Sri Bhushan S Kadam S/O Shivanand ... vs The State Of Karnataka
2023 Latest Caselaw 6946 Kant

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                                                                    NC: 2023:KHC-D:11656
                                                                     CRL.A No. 100388 of 2023




                                    IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                           DATED THIS THE 4TH DAY OF OCTOBER, 2023

                                                            BEFORE
                                              THE HON'BLE MS. JUSTICE J.M.KHAZI
                                             CRIMINAL APPEAL NO. 100388 OF 2023

                                    BETWEEN:

                                    SRI. BHUSHAN S. KADAM,
                                    S/O SHIVANAND KADAM,
                                    AGE: 55 YEARS, OCC: BUSINESS,
                                    R/O. SALSET, MADGAON,
                                    NORTH GOA-403001, GOA STATE.
                                                                              ...APPELLANT
                                    (BY SRI. PRAVEEN PRABHAKAR TARIKAR, ADVOCATE)

                                    AND:

                                    1.   THE STATE OF KARNATAKA,
                                         THROUGH CHITTAKULA POLICE STAION,
                                         REP. BY STATE PUBLIC PROSECUTOR,
                                         HIGH COURT OF KARNATAKA,
                                         DHARWAD, BENCH AT DHARWAD-580011.

                                    2.   SRI. UDAY N. BASHETTI,
              Digitally signed by
              CHANDRASHEKAR
CHANDRASHEKAR LAXMAN
LAXMAN
                                         S/O. NARAYAN BASHETTI,
              KATTIMANI

                                         AGED ABOUT 42 YEARS,
KATTIMANI
              Date: 2023.10.06
              10:39:05 +0530



                                         R/O. SHEJWAD VILLAGE,
                                         KARWAR-581306,
                                         UTTARA KANNADA DISTRICT.
                                                                               ...RESPONDENTS
                                    (BY SMT.GIRIJA S. HIREMATH, HCGP FOR R1;
                                     NOTICE TO R2 SERVED)

                                         THIS CRIMINAL APPEAL IS FILED U/SEC. 14A(2) OF
                                    SC/ST (PREVENTION OF ATROCITIES) ACT, 1989, PRAYING
                                    THIS COURT TO, ENLARGE THE APPELLANT/ACCUSED NO.1 ON
                                    ANTICIPATORY BAIL IN EVENT OF HIS ARREST IN CRIME NO.
                                    26/2023 REGISTERED BY CHITTAKULA POLICE STATION
                                    REGISTERED FOR THE ALLEGED OFFENCES PUNISHABLE
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                                  NC: 2023:KHC-D:11656
                                   CRL.A No. 100388 of 2023




U/SEC. 420, 464, 467, 468, R/W 34 OF IPC AND U/SEC. 3 OF
SC/ST (PREVENTION OF ATROCITIES) AMENDMENT ACT 2014.

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


                        JUDGMENT

1. Appellant who is arraigned as accused No.1 has

filed this appeal under Section 14-A(2) of the Scheduled

Castes and the Scheduled Tribes (Prevention of Atrocities)

Act, 1989 ('SC and ST (POA) Act', for short), seeking

anticipatory bail in Crime No.26/2023 registered by

Chittaakula Police Station for the offences punishable

under Sections 420, 464, 467, 468 read with Section 34 of

Indian Penal Code ('IPC', for short) and under Section 3 of

the SC/ST (POA) Act.

2. In support of the appeal, the appellant has

pleaded that he is innocent and law abiding citizen. He has

not committed the alleged offences. The Trial Court has

erroneously rejected his bail petition, without appreciating

the facts and circumstances of the case. Based on the

false complaint filed by respondent No.2, the concerned

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police have registered the case and are making frantic

effort to arrest the appellant. The alleged offences took

place on 27.10.2021, but the complaint is filed on

22.12.2022 i.e., after a lapse of more than 1 year.

However, the case is registered on 16.06.2023. The

inordinate delay is not explained. Only with a view of

harass the accused complaint is filed. The entire complaint

averments does not attract the provisions for which the

case is registered.

3. Suppressing the fact that he had filed a police

complaint and no FIR was registered on that basis,

complainant filed PCR No.1/2023 on 22.12.2022 and vide

order dated 31.05.2023, it was referred to the Dy.S.P. to

investigate. The respondent-police have registered case on

14.12.2022 in Crime No.26/2023 and not on the directions

given by the Spl.Court. The complaint is not supported by

affidavit. Without examining the complainant and his

witnesses, it is referred for investigation. It is denied that

complainant has paid Rs.96,95,000/- to the appellant. He

NC: 2023:KHC-D:11656 CRL.A No. 100388 of 2023

never referring to his caste and as such provisions under

SC and ST (POA) Act are not attracted.

