Sunil Biradar S/O Hanamanth ... vs The State And Anr
2023 Latest Caselaw 1090 Kant

                            1




           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 23RD DAY OF JANUARY, 2023

                        BEFORE

     THE HON'BLE MR. JUSTICE V. SRISHANANDA

          CRIMINAL APPEAL No.200208/2022

BETWEEN:

SUNIL BIRADAR
S/O HANAMANTH BIRADAR
AGE: 21 YEARS,
OCC: STUDENT/AGRICULTURE,
R/O PARTAPUR VILLAGE,
TQ. BASAVAKALYAN
DIST. BIDAR
                                         ... APPELLANT

(BY SRI SYED MASTAN, ADVOCATE)


AND:

1.     THE STATE THROUGH
       BASAVAKALYAN TOWN
       POLICE STATION,
       DIST. BIDAR
       (REPRESENTED BY LEARNED
       STATE PUBLIC PROSECUTOR
       HIGH COURT OF KARNATAKA
       BENCH AT KALABURAGI 585107)

2.     DATTATRI
       S/O EKNATH SONKAMBLE
       AGE: 55 YEARS,
       OCC: COOLIE,
       R/O PARTAPUR VILLAGE,
                               2




      TQ. BASAVAKALYAN
      DIST. BIDAR-585 401
                                           ... RESPONDENTS

(BY SRI GURURAJ V. HASILKAR, HCGP FOR R1;
    R2 SERVED)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION
14A(2) OF THE SCHEDULED CASTES AND SCHEDULED TRIBES
(PREVENTION OF ATROCITIES) ACT, PRAYING TO ALLOW THE
APPEAL AND ENLARGED THE APPELLANT IN THE EVENT IS
ARREST ON BAIL IN CRIME NO.129/2022 OF BASAVAKALYAN
TOWN POLICE STATION, DIST, BIDAR, PENDING ON THE FILE
OF   II    ADDL.   SESSIONS   JUDGE   BIDAR,   SITTING   AT
BASAVAKALYAN, FOR THE OFFENCES PUNISHABLE OFFENCES
U/SEC.143, 147, 148, 323, 324 R/W SEC.149 OF I.P.C. AND
U/SEC.3(2)(V-A) OF SC/ST P.A. ACT.


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


                        JUDGMENT

Heard Sri Syed Mastan, learned counsel for the

appellant, Sri Gururaj V. Hasilkar, learned High Court

Government Pleader for respondent No.1. Respondent

No.2 is served, but remained absent.

2. The present appeal is filed under Section 14A

(2) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, (for short, hereinafter

referred to as 'the Act') with the following prayer:

"Wherefore, it is prayed that, the Hon'ble court may kindly allow the appeal and enlarged in the event is arrest the appellant on bail in Crime No.129/2022 of Basavakalyan Town Police Station, Dist. Bidar, pending on the file of II Addl. Sessions Judge Bidar, sitting at Basavakalyan, for the offences punishable Offences U/Sec.143, 147, 148, 323, 324 R/w Sec. 149 of I.P.C and U/Sec. 3(2)(v-a) of SC/ST P.A. Act, in the interest of justice."

3. Brief facts which are necessary for disposal

of the present appeal are as under:

Dattatri S/o Eknath Sonkamble, aged 55 years,

lodged a complaint with Basavakalyan Police which was

registered in Crime No.129/2022 on 10.09.2022 for the

offences punishable under Sections 143, 147, 148, 323,

324 read with section 149 of IPC and under Section

3(2)(v-a) of the Act.

4. Gist of the complaint averments reveal that

on 08.09.2022 at about 9.00 p.m., when complainant,

his wife Sunita and his children, Shiva and Divyarani had

finished their dinner and they were sleeping at about

10.30 p.m., there was huge hue and cry in front of his

house and immediately himself and his son Shiva came

out of the house, at that juncture, accused appellants

were present in front of the house and picked up

altercation and assaulted the complainant and his son.

When wife of complainant tried to rescue them, accused

persons assaulted her and pushed her. When his brother

Maruthi tried to rescue the complainant, he was also

assaulted. Thereafter, the other relatives and

complainant and one Vidyasagar S/o Basavaraj came to

the spot and rescued and taken them to the hospital.

Therefore, the complainant sought for action against the

accused persons.

5. Appellant approached the II-Additional

District and Sessions Judge for grant of anticipatory bail

along with two other accused which was rejected by the

learned Sessions Judge by order dated 19.10.2022.

