Mohan S/O Narasimahappa Dodamani ... vs Kum. Kasturi D/O Srinivas ...
2022 Latest Caselaw 11332 Kant

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             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

        DATED THIS THE 11 T H DAY OF AUGUST 2022
                           BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR

             CRIMINAL APPEAL No.100317/2022

BETWEEN:

1 .   MOHAN,
      S/O NARASIMAHAPPA D ODAMANI @ PUJARI
      R/O.TULASIGERI
      TQ AND DIST .BAGALKOT-587204

2 .   ASHOK, S/O TILAGAPPA PUJARI
      R/O.TULASIGERI
      TQ AND DIST .BAGALKOT-587204
                                                ...PETITIONERS

(BY SRI. GANES H RAIBAGI, ADVOCA TE)

AND:

1 .   KUM. KASTURI , D/ O SRINIVAS HULLI KERI
      AGE.17 YEARS , OCC.STUD ENT,
      R/O.TULASIGERI
      TQ AND DIST .BAGALKOT
      SINCE MINOR
      REP.BY HER FATHER SRI. SRINIVAS
      S/O. HANUMANTAPPA HULLIKERI,
      AGE- 47 YEARS ,
      OCC- COOLI E, R/O. T ULASIGERI,
      BAGALKOT DISTRICT-587204.

2 .   THE STATE OF KARNATAKA
      KALADAGI POLICE STATION
      REP BY ITS S PP,
      HIGH COURT OF K ARNATAKA
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    DHARWAD BEN CH, AT DHARWAD .
                                           ... RES PONDENTS
(BY SRI. PRAS HAN TH V. MOGA LI, HCGP FOR RES PONDENT
NO.2.)

      THIS CRIMINAL APPEAL IS FI LED U/S EC.14A(2) OF SC/ ST
ACT, S EEKING TO ALLOW THE APPEAL FILED BY THE
APPELLANTS NO. 1 AND 2, S ETTING ASIDE THE ORDER DATED
28.06.2022 PASS ED BY II ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BAGALKOT , AND ENLARGE THE APPELLANTS
NO. 1 AND 2/ACCUSED NO. 3 AND 4 ON BAIL IN THE EVENT OF
ARREST IN CRIME NO. 64/ 2022 FI LED BY THE RESPONDENT
NO. 2 i.e . P.S .I , KALADAGI , BA GALKOT RURA L FOR THE
ALLEGED OFFENCES PUNISHABLE U/ S 323, 504, 506, R/W 34
OF I .P.C AND SEC. 3( 1)(r)(s) AND 3( 1)(zc) OF S .C AND S.T
ACT 1989, PENDI NG BEF ORE II A DDITIONAL DISTRICT AND
SESSIONS      JUD GE    BAGALK OT,     IN     CR.NO.64/ 2022.

     THIS CRIMINAL A PPEAL COMING ON FOR ORDERS THIS
DAY, THE COURT DELIVERED THE F OLLOWING:


                        JUDGMENT

This appeal has been filed by accused Nos.3 and 4

challenging the order dated 28.06.2022 passed in Criminal

Miscellaneous No.354/2022 by the learned II Additional

District and Sessions Judge, Bagalkote, whereunder the

petition filed by the appellants under Section 438 of The

Code of Criminal Procedure, 1973 (hereinafter referred to

as the 'Cr.P.C.', for brevity) seeking anticipatory bail in

Crime No.64/2022 for the offences under Sections 323,

504 and 506 read with Section 34 of the Indian Penal

Code, 1860 (hereinafter referred to as the 'IPC', for

brevity) and Sections 3(1)(r)(s) and 3(1)(zc) of the

Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989 (hereinafter referred to as the 'SC &

ST Act', for brevity), came to be rejected.

2. Heard Sri. Ganesh Raibagi, learned counsel for

the appellants and the learned High Court Government

Pleader for respondent No.2/State.

Notice issued to respondent No.1/informant is

returned with an endorsement 'refused'.

3. It is the case of the prosecution that, on

13.06.2022, the informant and her sister, aged 14 years

and a kid, aged 2 years, had been to Sri Anjaneya Swamy

Temple, Tulasigiri. The minor kid had proceeded towards

the electric wires. On seeing this, accused Nos.1 to 4 had

picked up quarrel with the informant, dragged her out of

the temple and abused her in filthy language by taking the

name of her caste. It is further stated that accused Nos.1

to 4 had humiliated by abusing her in filthy language

taking the name of her caste. The accused have also

threatened her of dire consequences, if, she again comes

to the temple. The said complaint filed by respondent

No.1 came to be registered in Crime No.64/2022 for the

aforesaid offences. The appellants, who were shown as

accused Nos.3 and 4, apprehending their arrest have

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

anticipatory bail and the same came to be rejected by the

learned II Additional District and Sessions Judge,

Bagalkote by order dated 28.06.2022. The appellants

have challenged the said order in the present appeal.

