Karnataka High Court
Sri. Madev Nagappa Naik S/O. ... vs The State Of Karnataka on 23 August, 2023
Bench: J.M.Khazipresided Byjmkj
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CRL.A No. 100344 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MS. JUSTICE J.M.KHAZI
CRIMINAL APPEAL NO. 100344 OF 2023
BETWEEN:
1. SRI. MADEV NAGAPPA NAIK,
S/O. NAGAPPA NAIK,
AGED ABOUT 50 YEARS,
OCC: MEMBER,
R/O: TEGINAGUNDI, HEBLE,
BHATKAL TALUK -581320,
UTTARA KANNADA DISTRICT.
2. SRI. NAGESH NARAYAN NAIK,
S/O. NARAYAN NAIK,
AGED ABOUT 32 YEARS,
OCC: SOCIAL WORKER,
R/O: HONNEGADDE, HEBLE,
BHATKAL TALUK -581320,
CHANDRASHEKAR UTTARA KANNADA DISTRICT.
LAXMAN ...APPELLANTS
KATTIMANI
(BY SRI. NITYANAND MANJUNATH BHAT, ADVOCATE)
Digitally signed by
CHANDRASHEKAR
LAXMAN AND:
KATTIMANI
1. THE STATE OF KARNATAKA,
BY BHATKAL RURAL PS,
REPRESENTED BY PUBLIC PROSECUTOR/
HCGP OF HIGH COURT OF KARNATAKA
AT DHARWAD.
2. SRI. KUPPAYYANAGAYYA GONDA
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CRL.A No. 100344 of 2023
S/O. NAGAYYA GONDA,
AGED ABOUT 34 YEARS,
OCC: COOLIE,
R/O: TEGINAGUNDI,
GONDARAKERI, HEBLE,
BHATKAL TALUK -581320,
...RESPONDENTS
(BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1;
NOTICE TO R2 IS SERVED)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
14A(2) OF SC/ST ACT, SEEKING TO SET ASIDE THE ORDER
DATED 26.06.2023 PASSED BY COURT OF 2ND ADDL.
DISTRICT AND SESSIONS JUDGE, UTTARA KANNADA, KARWAR
PASSED IN CRIMINAL MISC NO. 197/2023 PRODUCED AS
(ANNEXURE-C) AND TO GRANT ANTICIPATORY BAIL IN THE
EVENT OF THEIR ARREST BY THE RESPONDENT NO.1 BHATKAL
RURAL PS, IN CRIME NO.0125/2021 REGISTERED AS SPL.
CASE NO. 65/2023, WHICH IS REGISTERED FOR THE OFFENCE
U/SEC. 3(1)(r), 3(1((s), 3(2)(va) OF SC AND ST (PREVENTION
OF ATROCITIES) AMENDMENT ACT 2015 AND U/SEC. 323, 504,
506 R/W 34 OF IPC AND MAY BE PLEASED TO DIRECT TO
RELEASE THE APPELLANTS/ACCUSED NO. 1 AND 2 ON BAIL ON
THE CASE WHICH IS PENDING BEFORE THE COURT OF 2ND
ADDL. DISTRICT AND SESSIONS JUDGE, UTTARA KANNADA,
KARWAR IN CRIME NO. 0125/2021 REGISTERED AS SPL. CASE
NO. 65/2023 ON SUCH TERMS AND CONDITIONS IN THE
ABOVE CASE.
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CRL.A No. 100344 of 2023
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
In this appeal filed under Section 14A(2) of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (hereinafter referred to as "SC/ST
(POA) Act") appellants who are arraigned as accused
Nos.1 and 2 are seeking anticipatory bail in crime
No.125/2021 of Bhatkal Rural Police Station for the
offences punishable under Sections 3(1)(r), 3(1)(s),
3(2)(va) of SC/ST (POA) of Amendment Act, 2015 and
u/sec.323, 504, 506 r/w Section 34 of Indian Penal Code
(for short, 'IPC').
2. Appellants have contended that the learned
Sessions Judge has erred in holding that the provisions of
SC/ST (POA) Act are applicable and as such, there is
prohibition u/sec.18 to grant anticipatory bail. The trial
Court has erred in coming to the conclusion that a prima
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facie case is made out in favour of the prosecution and
against the appellants. The offences punishable under
Sections 3(1)(r), 3(1)(s), 3(2)(va) of SC/ST (POA) of
Amendment Act, 2015 and u/sec.323, 504, 506 r/w
Section 34 IPC are not attracted. Consequently, there is
no impediment to grant anticipatory bail so far as the
offences punishable under Sections 323, 504, 506 r/w
Section 34 IPC are concerned. Since already charge sheet
is filed, the question of appellants threatening or
tampering with the witnesses would not arise.
2.1 Complainant does not come under the SC/ST
category. Therefore, the prohibition under Section 18 is
not applicable. Infact, Gond community is not coming
under ST category. There are several cases pending
before the Court regarding their caste issue. In the
charge sheet, the caste certificate of complainant is not
produced. Infact it is not issued. Therefore, the provisions
of 3(1)(r), 3(1)(s), 3(2)(va) of SC/ST (POA) of
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CRL.A No. 100344 of 2023
Amendment Act, 2015 are not attracted. Appellants are
permanent residents of Bhatkal having deep roots in the
society. There is no chance of they absconding. They are
ready to abide by any conditions that may be imposed
and prays to release them on anticipatory bail.
