Arif S/O Babusab Buvaji vs The State Of Karnataka
2022 Latest Caselaw 12568 Kant

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                                    CRL.A No. 100462 of 2022




     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

        DATED THIS THE 19TH DAY OF OCTOBER, 2022

                           BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO. 100462 OF 2022 (U/S 14 A(2) of SC
                        and ST ACT-)
BETWEEN:


1.    ARIF S/O BABUSAB BUVAJI
      AGE: 28 YEARS, OCC: COOLIE
      R/O MALLASAMUDRA
      TQ. AND DIST. GADAG-582103

2.    RIYAZ S/O ALLASAB BUVAJI
      AGE: 26 YEARS, OCC: COOLIE
      R/O MALLASAMUDRA
      TQ AND DIST. GADAG-582103

3.    ALTAF S/O GANISAB KAGADGARA
      AGE: 28 YEARS, OCC: COOLIE
      R/O MALLASAMUDRA
      TQ. AND DIST. GADAG-582103

4.    SUBHAN D/O HUSENSAB HOSAMANI
      AGE: 28 YEARS, OCC: COOLIE
      R/O MALLASAMUDRA
      TQ. AND DIST. GADAG-582103

5.    MAHABUBSAB S/O MAKTHUMSAB HARLAPUR
      AGE: 28 YEARS, OCC: COOLIE
      R/O MALLASAMUDRA
      TQ AND DIST. GADAG-582103

6.    SULEMAN S/O HUSENSAB HOSMANI
      AGE: 27 YEARS, OCC: COOLIE
      R/O MALLASAMUDRA
      TQ. AND DIST. GADAG-582103

7.    MABUSAB S/O SABANSAB BUVAJI
      AGE: 26 YEARS, OCC: COOLIE
      R/O MALLASAMUDRA
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                                    CRL.A No. 100462 of 2022

     TQ. AND DIST. GADAG-582103

8.   RAJESABA S/O MAKTHUMSAB HARLAPUR
     AGE: 28 YEARS, OCC: COOLIE
     R/O MALLASAMUDRA
     TQ. AND DIST. GADAG-582103

9.   SHARIFSAB S/O RAJESAB BUVAJI
     AGE: 28 YEARS, OCC: COOLIE
     R/O MALLASAMUDRA
     TQ. AND DIST. GADAG-582103

10. MEERASAB S/O IMAMSAB BUVAJI
    AGE: 29 YEARS, OCC: COOLIE
    R/O MALLASAMUDRA
    TQ. AND DIST. GADAG-582103

11. ASHIF S/O DAVALSAB BUVAJI
    AGE: 28 YEARS, OCC: COOLIE
    R/O MALLASAMUDRA
    TQ. AND DIST. GADAG-582103

12. HUSSENSAB S/O MOULASAB HOSAMANI
    AGE: 29 YEARS, OCC: COOLIE
    R/O MALLASAMUDRA
    TQ. AND DIST. GADAG-582103

13. MOULASAB S/O MABUSAB HOSAMANI
    AGE: 27 YEARS, OCC: COOLIE
    R/O MALLASAMUDRA
    TQ. AND DIST. GADAG-582103

15. MUSTAK S/O HUSENSAB DOLI
    AGE: 28 YEARS, OCC: COOLIE
    R/O MALLASAMUDRA
    TQ. AND DIST. GADAG-582103

16. CHANDASAB S/O IMAMSAB HOSMANI
    AGE: 27 YEARS, OCC: COOLIE
    R/O MALLASAMUDRA
    TQ. AND DIST. GADAG-582103


                                                ...APPELLANTS
(BY SRI. VIDYASHANKAR G DALWAI, ADVOCATE)
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                                     CRL.A No. 100462 of 2022

AND:


1.   THE STATE OF KARNATAKA
     REP. BY STATE PUBLIC PROSECUTOR
     THROUGH GADAG RURAL P.S.,
     NOW REP. BY ITS STATE PUBLIC PROSECUTOR
     HIGH COURT OF KARNATAKA, DHARWAD

2.   RATNAVVA W/O HANAMANTHAPPA GUDI
     AGE: 48 YEARS, OCC: HOUSEHOLD WORK
     R/O: MALLASAMUDRA
     TQ. AND DIST. GADAG-582103



                                                ...RESPONDENTS
(SRI. PRASHANTH V. MOGALI, HCGP FOR R1;
SRI. SRINIVAS NAIK, ADVOCATE FOR R2)

