Karnataka High Court
Agnel Shanta Fernandes vs Kaniya Shankar Mukri on 10 June, 2021
Author: Shivashankar Amarannavar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10 T H DAY OF JUNE 2021
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No.100084/2021
BETWEEN:
1. AGNEL SHANTA FERNANDES
AGE. 35 YEARS , OCC. BUSINESS,
R/O. PADASA LAKERI
MADAGERI,
HONNAVAR-581334
2. MRS.SANTANA W/ O. SHANTA F ERNA NDES
AGE. 50 YEARS , OCC. BUSINESS,
R/O. PADASA LAKERI
MADAGERI,
HONNAVAR-581334
3. MRS.SHANTA @ J OSPIN
W/O. AGNEL F ERN ANDES
AGE. 30 YEARS , OCC. BUSINESS,
R/O. PADASA LAKERI
MADAGERI,
HONNAVAR-581334
4. MR. PAWUL S/O. PITRUN GONSALVIS
AGE. 45 YEARS , OCC. BUSINESS,
R/O. PADASA LAKERI
MADAGERI
HONNAVAR-581334.
...A PPELLANTS
(BY SRI.SANTOS H NARGUND, ADVOCATE)
2
AND:
1. KANIYA S/O: SHA NKAR MUKRI,
AGE: 50 YEARS , OCC; A GRICULTURE,
R/O: PADASALAKERI, MADAGERI,
HONNAVAR-581334.
2. THE STATE OF KARNATAKA
BY HONNAVAR P.S ., UTTARA KANNADA,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF K ARNATAKA,
DHARWAD-580001.
... RES PONDENTS
(BY SRI.RAMESH CHIGARI, HCGP FOR R-2
RES PONDENT N O.1 - SERVED)
THIS CRIMINAL APPEAL IS FILED U/S 14( 2)(a)
OF SC AND ST ACT., SEEKIN G TO ALLOW THE APPEA L
AND SET ASIDE THE ORDER PASS ED IN CRIMINAL
MISC.NO.105/ 2021, DATED 26/ 03/ 2021 PASSED BY
THE PRL. DISTRI CT AND SESSION S JUDGE, UTTARA
KANNADA, KARWAR, AND DIRECT RESPOND ENT NO.2
TO RELEASE APPELLANTS / A CCUSED NO.2, 3, 4 AND 5
ON BAIL IN THE EVENT OF THEI R ARREST, IN P.S.
CR.N O.62/ 2021 F OR THE OFFENCE PUNISHABLE U/ S
143, 147, 148, 324, 504, 506, 149 OF IPC AND UNDER
SEC. 3( 1)(r) , 3(1)(s) AND 3( 2)(va) OF SC/ST
(PREVENTION OF ATROCITIES A MENDMENT ACT,
2015) .
THIS CRIMINAL APPEAL COMI NG ON F OR
HEARING INTERLOCUT ORY APPLICATION THIS DAY,
THE COURT DELIV ERED THE F OLLOW ING:
3
JUDGMENT
Aggrieved by the order dated 26.03.2021
passed in Crl.Misc.No.105/2021 by Principal
District and Sessions Judge, Uttara Kannada,
Karwar, rejecting anticipatory bail sought by
appellants in Crime No.62/2021 of Honnavar
Police Station, registered for the offences
punishable under Sections 143, 147, 148, 324,
504, 506, 149 of IPC and Section 3(1)(r),
3(1)(s), 3(2)(va) of SC/ST (POA) Act, 1989,
the present appeal is filed.
2. Though notice to respondent No.1 is
served, he remained unrepresented.
3. The appellants were accused Nos.2 to
Station. One Shankar Kaniya Mukri, had filed
the complaint stating that accused No.1 along
with accused Nos.2 to 5 are residing at the
backside of the house and accused No.5 is
residing 20 kms from the said area. On
05.03.2021 at about 6.30 p.m., accused Nos.1
to 5 held the complainant on the way to his
house and abused him as "Boli Magane" and
abused him saying that he belongs to Mukhri
Caste, if he use the same pathway which they
are using it becomes impure to them and given
him life threat and accused No.2 assaulted him
with club on his left leg and caused injury to
his left hand. On the basis of the said
complaint, a case came to be registered in
Honnavar Police Station, in Crime No.62/2021
for the aforesaid offences. Accused No.1, who
came to be arrested has been subsequently
granted bail and released on bail. The
appellants/accused Nos.2 to 5 apprehending
their arrest have filed Crl.Misc.No.105/2021
seeking anticipatory bail and the same came to
be rejected by Principal District and Sessions
Judge, Uttara Kannada, Karwar, by order dated
26.03.2021, holding that there is a prima facie
case for the offences alleged under SC/ST
(POA) Act, 1989 and therefore bar created for
Section 18 and 18(A)(i) applies to the present
case. Aggrieved by the order, the
appellants/accused Nos.2 to 5 have filed the
present appeal.
