Yadhukumar vs State Of Karnataka
2021 Latest Caselaw 2752 Kant

                           1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 12TH DAY OF JULY, 2021

                      BEFORE

     THE HON'BLE MR.JUSTICE K.SOMASHEKAR

        CRIMINAL APPEAL NO. 587 OF 2021

BETWEEN:

1.   Yadhukumar
     S/o S. Thimmegowda
     Aged About 50 Years
     (wrongly shown in the FIR as Yatisha)

2.   T Ravidnrakumar
     S/o S Thimmegowda
     Aged about 45 years
     (wrongly shown in the FIR as Ravi)

3.   Hemanthkumar T
     S/o S Thimmegowda
     Aged about 40 years
     (wrongly shown in the FIR as Hemanta)

4.   Venkatesh K N
     S/o Nagarajegowda
     Aged about 36 Years

5.   Prakash
     S/o Late Neelegowda
     Aged about 36 years
                            2


6.   Prasannakumar
     S/o Late Neelegowda
     Aged about 38 years
     (wrongly shown in the FIR as Prasanna)

7.   Basavaraju
     S/o Shivannegowda
     Aged about 36 years

8.   Chandankumar
     S/o Shivanna
     Aged about 27 years
     (wrongly shown in the FIR as Chandana)

9.   Susheelamma
     W/o Nanjegowda
     Aged About 60 Years
     (wrongly shown in the FIR as Sushila)

10 . Chikkathayamma
     W/o Neelappa
     Aged about 60 years

11 . Kavitha
     W/o Yadhukumar
     Aged about 37 years

12 . Suma
     W/o T Ravindrakumar
     Aged about 34 years

13 . Shruthi
     W/o Hemanthkumar T
     Aged about 28 years
                              3


14 . Ramesha
     S/o Doddegowda
     Aged about 50 years

15 . Ravigowda
     S/o Madegowda
     Aged about 43 years

16 . Venkatesha
     S/o Krishnappa
     Aged about 55 years

       All the appellants are
       R/at Kuttavadi Village
       Bilikere Hobli
       Hunsur Taluk
       Mysuru District - 571 189
                                          ...Appellants

(By Sri. Prithvi Raj .B.N - Advocate)

AND:

1.     State of Karnataka
       By Bilikere Police Station
       Mysore Dist, - 571105
       Rep. by S.P.P.,
       High Court of Karnataka
       Bangalore - 1.

2.     Swetha T.S
       D/o. Swamy
       Aged about 25 years
       R/at Takkalu Haadi Village
       Hunsur Taluk
       Mysore Dist. 571189.
                                        ...Respondents
                             4


(By Sri. Rahul Rai - HCGP for R-1;
       R-2 served - unrepresented)

       This Criminal Appeal is filed under Section 14A(2)
of SC & ST (POA) Act, 1989 praying to, set aside the
impugned order dated 29.04.2021 passed by the
6th Addl. District and Special Judge, Mysuru District,
Mysore in Crl.Misc.793/2021 vide Annexure-A;
consequently allow this appeal by directing the R-1 -
Bilikere Police to release the appellants on bail in the
event of their arrest in Crime No.110/2021 registered
for the offences punishable under Sections 3(2)(v-a),
3(1)(f) of SC & ST (POA) Act, 1989 and Sec. 427, 506,
341, 504, 143, 149, 435, 447, 354 of IPC which is
pending before the 6th Addl. District and Sessions
Court, Mysore District, Mysore.

      This Criminal Appeal coming on for Admission
this day, the Court delivered the following:


                   JUDGMENT

This appeal is preferred by the appellants/accused

under Section 14A(2) of the SC/ST (Prevention of

Atrocities) Act, 1989 by challenging the order passed by

the VI Addl.District and Special Judge, Mysuru, in

Crl.Misc.No.793/2021 dated 29.04.2021 rejecting the

bail petition filed by the accused under Section 438 of

Cr.P.C. in Crime No.110/2021 registered by the Bilikere

Police for the offence under Section 143, 447, 341, 427,

435, 354, 504, 506 r/w Section 149 of IPC and Sections

3(1)(f) and 3(2)(v-a) of the SC/ST (POA) Act, 1989.

