Karnataka High Court
Sri. Shanawaz S/O Mehboob Raut vs State Of Karnataka on 24 March, 2023
Bench: Anil B Katti
-1-
CRL.A No. 100620 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 24th DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 100620 OF 2022
BETWEEN:
1. SRI. SHANAWAZ S/O, MEHBOOB RAUT
AGE 35 YEARS, OCC: BUSINESS
R/O BHARAT NAGAR,HUNCHANATTI,
BELAGAVI-590003.
2. SRI NIYAZAHMED S/O. MEHBOOB RAUT
AGE 40 YEARS, OCC: BUSINESS
R/O BHARAT NAGAR, HUCHANATTI,
BELAGAVI-590003.
Digitally signed by J
MAMATHA
...APPELLANTS
Location: HIGH
J COURT OF
MAMATHA
KARNATAKA,
DHARWAD BENCH, (BY SHRI RAM P. GHORPADE, ADVOCATE)
DHARWAD.
Date: 2023.03.25
11:23:21 +0530
AND:
1. STATE OF KARNATAKA,
BY BELAGAVI RURAL POLICE STATION,
REPRESENTED BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING, DHARWAD-11.
2. SRI KALMESH S/O. MARUTI MALAGI,
AGE:35 YEARS, OCC: COOLIE,
R/O: BHARAT NAGAR, 1ST CROSS,
HUNCHYANATTI, BELAGAVI-590003.
...RESPONDENTS
(BY SHRI PRAVEEN K.UPPAR, HCGP FOR R1:
SHRI SHEEPRASAD JOSHI, FOR SHRI SOURABH HEGDE,
ADVOCATE FOR R2)
-2-
CRL.A No. 100620 of 2022
***
THIS CRIMINAL APPEAL IS FILED U/S 14 (A)(2) OF SC/ST
(POA) ACT 1989 IS SEEKING TO DIRECT THE RESPONDENT
POLICE TO ENLARGE THEM ON BAIL, IN THE EVENT OF HIS
ARREST IN SPL CASE NO. 212/2022 (CRIME NO. 117/2022 OF
BELAGAVI RURAL PS) ON THE FILE OF III ADDL. DISTRICT AND
SESSIONS JUDGE, BELAGAVI AT BELAGAVI AND SPECIAL
COURT FOR THE ALLEGED OFFENCES U/S 323,504,506,R/W 34
OF IPC AND SECTION 3(1)(r)(s),3(2)(Va) OF SC AND ST (POA)
ACT 1989.
THIS APPEAL COMING ON FOR ORDERS AND THE SAME
HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON
06.03.2023, THIS DAY, THE COURT, DELIVERED THE
FOLLOWING:
JUDGMENT
1. Appellants/accused Nos. 1 and 2 feeling aggrieved
by the rejection of anticipatory bail application by III Addl.
District and Sessions Judge, Belagavi, in Crl.Misc.1545/2022,
dated 3-12-2022, have filed the present appeal.
2. Parties to appeal are referred with their ranks
assigned before Trial Court for the sake of convenience.
3. The factual matrix leading to the case of
prosecution can be stated in nutshell to the effect that
complainant is residing at Huchchanatti village of Belagavi
taluka and he belongs to ST caste. On 14-6-22 at 2.30 p.m.
complainant had been 2nd cross of Bharth nagar, where he was
CRL.A No. 100620 of 2022
constructing house, appellant No.1-Shanawaz came to the said
place on his two wheeler and started blowing horn
continuously. When it was question by complainant, appellant
No.1 abused in filthy language by taking caste of complainant
and appellant No.2 also came to the spot and started abusing
the complainant and both appellants-accused Nos. 1 and 2
have assaulted the complainant with hands and caused life
threat. On these allegations, criminal law of motion was set into
motion by registering case in crime No.117/2022 for the
offences punishable under Sections 323, 504, 506 R/w. Section
34 of IPC and also Sections 3(1)(r), 3(1)(S), 3(2)(Va) of SC/ST
(PA) Act, 1989 (for short the Act). Investigating officer after
completing the investigation has filed charge sheet.
4. The appellants' anticipatory bail application filed
before the trial Court came to be rejected by order dated
3/12/2022.
