Sri. Vishwa Prasad vs State Of Karnataka
2021 Latest Caselaw 2291 Kant

                            1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 18TH DAY OF JUNE, 2021

                         BEFORE

       THE HON'BLE MR.JUSTICE K.SOMASHEKAR

         CRIMINAL APPEAL NO. 578 OF 2021

BETWEEN:

Sri. Vishwa Prasad
S/o Narayanaganiga
Aged about 29 years
R/o No.3-47A, "Mathoshri"
Tata Indicom Compound
Near NH-66, Uppunda
Kundapura Taluk
Udupi Dist - 576232.
                                        ...Appellant

(By Sri. Bharath Kumar .V - Advocate)

AND:

1.     State of Karnataka
       Through Station House Officer
       Rajajinagar Police Station
       Bengaluru
       Represented by:
       State Public Prosecutor
       High Court of Karnataka
       Bengaluru - 560 001.

2.     Smt. Sumithra R
       W/o. Late Ravi
                             2


     Aged about 35 years
     R/o 1913, 1st Main Road
     3rd Cross, Prashanth Nagar
     Bengaluru - 560 040.
                                          ...Respondents

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

      This Criminal Appeal is filed under Section 14A of
SC & ST (Prevention of Atrocities) Act, 1989 r/w
Sec. 438 of the Cr.PC., praying to, direct the respondent
police to enlarge the appellant herein on bail, in the
event of his arrest in matter bearing FIR No.53/2021,
registered with the respondent Police and pending on
the file of the LXX-Addl. City Civil and Sessions Judge
and Special Judge, at Bengaluru wherein the appellant
herein is arraigned as Accused for the alleged offences
under Section 354 of I.P.C r/w Sec. 3(1)(c) and 3(1)(s) of
the SC & ST (Prevention of Atrocities) Amendment
Ordinance, 2014.

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

                    JUDGMENT

Heard the learned counsel Shri Bharath Kumar V

for the appellant / accused who is appearing through

video conferencing and so also learned HCGP for

Respondent No.1 who is present before court physically.

2. In this appeal, notice has been duly served on

Respondent No.2 / Smt. Sumithra R, through the police

servicing agency, but Respondent No.2 who is the

author of the complaint, has not turned up to

participate in these proceedings though the present

appeal has been preferred by the accused / appellant by

challenging the order passed by the Trial Court in

Crl.Misc.No.3620/2021 dated 30.04.2021.

3. The police are making hectic efforts to arrest

this appellant / accused without any reason and though

the ingredients of offences under the Special Enactment

of the Scheduled Castes & Scheduled Tribes (Prevention

of Atrocities) Act, 1989 are not attracted. On these

grounds, the learned counsel for the appellant /

accused seeks to allow the appeal and to set aside the

impugned order passed by the Trial Court in

Crl.Misc.No.3620/2021 dated 30.04.2021 and

consequent upon allowing the appeal, to grant bail to

the appellant / accused, as he is ready to abide by any

terms and conditions while granting bail under this

appeal.

4. Learned counsel in this appeal has produced

the impugned order passed by the Trial Court in

Crl.Misc.No.3620/2021 vide Annexure-"B" for the

purpose of perusal. Further, the learned counsel refers

to the judgment of the Hon'ble Supreme Court in the

case of PRATHVI RAJ CHAUHAN vs. UNION OF INDIA

((2020 (4) SCC 727)) wherein, the Hon'ble Supreme

Court of India has addressed the issues relating to

offences under the special enactment of the SC & ST

(POA), Act, 1989, particularly of Section 18 and Section

18A of the said Act even though it has been stated that

there is an express bar to entertain the bail petition filed

by the accused. On this premise, learned counsel for

the appellant seeks to allow the appeal and to set aside

the impugned order passed by the Trial Court in

Crl.Misc.No.3620/2021 and consequence upon allowing

this appeal, that the petition filed by the accused under

Section 438 Cr.P.C. be restored and that petition as well

be considered by granting bail as sought for.

5. Learned HCGP for the State in this appeal,

argues counter to the arguments advanced by the

learned counsel for the appellant who is challenging the

impugned order passed by the Trial Court in

Crl.Misc.No.3620/2021. But subsequent to filing of a

complaint by the complainant, the case in

Cr.No.53/2021 has been registered by the Rajajinagar

P.S. for offences under Section 354 of the IPC besides

section 3(1)(c), 3(1)(s) of the SC & ST (POA) Act, 1989.