2. Heard Sri Prithvi Raj.B.N., learned counsel for

the appellant and learned HCGP for respondent No.1

are present before the Court physically. Though notice

against Respondent No.2 - Smt.Swetha.T.S. is duly

served, but remained absent. But it is relevant that

under Section 301 of Cr.P.C that when once the crime

has been registered by the concerned jurisdictional

police then it is the domain vested with the prosecution

to proceed in further to take care of the complainant.

Accordingly, in this matter, learned HCGP for

Respondent No.1 - State has to take care of the rights of

Respondent No.2 who is a gravamen of the incident in

Crime No.110/2021.

3. It is transpired in the case of the prosecution

that the father of the appellant Nos.1 to 3 namely

S.Thimmegowda was granted 4 acres 35 guntas of land

in Sy.No.33/119 of Kaduvaddaragudi village in the year

1980 under Darkhast scheme by the competent

authority. The copy of the grant certificate dated

18.7.1980 is produced as per Annexure-D. Subsequent

to granting of the land, the said S.Thimmegowda was

cultivating the land. In the year 1990 there was some

interference by Basavaiah and others. In this regard a

suit for permanent injunction against them was

instituted in O.S.No.229/1990 before the Court of

Munsiff at Hunsur and the same came to be decreed in

favour of plaintiff - Thimmegowda vide judgement dated

15.11.1990. However, the entire survey number 33 of

Kaduvaddaragudi village measuring about 330 acres is

a government land. But the defacto complainant

namely Swetha started demanding the appellants to

vacate their lands and hand it over to her as they are in

illegal occupation of the government lands. That on

08.04.2021, the defacto complainant registered a

complaint before the first respondent and based upon

her complaint, the crime has been registered and

criminal law was set into motion but incident had taken

place on 07.04.2021. The appellants/accused are the

innocent persons and they did not commit the offences

as alleged in the complaint. But the Special Court

rejected the petition filed by the appellants/accused

persons under Section 438 of Cr.P.C keeping in view the

scope and object of Section 18 and 18A of the SC/ST

(POA) Act, 1989 whereby held that the petition filed by

the accused under Section 438 of Cr.P.C. was not

maintainable.

4. Learned counsel for the appellants in this

matter submitting that though the offence under the

special enactment has been lugged against the accused

but the ingredients has not been constituted in

commission of the offence. There is a delay in lodging

the complaint by the complainant where the incident

took place on 07.04.2021 at around 11.30 AM, but

complaint was filed on 08.04.2021 at around 06.30 PM.

But there shall be some due deliberation and discussion

in filing the complaint with an intention to implicate

these appellants in the alleged crime for the offences

under the Indian Penal Code, 1860 and so also, the

special enactment.

5. Whereas, subsequent to registration of the

crime by the first respondent - police, they are making

hectic efforts to apprehend these accused without there

being any reasons for commission of offence and they

are innocent of the alleged offences and moreover, they

are ready to abide by any terms and conditions to be

imposed by this Court while granting bail to them.

6. In support of his contention, learned counsel for

the appellants has relied on a judgment of the Hon'ble

Apex Court in Rahna Jalal vs. State of Kerala reported

in (2021) 1 SCC 733 and Hitesh Verma vs. State of

Uttarakhand reported in AIR 2020 SC 5584 wherein it

is held that when there is a dispute about the

possession of the land which is the subject matter of

civil dispute between the parties and since the matter is

regarding possession of property pending before the

Civil court, any dispute arising on account of possession

of the said property would not disclose an offence under

the Act unless the victim is abused, intimidated or

harassed only for the reason that she belongs to

Scheduled Caste or Scheduled Tribe. But in the instant

case, there was initiation of civil proceedings and the

same ended by granting of decree as contended by the

counsel for the appellants. On all these premises,

counsel for the appellants seeking for allowing of the

appeal and set-aside the impugned order passed by the

Court order and consequently, to grant the anticipatory

bail to the accused as where they are ready to abide by

any terms and conditions to be imposed by this Court.

