Karnataka High Court

Shivappa B C vs State Of Karnataka on 18 January, 2022

Bench: K.S.Mudagal

                                        Crl.A.No.1817/2021

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 18TH DAY OF JANUARY 2022

                        BEFORE

        THE HON'BLE MRS JUSTICE K.S.MUDAGAL

          CRIMINAL APPEAL No.1817/2021

BETWEEN:

1.     SHIVAPPA B.C.
       S/O LATE PATEL CHANAPPA
       AGED ABOUT 65 YEARS
       R/O NO.476, 10TH MAIN
       SHARADHA LAYOUT
       RAILWAY LAYOUT
       BOGADI, MYSORE - 570 026

3.     MOHAN K.L.
       S/O LAKSHMANA
       AGED ABOUT 48 YEARS
       R/O HULUSE VILLAGE
       KODLIPET HOBLI
       SOMWARPET TALUK
       KODAGU DISTRICT - 571 201            ...APPELLANTS

(BY SRI A.G.SRIDHAR, ADVOCATE)

AND:

1.     STATE OF KARNATAKA
       SHO BY SOMWARPET POLICE
       REPRESENTED BY PUBLIC PROSECUTOR
       ATTACHED TO THIS HON'BLE COURT

2.     SURENDRA B
       POLICE SUB-INSPECTOR
       CIVIL RIGHTS ENFORCEMENT
       DIRECTORATE
       MYSURU - 570 001                   ...RESPONDENTS

(BY SRI.SHANKAR H S, HCGP FOR R1;
    SRI.C.JAGADEESH, SPL.P.P. FOR R2)
                                         Crl.A.No.1817/2021

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      THIS CRIMINAL APPEAL IS FILED UNDER SECTION
U/S.14-A(2) OF SC/ST (POA) ACT, 2015 PRAYING TO SET
ASIDE THE ORDER DATED 29.11.2021 PASSED BY THE I
ADDITIONAL DISTRICT AND SESSIONS JUDGE, KODAGU,
MADIKERI IN CRL.MISC.NO.280/2021 AND ENLARGE THE
APPELLANTS/ACCUSED NO.2-3 ON BAIL IN CR.NO.109/2021
on the file of the I ADDITIONAL DISTRICT AND SESSIONS
JUDGE,     KODAGU,    MADIKERI  REGISTERED   BY    THE
RESPONDENT POLICE FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 197, 198, 420 OF IPC AND SEC.3(1)(Q) OF
SC/ST (POA) AMENDMENT ACT, 2015 UNDER SEC.5(B) OF
KARNATAKA SC/ST AND OTHER B.C (RESERVATION OF
APPOINTMENT) ACT-1990.

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

                    JUDGMENT

Heard.

2. Aggrieved by the rejection of their application

for grant of anticipatory bail, accused Nos.2 to 3 in Crime

No.109/2021 of Somwarpet police station have preferred

the above appeal.

3. Crime No.109/2021 was registered against

the appellants and accused No.1 Vijay.R for the offences

punishable under Sections 197, 198, 420 of IPC, Section

3(1)((q) of the Scheduled Castes and the Scheduled

Tribes (Prevention of Atrocities) Amendment Act, 2015 Crl.A.No.1817/2021

('the Act' for short) and Section 5B of the Karnataka

Scheduled Castes, Scheduled Tribes and other Backward

Classes (Reservation of Appointment Etc.) Act, 1990 ('the

Act, 1990' for short) on the basis of the complaint of

Surendra.B., the Police Sub-Inspector of DCRE Cell,

Mysuru.

were working as Tahsildar and village accountant in

Somwarpet Taluka office. On the application of accused

No.1, appellant Nos.1 and 2 conducted enquiry and

issued certificate dated 22.08.2016 certifying that

accused No.1 belongs to Bhovi community a Scheduled

Caste. The Caste verification Committee of Kodagu,

Madikeri passed the order dated 25.11.2020 holding that

accused No.1 in collusion with the appellants has secured

fake caste certificate to the effect that he belongs to

Bhovi community, though he belonged to Naidu

community which is not a scheduled caste.

5. The caste verification committee cancelled the

caste certificate issued in favour of accused No.1. Further Crl.A.No.1817/2021

respondent No.2 was directed to file complaint against

the appellants and accused No.1 for granting false caste

certificate. On that basis, he filed the complaint and the

case was registered in Crime No.109/2021.

6. The appellants apprehending their arrest in

the said case filed anticipatory bail petition before I

Additional District & Sessions Judge and Special Judge,

Kodagu, Madikeri in Crl.Misc.No.280/2021. The trial Court

by the impugned order rejected the said application on

the ground that Section 18A of the Act bars

granting anticipatory bail in cases where the allegations

against the accused prima-facie attract the provisions of

the Act.

7. Sri A.G.Sridhar, learned Counsel for the

appellants submits that the appellants issued caste

certificate on conducting due enquiry based on the caste

certificate issued by the competent authority as long as

back in the year 1996 as per Annexure-C and other

material placed before them during enquiry. Therefore he

contends that prima-facie the provisions of the Act are Crl.A.No.1817/2021

not attracted against the appellants. In support of his

arguments, he relies on the judgments of the Hon'ble

Supreme Court in Prathvi Raj Chauhan v. Union of India1

and Rahna Jalal v. State of Kerala2.

