Lakshmi Narayana L vs The State Of Karnataka
2021 Latest Caselaw 2232 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 14TH DAY OF JUNE, 2021

                     BEFORE

     THE HON'BLE MR.JUSTICE K.SOMASHEKAR

        CRIMINAL APPEAL NO. 549 OF 2021

BETWEEN:

1.   Lakshmi Narayana L
     S/o. Lakshmanappa
     Aged about 46 years
     R/o. B.K. Main Road
     Near S R Saw Mill
     Kondegowdanadoddi Village
     Harohalli Town
     Ramanagara Dist. - 562112.

2.   Ramaiah H M
     S/o. Madaiah
     Aged about 35 years
     R/o. No.63, Near KSRTC Depo
     Hosakote Taluk
     Ramanagara Dist. - 562112.

3.   Arun R
     S/o. Revanna
     Aged about 40 years
     R/o. Ranganath Layout
     Harohalli Town
     Ramanagara Dist. - 562112.

4.   Adaveesh Kumar R
     S/o. Renukaiah
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       Aged about 36 years
       Chamundeshwari Extension
       Near Chamundeshwari Temple
       Harohalli Town
       Ramanagara Dist. - 562112.
                                             ...Appellants

(By Sri. Shivaraj N. Arali. Advocate)

AND:

1.     The State of Karnataka
       By Harohalli Police Station
       Rep. by SPP
       [email protected]
       Karnataka High Court
       Bangalore - 560 001.

2.     Subhash B. Godagor
       S/o. Late Basavaneppa
       R/o Sindhya Nagar
       Harohalli Town
       Kanakapura, Ramanagara
       Bangalore - 562112.
                                          ...Respondents

(By Sri. Thejesh .P, HCGP for R-1;
    Sri. Akshay .M - Advocate for R-2)

      This Criminal Appeal is filed under Section 14-A(2)
of SC/ST (Prevention of Atrocities) Act, praying to, set
aside the order dated 10.02.2021, passed by I-Addl.
District   and   Sessions Judge, Ramanagara             in
Crl.Misc.No.98/2021 vide Annexure-B; direct the
respondent police to release the 1st, 2nd, 3rd, and 4th
Appellants on bail, in the event of their arrest in Crime
No.0017/2021 Harohalli Police Station, for the offences
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punishable under Sections 3(1)(r), 3(1)(s) of the SC &
ST(Prevention of Atrocities) Amendment Act, 2015 and
Under Sections 143, 323, 354, 448, 504, 506 and 149
of IPC, 1860.

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

                   JUDGMENT

This appeal is filed challenging the order passed

by the Court of the I Addl. District & Sessions Judge,

Ramanagara in Crl.Misc.No.98/2021 dated 10.02.2021.

The application filed by the appellants / accused under

Section 438 Cr.P.C. came to be dismissed holding that

the petition was not maintainable keeping in view

Section 18 and Section 18A of the Scheduled Castes &

Scheduled Tribes (Prevention of Atrocities) Amendment

Act, 2015.

2. The appellants are arraigned as accused in

Cr.No.17/2021 registered by Harohalli P.S. for offences

punishable under Sections 143, 323, 354, 448, 504,

506 read with Section 149 of the IPC, besides Section

3(1)(r) and Section 3(1)(s) of the Scheduled Castes &

Scheduled Tribes (Prevention of Atrocities) Act, 1989.

3. The appellants / accused are under

apprehension of arrest by the Investigating Agency

without having been committed offences as narrated in

the complaint and so also in the FIR in Cr.No.17/2021.

However, this appeal has been preferred by the

appellants / accused under Section 14-A(2) of the SC &

ST (Amendment) Act, 2015 as there is an appeal

provision but concurrent jurisdiction relating to Section

438 of the Cr.P.C. is vested to the High Court and so

also the District & Sessions Judge to exercise power

under Section 438 of the Cr.P.C. where the present

appellants arraigned as accused are in apprehension of

arrest. The said Section 14-A reads thus, for the

purpose of reference:

"14A. Appeals.-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an appeal shall

lie, from any judgment, sentence or order, not being an interlocutory order, of a Special Court or an Exclusive Special Court, to the High Court both on facts and on law.

