Karnataka High Court
Mithun Chandrashekar Mirajkar vs The State Of Karnataka on 24 June, 2021
Author: Shivashankar Amarannavar
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 24 T H DAY OF JUNE 2021
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO.100124/2021
BETWEEN:
1. MITHUN CHANDRASHEKAR MIRAJKAR,
AGE 27 YEARS, OCC: STUDENT,
R/O. GANDIWADA, TQ. KHANAPUR,
DIST. BELAGAVI - 591302.
2. SMT. KOMAL W/O. JAYARAJ MULE,
AGE 26 YEARS, OCC: HOUSEWIFE,
R/O. ANANTESHWAR GALLI, HALIYAL,
DIST. UTTARA KANNADA, KARWAR-581329.
3. SMT. ROHINI KESHAV MULE,
AGE 32 YEARS, OCC: HOUSEWIFE,
R/O. ANANTESHWAR GALLI, HALIYAL,
DIST. UTTARA KANNADA,
KARWAR - 581329.
4. SMT. LAXMI TUKARAM MALE,
AGE 60 YEARS, OCC: HOUSEWIFE,
R/O. ANANTESHWAR GALLI, HALIYAL,
DIST. UTTARA KANNADA,
KARWAR - 581329.
...PETITIONERS
(BY SRI. SHIVA S HIRUR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
THROUGH HA LIYAL POLICE STATION ,
NOW REPRES ENTED BY STATE
2
PUBLIC PROSECUT OR,
HIGH COURT OF K ARNATAKA,
DHARWAD BEN CH, AT DHARWAD .
2. GANGADHAR YALLAPPA KARADE,
AGE 76 YEARS , OCC: RETIRED SERVI CE,
R/O. ANAND SING ROAD,
YELLAPUR NAKA , T Q. HALIYAL,
DIST. UTTARA KANNADA,
KARWAR - 581329.
3. HULIGEMMA W/O. GANGADHAR KARA DE,
AGE MAJOR, OCC: HOUSEWIF E,
R/O. ANAND SINGH ROAD ,
YELLAPUR NAKA , T Q. HALIYAL,
DIST. UTTARA KANNADA,
KARWAR - 581329.
... RES PONDENTS
(BY SRI. R. RAVIN DRA NAIK, HCGP)
THIS CRIMINAL APPEA L IS FILED UNDER
SECTION 14A(2) OF SC/ST ACT, 1989, PRAYING TO
SET ASIDE THE JUDGMENT OF REJECTION OF
ANTICIPATORY BAIL BY ITS ORDER DATED 23.03.2021
PASSED BY THE PRL. DISTRICT AND SESSIONS COURT ,
UTTARA KANNADA, KARWAR IN CRIMINAL MIS C.
NO.69/ 2021 AND ALLOW THE PRESENT APPEAL AN D
CONSEQUENTLY THIS HON'BLE COURT MAY BE
PLEAS ED TO GRA NT ANTICIPATORY BAIL IN FAVOUR
OF THE A PPELLA NTS/ACCUSED N O.4 T O 7 IN THE
EVENT OF THEI R ARREST IN CRIME NO.13/ 2021
PENDING BEFORE PRINCIPA L DISTRI CT AND SESSIONS
JUDGE, UTTARA KANNADA, DIST. KARWAR,
REGISTERED BY THE HALIYAL POLI CE FOR THE
ALLEGED OFF ENCE UNDER SECTION 143, 147, 148,
323, 324, 504, 506 READ WITH 149 OF IPC AN D
SECTION 3( 1)(r) , 3(1)(s) OF S C AND ST (PREVENTION
OF ATROCITIES) A MENDMENT ACT, 2015.
THIS CRIMINAL A PPEAL COMING ON FOR ORDERS
THIS DAY, T HE COURT PASSED THE FOLLOWING:
3
JUDGMENT
Aggrieved by the order dated 23.03.2021,
passed in Criminal Miscellaneous No.69/2021
by Principal District and Sessions Judge, Uttara
Kannada, Karwar, rejecting the bail petition
filed by the appellants seeking anticipatory bail
in Crime No.13/2021 of Haliyal Police Station
for the offence punishable under Sections 143,
147, 148, 323, 324, 504, 506 r/w. 149 of The
Code of Criminal Procedure, 1973 (hereinafter
referred to as the 'Cr.P.C.', for brevity) and
Sections 3(1)(r), 3(1)(s) of Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities)
Act, 1989 (hereinafter referred to as 'SC/ST
(POA) Act, 1989), the present apeal is filed.