      THIS CRIMINAL APPEAL IS FILED U/S 14 (A) (2) OF SC AND
ST (POA) ACT, 1989, SEEKING TO SET-ASIDE THE JUDGMENT AND
ORDER DATED 29.08.2022 IN CRL.MISC.NO.289/2022 PASSED BY
THE ADDITIONAL DISTRICT AND SESSIONS JUDGE, GADAG AND
ALLOW THIS APPEAL FILED U/S 14(A) (2) OF SC AND ST (POA) ACT,
1989 AND ENLARGE THE APPELLANTS/ACCUSED NO.1, 2 AND 4 TO
16 RESPECTIVELY ON ANTICIPATORY BAIL IN CRIME NO.174/2022
OF GADAG RURAL P.S. FOR OFFENCES PUNISHABLE U/S 143, 147,
323, 427, 448, 504, 506 R/W 149 OF IPC, U/S 3(1)(r)(s), 3(2)(va)
OF THE SC AND ST (PREVENTION OF ATROCITIES) ACT, 2015, IN
THE EVENT OF ARREST.
     THIS CRIMINAL APPEAL COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:


                         JUDGMENT

This appeal is filed by the accused Nos.1, 2 and 4 to

16, challenging the order dated 29.08.2022 passed in

Criminal Misc. No.289/2022, rejecting the anticipatory bail

petition of these appellants sought in Crime No.174/2022 of

CRL.A No. 100462 of 2022

Gadag Rural police Station, for the offences punishable under

Sections 143, 147, 323, 427, 448, 504, 506 read with

Section 149 of IPC and Sections 3(1)(r)(s), 3(2)(va) of the

SC & ST (POA) Act, 1989.

2. Heard the learned counsel for the appellants,

learned HCGP for the respondent No.1 and learned counsel

for the respondent No.2.

3. The case of the prosecution is that, one Smt.

Ratnavva Gudi has filed complaint, stating that, on

09.08.2022 at 4.45 p.m., during Moharam celebration at

Mallasamudra village, district Gadag, one Saleem Badekhan

and his friend Yellappa Suresh Gudi went to witness and

participate in the said Moharam celebration. Due to a small

reason that these people's feet touched to the one of the

accused, they picked up quarrel with Saleem Badekhan and

his friend Yellappa Suresh Gudi. The said persons i.e.

accused Nos.1 to 16 abused Saleem Badekhan and also

Yellappa Suresh Gudi by touching his caste and used filthy

language by stating 'waddara sule magane, you touched us

with your feet' and started beating the said two persons.

CRL.A No. 100462 of 2022

Later on, knowing that, Saleem Badekhan and Yellappa

Suresh Gudi are being beaten by accused Nos.1 to 16,

complainant's son Somappa Gudi rushed to the Moharam

celebration site, in order to rescue the said two persons from

accused Nos.1 to 16. On reaching there, accused Nos.1 to 16

caught hold the Somappa Gudi, abused him as 'waddar sule

maga', and told him that, he is doing too much nowadays

and also accused him of forming Hindu organization in their

village and started beating him also. After too much of

struggle somehow the complainant's son Somappa Gudi and

Yellappa Gudi managed to escape from the place of incident

and ran away, and took shelter in complainant's sister

Shankravva Gudi's house. On the knowledge of hiding of

Somappa Gudi and Yellappa Gudi, accused Nos.1 to 16 went

there and threw all the items at Shankravva Gudi's house,

created havoc in her house and again beaten to both i.e.

Somappa Gudi and Yellappa Gudi and abused them as 'sule

makla' and also threatened them saying that both have

survived today, and if in case both act smart in future, they

will not leave both alive and left the place. The said

complaint came to be registered in Crime No.174/2022 of

CRL.A No. 100462 of 2022

Gadag Rural police station, for the offences punishable under

Sections 143, 147, 323, 427, 448, 504, 506 read with

Section 149 of IPC and Section 3(1)(r)(s) and 3(2)(va) of the

SC and ST (POA) Act, 1989. The accused Nos.1 to 16

apprehending their arrest, filed Criminal Misc. No.289/2022

seeking anticipatory bail and the same came to be rejected

by the Additional District and Sessions Judge, Gadag by

order dated 29.08.2022. The appellants have challenged the

said order in the instant appeal.

4. Learned counsel for the appellants would contend

that, the incident has occurred on 09.08.2022 and the

complaint came to be filed on 12.08.2022 and there is a

delay in filing the complaint. It is his further submission that,

the said complaint came to be filed only because a complaint

came to be filed by the accused against the son of the

complainant and others and they have been arrested and

sent to judicial custody. It is his further submission that, the

allegation of abusing by touching the caste name is an

Omnibus allegation. There is no specific overt act of each of

the appellants/accused persons. There is no mention of who

CRL.A No. 100462 of 2022

has abused, in the averments of the complaint. The alleged

incident has taken place in the crowd in the Moharam

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

which of the appellants/accused abused the son of the

complainant and others touching their caste. Therefore,

there is no prima-facie case against the appellants attracting

the offences under Sections 3(1)(r)(s) and 3(2)(va) of SC &

ST (POA) Act, 1989 and therefore, the bar under Section 18

of the SC/ST (POA) Act is not attracted. Without considering

all these aspects, the learned Sessions Judge has passed the

impugned order which requires interference of this Court.