The complainant who is working as a Meter Reader in

BESCOM, Rajajinagar where the petitioner / accused in

the aforesaid crime was by avocation an Assistant

Engineer in Rajajinagar BESCOM. He being the higher

authority, used to harass the complainant. Consequent

upon certain harassment extended by the accused, on

filing of a complaint by the complainant, the criminal

law was set into motion by registering a case in

Cr.No.53/2021 by the Rajajinagar P.S. However,

Respondent No.2 who is an informant / victim has not

participated in the proceedings, the victim cannot be

deprived of her rights to respond to the crime registered

by the Rajajinagar P.S. through the prosecution. Hence,

prosecution has taken care even under Section 301

Cr.P.C. on behalf of the informant / complainant /

victim / dependant.

6. But in the instant case, there is an express bar

relating to entertaining the bail petition filed under

Section 438 of the Cr.P.C. and even dwelling into the

concept of Section 18 and Section 18-A of the Special

Enactment of the SC & ST (POA) Act, 1989, wherein it is

specifically stated that provisions of Section 438 Cr.P.C.

shall not apply to a case under this Act notwithstanding

any judgment or order or direction passed by any court

of law.

7. When there is an express bar to entertain the

bail petition filed by the accused under Section 438

Cr.P.C. seeking anticipatory bail, it does not arise for

consideration of the said application for grant of bail as

sought for. Accordingly, the Trial Court has considered

the scope and ambit of Sections 18 and 18-A of the

aforesaid Special Enactment and passed the said order.

Hence, at this stage, it is said that there is no prima

facie case made out against the accused by the

informant / complainant / dependant. Consequently,

the bail petition filed by the accused under Section 438

Cr.P.C. came to be dismissed by order dated

30.04.2021. 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.

8. In view of the contentions taken by the learned

counsel for the appellant / accused and so also the

learned HCGP for the State by referring to the

substance in the FIR recorded by the Rajajinagar P.S. in

Cr.No.53/2021 for offences under Section 354 of the

IPC and offences under the Special Enactment of the SC

& ST (POA) Act, 1989 is concerned, it is seen that the

aforesaid crime is under progress for investigation. At

this stage, it cannot come to the conclusion that there

are no ingredients to constitute the offences lugged

against the accused under the Special Enactment of the

SC & ST (POA) Act, 1989 and so also the offences under

Section 354 of the IPC, 1860.

9. When there is an express bar, it cannot arise for

consideration of this appeal for granting the relief of bail

as sought for by the appellant / accused by allowing

this appeal.

10. The appeal has been preferred as

contemplated under Section 14-A(2) of the SC & ST

(POA) Act, 1989. But it is mandatory to prefer an

appeal challenging the impugned order passed by the

Trial Court relating to bail matters filed under Section

438 Cr.P.C. Therefore, it is said that at this stage, it

does not arise to dwell in detail relating to involvement

of the accused and so also commission of offences as

narrated in the complaint as well as the substance in

the FIR said to have been recorded by the Rajajinagar

P.S. Therefore, when there is an express bar as stated

in Section 18A, it cannot arise to grant the relief of bail

as sought for by allowing the appeal and setting aside

the impugned order.

11. In view of the aforesaid reasons, I proceed to

pass the following:

ORDER

The appeal preferred by the appellant / accused

under Section 14-A(2) of the SC & ST (POA) Act, 1989 is

hereby dismissed. Consequently, the impugned order

passed by the Trial Court in Crl.Misc.No.3620/2021

dated 30.04.2021 vide Annexure-"B" is hereby

confirmed.

However, keeping in view the submission of the

learned counsel for the appellant / accused, it is

deemed proper to state that rights of the accused shall

be protected. Hence, the appellant / accused is directed

to surrender before the Trial Court where the case in

Cr.No.53/2021 registered by the Rajajinagar 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

appellant / 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 the said petition filed under Section

439 Cr.P.C. But the said petition shall be disposed of

on merits, on the same day.

In the meanwhile, it is deemed appropriate to

direct the Investigating Agency in Cr.No.53/2021

registered by the Rajajinagar P.S., shall not precipitate

the matter till disposal of the bail petition filed by the

appellant / accused under Section 439 Cr.P.C. before

the Special Court.

However, the Trial Court shall not be influenced

by any observations made in this order, but the petition

filed by the appellant / accused shall be disposed of on

merits, in accordance with law.

Sd/-

JUDGE

KS