(2) Notwithstanding anything contained in sub-section (3) of section 378 of the Code of Criminal Procedure, 1973 (2 of 1974), an appeal shall lie to the High Court against an order of the Special Court or the Exclusive Special Court granting or refusing bail.

(3) Notwithstanding anything contained in any other law for the time being in force, every appeal under this section shall be preferred within a period of ninety days from the date of the judgment, sentence or order appealed from:

Provided that the High Court may entertain an appeal after the expiry of the said period of ninety days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of ninety days:

Provided further that no appeal shall be entertained after the expiry of the period of one hundred and eighty days.

(4) Every appeal preferred under sub- section (1) shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal."

4. Whereas the learned counsel for the appellants

submits that none of them had committed the alleged

offences, even though the same is narrated and

recorded in the FIR for offences under the IPC and so

also offences under the SC & ST Act, 1989 in

Cr.No.17/2021. Whereas in the grounds it is urged that

the complainant in the aforesaid crime is a Christian by

religion and gathered on the alleged date of incident

which is narrated in the FIR and also in the complaint

but it is highly improbable that members of other

religions, that is Hindus or Muslims had gathered there.

This contention is taken by the learned counsel for the

appellants seeking intervention of the impugned order

passed by the Trial Court in Crl.Misc.No.98/2021.

However, the appeal has been preferred under the

relevant provisions of the amended special enactment of

the SC & ST Act, 2015. The accused are under

apprehension that the Investigating Agency ought to

arrest them without any reasons.

5. Appellant No.1 herein who is the sole bread-

winner in the family consisting of his wife and two

children and also old aged parents. Appellant No.2 who

is also arraigned as an accused is aged 35 years and a

permanent abode of Kaggalahalli village, Ramanagara

District. Further, Appellant No.2 is by avocation a

farmer and season is approaching to cultivate the lands

to eke out his livelihood. Appellant Nos.3 and 4 are

aged 40 years and 36 years respectively and are

permanent abodes of Harohalli village, Ramanagara

District. These grounds are urged in the appeal for

seeking intervention of the impugned order passed by

the Trial Court in Crl.Misc.No.98/2021 rejecting the

petition filed under Section 438 of the Cr.P.C as not

maintainable. On all these premise, learned counsel for

appellants seeks to allow the appeal and to set aside the

order passed by the Court of the I Addl. District &

Sessions Judge, Ramanagara in Crl.Misc.No.98/2021

and consequently grant anticipatory bail as sought for.

6. Learned HCGP for the State in this appeal,

counter to the arguments advanced by the learned

counsel for the appellants, contends that the appellants

/ accused had absconded from the date of commission

of offences and that itself indicates that there are prima

facie material against the accused for commission of

offences as reflected in the FIR said to be recorded by

the Harohalli P.S. in Cr.No.17/2021 dated 21.01.2021.

Whereas the provisions of the SC & ST (Amendment)

Act, 2015 have been amended by insertion of the

provisions of Section 18 and 18A to the said Act. In

view of the said amendment, the petition under Section

438 of the Cr.P.C. is not maintainable for seeking the

relief of anticipatory bail. These are the contentions

taken by the learned HCGP for the State and on all

these premise, he seeks to dismiss the appeal as being

without any merit.

7. It is well-settled principle of law by rendering a

catena of decisions even by Hon'ble Supreme Court of

India and also by State High Courts relating to Section

438 of the Cr.P.C. In order to exercise power in respect

of a petition filed under Section 438 Cr.P.C. seeking

anticipatory bail, it is only in anticipation to arrest the

accused for involvement of commission of an offence in

respect of an FIR said to have been recorded by the

police. But in the instant case, the Harohalli P.S. have

registered a case in Cr.No.17/2021 for offences

punishable under the provisions of the Indian Penal

Code, 1860 and also for offences under the SC & ST

Act.

