Sumangala Timmappa Desai vs State Of Karnataka
2021 Latest Caselaw 2279 Kant

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            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

          DATED THIS THE 17 T H DAY OF JUNE 2021
                          BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

            CRIMINAL APPEAL No.100119/2021


   BETWEEN:

   SUMANGALA TIMMAPPA DESAI ,
   AGED 40 YEARS , OCC: PRESIDENT OF
   SAPTSWARA SEVA SANGH,
   R/O. SHEVA LLI , YERMUKA VILLA GE,
   TQ. JOIDA , DIST . UTTARA KANNADA - 581325
                                              ...A PPELLANT
   (BY SRI. ANANT HEGDE, ADV OCATE)
   AND:

   1.     STATE OF KARNATAKA,
          BY P.S.I . JOIDA POLICE STATION ,
          TQ. JOIDA , DIST . UTTARA KANNADA
          -581325, REP. THROUGH STATE
          PUBLIC PROSECUT OR, HIGH COURT
          OF KARNATAKA, BENCH,
          DHARWAD - 580011.

   2.     SUMANA GIRISH HARIJAN,
          AGE 35 YEARS , PRESIDENT OF NAND IGAADDE,
          GRAM PAN CHAYAT,
          R/O. NANDIGADDE, PO: GUNDA,
          TALUK: J OIDA - 581325,
          DIST. UTTARA KANNADA.

                                       ... RES PONDENTS

   (BY SRI. RAMESH CHIGARI , HCGP F OR R1;
   R2 S ERVED)
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     THIS  CRIMINAL       APPEA L  IS   FILED   UNDER
SECTION 14(A)(2) OF CR.P.C. PRAYING TO SET ASIDE
THE ORDER DATED 21.04.2021 PAS SED BY PRINCIPA L
DISTRICT AND SESSIONS JUDGE, UTTARA KANNADA,
KARWAR IN CRL. MISC. NO.127/2021 AND THE
APPELLANT/ACCUS ED MAY KINDLY BE ORDERED TO BE
RELEASED ON BAI L IN THE EVENT OF HER ARREST I N
CONNECTI ON WITH JOIDA P.S . CRI ME NO.19/ 2021 A T
JOIDA   POLICE     STATION      FOR    THE    OFFEN CE
PUNISHABLE UND ER SECTION 504 AND 506 OF IPC
AND SECTION 3( 1) (r), 3( 1)(m) OF S C/ST (POA) A CT.

     THIS CRIMINAL A PPEAL COMING ON FOR ORDERS
THIS DAY, T HE COURT PASSED THE FOLLOWING:


                    JUDGMENT

Aggrieved by the order dated 06.04.2021

passed in Criminal Miscellaneous No.127/2021

by the Principal District and Sessions

Judge/Special Judge, Uttara Kannada, Karwar,

rejecting the petition for anticipatory bail

sought for offence under Section 506, 504 of

IPC and Section 3(1)(m) and 3(1)(r) of SC/ST

(POA) Act, the appellant has filed this appeal.

Notice has been served on respondent No.2-

complainant and she remained un-represented.

2. The respondent No.2 who is the

president of Gram Panchayat, Nandigadde has

filed complaint on 23.03.2021 stating that on

17.03.2021 at about 11.00 a.m. in the office of

Nandigadde Gram Panchayat, she was

discussing with Aruna Desai and Dakshayini. At

that time, the appellant/accused came there

and demanded permission to conduct her

program and abused them. It is further stated

that, the accused/appellant abused the

complainant by showing that she belongs to

lower caste and also gave threat to the life of

Aruna Desai. The said complaint came to be

registered in Crime No.19/2021 by Joida Police

for the aforesaid offences. The appellant

apprehending her arrest has filed Criminal

Miscellaneous No.127/2021 and the same came

to be rejected by the Principal District and

Sessions Judge/Special Judge, Uttara Kannada,

Karwar, by order dated 21.04.2021. Aggrieved

by the said order, the appellant is before this

Court.

3. Heard the learned counsel appearing

for the appellant and the learned High Court

Government Pleader for the respondent-State.

4. Learned counsel for the appellant

contend that, the appellant is innocent, has not

committed any offence as alleged and she has

been falsely implicated in the case. On perusal

of the averments of the complaint no prima-

facie case is made out, attracting the offence

under Sections 3(1)(m) & 3(1)(r) of SC/ST

(POA) Act. As per the averments of the

complaint, the appellant has not taken the

caste name or abused the complainant by

taking her caste, but it is only stated that she

belongs to lower caste. He further contend

that, as there is no prima-facie case for

attracting the provisions of SC/ST (POA) Act,

1989, the bar under Section 18 & 18-A(2) are

not attracted and the appellant can maintain a

petition seeking anticipatory bail under Section

438 of Cr.P.C. Learned Special Judge ignoring

all these aspects has rejected the petition of

the appellant and therefore, the impugned

order requires to be set aside. With this, he

prayed to allow the petition. He placed reliance

on the decision of the co-ordinate Bench of this

Court, rendered in Criminal Appeal

No.422/2021, dated 01.06.2021 between

Sri. N. Srinivas S/o. Late Narayanappa Vs.

State of Karnataka and another.

