Karnataka High Court

Mallappa And Ors vs The State Of Karnataka And Anr on 23 April, 2024

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                                                   CRL.A No. 200104 of 2024
                                               C/W CRL.A No. 200106 of 2024



                            IN THE HIGH COURT OF KARNATAKA,

                                    KALABURAGI BENCH

                          DATED THIS THE 23 RD DAY OF APRIL, 2024

                                           BEFORE
                            THE HON'BLE MR. JUSTICE C M JOSHI


                           CRIMINAL APPEAL NO.200104 OF 2024
                                            C/W
                           CRIMINAL APPEAL NO.200106 OF 2024

                   IN CRL.A.NO.200104/2024

                   BETWEEN:

                   1.   LAXMAN S/O YALLAPPA WALIKAR
                        AGE: 51 YEARS, OCC: AGRICULTURE

                   2.   NEELAPPA @ PAVAN
                        S/O MALLAPPA ASANGI,
Digitally signed        AGE: 34 YEARS, OCC: AGRICULTURE,
by
KHAJAAMEEN L            BOTH R/O KARJOL, TQ. BABALESHWAR,
MALAGHAN
                        DIST. VIJAYAPURA-586101.
Location: HIGH
COURT OF
KARNATAKA                                                     ...APPELLANTS

                   (BY SRI SHIVANAND V. PATTANASHETTI, ADVOCATE)

                   AND:

                   1.   THE STATE OF KARNATAKA
                        THROUGH BABALESHWAR POLICE STATION,
                        DIST. VIJAYAPURA-586101 R/BY,
                        ADDL. SPP HIGH COURT OF KARNATAKA,
                        KALABURAGI BENCH.
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                               CRL.A No. 200104 of 2024
                           C/W CRL.A No. 200106 of 2024



2.   DUNDAPPA S/O HUSANAPPA HARIJAN
     AGE: 70 YEARS, OCC: AGRICULTURE,

     R/O KARJOL TQ. BABALESHWAR,
     DIST. VIJAYAPURA-586101.

                                       ...RESPONDENTS
(BY SRI. JAMADAR SHAHABUDDIN, HCGP FOR R1
 SRI RAVICHANDRA JADHAV, ADVOCATE FOR R2)

     THIS CRL.A IS FILED U/SEC. 14-A OF SC/ST (POA) ACT,
PRAYING TO, I) THAT, THE HON'BLE COURT MAY BE PLEASED
TO SET ASIDE THE IMPUGNED ORDER DATED 01-04-2024
PASSED IN CRL. MISC NO. 442/2024 BY II ADDITIONAL
DISTRICT AND SESSIONS AND SPECIAL JUDGE VIJAYAPURA.
II) THAT, FOR THE REASONS STATED ABOVE AMONGST
OTHERS, IT IS HUMBLY PRAYED THAT, THE HON'BLE COURT BE
PLEASED TO      GRANT THE REGULAR BAIL TO THE
APPELLANTS/ACCUSED NO.4 AND 6 IN BABALESHWAR PS FIR
(CRIME) NO.38/2024, PENDING ON THE FILE OF II
ADDITIONAL DISTRICT AND SESSIONS AND SPECIAL JUDGE
VIJAYAPURA AND FOR THE OFFENCES UNDER SECTIONS 143,
147, 341, 307, 506 READ WITH 149 OF IPC AND 3(1)(R)(S),
3(2) (VA) OF SC/ST PA AMENDMENT ACT, 2015 AND RULE
2016,.

IN CRL.A.NO.200106/2024.

BETWEEN:

1.   MALLAPPA S/O KALAPPA ASANGI
     AGE: 65 YEARS, OCC: NIL,

2.   SANGAPPA S/O HANAMANTH WALIKAR
     AGE: 30 YEARS, OCC: AGRICULTURE,

3.   SARSWATI W/O MALLAPPA ASANGI
     AGE: 60 YEARS, OCC: H H WORK,

     BOTH ARE KARJOL TQ. BABALESHWAR,
     DIST. VIJAYAPURA-586101.
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                                CRL.A No. 200104 of 2024
                            C/W CRL.A No. 200106 of 2024



                                           ...APPELLANTS

(BY SRI SHIVANAND V. PATTANASHETTI, ADVOCATE)

AND:

1.   THE STATE OF KARNATAKA
     THROUGH BABALESHWAR POLICE STATION,
     DIST. VIJAYAPURA- 586101,
     R/ BY, ADDL. SPP HIGH COURT OF KARNATAKA,
     KALABURAGI BENCH.