With this, he prayed to allow the appeal and grant

anticipatory bail to the appellants.

5. Per contra, learned HCGP would contend that, the

investigation is in progress. The abuse by the

appellants/accused has taken place in public place. There is a

specific abuse by the appellants touching the caste of the son

of the complainant and others. The Investigating Officer has

recorded the statement of the eyewitnesses. There is bar

under Section 18 of the SC/ST (POA) Act, 1989 to consider

CRL.A No. 100462 of 2022

the petition filed under Section 438 of Cr.P.C. Considering all

these aspects learned Sessions Judge has rightly rejected the

bail petitions of the appellants which does not call for any

interference by this Court. With this, he prayed to dismissed

the appeal.

6. Learned counsel for the respondent No.2 would

contend that, the appellants/accused have abused the

complainant's son by touching his caste name and assaulted

him in the public place in public view. Therefore, the

provisions of Section 3 of SC/ST (POA) Act, 1989 is attracted

and there is a bar under Section 18 of the SC/ST (POA) Act,

1989 to entertain anticipatory bail petition. Considering all

these aspects, the learned Sessions Judge has rightly passed

the impugned order which does not call for any interference

by this Court. With this, he prayed to dismissed the appeal.

7. Having regard to the submissions made by the

learned counsel for the appellants, learned HCGP for the

respondent No.1 and the learned counsel for the respondent

No.2, this Court has gone through the averments of the

complaint, FIR and the impugned order.

CRL.A No. 100462 of 2022

8. The appellants have been arrayed as accused

Nos.1, 2, 4 to 16 in the FIR. There is an allegation in the

complaint that, all the accused Nos.1 to 16 have abused

Yallappa Gudi and also the son of the complainant Somappa

Gudi by touching their caste name and assaulted them. The

said allegation is an Omnibus allegation. It cannot be said

that, all the accused Nos.1 to 16 used the same abusive

words at the same time to the son of the complainant and to

another person. As per the averments of the complaint, not

only the accused Nos.1 to 16, there were some other

persons, who stated to have abused the complainant's son

and another. There is no specific allegation against each of

the accused and what are the abusive words used by each of

them are not forthcoming in the complaint. Therefore, there

is no prima-facie case against the appellants to attract

Section 3 of SC/ST (POA) Act, 1989. Without considering the

said aspect, the learned Sessions Judge has passed the

impugned order, which requires interference by this Court.

The other offences alleged against these appellants are not

punishable with death or imprisonment for life. The

appellants have undertaken to co-operate with the police in

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CRL.A No. 100462 of 2022

the investigation. The main apprehension of the prosecution

is that, if the appellants are granted anticipatory bail, they

will hamper the investigation and tamper the prosecution

witnesses. The said objection can be met with by imposing

stringent conditions.

9. In the facts and circumstances of the case and

submission of the counsel, this Court is of the view that

there are valid grounds for setting aside the impugned order

and grant of anticipatory bail to the appellants, subject to

certain terms and conditions. Hence, I proceed to pass the

following:

ORDER

The appeal is allowed. The impugned order dated

29.08.2022 passed in Criminal Miscellaneous No.289/2022

by the Additional District and Sessions Judge, Gadag is set

aside in so far as these appellants/accused Nos.1, 2 and 4 to

16 are concerned. Consequently, the anticipatory bail

petition filed by appellants/accused Nos.1, 2 and 4 to 16

stands allowed and the appellants/accused Nos.1, 2 and 4 to

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CRL.A No. 100462 of 2022

16 are ordered to be released on bail in the event of their

arrest in Crime No.174/2022 of Gadag Rural Police Station,

subject to the following conditions:

i. The appellants/accused Nos.1, 2 and 4 to 16 shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh Only) each with one surety for the likesum to the satisfaction of Investigating Officer.

ii. The appellants/accused Nos.1, 2 and 4 to 16 shall voluntarily appear before the Investigating Officer within fifteen days from this day and execute bail bond and furnish surety.

iii. The appellants/accused Nos.1, 2 and 4 to 16 shall attend the Police Station concerned on every Sunday between 10:00 a.m. to 2:00 p.m. and mark their presence for a period of two months or till filing of the final report, whichever is earlier.

shall co-operate with the investigating officer and make themselves available for interrogation whenever required.

v. The appellants/accused Nos.1, 2 and 4 to 16 shall not directly or indirectly make any inducement, threat or promise to any witness acquainted with

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CRL.A No. 100462 of 2022

the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police Officer.

vi. The appellants/accused Nos.1, 2 and 4 to 16 shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police.

Sd/-

JUDGE

SVH