Darshan Nayaka vs The State Of Karnataka
2022 Latest Caselaw 2859 Kant

                                      Crl.A.No.183/2022
                         1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 21ST DAY OF FEBRUARY, 2022

                     BEFORE:

     THE HON'BLE MRS.JUSTICE K.S.MUDAGAL

           CRIMINAL APPEAL No.183/2022
BETWEEN:

1.    DARSHAN NAYAKA
      S/O G.S.SHIVU
      AGED ABOUT 27 YEARS

2.    ABHISHEK NAYAKA
      S/O G.S.SHIVU
      AGED ABOUT 23 YEARS
      BOTH R/AT SURYA NILAYA
      NIMISHAMBA TEMPLE ROAD,
      GANJAM, SRIRANGAPATNA
      MANDYA DISTRICT - 571 477      ...APPELLANTS

(BY SRI.VIVEK S. REDDY, SENIOR COUNSEL FOR
    SRI.K.N.SUBBA REDDY, ADVOCATE)

AND:

THE STATE OF KARNATAKA
BY SRIRANGAPATNA POLICE
MANDYA DISTRICT
REP: BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE - 560 001               ..RESPONDENT
(BY SRI.SHANKAR H.S., HCGP,
SRI.JAGADISH C., SPL.P.P. FOR
FIRST INFORMANT/COMPLAINANT)
                                             Crl.A.No.183/2022
                             2




     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
14A(2) OF SC/ST (POA) ACT READ WITH SECTION 438 OF
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED
04.01.2022 IN CRL.MISC.NO.1261/2021 PASSED BY THE
LEARNED V ADDITIONAL DISTRICT AND SESSIONS JUDGE
MANDYA AND TO GRANT ANTICIPATORY BAIL IN THE
EVENT OF THE APPELLANTS BEING APPREHENDED ON THE
COMPLAINT AND FIR IN CR.NO.251/2021 REGISTERED BY
THE RESPONDENT POLICE FOR ALLEGED OFFENCES
PUNISHABLE UNDER SECTIONS 197, 198, 420 OF IPC AND
SECTION 3(1)(Q) OF SC/ST (POA) AMENDMENT ACT 2015
AND UNDER SECTION 5(B) OF SC/ST AND OTHER B.C
(RESERVATION OF APPOINTMENT ACT) 1990 AND DIRECT
THE RESPONDENT POLICE TO RELEASE THE APPELLANTS
ON BAIL IN THE EVENT OF THEIR ARREST.

    THIS   CRIMINAL   APPEAL  COMING ON FOR
ADMISSION THIS DAY, THE COURT THROUGH VIDEO
CONFERENCE DELIVERED THE FOLLOWING:


                      JUDGMENT

Aggrieved by the rejection of anticipatory bail

petition, the accused in Crime No.251/2021 of

Srirangapatna Police Station has preferred the above

appeal.

2. Appellants are accused Nos.1 and 2 in

Crime No.251/2021 of Srirangapatna Police Station.

Appellants are the sons of one Shivu and Rajeshwari.

Crl.A.No.183/2022

On 18.08.2017 Tahsildar issued Caste Certificate in

favour of the appellants to the effect that they belong

to `Nayaka Community' (Schedule Tribe).

3. The District Caste Verification Committee

by its order dated 31.08.2021 ordered for cancellation

of caste certificates of the appellants on the ground

that they belong to `Besta Community' a non

schedule tribe/caste and by furnishing false

information that they belonged to `Nayaka

Community', they have obtained false certificates.

4. The District Caste Verification Committee

also held that the appellants by impersonation

obtained false certificates and cheated the

Government servants. Further the District Caste

Verification Committee directed respondent No.2 the

police inspector, Directorate of Civil Rights

Enforcement, Mysuru to file a complaint against the Crl.A.No.183/2022

appellants. Accordingly he filed a complaint before

the respondent-police.

5. On the basis of such complaint, respondent

has registered Crime No.251/2021 against the

appellants for offences punishable under Sections 197,

198 and 420 IPC and Section 3(1)(q) of SC/ST (POA)

Amendment Act 2015 and Section 5(b) of Karnataka

SC/ST and other B.C (Reservation of Appointment

Act), 1990.

6. Apprehending their arrest in the said case,

appellants filed anticipatory bail application before the

V Additional District and Sessions Judge, Mandya.

Learned Sessions Judge by the impugned order

rejected their petition on the ground that Section 18

of the Act bars granting of anticipatory bail in such

cases. The trial court also holds that based on such

caste certificates, the appellants applied for Crl.A.No.183/2022

Engineering seat in CET competitive examination.

Therefore there is a prima facie case attracting

Section 18 of the Act.

7. Sri.Vivek Reddy, learned Senior counsel for

appellants submits that the marriage of the parents of

appellants was inter-caste marriage and their mother

belonged to `Nayaka Community'. He further submits

that they urged such contention before the Caste

Verification Committee and the Committee rejected

the same and now the matter is pending in appeal

before the Director of Tribal Welfare, Bengaluru.