7. Per contra, learned HCGP for respondent -

State has referred to the substances in the FIR said to

have been recorded by the Bilikere Police Station in

Crime No.110/2021 and whereby the accused have

been unlawfully assembled with an intention to

commission of offence and accordingly, causing some

damages and also committing fire mischief and so also,

outraging the modesty of a women inclusive of

extending life threat and so also, the offences under the

special enactment which has wounded the feelings of

the complainant by abusing her by holding the caste

name. But there shall be some expressive bar under

Section 18A of the SC/ST (POA)Act, 1989 for granting

bail as sought for under Section 438 of Cr.P.C. On all

these premises, learned HCGP is seeking for dismissal

of this appeal being devoid of merits.

8. It is in this context of the contentions as taken

by learned counsel for the appellants and so also

counter made by learned HCGP for the State by

referring to the FIR recorded by the first respondent -

police and so also, the averments made in the

complainant as well as other documents which secured

by the police after initiation of criminal prosecution

against the accused by recording the FIR, the appellants

are said to be arraigned as accused and they alleged to

have destroyed the crops grown in the land and also

outraging the modesty of a women. However, it is

necessary to note Section 18A(2) of the SC/ST (POA)Act,

1989 which reads as under:

18A. No enquiry or approval required.--(1) For the purposes of this Act,--

(a) preliminary enquiry shall not be required for registration of a First Information Report against any person; or

(b) the investigating officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply.

(2) 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.

9. Whereas under Section 18A it is made clear

that notwithstanding any judgment or order or direction

of any Court of law, there is an expressive bar for

entertaining the petition filed under Section 438 of

Cr.P.C. under the said enactment. However, the prima-

facie materials relating to the offences under the special

enactment and so also under the provisions of IPC, it is

the domain vested with the investigating agency to

investigate the case by following the requisite conditions

under Section 173(2) of Cr.P.C. Therefore, it is deemed

appropriate to state that the present appeal does not

deserve for the relief as sought for under Section 438 of

Cr.P.C. for granting anticipatory bail. The special Court

has rightly come to the conclusion relating to the role of

the accused and so also each one of the offence

committed by the accused persons and rightly rejected

the bail petition as there is an expressive bar under

Section 18A of the special enactment. Therefore, in

terms of the aforesaid reasons and findings, it is opined

that the appellants/accused are not deserving for relief

of anticipatory bail as sought for. Accordingly, I proceed

to pass the following:

ORDER

Appeal preferred by the appellants/accused under

Section 14A(2) of the SC/ST (POA) Act, 1989 is hereby

dismissed. Consequently, the impugned order passed by

the VI Additional District and Special Judge, Mysuru in

Crl.Misc.No.793/2021 is hereby confirmed.

However, keeping in view the contentions of

learned counsel for the appellants and that the civil

proceedings in O.S.No.229/1990 has been decreed, it is

deemed appropriate to state that keeping in view Article

21 of Constitution of India that is protection of personal

life and liberty of a person even being arraigned as

accused, but the case in Crime No.110/2021 has been

registered by the first respondent - police against the

accused. Therefore, the appellants/accused shall

surrender before the Court of VI Additional District and

Special Judge, Mysuru, within a period of three weeks

and shall file regular bail application under the relevant

provisions of Code of Criminal Procedure by furnishing

a copy of the same to the Public Prosecutor in the said

Court for enabling him to file response, if any, to the

said bail application.

The investigating agency in Crime No.110/2021

that is the respondent - Bilikere police shall not

precipitate the matter till disposal of the bail application

to be filed by the appellants/accused, in accordance

with law.

It is made clear that the Court below shall not be

influenced by any of the observations made in this order

and shall dispose of the bail application to be filed by

the appellants/accused on merits, on the same day, in

accordance with law.

Sd/-

JUDGE

DKB