8. Per contra, Sri H.S.Shankar, learned HCGP for

respondent No.1 and Sri C.Jagadeesh, learned Special

Public Prosecutor for respondent No.2 submit that the

appellants have not followed the due procedure as

prescribed under Rule 3 the Karnataka Scheduled Castes,

Scheduled Tribes and other Backward Classes

(Reservation of Appointment Etc.) Rules, 1992 ('the

Rules' for short). Therefore, they submit that there is

prima-facie case against them and Section 18A of the Act

is applicable. In support of the said contentions, they rely

on the judgments of this Court in Smt.Jayanthi vs. State

of Karnataka3 and Sri G.M.Sannamudaiah & Anr vs. The

State of Karnataka and others4.

(2020) 4 SCC 727

(2021) 1 SCC 733

Crl.P.No.778/2021 DD 17.03.2021

W.P.No.6835/2021 (GM-CPC) DD 24.06.2021.

Crl.A.No.1817/2021

9. Section 18A(2) of the Act, which is relevant

for the purpose of this case, reads as follows:

" Section 18A (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."

10. Reading of the above provision shows that

nothing under Section 438 of Cr.P.C. relating to

anticipatory bail shall apply in relation to any cases of

accusation and commission of the offences under the Act.

By insertion of Section 18A(2), it was intended to give

overriding effect to the judgment of the Courts also.

11. The amending Act to include Section 18A

came into effect from 20.08.2018. However, subsequent

to that, the Hon'ble Supreme Court in Prathvi Raj

Chauhan's case and Rahna Jalal's case referred to supra

held that Sections 18 and 18A of the Act are not

applicable, if prima-facie no case is made out against the

accused involving the offences under the Act.

12. The aforesaid judgments have force of law by

virtue of Article 141 of the Constitution of India. Under Crl.A.No.1817/2021

the circumstances, this Court has to examine whether

there is prima-facie case to exclude the provisions of

Section 438 of Cr.P.C.

13. The complaint is filed alleging the commission

of the offences under Section 3(1)(q) of the Act and

Section 5B of the Act, 1990. Section 3(1)(q) of the Act

applies to any person giving false and frivolous

information to any public servant or causes such public

servant to use his lawful power to the injury or annoyance

of the members of the scheduled castes/scheduled tribes.

14. Section 5B of the Act 1990 deals with penalty

for issuing a false caste certificate or income certificate

which reads as follows:

"5B. Penalty for issuing a false Caste Certificate or Income and Caste Certificate.- If the Tahasildar

intentionally issues a false Caste Certificate or Income

and Caste Certificate, he shall on conviction, be punishable with rigorous imprisonment for a term which shall not be less than six months but which may extend upto two years and with fine which shall not be less than one thousand rupees but which may extend to five thousand rupees:

Crl.A.No.1817/2021

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Provided that the Court may, for adequate and special reasons to be recorded, impose a sentence of imprisonment for a lesser term or lesser fine."

To attract liability under the above provision there

should be intentional issue of false caste certificate.

15. In the case on hand, the appellants are not

beneficiaries of the caste certificate in question. It was

accused No.1 who was beneficiary. The records produced

by the appellants show that accused No.1 produced the

caste certificate issued in his favour by the Tahsildar,

Somwarpet in the year 1996 to the effect that he belongs

to Bhovi Community. He also produced caste certificates

of his daughter and son issued by the Tahsildhar,

Somwarpet on 22.08.2011 and the Transfer certificate of

his daughter and son issued by the concerned authorities

on 24.05.2012 and 07.05.2009. They also conducted local

enquiry and issued the caste certificate.

16. Respondent No.2 or Civil Rights Enforcement

Directorate have not filed any complaints against those

Tahsildars who issued certificate in the years 1996 and Crl.A.No.1817/2021

2011. It was contended that enquiry as required under

Rules 3A and 3B of the Rules was not held. The records

produced at this stage show that the appellants relied on

the school and caste certificates submitted by accused

No.1, more so the caste certificate issued by the very

same department about 10 years prior to 2016.

17. Therefore at this stage, it cannot be said that

the appellants were not diligent or they intentionally

issued false certificates. As certificates of 1996 and 2011

were not questioned, prima-facie case of intentionally

issuing the caste certificate is not made out. Under such

circumstances and in the light of the aforesaid judgments

of the Hon'ble Supreme Court, Sections 18 and 18A are

not attracted.

18. In Smt.Jayanthi's case referred to supra by

learned Special Public Prosecutor, the beneficiary of the

caste certificate herself was prosecuted. She had secured

employment based on such false certificate. The

judgment in Sri G.M.Sannamudaiah's case referred to

supra did not relate to grant of anticipatory bail that Crl.A.No.1817/2021

relates to the competence to prosecute such accused. In

this case the appellants have not challenged their

prosecution, but they are only seeking anticipatory bail.

Therefore both those judgments cannot be justifiably

applied to the facts of the case.

19. The offences alleged are not punishable with

death or life imprisonment. Appellants have deep roots in

the society. The alleged false certificates/documents are

in the custody of respondent No.2. Therefore there is no

scope for the appellants to tamper them. Under the

circumstances, the trial Court was not justified in

rejecting the anticipatory bail. Therefore the appeal is

allowed.

The impugned order is hereby set aside. The

appellants are granted anticipatory bail in Crime

No.109/2021 of Somwarpet police station. If they are

arrested in the said case they shall be released on bail

subject to the following conditions:

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

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(ii) The appellants shall execute personal bond in a sum of Rs.25,000/- each and furnish two sureties in the likesum to the satisfaction of the Investigating Officer/Jurisdictional Court for their appearance.