IN THE HIGH COURT OF KARNATAKA AT BENGALURU BEFORE THE HON' BLE MR. JUSTICE L. NARAYANA SWAMY. CRIMINAL PETITION No.2141/2016

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1 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE 20 TH DAY OF OCTOBER 2016 BEFORE THE HON' BLE MR. JUSTICE L. NARAYANA SWAMY CRIMINAL PETITION No.2141/2016 BETWEEN: SRINIVASAN.K S/O THIMMARAYAPPA. K AGED ABOUT 56 YEARS R/AT SANTHOSH NIVAS, PRIYADARSHINI LAYOUT KOWDEHALLI EXTENTION, RAMAMURTHY NAGAR BENGALURU PETITIONER (BY SRI RAVINDRA B DESHPANDE, ADV.) AND: 1. STATE OF KARNATAKA BY INDRANAGAR POLICE STATION, BANGALORE CITY BANGALORE (REP. BY SPP, HIGH COURT BUILDINGS BENGALURU ) 2. R.MADHUSUDHAN S/O R.SURYANARAYANA, AGED ABOUT 39 YEARS WORKING AT STC OF INDIA LTD, B-1 201, MARATHON

2 2 NEXTAGON INNOVA, OPP. GK MARG, LOWER PAREL MUMBAI AND ALSO RESIDENT OF BEERAKOPPAM VILLAGE AND POST III A K G KAVADIGAL THIRUTHANE TALUK THIRUVELLUR DISTRICT. TAMILNADU MR. BALARAJU S/O MOTAPPA AGED ABOUT 36 YEARS ITHARAHALLI VILLAGE BUDIGERE (POST) CHANNARAYAPATNA HOBLI DEVANAHALLI TALUK BANGALORE MR. SRINATHGOWDA S/O SATHYANARAYAN RAO AGED ABOUT 36 YEARS ITHARAHALLI VILLAGE BUDIGERE (POST) CHANNARAYAPATNA HOBLI DEVANAHALLI TALUK BANGALORE RESPONDENTS (BY SRI P.M.NAWAZ, SPP FOR R1 SRI S.JAGAN BABU, ADV. FOR R2 TO 4) THIS CRL.P IS FILED U/S. 439(2) CR.P.C PRAYING TO SET ASIDE THE ORDERS DATED IN CRL.MISC. NO.3618/2015 AND 20/07/2015 CRL.MISC. NO.4289/2015 RESPECTIVELY PASSED BY THE II ADDL. CITY CIVIL AND S.J. AND SPL. JUDGE, BANGALORE BY CANCELLING THE ANTICIPATORY BAIL GRANTED IN CRL.MISC. NO.3618/2015

3 3 AND CRL.MISC. NO.4289/2015 RESPECTIVELY IN RESPECT OF CR.NO.169/2015 OF INDIRANAGAR P.S. (EARLIER REGISTERED IN CR.NO.280/2015 OF VIDHANA SOUDA P.S. WHICH WAS LATER TRANSFERRED TO INDIRANAGAR P.S. WHO HAVE FILED THE CHARGE SHEET) PASSED BY THE II ADDL. CITY CIVIL AND S.J. AND SPL. JUDGE, BANGALORE DATED AND THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING O R D E R The petitioner is the complainant(cw-2). On the basis of his complaint, case has been registered in Crime No.169/2015 by the Indiranagar Police station on for the offence punishable U/s 506 of IPC and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Subsequently, the complainant died. CWs 3 and 4 are the eye witnesses to the incident. 2. The complainant in his complaint dated has stated that on at 2.30 p.m. he went to Adigas Hotel, Indiranagar, Bangalore. At that point of time, one Mr. Subramanyam, R. Madhusudan and Sri M. Balaraju and Srinath Gowda were present there. He was accompanied by Muniswamy and one Mr. B.Ramesh to the venue in order to settle the lis

4 4 pending between the complainant and the accused. At the time of discussion, the accused insisted the complainant to take back the case and then only they would sit for negotiation. When this was turned down and the complainant refused to withdraw the case, the accused persons shouted that complainant was an untouchable and the complainant is a Holeya and good for nothing and further abused him by using his caste stating that keelu Jaatiyalli hutti, neenu namma jothe koothu business madthiya, yestu dhairya ninage, soole magane, boli magane, ninna jaathige chappali biduva jagane correctu, maryadeyinda case na wapas thago, illa andre ninnanna, ninna familyna, ninna jaathine illadange madthini holeya kalla soole magane The accused persons assaulted the complainant in front of public and threatened with dire consequences and if the complainant fails to take back the case, he would be finished. 3. Immediately he went to Indiranagar police station and lodged the complaint on It is the case of the complainant that Indiranagar police refused to register the case.