2.   DUNDAPPA S/O HUSANAPPA HARIJAN
     AGE: 70 YEARS, OCC: AGRICULTURE,
     R/O KARJOL, TQ. BABALESHWAR,
     DIST. VIJAYAPURA-586101.

                                       ...RESPONDENTS
(BY SRI. JAMADAR SHAHABUDDIN, HCGP FOR R1
 SRI RAVICHANDRA JADHAV, ADVOCATE FOR R2)


      THIS CRL.A IS FILED U/SEC. 14-A OF SC/ST (PA) ACT,
PRAYING TO     TO I) THAT, THE HON'BLE COURT MAY BE
PLEASED TO SET ASIDE THE IMPUGNED ORDER DATED
01.04.2024 PASSED IN CRL.MISC. NO. 440/2024 BY II
ADDITIONAL DISTRICT AND SESSIONS JUDGE AND SPECIAL
JUDGE VIJAYAPURA, II) THAT, FOR THE REASONS STATED
ABOVE AMONGST OTHERS, IT IS HUMBLY PRAYED THAT, THE
HON'BLE COURT BE PLEASED TO GRANT THE ANTICIPATORY
BAIL TO THE APPELLANTS/ ACCUSED NO.1, 3 AND 5 IN THE
EVENT OF HIS ARREST THE BABALESHWAR PS TO RELEASE
THE APPELLANTS/ ACCUSED NO.1 ,3 AND 5 IN BABALESHWAR
FIR (CRIME) NO. 38/2024 DISTRICT VIJAYPURA, PENDING ON
THE FILE OF II ADDITIONAL DISTRICT AND SESSIONS AND
SPECIAL JUDGE VIJAYAPURA, FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 143, 147, 341, 307, 506 READ WITH 149 OF
IPC AND 3(1)(R)(S), 3(2)(VA) OF SC/ST PA AMENDMENT ACT,
2015 AND RULE 2016.
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                                  CRL.A No. 200104 of 2024
                              C/W CRL.A No. 200106 of 2024



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

                        JUDGMENT

Heard the learned counsel appearing for the

appellants, learned High Court Government Pleader for

respondent No.1-State and learned counsel for respondent

No.2 in both appeals.

2. The Criminal Appeal No.200104/2024 is filed by

the accused No.4 and 6 challenging the order of the

Special Court in Criminal Misc.No.442/2024, whereby the

petition for anticipatory bail under Section 439 of Cr.P.C.

came to be rejected.

3. The Criminal Appeal No.100106/2024 is filed by

the accused No.1, 3 and 5 challenging the order of the

Special Court in Criminal Misc.No.440/2024, whereby the

petition for anticipatory bail under Section 438 of Cr.P.C.

came to be rejected.

4. The factual matrix of the case is that on

15.03.2024 in the evening the complainant along with his

wife Sunanda and his daughter, and son-in-law had been

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to their land. By the side of his land, the land of the

accused is situated. It was stated in the complaint that

the complainant had grown sugarcane and grapes and the

crops were harvested but the dried waste of the crop and

remained in his land. By the side of the land of the

complainant, the accused No.1 Mallappa had stored hay

stack. The complainant, in the evening had put fire to the

wastage of the crop which was in his land and due to

winds, the hay stack stored in the land of the accused also

caught fire. Then on all the accused No.1 to 6 came to the

spot and started abusing the complainant and they did not

listen to the complainant even though he stated that he

would restore the hay stack which had caught fire in their

land. It was alleged that the accused No.2 abused the

complainant in filthy words by taking the name of his caste

and with an intention to murder him, pushed the

complainant into the fire of the hay stack. Thereafter,

complainant came out of the fire and then the accused

No.3 again pushed him into the fire. Then the wife,

daughter and son-in-law of the complainant came to the

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spot and rescued him and many people had gathered and

thereafter the complainant was shifted the hospital in a

ambulance. While the complainant was taking treatment

in the hospital, his statement was recorded and the FIR

was registered in Crime No.38/2024 for the offences

punishable under Sections 143, 147, 341, 307, 506 R/w

Section 149 of I.P.C. and Section 3(1)(r)(s), 3(2)(VA) of

the Scheduled Castes and Schedule Tribes (Prevention of

Atrocities) Act.

