC and under Sections 3(1)(r)(s), 3(2)(va)
of SC & ST (POA) Amendment Act 2015, by the III-Addl.
District & Sessions Court, Tumkur District, Tumkur.
These Criminal Appeals coming on for Orders
through video conference this day, the Court delivered
the following:
JUDGMENT
Appellants in Crl.A.No.719/2021 are arraigned as
Accused Nos.1 and 2 and Appellants in
Crl.A.No.638/2021 are arraigned as Accused Nos.3 and
4. Both these appeals arise out same set of crime in
Crime No.45/2021 registered by the Medigeshi Police
Station, Tumkuru for the offences punishable under
Sections 323, 324, 504, 506 r/w 34 of IPC beside
Sections 3(1)(r)(s), 3(2)(v-a) of the SC/ST (Prevention of
Atrocities) Amendment Act of 2015.
2. Under these appeals the appellants are
challenging the impugned order passed by the Court of
III Additional District and Sessions Court, Tumkur
District, Tumkur in Crl.Misc.No.470/2021 dated
05.05.2021 rejecting the bail petitions filed under
Section 438 of Cr.P.C. The same has been assailed
under these appeals by urging various grounds.
3. Heard Sri Nataraj.D., learned counsel for the
appellants/accused Nos.1 to 4 in these appeals who is
appearing through video conferencing and so also,
learned HCGP for respondent No.1 - State who is
present before the Court physically. In these appeals,
learned HCGP for Respondent No.1 has taken care of
respondent No.2/complainant as under Section 301 of
Cr.P.C. However, in these appeals, notice has been
issued against respondent No.2 to participate in the
proceedings which is mandatory provision under
Chapter - IVA, Section 15(A)(5) of the SC/ST (POA)
Amendment Act, 2015, accordingly made an
observation.
4. Respondent No.2 / complainant - Smt.
Suvarnamma approached the first respondent - police
by filing the complaint against the accused and based
upon the complaint, the case in Crime No.45/2021 has
been registered by the respondent - police for the
aforesaid offences.
5. Whereas learned counsel for the appellants in
these appeals contends that there is no overt act
attributed against the accused persons for the offences
lugged against them under the special enactment of
SC/ST (POA) Act. But the police are making hectic
efforts to arrest these accused without there being any
reasons. The appellants/accused under the
apprehension of arrest by the police had approached the
Court below by filing bail petition under Section 438 of
Cr.P.C. which came to be rejected by assigning reasons
as there is an expressive bar under Section 18A of the
said Act for entertaining the petition filed under Section
438 of Cr.P.C seeking anticipatory bail.
6. The second limb of the arguments advanced by
the counsel for the appellants by referring to the
allegation made by respondent No.2 that accused Nos.1
and 2 had abused her in a filthy language by holding
the caste name which had wounded her feelings. But
these accused have not abused her by calling caste
name. The respondent No.2 has set up a theory in
order to register the crime against these accused
persons to give some sort of harassment. In support of
his contentions, counsel for the appellants has referred
to a Judgment of Hon'ble Supreme Court in Arnesh
Kumar vs. Union of India wherein it is held that in this
pandemic situation the police department should not
arrest the accused persons automatically, without
issuing notice under Section 41 of Cr.P.C. and also
should mention the reasons which necessitated to
arrest the accused persons. Further, he contends that
the accused are ready to abide by any terms and
conditions to be imposed by this court while granting
bail. On all these premises, learned counsel for the
appellants is seeking for consideration of the grounds
urged in these appeals and for grant of bail as sought
for by setting aside the impugned order passed by the
Court below in Crl.Misc.470/2021.
7. Learned HCGP for the respondent - State while
countering to the arguments advanced by the counsel
for the appellants, has referred to the case in Crime
No.45/2021 as wherein these accused persons have
been extended life threat to the complainant and also
abused in a filthy language by holding caste name
which had wounded her feelings. But these accused
persons have committed the alleged offences and there
are prima-facie materials against the accused in
commission of the alleged offences. As per Section 18A
of the SC/ST (POA) Act, there shall be some expressive
bar for consideration of the appeal filed under Section
438 of Cr.P.c. seeking anticipatory bail. When there is
an expressive bar under the relevant provision under
the special enactment, it cannot be arise for
consideration of the grounds as urged in these appeals
seeking intervention in respect of the order passed by
the Court below. On all these premises, learned HCGP
seeks for dismissal of the appeals.
