Karnataka High Court

Krishna S/O Manjayya Shetty vs The State Of Karnataka on 25 May, 2022

Bench: K.Natarajan

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

       DATED THIS THE 25TH DAY OF MAY 2022

                       BEFORE

       THE HON'BLE MR.JUSTICE K. NATARAJAN

        CRIMINAL APPEAL NO.100170 OF 2022

BETWEEN

1 . KRISHNA S/O MANJAYYA SHETTY
    AGE 63 YEARS, RYOT,
    R/O KAMKODI, KARKI VILLAGE,
    TALUK. HONNAVAR-581341

2 . SMT MAHADEVI W/O KRISHNA SHETTY
    AGE. 55 YEARS, RYOT
    R/O KAMKODI KARKI VILLAGE,
    TALUK. HONNAVAR-581341

3 . MAHESH S/O KRISHNA SHETTY
    AGE. 35 YEARS, RYOT
    R/O KAMKODI , KARKI , VILLAGE,
    TALUKA. HONNAVAR-581341

                                        ...APPELLANTS

(BY SRI.C S PATIL AND SRI.RAJASHEKAR R. GUNJALLI,
ADVS. FOR A1 AND A2) (APPEAL IN RESPECT OF APPELLANT
NO.3 IS DISMISSED AS NOT PRESSED VIDE ORDER DATED
25.05.2022)
AND

1.   THE STATE OF KARNATAKA
     REP. BY STATE PUBLIC PROSECUTOR
                                  2




     KARNATAKA HIGH COURT DHARWAD-580011
     THROUGH HONNAVAR POLICE STATION,

2.   MASTI
     S/O. DURGU MUKRI
     AGE- 50 YEARS, RYOT,
     R/O. KAMKODI KARKI VILLAGE,
     TQ-HONNAVAR-581341



                                                    ...RESPONDENTS

(BY SMT.GIRIJA S. HIREMATH, HCGP R-1)
(R2-SERVED, UNREPRESENTED)

      THIS CRIMINAL APPEAL IS FILED U/S 14A(2) OF SC
AND ST (POA) ACT, 1989, SEEKING TO CALL FOR RECORDS,
AND ALLOW THIS CRIMINAL APPEAL BY SETTING ASIDE THE
ORDER OF REJECTING THE ANTICIPATORY BAIL PETITION IN
CRIMINAL MISC.NO.90/2022 DATED 22.03.2022 PASSED BY
THE II     ADDITIONAL      DISTRICT    AND    SESSIONS      JUDGE,
UTTARA KANNADA, KARWAR IN CRIME NO.56/2022 OF
HONNAVAR P.S. AGAINST THE APPELLANTS FOR OFFENCE
PUNISHABLE U/S 504, 34 AND SECTIONS 3(1)(r), 3(1)(g),
3(1)(s),   3(2)(va)   OF    SC   AND    ST     (PREVENTION     OF
ATROCITIES) AMENDED ACT, 2015 AND ALLOW THE APPEAL
BY    GRANTING        ANTICIPATORY           BAIL     AND     ETC.


      THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
                                3




                         JUDGMENT

This appeal is filed by appellant nos.1 and 2 under

Section 14A(2) of Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities Act, 1989)( herein after for short'

SC/ST(POA) Act,1989) for setting aside the order of the

Special Court in Crl.Misc.No.90/2022 dated 22.03.2022 for

having rejected the anticipatory bail petition filed under

Section 438 of Code of Criminal Procedure (herein after for

short 'Cr.P.C.').

2. Heard the arguments of learned counsel for

appellant Nos.1 and 2 and learned HCGP for respondent-

State. Respondent No.2 served but unrepresented.

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

complaint given by respondent No.2 before the Police on

04.02.2022, the Police registered the case against appellant

Nos.1 to 3, wherein it is alleged that he is residing with his

family and having property bearing survey No.631 which is

measuring 3 cents and appellants said to be owners of

adjacent property and they used to encroach the property of

the complainant and always appellants used to abuse them

that they belongs to members of Schedule Caste and

Schedule Tribe and they always insulting them by saying that

they belongs to Schedule Caste people. But, on 23.12.2021 at

about 4 pm, the accused persons abused them in filthy

language stating that they belongs to the members of the

Schedule Tribe and also they encroached a portion of

property belongs to them and obstruct their way. He has

conducted survey by giving application to survey department

and he found that 0-0-6 cent is encroached and he requested

for removing the encroachment. They refused to remove the

encroachment. Hence, the present appeal is filed. After

registering the case, appellants are apprehending their arrest

for the non-bailable offence. Hence, they approached

Sessions Court under Section 438 of Cr.P.C. which came to be

dismissed by the impugned order. Hence, appellants are

before this Court. It is submitted that during the pendency of

the appeal appellant no.3 was arrested and remanded to

judicial custody.