6. Learned Sessions Judge felt that since the

provisions of SC/ST (POA) Act are invoked, section 18 of

the Act is a bar for entertaining the anticipatory bail.

7. Being aggrieved by the same, accused by

name Sunil who is accused No.3 has approached this

Court with aforesaid prayer.

8. Learned counsel for the appellant reiterating

the grounds urged in the appeal vehemently contended

that prima facie, the complaint averments do not make

out a case for attracting the offence under Section 18 of

the Act and therefore, sought for allowing the appeal.

9. Per contra, learned High Court Government

Pleader opposes the appeal grounds by contending that

section 3(2)(v) of the Act has been invoked and

admittedly, the complainant and another injured belong

to Madiga community and therefore, Section 18 of the

Act is a bar. It is necessary to cull out Section 18 of the

Act.

"18. Section 438 of the Code not to apply to persons committing an offence under the Act.--Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act."

10. Section 3(2)(v) of the Act reads as under:

"Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person 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 imprisonment for life and with fine."

11. With the above requirements when the

material on record is appreciated, however, the law on

point is whether Section 18 of the Act is an absolute bar

is no longer res-integra.

12. Hon'ble Apex Court in the case of Prathvi

Raj Chauhan vs. Union of India and others reported

in AIR 2020 SC 1036 in paragraph No.10 and 11 has

held as under:

"10. Concerning the applicability of provisions of section 438 Cr.PC, it shall not apply to the cases under Act of 1989. However, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by section 18 and 18A (i) shall not apply. We have clarified this aspect while deciding the review petitions.

11. The court can, in exceptional cases, exercise power under section 482 Cr.PC for quashing the cases to prevent misuse of provisions on settled parameters, as already

observed while deciding the review petitions. The legal position is clear, and no argument to the contrary has been raised."

13. On conjoint reading of the above provisions

and the principles of law enunciated in Prathvi Raj

Chauhan supra, this Court has got the power to

entertain the request for anticipatory bail by perusing

the complaint averments meticulously.

14. On such perusal, it is seen that in night

hours on 08.09.2022 at about 10.30 pm., complainant

and his son were sleeping in their house, and they heard

huge hue and cry in front of their house and came out of

the house. In the entire complaint averments, there is

no mention that accused party abused the complainant

party by taking out their caste name. Therefore, on

10.09.2022, the complaint came to be registered by

invoking Section 3(2)(v) of Act.

15. Section 3(2)(v) of the Act referred to supra

would only envisage the trial Court in aggravating the

offence punishable under the provisions of Indian Penal

Code where the punishment prescribed is 10 years then

the punishment to be awarded by resorting to Section

3(2)(v) of the Act would be to the extent of life

imprisonment. Admittedly, IPC offences alleged against

the accused are not punishable with 10 years

imprisonment.

16. For the ingredient to attract Section

3(2)(v)of the Act, the complainant must show that the

action of the accused persons was per se in order to

intimidate the Scheduled Caste and Scheduled Tribe

persons in general by assaulting or committing any

offence under the provisions of the Act against the

member of Scheduled Caste and Scheduled Tribe

community.

17. In the absence of any such averment made

in the complaint itself, this Court is of the considered

opinion that Section 18 of the Act would not attract as

bar in the case on hand.

18. Few of the accused persons are already

surrendered and they have been remanded to the

judicial custody directing the present appellant to appear

before the Investigating Officer and have a limited

custodial interrogation and thereafter enlarge the

appellant on bail would meet the ends of justice.

19. Accordingly, the following order is passed:

ORDER

The criminal appeal is allowed.

The accused-appellant is ordered to be released

on bail in the event of his arrest in Crime

No.129/2022 of Basavakalyan Town Police station for

the aforesaid offences, subject to following conditions:

1. Appellant is directed to join the investigation by appearing before the Investigating Officer, Basavakalyan on 31.01.2023 at 9.00 a.m. The Investigating Officer is at liberty to take him to custody and complete the custodial investigation on the same day before 6.00 p.m., and thereafter enlarge the appellant on bail by executing a personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with two sureties for the likesum to the satisfaction of the concerned Court;

2. Appellant/accused shall not directly or indirectly threaten or tamper with the prosecution witnesses;

3. Appellant/accused shall mark his attendance before the investigating agency on every third Sunday between 10.00 a.m. and 2.00 p.m., till the charge sheet is filed.

4. The appellant shall attend the Court regularly;

5. Appellant/accused shall not leave the jurisdiction of the Bidar district without prior permission;

If there is breach of any of the above conditions,

prosecution is at liberty to move for cancellation of

bail.

Sd/-

JUDGE

VNR