Karnataka High Court
Smt. Latha K. H. W/O Kumarswamy ... vs The State Of Karnataka on 17 August, 2023
Bench: J.M.Khazipresided Byjmkj
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CRL.A No. 100338 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 17TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO. 100338 OF 2023
BETWEEN:
1. SMT. LATHA K.H.
W/O. KUMARSWAMY @LATA KUMARSWAMI MUDDER,
AGE: 24 YEARS, OCC: HOUSEWIFE.
2. M.H. REVANAPPA
S/O. MUDDERA HANUMANTHAPPA @REVANEPPA
HANAMANTAPPA MUDDER,
AGE: 68 YEARS, OCC: AGRICULTURIST.
3. SMT. PARVATHAMMA W/O. M.H. REVANAPPA
SMT. PARVATEVVA REVANEPPA MUDDEER,
AGE: 50 YEARS, OCC: HOUSEWIFE.
4. M.R. SOWGANDA MUDDERA
CHANDRASHEKAR S/O. M.H. REVANAPPA MUDDERA
LAXMAN @SOUGAND REVANEPPA MUDDER,
KATTIMANI
AGE: 30 YEARS,
OCC: MEDICAL REPRESENTATIVE,
Digitally signed by ALL ARE R/O: TMEPLE ROAD,
CHANDRASHEKAR
LAXMAN HARALAHALLI -VILLAGE,
KATTIMANI HARIHARA -TALUK,
DAVANAGERE -DISTRICT- 581123.
...APPELLANTS
(BY SRI. MANJUNATHA G. PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
THROUGH, WOMAN POLICE STATION,
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CRL.A No. 100338 of 2023
HAVERI, HAVERI -DISTRICT,
REP. BY SPP, HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
2. SMT. PAVITRA KODLER W/O. KUMARWAMY,
AGE: 28 YEARS,
R/O: DODDIKOPPA VILLAGE,
SORABA -TALUK,
SHIVAMOGGA -DISTRICT- 577201.
...RESPONDENTS
(BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1;
SRI. S.P. KANDAGAL, ADVOCATE FOR R2)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 14(A)
(2) OF SC AND ST (POA) ACT 1989 OF CR.PC., SEEKING TO
SET ASIDE THE ORDERS PASSED CRL.MISC NO. 456/2023
(CRIME NO. 37/2023) DATED 30.06.2023 ON THE FILE OF
ADDL DIST AND SESSIONS JUDGE AND SPECIAL JUDGE AT
HAVERI AND TO GRANTING THE ANTICIPATORY BAIL AND
DIRECTED TO THE RESPONDENT POLICE TO RELEASE THE
APPELLANTS ON BAIL IN THE EVENT OF THEIR ARREST IN
CRIME NO. 37/2023 ON THE FILE OF WOMEN POLICE STATION
HAVERI FOR THE OFFENCE PUNISHABLE U/S 143, 147,323,
376 (2) (N) 504,149 OF IPC AND UNDER SECTIONS 3(1) (R)
3(1) (W) (I) (II), 3(2)(V) & 3(2)(VA) OF SC/ST (PA)
AMENDMENT ACT 2015 AND SO FAR AS APPELLANTS 1 TO
4/ACCUSED NO. 2 TO 5 ARE CONCERNED IN THE ABOVE CASE.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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CRL.A No. 100338 of 2023
JUDGMENT
1. Appellants who are arraigned as accused No.2
to 5 have filed this appeal under Section 14A(2) of The
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Amendment Act, 2015 (hereinafter referred to as
'the SC/ST Act') seeking anticipatory bail in Crime No.37/2023
of Women Police Station, Haveri for the offences punishable
under Sections 143, 147,323, 376(2)(n) 504 read with Section
149 of IPC and under Sections 3(1)(r), 3(1)(w)(i)(ii), 3(2)(v)
and 3(2)(va) of the SC/ST Act.
2. In support of their appeal, appellants have
contended that they are peace loving and law abiding
citizens. They have not committed the alleged offences.