2. The case of the prosecution is that,
one Gangadhar S/o. Yallappa Karade has filed
complaint stating that there is a land dispute
between him and his neighbour Jayaram
(accused No.1). It is further stated that, on
14.01.2021 at about 3.00 p.m. the children of
locality were playing with pigeon and thrown
the stones on the house of the complainant, as
such, complainant warned the children not to
do so, in the mean time the accused No.1-
Jayaram has abused the complainant in filthy
language saying that you have constructed the
house in his property and not to abuse the
children. As such, the complainant resisted him
for abusing and all of a sudden, the said
Jayaram (accused No.1) slapped the
complainant and at that time the wife of the
complainant came to his rescue and the said
Jayaram (accused No.1) slapped his wife as
well. It is further stated that, at the same time
the family members of Jayaram namely Keshav
Mule (A2), Raju Mule (A3), Mithun Mule (A4),
Komal Mule (A5), Rohini Mule (A6), Laxmi Mule
(A7) came and assaulted the complainant with
hands and the said Jayaram assaulted with
stone. The said Jayaram (accused No.1) abused
the complainant touching his caste. The people
of the surrounding locality came and rescued
them and Jayaram (accused No.1) gave life
threat to the complainant. The complaint went
to Hospital and took treatment and returned to
the house and filed complaint after discussing
with the family members. The said complaint
came to be registered in Crime No.13/2021 for
the aforesaid offences. The appellants/accused
Nos.4 to 7 apprehending their arrest have filed
Criminal Miscellaneous No.69/2021 seeking
anticipatory bail and the same came to be
rejected by Principal District and Sessions
Judge, Uttara Kannada, by order dated
23.03.2021. The appellants/accused Nos.4 to 7
have challenged the said order in the present
appeal.
3. Heard the arguments of the learned
counsel appearing for the appellants and the
learned High Court Government Pleader for the
respondent-State.
4. Notice issued to respondent Nos.2
and 3 have been served and they remained un-
represented.
5. It is the contention of the learned
counsel for the appellants that, the appellants
are innocent, have not committed any offence
as alleged and they have been falsely
implicated in the case. There is no allegation of
abuse by the appellants touching the caste of
the complainant and therefore, the provisions
of SC/ST (POA) Act, 1989 are not attracted and
hence petition under Section 438 of Cr.P.C. is
maintainable. The other offences alleged
against the petitioners are not punishable with
death or imprisonment for life. He further
contends that, the Sessions/Special Judge has
not taken into consideration of all these
aspects and therefore, the impugned order
requires to be set aside by allowing this
appeal.
6. Per contra, learned HCGP has
contended that, there is a bar under Section 18
& 18A of SC/ST (POA) Act from entertaining a
petition filed under Section 438 of Cr.P.C., in
respect of offences under SC/ST (POA) Act,
1989. The offences alleged against the
petitioners also include the offence under
SC/ST (POA) Act, 1989 and therefore, the
petition under Section 438 of Cr.P.C. is not
maintainable and therefore, the
Sessions/Special Judge has rightly rejected the
petition. The investigation is in progress and if
at this stage, the appellants are granted
anticipatory bail, they will hamper the
investigation and tamper the prosecution
witnesses. With this, he prayed 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, this Court has gone through the
records and the impugned order.
8. The Apex Court in the Case of
Prathvi Raj Chaun 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 the SC/ST (POA) Act, 1989, the bar created
under Section 18 & 18-A, shall not apply. The
relevant 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."
9. On perusal of the entire complaint,
the allegations of abusing the complainant by
taking his caste is only against the accused
No.1. The allegations against the appellants
i.e. Accused Nos.4 to 7 and other accused is
that, they have assaulted the complainant and
his wife by hands and gave them life threat. As
there are no allegations of abusing the
complainant and his wife, touching their caste
by accused Nos.2 to 7, the provisions of SC/ST
(POA) Act are not attracted. Therefore, the bar
contained under Section 18 & 18A(2) of SC/ST
(POA) Act is not attracted and petition under
Section 438 of Cr.P.C. is maintainable. The
other offences alleged against the appellants is
that, they have assaulted the complainant and
his wife with hands and gave them life threat
and they are not punishable with death or
imprisonment for life. The appellants have
made out a case for grant of anticipatory bail.
Learned Sessions/Special Judge has not taken
into consideration all these aspects. Therefore,
the impugned order requires to be set aside
and appeal requires to be allowed. In the
result, the following order:
ORDER
The appeal is allowed. The impugned order is set
aside. The petition filed by the appellants/accused
Nos.4 to 7 under Section 438 of Cr.P.C. is allowed. In
the event of arrest, the appellants/accused Nos.4 to 7
shall be released on bail in Crime No.13/2021 of
Haliyal Police Station, subject to the following
conditions:
i. The appellants/accused Nos.4 to 7 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.
ii. The appellants/accused Nos.4 to 7 shall
voluntarily appear before the
Investigating Officer/jurisdictional Court,
within one month from today and execute
personal bond.
iii. The appellants/accused Nos.4 to 7 shall
co-operate with the investigation and
make themselves available for
interrogation whenever required.
iv. The appellants/accused Nos.4 to 7 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.
v. The appellants/accused Nos.4 to 7 shall
not obstruct or hamper the Police
investigation and not to play mischief with
the evidence collected or yet be collected
by the Police.
Sd/-
JUDGE
*Svh/-