5 5 Thereafter, the complainant filed the complaint before the Vidhana Souhda police station, who registered case initially and thereafter transferred the crime to Indiranagar Police Station in Crime No.169/15 for the aforesaid offences. 4. The accused 1 and 2 approached II Addl. City Civil and Sessions Judge at Bangalore (CCH.No.17) in Crl. Misc. No.3618/2015 and the accused 3 and 4 preferred Crl. Misc. No.4289/2015 and the learned Sessions Judge has granted the anticipatory bail to the accused persons. Aggrieved by the same, this petition is filed by the petitioner complainant for cancellation of bail. 5. The learned counsel for the petitioner submits that Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the PoA Act for short ) is a bar to a person who has committed the offences under the said Act to seek an anticipatory bail. The Court itself has no jurisdiction to consider the application for grant of anticipatory bail; and hence the petition filed under Section 438 Cr.PC is contrary to law.

6 6 6. The learned Sessions Judge has further committed an error in considering the merits of the case which was improper on his part. While granting anticipatory bail, the learned Sessions Judge has considered the date of incident and probability of the offence committed by the accused and has also examined the agreement entered into between the parties and deed of settlement as also the written statement filed by the accused in O.S.No.815/2008 pending on the file of the Senior Civil Judge, Devanahalli and further observed that there is no material from any independent witnesses to support the alleged incident; and when the dispute between the parties is pending, it is difficult to believe that the present petitioners called the complainant for negotiating the settlement. If there were any efforts of settlement, the same would have been settled in the presence of the Advocates who represent the parties before the Court. Hence there is no justification to reject the prayer for anticipatory bail when the offence under section 506 of IPC is not punishable with either death or imprisonment for life. The learned counsel for the petitioner further submits that when the petition is filed under section 438 Cr.PC and when the learned

7 7 Public Prosecutor has filed objection opposing the said petition, there is bar under section 18 of the PoA Act, to consider the application/petition filed under section 438 of Cr.P.C. The learned Sessions Judge has wrongly exercised his discretion in granting anticipatory bail to the accused persons. 7. When the petition is filed under section 438 Cr.PC the limited jurisdiction that Court could consider is whether the party can tramper the witnesses and documents and whether there is prima facie case on the basis of the materials available on record. It is impermissible for the learned Sessions Judge to consider the merits of the case at that stage. 8. The learned counsel for the petitioner in support of his case has relied upon the judgment of the Hon ble Supreme Court in the case of VILAS PANDURANG PAWAR AND ANOTHER VS. STATE OF MAHARASTRA AND OTHERS reported in (2012) 8 SCC 795 wherein it is held that Section 438 of Cr.PC is not applicable to a person who has committed the offence under the PoA Act. He has also relied upon the judgment in the case of BACHU DAS VS STATE OF BIHAR AND OTHERS reported in (2014)3 SCC 471

8 8 in which the Hon ble Supreme Court has considered the judgment rendered in the case of VILAS PANDURANG PAWAR AND ANOTHER (supra) and held that the High Court has committed an error in granting anticipatory bail. Accordingly the order of the High Court has been set aside. The learned counsel for the petitioner also relied upon the judgment in the case of SHAKUNTLA DEVI VS BALJINDER SINGH reported in (2014)15 SCC 521, in which the Hon ble Supreme Court has considered both the judgments referred to above and allowed the appeal. 9. On the other hand, the learned counsel for the respondents sought to dismiss this petition on the ground that firstly the petition is filed after lapse of more than a year of granting anticipatory bail on in respect of Accused 1 and 2; and on 20 th July, 2015 in respect of accused 3 and 4. The investigating officer has filed the charge sheet on The learned Sessions Judge has properly considered the case of the accused. This petition is not maintainable since the accused had the benefit of anticipatory bail for more than 1½ years. Secondly, it is submitted that the trial court has examined in

9 9 detail the prima facie case on the basis of the complaint and also based on the papers made available. There is delay in filing the complaint. The delay of nine days in filing the complaint has not been properly explained. Thirdly, the incident has taken place in Indiranagar police station jurisdiction, whereas the complaint has been filed in the Vidhana Soudha Police Station and Vidhana Soudha Police has no jurisdiction to receive the complaint. Hence the petition has to be rejected. He also, has referred to the judgment in the case of VILAS PANDURANG PAWAR & ANOTHER (supra) and submits that in the said judgment it is held that under Sub-Section (7) of Section 18 of the PoA Act, Section 438 CrPC is not a bar to consider the provisions of the PoA Act and the Court has jurisdiction to find out whether there is any prima facie material available to consider the offence under the PoA Act. 10. Heard both. The short question involved in this petition is as to whether the accused, who is charged for the offences under the provisions of Indian Penal code along with the provisions of Scheduled Castes and Scheduled Tribes (Prevention