8. It is relevant to refer to Sections 18 and 18-A of

the SC & ST (Amendment) Act, 2015, for the purpose of

reference in this appeal:

"18. Section 438 of the Code not to apply to persons committing an offence under the Act.--Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.

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 in Section 18A of the SC & ST

(Amendment) Act, 2015, there is an express bar to

entertain a petition under Section 438 Cr.P.C.

notwithstanding anything in the Cr.P.C. and even any

judgment or order or direction rendered by the court of

law. When there is an express bar as stated in Section

18A, it is not proper to exercise the power, though the

discretionary power is always vested with the High

Court. When the statutory provision makes it clear

about the express bar, to exercise power under Section

438 Cr.P.C. relating to grant of anticipatory bail as

sought for in this appeal, it does not arise for

consideration to grant anticipatory bail. However, mere

'fear' is not a 'belief' unless well established by reasons,

as held by the Hon'ble Supreme Court in the case of

GURBAKSH SINGH SIBBIA VS STATE OF PUNJAB

reported in AIR 1980 SC 1632.

10. However, the personal life and liberty of an

individual who is arraigned as an accused ought to be

protected as enshrined in Article 21 of the Constitution

of India, when the person's life and liberty is at stake,

i.e., under apprehension of arrest. Similarly, when the

life of a human being who is a citizen of the country is

at stake, it is deemed proper to exercise power under

inherent jurisdiction of this court as well as under

Section 438 Cr.P.C., which is a concurrent jurisdiction

of the State High Court as well as Court of the District &

Sessions Judge.

11. But in the peculiar circumstances of this

matter, it is deemed appropriate to state that though

there is an express bar under Section 18A of the SC &

ST Amendment Act, 2015, power is to be exercised

keeping in view Article 21 of the Constitution of India as

well as the reliance stated supra. If not, the personal

life and liberty of appellants / accused would be at

stake. In the peculiar circumstances of this matter, it is

deemed proper that the appeal deserves to be dismissed

for the relief sought for when there is an express bar

under Section 18A of the SC & ST (Amendment) Act,

2015. Hence, I proceed to pass the following:

ORDER

The appeal preferred by the appellants / accused

under Section 14-A(2) of the SC & ST (Amendment) Act,

2015, is hereby dismissed. Consequently, the

impugned order passed by the Trial Court in

Crl.Misc.No.98/2021 dated 10.02.2021 is hereby

confirmed. But in the special circumstances, it is

deemed proper to state that rights of the accused shall

be protected. Hence, the appellants / accused are

directed to approach the Court of the I Addl. District &

Sessions Judge, Ramanagara by surrendering where the

case in Cr.No.17/2021 registered by the Harohalli P.S.

is pending, by filing a Regular Bail Petition under

Section 439 Cr.P.C. within a period of seven (7) days

from the date of this order.

Soon after the said petition is filed by the

appellants / accused, the concerned Special Court shall

consider the petition on the same day, by giving an

opportunity to the Public Prosecutor if he wants to file

any response to that application. But the said petition

shall be decided on merits, on the same day.

In the meanwhile, the Investigating Agency of

Harohalli P.S. where the case in Cr.No.17/2021 is

pending for investigation, shall not precipitate till the

disposal of the petition filed by the appellants / accused

under Section 439 Cr.P.C. seeking regular bail by

surrendering before the said Court in accordance with

law.

Accordingly directed the Investigating Agency.

However, the Trial Court shall not be influenced

by any observations made in this order, but the petition

filed by the appellants / accused shall be disposed of on

merits, in accordance with law.

Sd/-

JUDGE

KS