Shri Ananthakumar K J vs The State Of Karnataka
2022 Latest Caselaw 5539 Kant

                            1




 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 28TH DAY OF MARCH, 2022

                         BEFORE

        THE HON'BLE MR.JUSTICE MOHAMMAD NAWAZ

           CRIMINAL APPEAL No.130 OF 2022

BETWEEN:

SHRI ANANTHAKUMAR K.J.,
S/O. JAVARASHETTY,
AGED ABOUT 39 YEARS,
RESIDENT OF KODARAMANAHALLI,
KATTAYA HOBLI, HASSAN TALUK,
HASSAN DISTRICT - 573 128.                ... APPELLANT

[BY SRI. SHASHANK S., ADVOCATE]

AND:

  1. THE STATE OF KARNATAKA
     BY KONANUR POLICE STATION,
     ARAKALAGUD TALUK,
     HASSAN DISTRICT - 573 130,
     REP. BY SPP,
     HIGH COURT BUIDLINGS,
     BENGALURU - 560 001.

  2. SHRI ANANDA,
     S/O RAJEGOWDA,
     AGED ABOUT 37 YEARS.

  3. SHRI SWAMY C.,
     S/O. CHANDREGOWDA,
     AGED ABOUT 34 YEARS,

       BOTH RESIDENTS OF
       CHANNIGARAYANA ABBURU,
       KONANUR HOBLI,
       ARAKALGUD TALUK,
                                2




      HASSAN DISTRICT - 573 130.               ... RESPONDENTS

[BY SRI. KRISHNA KUMAR K.K., HCGP FOR R1;
SRI. H. JAYAKARA SHETTY, ADVOCATE FOR R2 & R3]

                            ----

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 14A OF
THE SCHEDULED CASTES AND THE SCHEDULED TRIBES
(PREVENTION OF ATROCITIES) ACT, 1989 READ WITH SECTION
482 OF THE CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED
23.12.2021 (VIDE ANNEXURE-A) PASSED BY THE I ADDITIONAL
DISTRICT     AND     SESSIONS     JUDGE,    HASSAN    IN
CRL.MISC.NO.1513/2021.

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

                          JUDGMENT

This appeal is preferred by the defacto complainant

/ victim, feeling aggrieved by the order granting

anticipatory bail to respondents-2 and 3 in connection

with a case registered in Crime No.294/2021 of Konanur

Police Station, for offences punishable under Sections

3(1)(r), 3(1)(s), 3(2)(va) of Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Amendment

Bill, 2015 (SC/ST (POA) Act for short) and Sections 504,

323, 506 r/w 34 of IPC.

2. The appellant has sought to set aside the

impugned order dated 23.12.2021 passed by the I

Additional District and Sessions Judge, Hassan, in

Crl.Misc.No.1513/2021 and consequently to cancel the

anticipatory bail granted in favour of accused Nos.2 and

3 by the learned Sessions Judge.

3. I have heard the learned counsel for

appellant, the learned HCGP and the learned counsel for

respondents-2 and 3 and perused the material on record.

4. In the complaint lodged by the appellant

herein against respondents-2 and 3 and two others, it is

averred that his father is the owner of a land measuring

3 acres in Sy.No.65, Block No.8 of Heggatthur village,

Konanur Hobli, Arakalagud Taluk, Hassan District. On

21/10/2021 at about 2.00 pm., when he had been to the

said land, accused Nos.1 and 2 and two others abused

him in filthy language as "£À£ï ªÀÄUÀ£É, ¤ªÀÄ¥Àà£ï d«ÄãÀÄ CAxÀ

§A¢zÀå? ¯ÉÆà PÉÆgÀªÀÄ £À£ï ªÀÄUÀ£É, ¤£ï eÁwAiÀÄ PÀ¸À§Ä ªÀiÁrAiÉÄà ©lå®è,

¤Ã£ÀÄ ªÉÆzÀ®Ä §AzÁUÀ¯Éà ¤£ï ©nÖzÀÄ £ÀªÀÄä vÀ¥ÀÄà" and saying so they

held his collar and dragged him, on account of which he

sustained abrasions to his neck. Further, they hit him

with hands and caused pain and then threatened him

saying that they will kill him. At that time, his friend

one Lokesha came and rescued him.

5. Apprehending their arrest, respondents-2 and

3 who are shown as accused Nos.1 and 2 in the FIR

approached the Sessions Court under Section 438 of

Cr.P.C. seeking anticipatory bail. The said petition was

allowed by the learned Sessions Judge vide order dated

23.12.2021 imposing conditions.

6. The learned counsel for appellant would

vehemently contend that the reasons assigned by the

learned Sessions Judge for granting anticipatory bail to

respondents-2 and 3 is contrary to various

pronouncements of the Hon'ble Apex Court and against

the bar created under Sections 18 and 18A of the SC/ST

(POA) Act, 1989. He contends that the Hon'ble Apex

Court has categorically held in various judgments that

the applicability of provisions of Section 438 of Cr.P.C.

shall not apply to the cases under the SC / ST Act when

there is a prima facie case and the exercise of power

under Section 438 of Cr.P.C. should be used sparingly

only in exceptional cases where no prima facie offence is

made out as shown in FIR. Further, he would contend

referring to the judgment in 'Swaran Singh and others

v. State through Standing Counsel and another'

reported in 2008(8) SCC 435 wherein, the Hon'ble Apex

Court has made distinction between "public place" and

"in any place within public view", that the learned Single

Judge was not proper in observing that there is no

material available on record to show that the caste abuse

was made in public view. It is his contention that the

incident took place in the agricultural land and it is

certainly a place within the public view. He submits that

there are specific averments in the complaint wherein

the accused have insulted and humiliated the

complainant by calling him with caste name and

therefore, in view of Section 18 and 18A of the SC/ST

(POA) of the Act, the learned Sessions Judge was not

proper in granting anticipatory bail. Accordingly, sought

to allow the appeal and set aside the impugned order

passed by the learned Single Judge.