4. Heard the learned counsel appearing
for the appellants and the learned High Court
Government Pleader for the respondent No.1-
State.
5. Learned counsel for the appellants
would contend that the appellants and accused
No.1 are innocent, they have not committed
any offence as alleged and they have been
falsely implicated in this case. Accused No.1
had filed a civil suit in O.S.No.115/2020
against the complainant and his three brothers
which is pending on the file of the Principal
Civil Judge & JMFC, Honnavar. The said suit
which was filed for the relief of injunction, the
Court has granted ex-parte temporary
injunction directing the defendants
(complainant and his three brothers)
restraining them from interfering with the
peaceful possession and enjoyment of the suit
schedule property by encroachment. He
further contended that as there is a civil
dispute, the complainant has filed a false
complaint against the appellants and accused
No.1, as they have obtained ex-parte
temporary injunction against him and his
brothers. He further contended that on perusal
of the averments of the complaint there is no
prima facie case against the appellants and
accused No.1 for offences punishable under
Sections 3(1)(r), 3(1)(s), and 3(2)(va) and
therefore the bar contained under Section 18
and 18(A) of SC/ST (POA) Act, 1989, does not
apply and prayed to allow the appeal and grant
anticipatory bail.
6. Per contra, learned High Court
Government Pleader contended that on perusal
of the averments of the complaint a prima facie
case is made out attracting the offence under
Section 3(1)(r)(s) and 3(2)(va) of SC/ST (POA)
Act, and there is a bar to entertain the petition
filed under Section 438 of Cr.P.C., in Section
18 and 18(A) of the SC/ST (POA) Act. He
further contended that considering all these
aspects the learned Special Judge has rightly
rejected the petition filed by the appellants
seeking anticipatory bail. Hence, he seeks to
dismiss the appeal.
7. Having regard to the submission
made by the learned counsel for the appellants
and the learned High Court Government
Pleader for respondent No.2, this Court has
gone through the records.
8. The Hon'ble Supreme Court in the
case of Prathvi Raj Chauhan Vs. Union of India
and Others reported in (2020) 4 SCC 727, has
held that 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. It is
relevant to extract paragraph No.11 of the said
judgment.
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.
9. Therefore, in the light of the above
law laid down by the Apex Court, it has to be
considered whether the averments of the
complaint make out a prima facie case for
applicability of the provisions of the 1989, Act.
10. The said complaint has been filed by
respondent No.1 on 05.03.2021, as on the date
of the complaint a suit in O.S.No.115/2020
filed by the accused No.1 against respondent
No.1 and his three brothers was pending on the
file of the Principal Civil Judge & JMFC,
Honnavar and in which the said Court has
granted ex-parte temporary injunction in
favour of accused No.1 against respondent
No.1/complainant and his three brothers
restraining them from interfering with peaceful
possession and enjoyment of suit schedule
property by encroaching the same till further
order on IA.No.III.
11. Prior to filing of the suit, the
respondent No.1 had filed the complaint
against the appellants/accused Nos.2 to 5 and
accused No.1 for the offence punishable under
Sections 3(1)(r) 3(1)(s) and 3(2)(va) of SC/ST
(POA) Act, 1989 and the same was registered
in Crime No.243/2020 of Honnavar Police
Station. The appellants and accused No.1 have
approached this Court seeking anticipatory bail
in Criminal Petition No.100145/2021. The
complainant was a party respondent No.1 in
the said petition. Learned counsel for the
appellants submits that on coming to know that
the appellant and accused No.1 have been
granted anticipatory bail, the respondent No.1
has again filed a false complaint against the
appellants and accused No.1.