5. Per contra, learned High Court

Government Pleader for the respondent No.1

contended that, the complainant belongs to

Schedule Caste and she is the president of the

Gram Panchayat and the appellant went to the

Gram Panchayat office when the respondent

No.2 and other two were holding meeting and

uttered that she belongs to lower caste and

obstructed in discharge of her duties and

therefore, the provisions of Section 3(1)(m)

and 3(1)(r) of SC/ST (POA) Act are attracted

and the petition under Section 438 of Cr.P.C. is

not maintainable as there is a bar under

Section 18 & 18-A(2) of SC/ST (POA) Act. He

further contends that Special Judge, taking

into consideration all these aspects has rightly

rejected the petition of the appellant by the

impugned order and it does not call for any

interference.

6. Having regard to the submission

made by the learned counsel for the appellant

and the learned High Court Government

Pleader, this Court has gone through the FIR,

Complaint and the impugned order.

7. The Apex 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 provisions

of 1989 Act, the bar created by Section 18 &

18-A(i) shall not apply. The relevant portion at

paragraph No.11 is quoted as under:

"Concerning the applicability of provisions of Section 438 Cr.P.C., 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. We have clarified this aspect while deciding the review petitions."

8. Therefore, it is to be seen that,

whether there is a prima-facie case for

attracting the offence under Sections 3(1)(m)

and 3(1)(r) of SC/ST (POA) Act, 1989. In the

complaint, it is stated that, the

appellant/accused uttered that the respondent

No.2-complainant belongs to lower caste

woman. There is no averments in the complaint

that the appellant/accused has abused

respondent No.2/complainant by taking the

name of her caste or she belongs to Schedule

Caste. The co-ordinate Bench of this Court in

the case of N.Srinivas (supra) at paragraph

No.7 has observed thus,

"7. It is noticed that the trial Court has rejected the application primarily on the ground that prima facie case regarding the commission of offence is made out and hence, question of entering into the other aspects relating to the anticipatory bail petition did not arise. A close perusal of the order, however, would indicate that the approach of the court ought to have been to elicit the nature of statement made and to find out whether such statement or abuse relating to the caste has been made only by virtue of the complainant belonging to such caste. The ingredients of the offence as are required to be established has been brought out clearly in the judgment in the case of HITESH VERMA VS. THE STATE OF UTTARAKHAND AND ANOTHER in Criminal Appeal No.707/2020 wherein the Apex Court has adverted to the two main ingredients that need to be established which are that, firstly the

statement must have been made in any place within public view and secondly, the statement is to be made only because the complainant belongs to that caste. Insofar as the first ingredient is concerned, prima facie it appears to be made in public place.

However, as regards to the second ingredient, it is to be noticed that the statement made was that he belongs to a particular caste and that he is a legislator from that caste. It is a matter of trial and also demonstration by the complainant that such statement was made reference to the caste by the appellant in order to humiliate him as he was a legislator belonging to that caste and that further it is in that context the statement was made. It is a matter that is to be established during trial and after evidence looking into the statement of other witnesses and the context in which such statement was made."

9. As per the decision of the Apex Court

referred to in paragraph No.7 of the aforesaid

decision, two main ingredients need to be

established. Firstly, the statement must have

been made in any place within the public view

and secondly, the statement is to be made only

because the complainant belongs to that caste.

Insofar as the first ingredient is concerned,

prima-facie it appears to be made in public

place, since the respondent No.2-complainant

was sitting in the office of the Gram Panchayat

along with two others. However, as regards the

second ingredient, it is to be noticed that, the

statement made was that, she belongs to

particular caste and that he is a representative

from that caste. On perusal of the complaint

averments, the appellant/accused has not

taken the caste name of the accused and she is

a Gram Panchayat President elected from that

caste. It is a matter of trial and also

demonstration by the complainant that such a

statement was made with reference to the

caste by the appellant in order to humiliate her

as she was a Gram Panchayat President,

belonging to that caste and that further it is in

that context, the statement was made. As the

appellant has undertaken to co-operate with

the Investigating Officer, there is no

requirement of any custodial interrogation. The

Special Judge has failed to take into

consideration of the above aspects. As there is

no prima-facie case to attract the offence

under the provisions of SC/ST (POA) Act, 1989,

the petition under Section 438 seeking

anticipatory bail is maintainable. The other

offences alleged against the appellant/accused

under Section 504 and 506 of IPC are not

punishable with death or imprisonment for life.

Therefore, the impugned order passed by the

Special Judge, requires to be set-aside. In the

result, the following order:

ORDER

The appeal is allowed.

The impugned order is set aside.

Consequently, the petition filed by the appellant/accused under Section 438 of Cr.P.C. is allowed. The appellant is ordered to be enlarged on bail in the event of her arrest in Crime No.19/2021 of Joida Police Station for the offences punishable under Sections 3(1)(m) and 3(1)(r) of Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, 2015, subject to the following conditions:

i. The appellant/accused 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.

ii. The appellant/accused shall appear before the Investigating Officer/ Jurisdictional Court, within one month and execute personal bond.

iii. The appellant/accused shall not hamper the investigation and tamper the prosecution witnesses.

iv. The appellant/accused shall co-operate with the investigation and make herself available for interrogation whenever required.

v. The appellant/accused 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 him from disclosing such facts to the Court or to any Police Officer.

vi. The       appellant/accused            shall     not
    obstruct         or      hamper       the      Police

investigation and not to play mischief with the evidence collected or yet be collected by the Police.

vii. Any observations made herein shall not be taken as expression of opinion on the merits of the case.

Sd/-

JUDGE

R M/ * S vh / -