3. Learned High Court Government Pleader has
filed objections stating that the allegations against
accused are that when complainant send some messages
in WhatsApp, appellants confronted him, abused him in
filthy language, assaulted and kicked him. They also
abused him referring to his caste and thereby committed
the offences under Sections 3(1)(r), 3(1)(s), 3(2)(va) of
SC/ST (POA) of Amendment Act, 2015 and u/sec.323,
504, 506 r/w Section 34 IPC. After completing
investigation, the charge sheet is filed. During
investigation, the Investigating Officer has interrogated
the appellants by issuing notice u/sec.41A Cr.P.C. Charge
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sheet makes out a prima facie case against the appellants
and prays to dismiss the appeal.
4. Heard the arguments and perused the records.
5. Thus, the appellants who are arraigned as
accused Nos.1 and 2 have come up with this appeal
seeking anticipatory bail, contending that no incidents as
alleged has taken place and infact the complainant does
not come under ST category and without taking into
consideration of these aspects, case was registered and
ultimately the charge sheet is filed against them.
However, in the charge sheet, the caste certificate of
complainant is not produced and the said issue is pending
consideration before the Tahsildar and therefore, at this
stage the provisions of Sections 3(1)(r), 3(1)(s), 3(2)(va)
of SC/ST (POA) of Amendment Act, 2015 are not
attracted and there is no prohibition for granting
anticipatory bail.
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6. On the other hand, learned High Court
Government Pleader submitted that even during the
investigation, the appellants/accused Nos.1 and 2 are not
arrested and infact a notice under Section 41(A) Cr.P.C
was issued to them and therefore, there is no
apprehension for their arrest.
7. Learned High Court Government Pleader drawn
the attention of this Court to the caste certificate issued in
favour of the complainant dated 09.08.2006, the
notarized copy of which is produced by the complainant
before the investigating officer.
8. On the other hand, leaned counsel for the
appellants/accused Nos.1 and 2 submits that the said
caste certificate is no longer in force as such it cannot be
considered.
9. A complainant dated 23.10.2021 came to be
filed alleging that the appellant No.1 is president of Heble
Gram-Panchayat. Concerning his way of functioning, the
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complainant has sent whatsup message. Taking
exceptions to the same, on 23.10.2021 at about 6.30
p.m., both accused confronted him, abused him in filthy
language referring to his caste. They assaulted him with
hands and kicked up with legs. On the intervention of
Raja Naik and Ram Naik, they left the place by giving
threat to his life. After taking treatment at Shiralli
Government Hospital, he has lodged the complaint. After
completing the detailed investigation, the concerned
police have filed the charge sheet against the
appellants/accused Nos.1 and 2 for the offences
punishable under Sections 323, 504, 506 r/w Section 34
of IPC, 1860 and 3(1)(r), 3(1)(s), 3(2)(va) of SC/ST
(POA) of Amendment Act, 2015.
10. It is pertinent to note that along with the
charge sheet, caste certificate secured from the Tahsildar
is not produced. Infact, the concerned Tahsildar has
written a letter dated 15.11.2021 stating that there is
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dispute as to whether people belonging Gonda community
comes under ST category and matters are pending before
the High Court regarding the said aspect and therefore, in
Bhatkal area, the Tahsildar has stopped issuing the caste
certificates in respect of people belonging to Gonda.
10.1. It is further stated by the Tahasildar that so
far as the complainant is concerned, in the school
certificate, his caste is given as Hindu Gonda. Similarly,
the entry with regard to his brother is also as Bharatiya
Hindu Gonda and in the circumstances, the caste
certificate is not issued. In the light of the fact that along
with the charge sheet, the caste certificate is not
produced and it is yet to be issued. At this stage the
prosecution has not made out prima facie case to attract
the provision of Sections 3(1)(r), 3(1)(s), 3(2)(va) of
SC/ST (POA) of Amendment Act, 2015. Therefore, there
is no impediment to grant anticipatory bail to
appellants/accused Nos.1 and 2.
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11. Though at the stage of investigation,
appellants/accused Nos.1 and 2 were not arrested and
only notice under Section 41(A) Cr.P.C was issued,
however, the Trial Court in stead of issuing the summons
to the appellants/accused Nos.1 and 2 has issued non-
bailable warrant and for this reason also the apprehension
of appellants that there is likelihood of they being
arrested remanded to the judicial custody is well founded.
Sofas as offences coming under IPC are concerned,
though they are non-bailable, they are not exclusively
punishable with death or imprisonment for life. For these
reasons, this Court is of the considered opinion that
appellants/accused Nos.1 and 2 are entitled for bail.
Accordingly, the following:
ORDER
Criminal appeal is allowed.
The impugned order dated 26.06.2023
passed by the learned II Additional District and
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CRL.A No. 100344 of 2023
Sessions Judge, Uttara kannada, Karwar, is
hereby set-aside.
The appellants/accused Nos.1 and 2 are
ordered to be enlarged on bail in Crime
No.125/2021 (Spl.Case No.65/2023) of Bhatkal
Rural Police Station, subject to following:
CONDITIONS
i) Appellant/Accused No.1 and 2 shall
surrender before the Trial court within a
period of 15 days and execute personal
bond for a sum of Rs.50,000/- with two
sureties each for like-sum.
ii) The appellants/accused Nos.1 and 2 shall
furnish their residential address proof and
shall inform the investigating officer/Court
if there is any change in the address.
iii) The appellants/accused Nos.1 and 2 shall
not tamper with the prosecution witnesses
either directly or indirectly.
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iv) The appellants/accused Nos.1 and 2 shall
not indulge in any criminal activities.
v) The appellants/accused Nos.1 and 2 shall
be regular in attending the Court
proceedings.
Sd/-
JUDGE
CLK/AC
