Karnataka High Court

Heena And Ors vs The State Of Karnataka And Anr on 28 March, 2022

Bench: Jyoti Mulimani

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         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

      DATED THIS THE 28 TH DAY OF MARCH, 2022

                      BEFORE

      THE HON'BLE MS. JUSTICE JYOTI MULIMANI

      CRIMINAL APPEAL NO.200031 OF 2022

BETWEEN:

1.   HEENA
     W/O HUSASINSAB @ BALLU @ BABALU
     OCC: NIL, R/O JALASINGI
     TQ: HUMNABAD
     DIST: BIDAR.

2.   MOSEEN
     S/O BASEERSAB
     AGE:30 YEARS
     R/O JALASINGI, TQ: HUMNABAD
     DIST: BIDAR.

3.   SAHIDA BEE
     W/O BASEERSAB
     AGE: 55 YEARS
     R/O JALASINGI, TQ: HUMNABAD
     DIST: BIDAR.

4.   SHANAZ BEGUM
     W/O REYOZODDIN
     D/O BASEERSAB
     AGE: 35 YEARS, OCC: HOUSE-HOLD
     R/O NANDGAON, TQ: HUMNABAD
     DIST: BIDAR.                   ...APPELLANTS

(BY SRI.SHARANABASAPPPA K.BABSHETTY, ADVOCATE)
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AND:

1.     THE STATE OF KARNATAKA
       THROUGH THE HUMNABAD POLICE STATION
       REPRESENTED BY THE
       ADDL. STATE PUBLIC PROSECUTOR
       HIGH COURT OF KARNATAKA
       AT KALABURAGI BENCH.

2.     MARUTI
       S/O TUKARAM SHILPI
       AGE: 56 YEARS, OCCU: DRIVER
       R/O JALASINGI, TQ: HUMNABAD
       DIST: BIDAR.                    ...RESPONDENTS

(BY SRI.SHARANABASAPPA M.PATIL, HCGP FOR R1;
     SRI.SHIVAPUTRA S.UDBALKAR, ADVOCATE &
     SRI.PREETAM DEULGOANKAR, ADVOCATE FOR R2)

       THIS CRIMINAL APPEAL IS FILED UNDER SECTION
14(A) (2) OF SC/ST (POA) ACT, 1989, PRAYING TO SET
ASIDE THE ORDER DATED:25.01.2022 PASSED BY THE II
ADDL. DISTRICT AND SESSIONS JUDGE, AT BIDAR,
SITTING AT BASAVAKALYAN, IN CRL.MISC.NO.5002/2020
AND GRANT ANTICIPATORY BAIL TO THE APPELLANTS/
ACCUSED, IN CRIME NO.175/2021 OF HUMNABAD POLICE
STATION,   FOR   THE    OFFENCES   PUNISHABLE   UNDER
SECTION 323, 504, 506 READ WITH SECTION 149 OF IPC
AND UNDER SECTIONS 3(1)(r), 3(1)(s), 3(2)(v-a) OF
SC/ST    (PA)    ACT,   1989,   NOW   SPL.C     (SC/ST)
NO.5002/2022, PENDING BEFORE THE II ADDL. SESSIONS
JUDGE AT BIDAR, SITTING AT BASAVAKALYAN.
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      THIS CRIMINAL APPEAL COMING ON FOR ORDERS
THIS DAY, THE COURT DELIVERED THE FOLLOWING:


                        JUDGMENT

Sri.Sharanabasappa K.Babshetty, learned counsel for

appellants, Sri.Sharanabasappa M.Patil, learned High Court

Government Pleader for respondent No.1 and Sri.Preetam

Deulgoankar, learned counsel for respondent No.2, have

appeared in-person.

2. Appellants have filed the appeal to set aside

the order dated 25.01.2022 passed by the Court of II

Additional District and Sessions Judge, Bidar, sitting at

Basavakalyan in Crl.Misc.No.5002/2022, wherein the

application under Section 438 of Cr.P.C. for anticipatory

bail is dismissed.

3. Sri.Sharanabasappa K.Babshetty, learned

counsel for appellants submits that the appellants are

innocent of the offences alleged against them and they

have been falsely implicated in the above case and at the

instance of their ill-wishers.

Next, he submitted that in the entire complaint there

is no any allegation that the appellants / accused persons

have taken the caste name of the complainant. It is also

submitted that the place where the incident alleged to

have taken place is not a public place.