Only to harass them, they have been falsely implicated. At
no point of time, they have abused the complainant
referring to her caste. They have not even seen the
complainant at any point of time. There is inordinate delay
in filing the complaint. The complaint averments indicates
that the complainant was knowing only accused No.1.
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They have allegedly married and had physical relationship.
Therefore the offences under Sections 376 or 376(2)(n) of
the IPC is not attracted even against accused No.1. Even if
the entire contents of the complaint are taken into
consideration, they do not attract the ingredients of the
any of the offences. Appellant No.2 and 3 are aged.
Appellant No.1 is the wife of accused No.1 and having a
child aged one year. Appellant No.4 is working as medical
representative. Appellants are ready and willing to abide
by any conditions that may be imposed and prays to allow
the appeal and grant appellants anticipatory bail.
3. Learned HCGP has filed objections stating that
the complainant belongs to Hindu Valmiki caste (coming
under ST category), whereas accused persons belong to
Kuruba caste. Accused No.1 assuring the complainant of
marrying her, established physical relationship with her.
Twice when she became pregnant, she was forced to abort
the child. Ultimately, during 2018, accused No.1 tied 'tali'
to the complainant at Chandraguttemma temple and
continued his physical relationship with her. Ultimately,
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when she persisted him to marry her and disclosed the
fact of their relationship, he abused her referring to her
caste. On 08.05.2023, at 6.00 p.m., when the complainant
went to the house of accused No.1 to 5, all of them
abused her, referring to her caste, assaulting her with
hands and drove her out of their house.
3.1. Based on the complaint, a case is registered and
investigation is taken up. Accused No.1 was arrested and
he is in judicial custody. The incident dated 08.05.2023
reveal the involvement of appellants in the crime in
question. There is prima facie material to proceed against
the appellants. Their custodial presence is required for
investigation. There is prohibition under Section 18(A)(2)
of the SC/ST Act for granting anticipatory bail and prays to
reject the appeal.
3.2. Learned HCGP submits that now the complainant
has given birth to a daughter and the DNA report is
awaited.
4. Notice is duly served on respondent
No.2/complainant. She has appeared through the counsel.
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5. Heard arguments of both sides and perused the
records.
6. Before appreciating the facts of the case and
grounds urged by the appellants while seeking anticipatory
bail, it is relevant to note that Section 18(A)(2) of SC/ST
(Prevention of Atrocities) Act, 1989, provides that the
provisions of Section 438 of Cr.P.C. are not applicable to a
case, where the accused persons are alleged to have
committed the offences punishable under Sections 3(1)(r),
3(1)(w)(i)(ii), 3(2)(v) and 3(2)(va) of SC/ST Act. In other
words, where the accused persons alleged to have
committed the offences punishable under Sections 3(1)(r),
3(1)(w)(i)(ii), 3(2)(v) and 3(2)(va) of SC/ST Act, they are
not entitled for anticipatory bail. However, in Prathvi Raj
Chauhan vs. Union of India and Other1 (Prathvi Raj
Chauhan), the Hon'ble Supreme Court held that in a case
where prosecution fails to make out a prima facie case,
then Section 18 and 18(A) have no application. In Chandra
(2020) 4 SCC 727
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CRL.A No. 100338 of 2023
Poojari vs. State of Karnataka Seshadripuram police,
Bangalore.2 (Chandra Poojari), the Co-ordinate Bench of
this Court held that where the allegations does not attract
the provisions of Sections 3(1)(r), 3(1)(w)(i)(ii), 3(2)(v)
and 3(2)(va) of SC/ST Act, the prohibition under Section
18(A)(2) of SC/ST (Prevention of Atrocities) Act, 1989, is
not applicable. In the light of the ratio of decision in
Prathvi Raj Chauhan, it is necessary to examine whether
the prosecution has made out the prima facie case against
appellants so far as allegations for the offences punishable
under Sections 3(1)(r), 3(1)(w)(i)(ii), 3(2)(v) and 3(2)(va)
of SC/ST Act, is concerned.
