D S Prashanth vs State By Handanakere Police
2021 Latest Caselaw 2455 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 29TH DAY OF JUNE 2021

                   BEFORE

     THE HON'BLE MR. JUSTICE K.SOMASHEKAR


      CRIMINAL APPEAL NO.635 OF 2021


BETWEEN:

1.   D.S PRASHANTH
     AGED ABOUT 32 YEARS
     S/O SHANTHAVEERAIAH

2.   D.M. SHIVKUMAR
     AGED ABOUT 48 YEARS
     S/O MARULAPPA

     APPELLANT NOS.1 & 2 ARE
     RESIDENTS OF
     DODDAYENNAGERE VILLAGE
     HANDANAKERE HOBLI
     CHIKKANAYAKANAHALLI TALUK
     TUMAKURU DISTRICT-572101.

3.   MANJUNATH
     AGED ABOUT 40 YEARS
     S/O B.S MALLESHAIAH
     BOMMENAHALLI VILLAGE
     HANDANAKERE HOBLI
     CHIKKANAYAKANAHALLI TALUK
     TUMAKURU DISTRICT-572101.
                                  ...APPELLANTS
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(BY SRI. VINAYA KEERTHY M., ADVOCATE)

AND:

1.   STATE BY HANDANAKERE POLICE
     CHIKKANAYAKANAHALLI TALUK
     TUMAKURU DISTRICT
     REPRESENTED BY THE PUBLIC
     PROSECUTOR, HIGH COURT
     BANGALOORU-560 01.

2.   ADAVEESHKUMAR
     AGED ABOUT 45 YEARS
     S/O BASAVARAJAIAH
     GRAM PANCHAYAT SECRETARY
     DODDAYENNEGERE
     GRAM PANCHAYAT OFFICE
     HANDANAKERE HOBLI
     CHIKKANAYAKANAHALLI TALUK
     TUMAKURU DISTRICT-572101.
                                  ...RESPONDENTS
(BY SRI.RAHUL RAI .K. HCGP., FOR R1)

     THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 14(A)(2)      OF CR.P.C PRAYING TO SET
ASIDE THE ORDER DATED:10.03.2021 PASSED BY
THE LEARNED III ADDITIONAL DISTRICT AND
SESSIONS      JUDGE,    TUMKURU    IN   CRL.MISC.
NO.242/2021 AND GRANT THEM ANTICIPATORY BAIL
FOR THE ALLEGED OFFENCES UNDER SECTION 341,
353,504,506 R/W 34 OF IPC AND SECTION.3(1)(r),
3(1)(s), 3(2)(v-a) OF SC/ST (POA) ACT REGISTERED
BY THE FIRST RESPONDENT HANDANAKERE POLICE
CHIKKANAYAKANAHALLI TALUK IN CR.NO.15/2021
ON THE FILE OF THE LEARNED III ADDITIONAL
DISTRICT AND SESSIONS JUDGE, TUMKURU.
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    THIS CRIMINAL APPEAL COMING ON FOR
ORDERS THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
                JUDGMENT

Heard Sri Vinaya Keerthy.M., learned counsel for

the appellants/accused and learned HCGP for

Respondent No.1, who is present physically before the

Court.

Notice to respondent No.2 has been issued

through Superintendent of Police, Tumakuru District.

The report with regard to service of notice to

respondent No.2/informant/victim is awaited.

However, keeping in view the provisions of Section

301 of Cr.P.C., learned HCGP appearing for

respondent No.1 has taken care of the case in Crime

No.15/2021 registered by Handanakanere P.S.,

Chikkanayakanahalli Circle. Further, the learned

counsel for the appellants fairly submits that notice

has been duly served on respondent No.2, who is an

informant in Crl.Misc.Pet.No.242/2021 disposed of on

10.3.2021 by the III Addl. District and Sessions

Judge, Tumakuru.

2. This appeal is filed challenging the order

passed by the Court of the III Addl. District & Sessions

Judge, Tumakuru in Crl.Misc.Pet.No.242/2021 dated

10.03.2021. The petition 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.

3. The appellants are arraigned as accused in

Cr.No.15/2021 registered by Handanakere P.S. for

offences punishable under Sections 341, 353, 504,

506 read with Section 149 of the IPC, besides Section

3(1)(r), Section 3(1)(s) and Section 3(2)(va) of the

Scheduled Castes & Scheduled Tribes (Prevention of

Atrocities) Act, 1989.

The appellants/accused are under the

apprehension of arrest by the Investigating Agency

without having committed the offences as narrated in

the complaint and so also in the FIR in Cr.No.15/2021.

Therefore, the accused approached the III Addl.