3.1 Appellant is ready and willing to abide any

conditions that may be imposed and offer substantial

surety to the satisfaction of the Trial Court and prays to

allow the appeal and grant anticipatory bail.

4. In support of his arguments, learned counsel for

the appellant has relied upon the following decisions:

i) Prathvi Raj Chauhan vs. Union of India and

Other1 (Prathvi Raj Chauhan)

ii) Chandra Poojari vs. State of Karnataka

Seshadripuram police, Bangalore.2

(Chandra Poojari)

5. Learned High Court Government Pleader

appeared for respondent No.1-State.

(2020) 4 SCC 727

1997(4) Kar. L.J.81

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6. Notice is duly served to respondent

No.2/complainant. However he has not chosen to appear

and contest the matter.

7. Learned HCGP submitted oral objections stating

that complainant belongs to Korava caste, coming under

Scheduled Caste category. One Kamalesh Ashok Chipkar

of Janabagh, Kodibag, Karwar informed him that land of

accused No.1 is available for sale. Complainant wanted to

purchase the same. In this connection, accused Nos.1 to 3

came to the spot and showed the land and offered to sell

it. He agreed to sell the said land at the rate of

Rs.1,15,000/- per gunta. In this connection, complainant

paid Rs.1,00,000/- as token of advance. On 24.07.2020,

the complainant got the sale agreement executed by

accused No.1 and paid Rs.5,00,000/- by crediting same to

his account. He also paid Rs.5,00,000/- in cash. On

25.07.2020, accused No.1 entered into one more sale

agreement to sell the said land to the complainant. On the

same day, he has executed GPA in favour of the

complainant. On 25.08.2021, a sum of Rs.1,10,950/- is

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debited from the account of the complainant towards

deficit stamp duty. In all the complainant has paid

Rs.96,95,000/- to accused No.1 as detailed in the

complaint. He has also paid balance amount to the

accused No.1.

7.1 It is further submitted that accused No.1 went

on postponing execution of sale deed. On 27.10.2021,

complainant happened to go to the Sub Registrar office in

connection with some work. He found that accused Nos.1

to 4 were present and accused No.1 was executing the

sale deed in favour of accused No.5. In fact, complainant

informed accused No.5 about the sale agreement between

him and accused No.1 and payments made by him.

However accused No.5 adamantly replied that he has

purchased the land knowing fully well that already sale

agreement is made in his favour. Accused No.1 gave

threat to the complainant saying that he is going to finish

him and kill him by shooting. All the accused persons

abused the complainant referring to his caste and

challenged him to do whatever he can do.

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7.2 The incident took place in the presence of

Kamalesh Ashok Chipkar, Ajay Mohan, Belurakara,

Prashurama and Surya Prakash and other staff of the Sub-

Registrar office. On 03.01.2022 to correct his mistake,

accused No.1 has entered into another agreement with the

complainant to sell a flat worth Rs.25,00,000/- standing in

the name of his wife and to return the balance amount.

However he went on postponing the same. Accused No.1

has also refused to receive the legal notice. The concern

police have failed to receive the complaint filed by the

complainant. Without any alternative, he has filed the

private complaint.

7.3 The private complaint filed by the complainant

was referred to the concerned police for investigation in

Crime No.26/2023 and it is registered in Crime

No.26/2023 for the offences punishable under Sections

420, 464, 467, 468 read with Section 34 of IPC and under

Section 3 of SC and ST (POA) Act and investigation is

taken up. From the date of registration of the complaint,

the appellant is absconding. His presence is required for

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investigation. Having regard to the prohibition contained

under Section 18 of SC and ST (POA) Act, anticipatory bail

cannot be granted and prays to reject the appeal.

8. Heard arguments and perused the record.

9. Before appreciating the facts of the case and

grounds urged by the appellant while seeking anticipatory

bail, it is relevant to note that Section 18(A)(2) of SC and

ST (POA) 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

offence 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 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,

NC: 2023:KHC-D:11656 CRL.A No. 100388 of 2023

the prohibition under Section 18(A)(2) of SC/ST

(Prevention of Atrocities) Act, 1989, is not applicable. In

Prathvi Raj Chauhan also the Hon'ble Supreme Court

has held that where a prima facie case is not made out,

then Section 18 and 18(A) have no application. 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

Sections 3(1)(r), 3(1)(w)(i)(ii), 3(2)(v) and 3(2)(va) of

SC/ST Act, is concerned.