7. Thus, the appellants who are accused No.2 to 5
have come up with this petition seeking anticipatory bail
contending that they are in no way concerned with the
alleged affair between the complainant and accused No.1
and no incident dated 08.05.2023 has taken place and
only to implicate them, a false assertion is made. It is
further contended by them that the alleged incident dated
1997(4) Kar. L.J.81
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08.05.2023 has taken place inside the house of the
accused persons and as such, provisions of SC/ST Act are
not attracted and therefore there is no impediment to
grant them anticipatory bail. It is further contended by
accused persons that appellant No.2 and 3 are aged,
appellant No.1 is the wife of accused No.1, having a child
aged 1 years and appellant No.4 is working as medical
representative and prays to grant anticipatory bail.
8. On the other hand, learned counsel
representing respondent No.2 as well as the learned HCGP
have opposed the bail petition on the ground that there is
prohibition under Section 18(A)(2) of the SC/ST Act from
granting anticipatory bail and there is prima facie material
to proceed against the appellants and their presence is
required for investigation.
9. At the outset, it is relevant to note that the
complainant is aged 28 years. Her father is running a
medical shop and accused No.1 who is a salesman and in
connection with the said business run by the complainant's
family, she came to be acquainted with him. Initially there
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was exchange of calls and messages between them and
ultimately since 2017, there is physical relationship
between them, as a result of which, twice she became
pregnant and aborted the child at the instance of accused
No.1. As per the complaint averments, when she became
pregnant for the third time and on her instance, accused
No.1 married her at Chandraguttemma temple, they
started living together at Balambeed village of Hangal
taluk, Haveri district. When she became pregnant for the
third time and when the complainant did not agree to
abort the child, it is alleged that accused No.1 started
avoiding her. He also abused her referring to her caste.
10. Till 08.05.2023, appellants who are arraigned
as accused No.2 to 5 were not in picture. It is alleged that
on 08.05.2023, when the complainant went to the house
of the appellants, she was told that appellant No.1 is the
wife of accused No.1 and they were having a daughter. It
is alleged that accused No.1 was also present in the house
and all the accused persons abused the complainant
referring to her caste. According to the complainant, the
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incident dated 08.05.2023 took place inside the house of
the accused persons. Consequently, at this stage, it is
doubtful whether the provision of SC/ST Act are attracted
so far the appellants (accused Nos.2 to 5) are concerned.
It a matter to be proved at the trial, as to whether the
incident dated 08.05.2023 has occurred in the public view.
Consequently, at this stage, no prima facie case is made
out so far appellants are concerned with regard to the
provisions of SC/ST Act. As held in Prathvi Raj Chauhan
and in Chandra Poojari, at this stage, there is no
prohibition to grant anticipatory bail to the appellants.
Having regard to the specific allegations with regard to
Section 376 of IPC, the said provision is not attracted so
far the present appellants are concerned. In the light of
the specific allegations made against them, their custodial
presence is not required for the purpose of investigation.
The apprehension of the prosecution that the appellants
may threaten or tamper with the witnesses and also
abscond may be overcome by imposing stringent
conditions.
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11. For the above reasons, this Court is of the
considered opinion that the appellants are entitled for
anticipatory bail and accordingly the following:
ORDER
Criminal Appeal is hereby allowed.
The impugned order dated 30.06.2023
passed by the learned I Addl. District and
Sessions Judge and Special Judge, Haveri, is set-
aside.
The appellants/accused No.2 to 5 are
ordered to be enlarged on bail in Crime
No.37/2023 of Women Police Station, subject to
following:
CONDITIONS
i) They shall execute personal bond for a
sum of Rs.50,000/- each with two sureties
for like-sum.
ii) They shall make themselves available for
the purpose of investigation as and when
required and they shall co-operate with
the investigation.
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iii) They shall furnish his residential address
proof and shall inform the investigating
officer/Court if there is any change in the
address.
iv) They shall not tamper with the prosecution
witnesses either directly or indirectly.
v) They shall not indulge in any criminal
activities.
vi) They shall be regular in attending the Court
proceedings.
Sd/-
JUDGE