12. In the light of the above, it is to be
considered whether the averments of the
complaint make out a prima facie case
attracting the provisions of SC/ST (POA) Act,
1989. It is relevant to extract the relevant
portion of the complaint which is in Kannada
language;
" £ÀªÀÄä ªÀÄ£ÉAiÀÄ »AzÀÄUÀqÉ ¤ªÁ¹AiÀiÁzÀ ±ÁAvÁ
xÁªÀÄ¸ï ¥sÀ£ÁðAr¸ï ªÀAiÀiÁ: 60 ªÀµÀð, ªÀÄUÀ£ÁzÀ
CUÉßÃ¯ï ±ÁAvÁ ¥sÀ£ÁðAr¸ï ªÀAiÀiÁ: 30 ªÀµÀð, ªÀÄvÀÄÛ
¸ÀAvÀ£Á ±ÁAvÁ ¥sÀ£ÁðAr¸ï, ªÀAiÀiÁ: 50 ªÀµÀð, ªÀÄvÀÄÛ
±ÁAvÁ ¥sÀ£ÁðAr¸ï EªÀgÀ ¸ÉÆ¸É ºÉ¸ÀgÀÄ UÉÆwÛ®è ªÀÄvÀÄÛ
¥Ë¯ï ¦lð£ï UÉÆ£Áì°¸ï ªÀAiÀiÁ : 45 ªÀµÀð, EªÀgÀÄ
LzÀÄ d£À ¸ÉÃj ¢£ÁAPÀ: 05-03-2021 ¸ÀAeÉ ¸ÀĪÀiÁjUÉ
6.30 UÀAmÉUÉ £À£ÀߣÀÄß £ÀªÄÀ ä ªÀÄ£ÀUÉ ºÉÆÃUÀĪÁUÀ gÀ¸ÉÛAiÀÄ°è
PÀgÉzÀ "¨ÉÆý ªÀÄUÀ£É" CAvÁ QüÀÄ ±À§Ý¢AzÀ ¨ÉÊAiÀÄÄÝ
¤ÃªÀÅ ªÀÄÄQæ eÁwAiÀĪÀgÀÄ F zÁjAiÀÄ°è wgÀÄUÁqÀ¨ÉÃr
£ÀªÀÄUÉ ªÉÄÊ°UÉ DUÀÄvÀÛzÉ CAvÁ ¨ÉʬÄÝzÝÀ ®èzÉà CUÉßïï
¥sÀ£ÁðAr¸À FvÀ£ÄÀ qÉÆuÉÚAiÀÄ°è £À£ÀUÉ ºÉÆqÉzÄÀ JqÀPÁ°UÉ
UÁAiÀÄ ¥Àr¹ ªÀÄvÀÄÛ PÉʬÄUÉ £ÉÆêÀÅ ªÀiÁrgÀÄvÁÛ£É."
13. In the said complaint it is alleged
that accused Nos.1 to 5 together abused the
respondent No.1/complainant as "Boli Magane"
and abused him saying that he belongs to
Mukhri Caste and if he used the same pathway
which they are using, it become impure to
them and accused No.2 assaulted him with club
on his left leg and also caused injury to his
hand. It is not specifically mentioned which of
the accused abused the respondent
No.1/complainant as stated in the complaint.
It is not possible for all the five persons to use
the same words and sentence to abuse the
respondent No.1/complainant. In the light of
the pending litigation between the parties and
taking into consideration the averments of the
complaint, it does not make out a prima facie
case for applicability of the provisions of SC/ST
(POA) Act, 1989 and therefore the bar created
under Section 18 and 18(A)(i) is not attracted.
Therefore, the Court can entertain the petition
filed under Section 438 of Cr.P.C. for grant of
anticipatory bail. Apart from the offences
under SC/ST (POA) Act, 1989, the other
offence under Section 143, 147, 148, 324, 504
and 506 r/w 149 of IPC, are not punishable
with death of imprisonment for life.
14. As the appellants have undertaken to
abide by the conditions to be imposed, they
are entitled for grant of anticipatory bail. The
Special Judge has not considered all these
aspects while passing impugned order.
Therefore, the impugned order requires to be
set aside. In the result, I pass the following:
ORDER
The appeal is allowed. The order dated
26.03.2021 passed in Crl.Misc.No.105/2021 by
the Principal District and Sessions Judge,
Uttara Kannada, Karwar, is set aside.
Consequently, the petition filed by the
appellants under Section 438 of Cr.P.C. is
allowed. In the event of arrest, the
appellants/accused Nos.2 to 5 are ordered to
be released on anticipatory bail in connection
with Crime No.62/2021 of Honnavar Police
Station with the following conditions:
shall execute a personal bond for a
sum of Rs.1,00,000/- (Rupees One
Lakh Only) each with one surety for
the like sum to the satisfaction of the
Investigating Officer/jurisdictional
Court. Due to COVID-19, the
appellants are permitted to furnish
surety within three months. .
ii. The appellants shall voluntarily
surrender before the Investigating
Officer/jurisdictional Court within one
month from today and execute
personal bond.
iii. The appellants shall co-operate with
the investigation and make themselves
available for interrogation whenever
required.
iv. The appellants shall not directly or
indirectly make any inducement, threat
or promise to any witness acquainted
with the facts of the case so as to
dissuade them from disclosing such
facts to the Court or to any Police
Officer.
v. The appellants shall not obstruct or
hamper the Police investigation and
not to play mischief with the evidence
collected or yet be collected by the
Police.
In view of the disposal of the main
appeal, IA.No.2/2021 is disposed of.
Sd/-
JUDGE
RM