Therefore he submits that the order of the Caste

Verification Committee cannot be called as prima facie

material in proof of the alleged offences.

8. Sri.C.Jagadish, learned Special Counsel for

first informant and Sri.Shankar H.S., learned HCGP for

respondent submit that in the appeal filed by Crl.A.No.183/2022

appellants there is no interim stay order and the order

of the Caste Verification Committee still operates. He

submits that in view of that there is prima facie

material to attract provision of Sections 18 and 18A of

the Act which bars grant of anticipatory bail.

9. The Hon'ble Apex Court in the case of

Prathviraj Chauhan Vs Union of India and others

reported in (2020) 4 SCC 727 and Rahna Jalal Vs

State of Kerala and another reported in (2021) 1

SCC 733 held that Section 18A of the Act bars grant

of anticipatory bail when prima facie material exists. It

was further held that where there is no prima facie

material to indicate that the case attracts applicability

of the provisions of SC/ST (POA) Act the exclusion of

Section 438 of Cr.P.C does not apply. It was further

held excluding anticipatory bail infringes right to

liberty. It was held that for the court to apply bar to

Section 438 Cr.P.C., the test is whether there is Crl.A.No.183/2022

prima facie material attracting the applicability of the

provisions of the Act.

10. In the case on hand before the Caste

Verification Committee the appellants contended that

their mother belonged to Schedule Tribe, therefore

acquired the status of Schedule Tribe community. The

District Caste Verification Committee rejected the said

contention holding that their mother did not come

before the Committee.

11. Admittedly against the said order, an

appeal is preferred under Section 4(d) of the

Karnataka SC/ST and other B.C (Reservation of

Appointments etc.) Act, 1990 before the Director of

Tribal Welfare in Appeal No.15/2021. Section 4(d) of

the said Act does not provide for granting any interim

order. In this case the appellants have also produced

copy of caste certificate of their mother M.Rajeshwari Crl.A.No.183/2022

issued by Tahsildar, Kollegal on 28.08.2002. In that

she is shown to be member of Schedule Tribe

Community.

12. Learned Special counsel for the first

informant relied on following Judgments of this court

in support of his contentions:

(i) Crl.P.No.778/2021- Smt.Jayanthi Vs State of Karnataka - disposed of 17.03.2021.

(ii) Crl.P.No.4736/2014 - Sri.R.Mallaraju Vs State of Karnataka - disposed of on 22.08.2014.

(iii) Crl.P.No.312/2014 -Shri.Ramesha Vs State of Karnataka and anr - disposed of on 29.07.2021.

     (iv)W.P.No.8931/2016                               -
     Sri.S.L.Sathyanarayana Rao          Vs State of
                                               Crl.A.No.183/2022





     Karnataka     and   anr   -   disposed    of   on
     28.09.2018.

13. As against that learned Senior counsel for

the appellants relied on the following Judgments:

    (i)    2017    SCC    Online     Kar   3725       -
    Sri.Mallikarjun   Sutturmath     Vs    State     of
    Karnataka

(ii) Crl.A.No.1361/2021 -Smt.K.Susheela Vs State of Karnataka and anr - disposed of on 01.10.2021.

14. Perusal of the Judgments of Jayanthi and

R.Mallaraj shows that in those cases no appeals were

pending. Ramesha's case and S.L.Sathyanarayana

Rao's case did not deal with the matter under Section

14A of the Act. They were under Section 482 of Cr.P.C

for quashing of the proceedings.

15. In R.Mallaraju and Mallikarjun Sutturmath's

cases noticing that appeal against order of Caste Crl.A.No.183/2022

Verification Committee was pending, it was held that

such order of committee does not become prima facie

material to attract the provisions of SC/ST (POA) Act.

Since the appeal against order of Caste Verification

Committee is pending Judgments relied by learned

Special counsel cannot be justifiably applicable to this

case.

16. So far as apprehension of tampering the

evidence, all the evidence in the case is in the form of

documentary evidence. They are official records.

Therefore chance of the appellants tampering them is

very remote.

17. In the circumstances trial court was not

justified in holding that Section 18 of the Act is

applicable. Such view of the trial court was contrary

to the principles held in Prathviraj Chauhan and Crl.A.No.183/2022

Rahna Jalal's case. Therefore unsustainable.

Consequently appeal is allowed.

The impugned order is hereby set aside. The

appellants are granted anticipatory bail in Crime

No.251/2021 of Srirangapatna Police Station. If they

are arrested in the same case, they shall be released

on bail subject to the following conditions:

(i) They shall appear before the Investigating Officer within ten days from the date of receipt of copy of this order.

(ii) They shall execute personal bond for a sum of Rs.25,000/- each and furnish one surety each in the likesum.

(iii) They shall not tamper the prosecution witnesses by threats, inducement or otherwise.

                                       Crl.A.No.183/2022





  (iv)   They    shall    appear   before      the

Investigating Officer/Court as and when required.

Sd/-

JUDGE SBN