10. Thus, appellant who is arraigned as accused

No.1 is before this Court seeking anticipatory bail

contending that he has not committed the alleged offences

and to make unlawful gain and after inordinate delay, the

complainant has filed a false complaint, based on which he

and other accused are proceeded against and there is

imminent threat of he being arrested. He is also seeking

bail on the ground that accused No.2 to 5 have been

granted anticipatory bail.

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11. From the perusal of the complaint averments, it

is evident that the matter appears to be purely civil in

nature. According to the complainant, on 23.07.2020 he

agreed to purchase the land from accused No.1 and paid

token advance of Rs.1 lakh. From 24.07.2020 to

25.07.2020, various payments have been made through

bank as well as in person, totally in a sum of

Rs.96,95,000/-. However accused No.1 went on

postponing execution of sale deed. On 27.10.2021 while

he had gone to the Sub-Registrar Office, he found all the

accused persons and came to know that accused No.1 is

executing regular sale deed in favour of accused No.5 and

when he confronted him, accused No.1 abused him in

filthy language especially referring to his caste and gave

threat to his life.

12. Despite these incidents having taken place, the

complainant has not chosen to file a complaint or take

action against accused No.1. After the happening of the

alleged incident, complainant has claimed that on

03.01.2022, accused No.1 agreed to sell a flat worth

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Rs.25,00,000/- and to return the balance amount. There is

inordinate delay in filing the complaint. Though the

complainant has claimed that he filed regular complaint

before the concerned police and it was not entertained,

however, he has not produced copy of the said complaint.

As held in Priyanka Srivastava and Another Vs. State of

Uttar Pradesh and Others (Priyanka)3, on failure of the

concerned police to entertain the complaint, the

complainant is required to approach the higher police

officer and send the complaint through RPAD and

produced copies of both complaint as well as proof of

having sent the said complaint and file an affidavit in

support of the allegations made and also the fact of having

approached the police and their failure to register the

case.

13. In the present case, no such formalities have

been complied with. Along with the complaint, copies of

the documents, based on which the complaint is filed are

also not produced.

(2015) 6 SCC 287

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14. In the light of the inordinate delay in filing the

complaint and also non-compliance of the essential

requisites before filing of private complaint, this Court is of

the considered opinion that no prima facie case is made

out to attract the prohibition contained in Section 18 of

SC/ST (POA) Act.

15. So far as the allegations with regard to the

offences punishable under Sections 420, 466, 467, 468

read with Section 34 of IPC are concerned, though they

are non-bailable, they are not punishable with death or

imprisonment for life. Having regard to the nature of the

allegations made, the custodial presence of the appellant

is not required. Already anticipatory bail is granted to

accused No.2 to 5 by this Court. The apprehension of the

prosecution that the appellant may threaten or tamper

witnesses or abscond and thereby delay or protract the

proceedings may be overcome by imposing stringent

conditions and accordingly the following:

ORDER Criminal Appeal is allowed.

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The impugned order dated 04.08.2023 in Crl.Misc.No.238/2023 passed by the II Addl.District and Sessions Judge, Uttara Kannada, Karwar is hereby set aside.

In the event of his arrest appellant/accused No.1 shall be released on bail in Crime No.26/2023 of Chittakula police station, registered for the offences punishable under Sections 420, 464, 467, 468 read with Section 34 of IPC and Section 3 of SC and ST (POA) Act, subject to following:

CONDITIONS

a) The appellant/accused No.1 shall execute a personal bond in a sum of Rs.50,000/- with two sureties for the like-sum.

b) He shall appear before the investigating officer within a period of 15 days and execute the bail bond and offer surety.

c) Appellant/accused No.1 shall make himself available for the purpose of investigation as and when required and they shall co-

operate with the investigation.

d) Appellant/accused No.1 shall furnish his residential address proof and shall inform

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the investigating officer/Court if there is any change in the address.

e) Appellant/accused No.1 shall mark attendance at the Jurisdictional Police Station once in 15 days till filing of the charge sheet.

f) Appellant/accused No.1 shall not tamper with the prosecution witnesses either directly or indirectly.

g) Appellant/accused No.1 shall not indulge in any criminal activities.

h) Appellant/accused No.1 shall be regular in attending the Court proceedings.

Sd/-

JUDGE

CLK