5. Now the accused No.4 and 6 in Criminal Appeal

No.200104/2024 contend that there is no overt act i.e.

attributed to them in the complaint and they were only

present at the spot. It is contended that the complainant

makes omnibus allegation in the complaint that these

petitioners were abusing the complainant in filthy words.

Therefore, it is contended that the petitioners are entitled

for the regular bail. The allegations as against accused

No.4 and 6 and these petitioners is that they had come to

the spot since there was fire to the hay stack and in the

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absence of any overt act attributed to them, they cannot

be made to languish in jail and therefore the petitioners

being ready and willing to abide by any condition that may

be imposed by the Court, may be granted regular bail.

and 5 in Criminal Appeal No.200106/2024 submit that

they had not abused the complainant by taking the name

of his caste as per the complaint and therefore the bar

under Section 18 of SC/ST (POA) Act is not applicable.

He submits that the accused No.1 and 5 are not alleged of

any overt act in the complaint and therefore they may be

granted anticipatory bail. So far as the accused No.3 is

concerned, it is submitted that the incident had occurred

when there was a scuffle and when the hay stack stored in

their land had caught fire and therefore the intention to

commit murder cannot be attributed to the accused No.3.

On these grounds, he submits that the accused No.1, 3

and 5 may be granted the anticipatory bail.

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7. The learned counsel appearing for the

respondent No.2, who is the complainant, has filed

objections to the both the appeals and has submitted that

the Trial Court in its order has considered all the relevant

factors and has come to the conclusion that the application

for bail as well as the anticipatory bail are not

maintainable. He points out to para 11 of the order of the

Trial Court in Crl.Misc.No.442/2024 wherein the Trial Court

had observed that there were 15 to 16% of the burn injury

and there is prima-facie material against the accused and

when the investigation is still going on, there is no reason

to grant the bail before filing of the charge sheet. It is

pointed that the Trial Court had kept open the option to

consider the bail after filing of the charge sheet. He

further submitted that the injured though discharged from

the hospital, was advised for further treatment by way of

plastic surgery. It is contended that the burn injuries are

susceptible for deformities of the face and other parts of

the body and therefore the allegations being serious and

severe, the appeal for regular bail cannot be entertained.

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8. So far as the Criminal Appeal No.200106/2024

is concerned, he submits that all the accused had a

common object and I.O. has invoked the provisions of

Section 149 of IPC and as such the abuse by taking the

name of the caste of the complainant can be attributed to

the other accused also. Therefore, he submits that the

appeal for anticipatory bail cannot be entertained.

9. Learned High Court Government Pleader

appearing for the respondent-State has supported the

contention of the learned counsel for the respondent No.2

complainant. He has sought for rejection of both the

appeals on the ground that the investigation is still in

progress and the complainant is still undergoing treatment

and as such the appeals deserve to be dismissed.

10. Having considered the submissions made by the

rival parties, the question that arise is whether the

appellants in Criminal Appeal No.200104/2024 are entitled

for regular bail and the appellants in Criminal Appeal

No.200106/2024 are entitled for the anticipatory bail.

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11. So far as the Criminal Appeal No.200104/2024

is concerned, it is to be noted that the accused No.4 and 6

are the persons who were present at the spot. The

complaint simply mention that they were present and they

were abusing the complainant in filthy words. The

accused No.6 happens to be the son of accused No.1. A

perusal of the complaint would not show what was the

overt act committed by these accused. It is evident that

the complaint is clear and categorical in saying that the

accused No.2 and 3 committed the overt act of throwing

the complainant into the fire and pushing him into the fire.