4. Learned counsel for the appellants would

contend that the appellants are innocent and they have

not committed any offence as alleged and they only

warned the informant regarding the renovation work that

was going on in the Temple and they were unaware of the

caste of the informant and a false complaint has been

filed against them. It is his further submission that, on

reading of the entire averments of the complaint, there is

no specific overt act of abusing, touching the caste of the

informant, is made against each of the accused. It is his

further submission that, there are no chances of abusing

by all the 4 accused with the same words to the

informant. It is further submitted that the averments in

the complaint do not prima facie attract the offence under

SC & ST Act. He further contended that, the

Sessions/Special Judge without considering the same, has

passed the impugned order which requires interference by

this Court. It is his submission that the other offences

alleged against the petitioner are not punishable with

death or imprisonment for life. With this he prayed to

allow the petition.

5. Per contra, learned High Court Government

Pleader would contend that, on reading of the entire

averments of the complaint, the provisions of SC & ST Act

are attracted and there is prima facie case for the

offences registered against the appellants and therefore,

the bar contained under Section 18(2) of the SC & ST Act

is attracted. Considering these aspects, the learned

Sessions/Special Judge, has rightly rejected the petition

and therefore no grounds are made out for setting aside

the impugned order. It is his further submission that, the

statement of the victim has to be recorded under Section

164 of Cr.P.C. and more so, investigation is still in

progress and at this stage, if, the appellants are granted

anticipatory bail, they will threaten the complainant and

other prosecution witnesses and hamper the investigation.

With this, he prayed to dismiss the appeal.

6. 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 complaint and the impugned order.

7. The informant in her first information has stated

that, she belongs to Hindu Walmiki caste. There is no

mention of caste of the accused persons in the averments

of the complaint. The alleged incident has taken place in

Sri.Anjaneya Swamy Temple, Tulasigiri. As per the

averments of the complaint, some renovation work was

going on and there were electric wires and a kid, who

accompanied the first informant, went near the wire and

at that time, accused Nos.1 to 4 abused the first

informant. The photographs produced along with the

petition shows that renovation work was going on in the

temple and a notice had been affixed on the premises and

to take care of children who accompany them. There is no

averment in the complaint that, the accused were well

acquainted with the first informant and they knew her

caste. When there is no such averment, then the further

allegation of abuse, touching the caste, has to be

ascertained after investigation and filing of the charge-

sheet. In the compliant, it is averred that, all the accused

i.e. accused Nos.1 to 4 abused the complainant with the

same abusive words touching the caste. It is not

acceptable that, all the 4 accused used the same words at

a time. Therefore, on going through the entire averments

of the complaint, at this stage, there is no prima facie

case to attract the offence under the provisions of SC &

ST Act . In Prathvi Raj Chauhan v. Union of In dia and

others reported in (2020) 4 SCC 727, the Hon'ble Apex

Court has held that, "if the averment of the complaint has

not made out prima facie case, then bar contained under

Section 18 of the SC & ST Act is not attracted". The

Sessions/Special Judge without considering the said

aspect has rejected the petition filed by the appellants

seeking anticipatory bail.

The other offences under IPC are not punishable with

death or imprisonment for life. The appellants are the

residents of Tulasigiri village in Bagalkot taluk and

district. There are no criminal antecedents of the

appellants. The apprehension of the prosecution that, if

the appellants are granted anticipatory bail, they will

hamper the investigation, tamper the prosecution

witnesses and threaten the complainant, could be met

with by imposing stringent conditions.

8. In the facts and circumstances of the case and

submission of the counsel and for the aforesaid reasons,

the impugned judgment is not sustainable in law and is

liable to be set aside and the appellants are entitled for

grant of anticipatory bail. Accordingly, I pass the

following:

ORDER

The criminal appeal is allowed. The impugned order

dated 28.06.2022 passed in Cril.Misc. No.354/2022 by the

learned II Additional District and Sessions Judge,

Bagalkote, is set aside. The petition filed by the

appellants under Section 438 of Cr.P.C. in

Crl.Misc.No.354/2022 stands allowed. The

appellants/accused Nos.3 and 4 are directed to be

released on bail in the event of their arrest in Crime

No.64/2022 of Kaladagi Police Station, Bagalkot Rural

Circle, subject to the following conditions:

i. The appellants/accused Nos.3 and 4 shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh Only)each with one surety for

the likesum to the satisfaction of the Investigating Officer.

ii. The appellants/accused Nos.3 and 4 shall voluntarily appear before the Investigating Officer within fifteen days from today and execute personal bond and furnish surety.

iii. The appellants/accused Nos.3 and 4 shall remain present before the police station concerned on every Sunday between 10:00 am to 2:00 pm for a period of one month or till filing of final report whichever is earlier.

iv. The appellants/accused Nos.3 and 4 shall co- operate in the investigation and make themselves available for interrogation whenever required.

v. The appellants/accused Nos.3 and 4 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 appellants/accused Nos.3 and 4 shall not obstruct or hamper the police investigation and

not to play mischief with the evidence collected or yet to be collected by the police.

Sd/-

JUDGE

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