8. It is in this context of the contention as taken
by the learned counsel for the appellants/accused Nos.1
to 4 respectively and so also, the counter made by the
learned HCGP for the State who has also taken care of
Respondent No.2/complainant, a perusal of the
allegations made against the accused persons by
recording the FIR by the first respondent police, but the
complainant as well as the appellants/accused are the
localites of the village as where the incident said to have
been happened due to some issues that emerged in
between them. But at the time of the alleged incident,
that these accused persons said to have abused the
complainant in a filthy language by holding her caste
name and the same has wounded her feelings.
9. Subsequent to the registration of the crime
against the accused, the domain vested with the
investigation agency to proceed with the case for
investigation and to lay the charge sheet against the
accused as contemplated under Section 173(2) of Cr.P.C
by following the requisite conditions for having recorded
the statement of witnesses and so also, securing
material documents relating to some sort of issues that
emerged in between the complainant as well as the
accused and mainly abusing in a filthy language holding
the caste name. But it is the domain vested with the
prosecution and similarly investigating agency to secure
the material documents in order to establish the guilt of
the accused. Therefore, at this stage, it does not arise
for consideration of all the materials which finds place
in the record even in the spot mahazar said to have
been conducted by the IO in the presence of panch
witnesses. But under the special enactment of SC/ST
(POA) Act, 1989, keeping in view Section 18 and 18A
which are introduced by the parliamentarians that there
shall be some expressive bar for entertaining the bail
petition filed by the accused under Section 438 Cr.P.C.,
for anticipatory bail as sought for. But Section 18A(2) of
the special enactment specifically states that the
provisions of section 438 of the Code shall not apply to
a case under this Act, notwithstanding any judgment or
order or direction of any Court. Therefore, there shall
be some expressive bar for entertaining the petition filed
by the accused for seeking anticipatory bail.
Consequently, the appeal deserves to be rejected in
terms of the aforesaid reasons. Accordingly, I have to
proceed to pass the following:
ORDER
The appeal preferred by the appellants/accused
Nos.3 and 4 in Crl.A.No.638/2021 and the appeal
preferred by the appellants/accused Nos.1 and 2 in
Crl.A.No.719/2021 under Section 14A(2) of the
Scheduled Caste and Scheduled Tribes (Prevention of
Atrocities Act, 1989 are hereby rejected.
Consequently, the impugned order passed by the
Court of III Additional District and Sessions Court,
Tumkur District, Tumkur in Crl.Misc.No.470/2021
dated 05.05.2021 is hereby confirmed.
Keeping in view the contentions of the learned
counsel for the appellants and so also, involvement of
these appellants/accused in Crime No.45/2021 for the
offences which are lugged against them appears to be
trivial in nature. But the offences under the special
enactment are non-bailable in nature. Therefore, it is
deemed appropriate to state that in view of Article 21 of
the Constitution of India it requires to protect the
personal life and liberty of a person being arraigned as
accused in crime No.45/2021. Accordingly, accused
Nos.1 to 4 are hereby directed to surrender before the
Court of III Addl.District and Sessions Court, Tumkur
District, Tumkur by filing surrender application under
the relevant provisions of Code of Criminal Procedure
seeking relief of bail, within a period of ten days from
the date of this order. If the appellants/accused file bail
petition, by furnishing a copy of the same to the Public
Prosecutor for enabling him to file objections, if any, the
same shall be disposed of by the Court below on the
same day, in accordance with law.
However, it is made clear that whatever the
observations made in this order, it shall not influence
the mind of the trial Court while considering the bail
petition to be filed by the accused, but the same shall be
disposed of on merits, in accordance with law.
The investigating agency that is respondent -
Medigeshi Police station, Madhugiri circle, Tumkur
District is directed not to precipitate the matter in Crime
No.45/2021, till the disposal of the bail petition to be
filed by the appellants/accused Nos.1 to 4.
Sd/-
JUDGE
DKB