The specific acts by the accused No.4 and 6 is not

forthcoming in the complaint. So also the subsequent

investigation also does not show that there was any

allegation of the overt act on their behalf. Therefore, the

detention of these accused in the custody would be

nothing but pre trial punishment. It is evident that the

allegation of Section 307 of IPC appears to be a matter

which needs to be considered on the basis of the evidence

that would be placed on record before the Trial Court.

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Obviously, the incident had taken place at the spur of the

moment when there was a quarrel on account of the fire to

the hay stack stored in the land of the accused. There is

nothing which would show that the accused had come to

the spot with a plan and preparation. Under these

circumstances, the allegation under Section 307 of IPC

prima facie lack the required ingredients, which need to be

ascertained only in the trial; the remaining offences do not

show the required gravity and severity to make this Court

to reject the bail. Consequently, the accused No.4 and 6

are entitled for the regular bail, however subject to

stringent conditions.

12. Coming to the Criminal Appeal

No.200106/2024, the learned counsel appearing for the

respondent No.2 has brought to the notice of this Court

that there is a bar under Section 18 of the SC/ST (POA).

The learned counsel appearing for the respondent has

placed reliance on judgment by Coordinate Bench of this

Court, where relying on the judgment in the case of

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Prathvi Raj Chauhan V/s Union of India and others1

and Hitesh Verma V/s State of Uttarakhand and

another2, it was held that when the offence under the

provisions of the SC/ST Act is not made out, the bar under

Section 18 and 18-A of SC/ST (POA) would not come in

the play.

13. A perusal of the complaint would clearly show

that when the incident took place, it was the accused

Nos.2 and 3 who came to the spot and thereafter the

remaining accused came. The accused No.2 had abused

the complainant by taking the name of his caste and then

pushed into the fire. When the complainant came out

from the fire, the accused No.3 pushed him again into the

fire. There is no allegation against the remaining accused

of having committed any overt act. Evidently, the accused

No.2 in the rage of having lost the hay stack to the fire,

has abused the complainant by taking the name of the

caste. Therefore, it cannot be said that the provisions of

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SC/ST (POA) are not applicable, but they apply only to the

accused No.2.

14. So far as the accused No.3 is concerned, he

also was present at the spot and when the complainant

came out from the fire, he pushed him into the fire again.

Thus, there is a clear overt act on his part as may be

found from the complaint. It is pertinent to note that the

accused No.2 and 3 were present at the spot and the

complaint makes a clear allegation against accused No.2

only so far as the provisions of the SC/ST is concerned.

Strangely the complainant do not allege that accused No.3

had also taken the name of the caste. However, the

provisions of SC/ST (POA) Act are applicable provided the

common object is also shown. The common object was

not that the complainant has to be insulted because he

was belonging to the SC/ST Community. The common

object was to resist the complainant since he had put fire

to the hay stack. Therefore, it is evident that out of

accused Nos.1, 3 and 5 there is overt act by accused No.3,

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but there is no overt act on the part of accused Nos.1 and

5, the accused No.1, 3 and 5 had not abused the

complainant by taking the name of his caste. However,

they have abused in filthy words. Therefore, it is evident

that when overt act is alleged against the accused No.3

and accused No.3 was also acting with the accused No.2

while pushing the complainant into the fire, the common

object that could be attributed to the accused No.2 can

also be attributed to accused No.3. In that view of the

matter, the provision of the SC/ST POA Act, prima-facie

cannot be made applicable to accused Nos.1 and 5, but

however it applies to accused No.3 on account of the

common object that could be attributed to him along with

accused No.2.

15. Under these circumstances, the Criminal Appeal

No.200106/2024 seeking the anticipatory bail deserves to

be allowed in part, so far as the accused No.1 and 5 is

concerned. However, the accused No.3 is not entitled for

the anticipatory bail.

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16. For the above reasons, the Criminal Appeal

No.200104/2024 deserves to be allowed and the Criminal

Appeal No.200106/2024 is allowed in part. Hence, the

following:

ORDER

The Criminal Appeal No.200104/2024 is allowed.

The accused Nos.4 and 6 in FIR Crime No.38/2024 of

Babaleshwar Police Station are entitle for regular bail

subject to condition that they shall execute personal bond

for a sum of Rs.1,00,000/- each along with two sureties

for the likesum to the satisfaction of the Special Court

subject to following conditions;