5. Heard the arguments of both sides.
6. The incident in question took place on 14-6-2022 at
about 2.30 pm, in 2nd cross, Bharath nagar in front of under
construction house of the complainant. The prosecution alleges
that appellant No.1 came to site on his two wheeler and started
CRL.A No. 100620 of 2022
continuously blowing horn. When the same was question by
complainant, appellant No.1 started abusing the complainant in
filthy language and appellant No.2, who came to the spot
abused complainant and both appellants abused complainant
by taking his caste, further physically assaulted complainant
and also threatened to take away the life of complainant.
7. Learned HCGP has contended that when prima facie
case is made out and the charge sheet material would be
sufficient to proceed against the accused Nos. 1 and 2, there is
legal bar to entertain the petition under Section 438 of Cr.P.C.
8. Per contra, the learned counsel for appellants has
contended that bar under Section 18 of the Act will not apply, if
the complainant does not make out a prima facie case for
applicability of the provisions of the Act. In support of such
contention, reliance is placed on the judgment of the Hon'ble
Apex Court in PRATHVI RAJ CHAUHAN VS. UNION OF
INDIA AND OTHERS (2020) 4 SCC 727, wherein it is
observed at paragraph 32 as under:
"32. As far as the provision of Section 18-A
and anticipatory bail is concerned, the
judgment of Mishra J., has stated that in
cases where no prima facie materials exist
warranting arrest in a complaint, the Court
CRL.A No. 100620 of 2022
has the inherent power to direct a pre-arrest
bail."
9. The co-ordinate bench of this Court in SUBBANNA
@ SUBRAMANI M. AND ANOTHER VS. STATE BY
THIRUMALASHETTAHALLI POLICE STATION, BENGALURU
RURAL DISTRICT AND ANOTHER ILR 2021 KAR 515 by
following the judgment of the Hon'ble Apex Court in Prathvi Raj
Chauhan's case has held that in a given case where the
complainant does not make out a prima facie case for
applicability of the provisions of the Act, a petition under
Section 438 of Cr.P.C. may be entertained. However, it
depends on the facts of each case. In view of principles
enunciated in the above referred decisions, it is evident that
there is no legal bar to entertain the petition under Section 438
of Cr.P.C. if complainant does not make out a prima facie case
for applicability of the provisions of the Act.
10. Indisputably the appellants were arraigned as
accused Nos. 1 and 2 in the charge sheet, have not been
arrested by investigating officer. The incident in question took
place in front of under construction house of complainant
situated at 2nd cross, Bharth nagar. The alleged abusive words
referred in the complaint are prima facie appears in retaliation
CRL.A No. 100620 of 2022
of complainant questioning appellant No.1 regarding blowing of
horn. The legal requirement of Section 31(r) of the Act is that
there must be intentional insult or intimidation with intent to
humiliate a member of a Schedule caste or a Schedule Tribe in
any place within the public view. There is no reference in the
complaint about the caste of the complainant and the alleged
abusive words were with intention to humiliate the complainant
in a place within public view. It is true that statements of
CWs.1, 5 to 7 have also been recorded before the Magistrate.
However, that itself cannot be a ground to reject the claim of
the appellants. The other IPC offences alleged against the
appellants are bailable one. Appellants-accused Nos. 1 and 2
were not arrested during the course of investigation. Now the
investigation is already completed and the charge sheet has
been filed. It is not in dispute that appellants are permanently
residing at the address given in the cause title. There presence
before Court for trial can be secured through process of law.
Hence, under these circumstances, I am of the view that,
appellants are entitled for anticipatory bail. Consequently,
proceed to pass the following:
CRL.A No. 100620 of 2022
ORDER
The appeal filed by the appellants is hereby allowed,
Appellants/accused Nos.1 and 2 are ordered to be
released on bail in the event of their arrest in connection with
Cr.No.117/2022 of Belagavi Rural Police Station for the
offences punishable under Sections 323, 504, 506 R/w. Section
34 of IPC and Sections 3(1)(r) 3(1)(s), 3(2)(va) of SC/ST
(POA) Act, 1989, subject to following conditions:
i) Appellants are ordered to be released on bail on
they executing personal bond for a sum of
Rs.1,00,000/- each with one surety for likesum,
ii) The appellants shall appear before the Investigating
Officer as and when called for the purpose of
investigation,
iii) Appellants shall not leave the jurisdiction of trial
Court without its prior permission.
(Sd/-)
JUDGE
Vb/-