7. The learned counsel for respondents-2 and 3

has filed counter affidavit and contended that admittedly

there is a civil case pending in O.S.No.206/2021 and the

main allegation is that the accused have violated the

temporary injunction order passed by the Civil Court by

way of alleged trespass. He contends that in view of

long standing civil litigation between the parties,

respondents-2 and 3 have been implicated in a false case

by converting civil dispute into a criminal case. He

contends that if the complaint is carefully perused then

the ingredients of the offences are not made out. He

contends, it is not alleged in the complaint that the

accused have abused the complainant on the ground that

he belongs to Scheduled Caste and therefore, after

considering the facts and circumstances of the case, the

learned Sessions Judge has rightly allowed the petition

seeking anticipatory bail. He submits that respondents-

2 and 3 have been complying with the conditions

imposed on them while they are enlarged on anticipatory

bail by the learned Sessions Judge and there is no

allegation of violating any of those conditions.

Accordingly, he has sought to dismiss the appeal.

8. The incident is alleged to have taken place on

21.10.2021 at about 2.00 pm. The FIR came to be

registered on 23.11.2021 at 12.30 p.m. The learned

counsel for appellant has drawn the attention of this

Court to the NCR registered on 22.10.2021 i.e., on the

very next day of the incident in question. He submits

that in spite of lodging a complaint, the police have failed

to register any case, hence aggrieved by the inaction of

the police to register a case, the complainant approached

the higher police officers as well as the Superintendent

of Police, Director of Civil Rights, Enforcements and

subsequently the case was registered.

9. Perusal of Annexure-G, which is the

acknowledgment for having received the complaint from

the appellant herein which is dated 22.10.2021, it can be

gathered that the complainant had approached the

jurisdictional police on 22.10.2021, however,

immediately the case was not registered.

10. The Hon'ble Apex Court has held in various

judgments which are relied upon by the learned counsel

for the appellant that Section 438 of Cr.P.C. is not

applicable to a person committing offence under Section

SC/ST Act, if a prima facie case is made out. Section 18

of the SC/ST (POA) Act creates a bar for grant of

anticipatory bail under Section 438 of Cr.P.C. and if there

are specific averments in the complaint, namely insult or

intimidating with an intention to humiliate by calling with

caste name, the accused are not entitled to anticipatory

bail.

11. It is relevant to refer to the observations

made by the Hon'ble Apex Court in the case of Hitesh

Verma v. State of Uttarakand reported 2020(10) SCC

710. Paragraph 13 of the judgment is extracted

hereunder.

"13. The offence under Section 3(1)(r) of the Act would indicate the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe. All insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. The object of the Act is to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes as they are denied number of civil rights. Thus, an offence under the Act would be made out when a member of the vulnerable section of the Society is subjected to indignities, humiliations and harassment. The assertion of title over the land by either of the parties is not due to either the indignities, humiliations or harassment. Every citizen has a right to avail their remedies in accordance with law. Therefore, if the appellant or his family members have invoked jurisdiction of the civil court, or that

respondent No.2 has invoked the jurisdiction of the civil court, then the parties are availing their remedies in accordance with the procedure established by law. Such action is not for the reason that respondent No.2 is member of Scheduled Caste."

12. In the case on hand, the perusal of the

complaint averments does not indicate that the accused

have intentionally abused the complainant only on the

ground he belongs to Scheduled Caste or Scheduled

Tribe. Even according to appellant there is civil litigation

pending between the parties and the appellants father

has instituted a suit in O.S.No.206/2021, which is

pending on the file of the Court of Civil Judge and JMFC,

Arakalagud, Hassan. An exparte temporary injunction

has been granted restraining the defendants from

interfering with the peaceful possession and enjoyment

of the schedule property.

13. It is averred in the complaint that on the date

of incident both the accused along with two others came

to the land in question and abused the complainant as to

why he has come to the said land and also assaulted him

with hands and kicked him etc. An omnibus allegations

are made alleging that all the accused have abused the

complainant referring to his caste. The Hon'ble Apex

Court in 'Hitesh Verma' case (supra) has held that all

insults or intimidations to a person will not be an offence

under the Act unless such insult or intimidation is on

account of victim belonging to Scheduled Caste or

Scheduled Tribe. Keeping in view the observations made

by the Hon'ble Apex Court in the said judgment, at this

stage, it cannot be said that there is a prima facie case

for the applicability of the provisions of the SC/ST (POA)

Act. The Hon'ble Apex Court has held in Prathvi Raj

Chauhan v. Union of India and Others reported in

(2020) 4 SCC 727 that where there is no prima facie

case, the anticipatory bail can be granted depending

upon the circumstances. There is nothing on record, at

this stage, to show that respondents-2 and 3 had any

intention to insult the complainant and abuse him

referring to his caste name only on the ground that he

belongs to Scheduled Caste. It is held that as far as the

provisions of Section 18 and 18A of the SC/ST (POA) Act

is concerned, in cases where no prima facie materials

existing warranting arrest in a complaint, the Court has

inherent power to hear pre-arrest appeal. In that view

of the matter, I see no illegality committed by the

learned Sessions Judge granting anticipatory bail to

respondents-2 and 3. Hence the following:

ORDER

The appeal is dismissed.

In view of dismissal of the appeal, the application

filed for stay does not survive for consideration.

Sd/-

JUDGE

TL