4. Learned counsel for the appellants contended that

they are not aware of any encroachment of the property and

subsequently, when appellants came to know about the

encroachment, they removed the encroachment and released

the property. Complainant and appellants both are neighbors

living for long time. There are no ingredients attracting

offences under Sections 18 and 18A of SC/ST Act, where the

Police have registered a NCR case. He further submits that

appellant No.1 is suffering from ailment and both the

appellants are ready to abide by the conditions imposed by

this Court. Hence, prays for anticipatory bail by setting aside

the order of the Special Court.

5. Per contra, learned HCGP contends that

appellants knowing fully well encroached the property which

belongs to members of schedule caste and abused them in

filthy language and treated continuously them as

untouchable, it was going for a long time and inspite of

conducting survey and proved the encroachment, the

appellants refused to remove encroachment and release the

property and thereby committed offence. There is no illegality

committed by trial Court. There is a bar under Section 18 and

18A of SC/ST (POA) Act. Hence, prays to reject the appeal.

6. Upon hearing the arguments, I have perused the

records.

7. The point that arises for consideration of this

Court is that whether the appellants have made out a case for

setting aside the order of the trial Court and to grant

anticipatory bail.

8. On perusal of record and complaint, it reveals

that appellants and the respondent No.2 are the neighbors

having property adjacent to each other but the complaint

goes to reveal that appellants encroached the property of the

complainant and they always used to insult them saying that

they are untouchable. Complainant requested to remove

encroachment but appellants refused to do. Hence he has

filed application before the survey authority and proved

encroachment. Inspite of the same, appellants were not

removing the encroachment. They lodged complaint in

February-2022. Complainant stated that on 23.12.2021, the

accused / appellants abused him in filthy language and inspite

of knowing that they are their neighbors living for long time

they are treated as untouchable. It is also stated that

appellants are not happy with lower caste people residing

adjacent with their house.

9. Learned counsel for appellant submitted that both

parties are living as co-neighbors for long time and they are

not at all living cordially. Appellants submit that, after

conducting survey they have released the encroached

property to complainant. But, no such documents are

produced to show that after conducting survey they released

the property to complainant.

10. Provisions of Section 3(2)(va) and 3(1)(g) OF SC

/ ST (PREVENTION OF ATROCITIES) ACT, 1989 reads as

under:

Section 3(1)(g) :- Wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights, including forest rights, over any land or

premises or water or irrigation facilities or destroys the crops or takes away the produce therefrom.

Explanation: -For the purposes of clause (f) and this clause, the expression 'wrongfully' includes-

           (A)    against the person's will;
           (B)    without the person's consent;
           (C)    With the person's consent, where such

consent has been obtained by putting the person or any other person in whom the person is interested in fear of death or of hurt; or (D) Fabricating records of such land;

Section 3(2)(va) :- Commits any offence specified in the Schedule, against a persons or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code(45 of 1860) for such offences and shall also be liable to fine;)

11. On bare reading of the provisions and averments

of complaint, it clearly goes to show that appellants have

committed offences alleged against them. That apart it

cannot be ruled out that they are not having encroachment

and they are ready to give property to the complainant.

12. In this regard, themselves produced documents

whether the second appellant herself filed complaint on

21.08.2021 stating that they have not encroached any

property and lodged complaint against complainant, NCR is

registered by the Police and notice also issued to the

complainant. It reveals that appellants are having knowledge

of encroachment and also they also belongs to member of

schedule caste and schedule tribe people. Therefore, the

contention that they are not having any knowledge about the

caste of complainant is false. Ingredients of Section 3(1)(g)

and 3(2)(va) is clearly attracted. That apart as per Section

18 and 18A, there is a bar for grant of anticipatory bail.