A further submission is made that the penal

provisions of Section 3(r)(s) and 3(2)(v-a) of the

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989 (for short 'the Act') are not attracted

to the case on hand.

It is submitted that the omnibus and vague

allegations of caste abuse have been made against the

appellants. As per the complaint averments, it is also clear

that the alleged caste abuse is not in any place within

public view which is essential to attract the aforesaid

provision. In the absence of the same, there may not be

any justifiable ground to deny the benefit of bail to the

appellants.

Lastly, he submitted that the appellants are ready

and willing to abide by such terms and conditions that may

be imposed upon them. Accordingly, the appellants may be

released on anticipatory bail and the appeal may be

allowed.

4. Learned High Court Government Pleader for

respondent-1 has opposed for the grant of anticipatory

bail.

Next, he submits that looking to the complaint

averments there is a prima facie case against the

appellants for the offence punishable under Section

3(1)(r)(s) and 3(2)(v-a) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, 1989 and

other offences under Indian Penal Code.

A further submission is made that there is a bar

under Section 18 and 18-A of the Act from entertaining the

petition under Section 438 of Cr.P.C. The Special Court

considering all these aspects has rightly rejected the

anticipatory bail application and the order does not require

any interference.

Accordingly, he submits that this is not a fit case to

grant anticipatory bail. Hence, the appeal may be

dismissed.

5. Heard, the contentions urged on behalf of

appellants, respondent Nos.1 and 2 and perused the FIR,

complaint, the impugned order.

The complaint is lodged by one Maruti S/o.Tukaram

Shilpi, who is a resident of Jalsangi Taluk, Humnabad,

Bidar District. In the complaint, two incidents are

narrated. One incident is with reference to the occurrence

of the alleged incident on 17.10.2021 and the other one is

with reference to the occurrence of the alleged incident on

12.11.2021. In the complaint, there is no allegation of

caste abuse and assault.

I have perused the complaint. The complaint

averments do not depict that public are present at the time

of the alleged incident. Thus, at this stage, there is no

reason to presume the presence of any other persons who

said to have seen the alleged commission of the offence or

heard the prescribed words that were allegedly touching

the caste of the complainant.

The expression employed in Section 3(1) (r) and (s)

namely, in any place within public view pre-supposes the

presence of other persons, other than the accused persons

who alleged to have committed the offence. It also pre-

supposes the commission of the offence in public view.

Therefore, on perusal of the entire complaint, at this stage,

no prima facie case is made to attract the offence under

Section 3(1)(r) and (s) of the Act.

The Hon'ble Apex Court in PRATHVI RAJ

CHAUHAN vs. UNION OF INDIA AND OTHERS reported

in (2020) 4 SCC 727 has held that if the complaint does

not make out 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 said aspect is

contained in paragraph No.11, which is extracted as

under:-

"11. 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".

In the present case, the complaint does not make

out prima facie for applicability of provisions of the Act,

hence the bar created under Section 18 & 18-A shall not

apply. The learned Judge has failed to have regard to

relevant considerations and disregarded relevant matters.

In my considered opinion, the order is unsustainable in

law.

The main objection of the prosecution is that if the

appellants are granted with anticipatory bail, they may

tamper prosecution witness. The said objection may be set

right by imposing some stringent conditions.

6. On facts and in all the circumstances of the

case and submission made across the Bar, this Court is of

the view that there are valid grounds for setting aside the

order and granting bail subject to terms and conditions.

Hence, the Court passes the following:

ORDER

i. The appeal is allowed.

ii. The order dated:25.01.2022 passed by the II Additional District and Sessions Judge at Bidar, Sitting at Basavakalyan in Crl.Misc.5002/2002 is set aside.

The appellants shall be released in the event of their

arrest in Crime No.175/2021 registered by the Humnabad

Police Station for the offences punishable under Section

3(1)(r), 3(1)(s), 3(2)(v-a) of Scheduled Caste and

Scheduled Tribe (Prevention of Atrocities) Act, 1989 and

Sections 323, 504, 506 read with Section 149 of IPC,

subject to the following conditions:-

1. The appellants shall appear before the Investigating Officer within a period of two weeks from the date of receipt of a certified copy of this order and shall execute a bond in a sum of Rs.1,00,000/- (Rupees One Lakh only) each with one surety for the like sum to the satisfaction of the Investigation Officer.

2. The appellants shall furnish proof of their residential address and shall inform the Investigation Officer / Court if there is change in the address.