District & Sessions Judge, Tumakuru in

Crl.Misc.Pet.No.242/2021 dated 10.03.2021. But the

petition filed by the appellants/accused under Section

438 Cr.P.C. came to be dismissed by assigning the

reasons and concept of Section 18(A) of the SC/ST

(POA) Act. Challenging the same, this appeal has

been preferred by the appellants/accused under

Section 14-A(2) of the SC & ST (POA) 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 their power

where the present appellants arraigned as accused are

in apprehension of arrest by the police. Therefore,

they have approached the court for bail.

4. The learned counsel for the appellants

submits for considering the grounds urged in this

appeal memorandum. The accused are under

apprehension that the Investigating Agency ought to

arrest them without any reasons. There are certain

other grounds urged in the appeal for seeking

intervention of the impugned order passed by the Trial

Court in Crl.Misc.No.242/2021, whereby the petition

filed under Section 438 of the Cr.P.C. has been

rejected. 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 III Addl. District

& Sessions Judge, Tumakuru in Crl.Misc.No.242/2021

dated 10.03.2021 and consequently grant anticipatory

bail as sought for.

5. Learned HCGP for the State in this appeal,

counter to the arguments advanced by the learned

counsel for the appellants and contends that there is

an expressive bar under the SC/ST (Prevention of

Atrocities) Act, 1989 for seeking anticipatory bail and

that there are prima facie material against the

accused for commission of offences as reflected in the

FIR said to have been recorded by the Handanakere

P.S. in Cr.No.15/2021 dated 25.2.2021. There was

some exchange of words that took place between the

accused and complainant and the accused were

abusing the complainant in respect to held his caste,

which caused wounded feelings to the complainant.

The accused caused some sorts of obstacle and

abused the complainant, who is a government

employee and threatened the complainant. Therefore,

the complainant approached the police and registered

the case against the accused for the offences stated

above. 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 premises, he seeks to dismiss the

appeal as being without any merit.

6. I have heard the arguments of the learned

counsel for the appellants as well as the counter

arguments of the learned HCGP. Keeping in view the

said submissions, I deem it proper to dwell into the

substances of the complaint and contents of the FIR

said to have been recorded by the respondent Police.

The incident has taken place on 24.2.2021. There was

some exchange of words that took place between the

accused and respondent No.2 herein, who is the

complainant. Respondent No.2 is the government

servant. There was some altercation took between the

accused and the respondent No.2 and they were

raising voice and accused were abusing the

complainant by holding his caste, which appears to be

offences under the Special Enactment Act of SCST

(POA) amended Act, 2015.

7. The learned counsel for the appellants

submits that the accused are innocent persons and

they have not committed the alleged offence. Infact,

the complainant had approached the respondent

police and filed a false case in Crime No.15/2021

against the accused by setting up a theory for

constituting the offences.

8. When once the case has been registered, it

is the duty of the Investigating Officer to conduct

investigation and ultimately the domain is vested with

the investigating agency as contemplated under

Section 173(2) of Cr.P.C to file charge-sheet. In this

case, the appellants are arraigned as accused in the

aforesaid Crime and they have approached the Special

court by filing a petition under Section 438 of Cr.P.C.

The said petition came to be rejected by referring to

the provisions of Section 18A of the SC & ST (POA)

Act. Therefore, it is relevant to refer to Sections 18

and 18-A of the SC & ST (POA) 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. Keeping in view the aforesaid provision of

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.

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. Hence, it is

deemed proper to exercise discretionary power of this

court as well as under Section 438 Cr.P.C., which is a

concurrent jurisdiction of the High Court as well as

Court of the District & Sessions Judge to grant bail.

11. But in the given peculiar facts and

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. If not, the personal life and

liberty of appellants / accused would be at stake. In

view of the aforesaid circumstances of this matter, it

is deemed proper that the appeal deserves to be

dismissed when there is an express bar under Section

18A of the SC & ST (POA) 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 (POA)

Amendment Act, 2015, is hereby dismissed.

Consequently, the impugned order passed by the Trial

Court in Crl.Misc.No.242/2021 dated 10.03.2021 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 III Addl.

District & Sessions Judge, Tumakuru by surrender

where the case in Cr.No.15/2021 registered by the

Handanakere P.S. is pending, by filing a Regular Bail

Petition under Section 439 Cr.P.C. within a period of

ten (10) days from the date of this order.

Soon after the said petition if 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 petition for bail. But the said

petition shall be decided on merits, on the same day,

in accordance with law.

In the meanwhile, the Investigating Agency of

Handanakere P.S. where the case in Cr.No.15/2021 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

surrender 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 if filed by the appellants/accused shall be

disposed of on merits, in accordance with law.

Sd/-

JUDGE

DM