10 10 of Atrocities) Act, 1989, is entitled for anticipatory bail under Section 438 of the Code of Criminal Procedure? 11. Section 438 of the Criminal Procedure Code permits the accused to approach the Sessions Court or the High Court seeking anticipatory bail in respect of the offence falling under the provisions of Indian Penal Code. In case the offence falls under the provisions of the PoA Act, Section 18 of the said Act, is a bar, which reads thus: 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. 12. Hence, there is an express provision under the PoA Act which disentitles the Sessions Court to entertain the application made under Section 438 Cr.PC for the purpose of consideration of the case of the accused either for granting or refusing anticipatory bail. The Hon ble Supreme Court in the

11 11 case of VILAS PANDURANG PAWAR AND ANOTHER (supra), at paragraph 7 of the judgment, has held as under: 7. It is useful to reproduce Section 18 of the SC/ST Act which reads as under: 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. A reading of the above provision makes it clear that Section 438 of the Code is not applicable to persons committing an offence under the SC/ST Act. In the complaint, the complainant has specifically averred that she and her family members were insulted by the petitioners by mentioning her caste and also assaulted them by saying Beat the Mahar so that, they should not live in the village. 13. In view of the express provision of Section 18 of the PoA Act, there is bar for the Sessions Court or the High Court to

12 12 entertain the application filed for the purpose of granting anticipatory bail. 14. However, that itself is not a complete bar from filing an application for consideration of anticipatory bail. When such applications are made wherein accusation of offence under the provisions of the PoA Act is alleged, the Courts have to look as to whether there is a prima facie case made which attract the offence under the provisions of the PoA Act; and the case is required to be examined, whether the allegation made against the accused is sufficient for the purpose of Section 3(1)(x) of the PoA Act. The ingredients of the said Section of the PoA Act is that the victim belong to either scheduled caste or scheduled tribe and the accused has called the victim by his caste for the purpose of insulting or verbally assaulting, then it is an offence. If basic ingredients are found from the complaint, that itself is sufficient for the Court to restrain itself from considering the petition made for anticipatory bail. The Court shall not enter into the prima facie case, as the scope is very limited. The Hon'ble Supreme Court in the said case has held that the Court

13 13 is not expected to indulge in critical analysis of the evidence on record. When a provision has been made in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been specified in granting bail under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence. 15. In this regard, the Sessions Court in respect of accused No.1 to 4, in two different court proceedings, examined whether there is truth in the complaint made against the accused. In the course of Judgment, at paragraph 10 of the order, it is observed by the Sessions Judge that Except the complaint allegations, there is no material from any independent witnesses to support the alleged incident. When the matter is in dispute between the parties, it is difficult to believe that the present petitioners called the complainant to the hotel for negotiating settlement. If there was any effort for settlement the same would have been in the presence of the advocates who represent the parties before the Court. Hence, there is no

14 14 justification to reject the prayer for anticipatory bail, when other offences under Section 506 of IPC is not punishable with death or imprisonment for life. 16. When these are the discussions made by the Court below, it was unwarranted to interfere in the light of the judgment of the Hon'ble Supreme Court in the case of BACHU DAS (supra). The case of the accused, as referred in the judgment, is extracted here below: 4. The learned counsel appearing for the respondent-accused submitted that from the day, namely, , when the High Court granted anticipatory bail to these persons, no untoward incident had occurred and they co-operated with the investigating officer. He also brought to our notice the earlier order of the High Court dated , wherein it is mentioned that there is serious land dispute between the parties and use of filthy language by caste name, is unacceptable. Relying on this order, the counsel for the accused submitted that no interference is called for in the order passed by the High Court.

15 15 follows: Further, at paragraph 4 of the judgment, it is observed as In the light of the factual details, as found in the order of the learned Sessions Judge, Saran at Chapra, dated , and in the light of the statutory provision as interpreted by this Court in the above cited decision, we are satisfied that the High Court has committed an error in granting anticipatory bail. Accordingly, the said order is set aside. Respondents 2 to 8-accused are granted four week s time from today to surrender before the appropriate court and seek for regular bail. 17. In granting anticipatory bail the observation that there was no independent witness to support the alleged incident and there could have been settlement negotiated in the presence of the advocate, is unwarranted. Whether any witness supports the case of the prosecution or not is a premature one and it was not required to be addressed by the learned Sessions Judge, that too at the crime stage. By extracting Section 18 of the PoA Act, the Hon ble Supreme Court in the case of VILAS PANDURANG

16 16 PAWAR (supra) at paragraph 7 has observed that a reading of the above provision makes it clear that Section 438 of the Code is not applicable to persons committing an offence under the SC/ST Act. In the complaint, the complainant has specifically averred that she and her family members were insulted by the petitioners by mentioning her caste and also assaulted them by saying beat the Mahar so that they should not live in the village. 18. Further, it is also useful to extract the observations by the Hon'ble Supreme Court in the said case in paragraph 10 of the judgment, which reads thus: 10. When a provision has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and Scheduled Tribes and a bar has been imposed in granting bail under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence. (emphasis supplied)

17 The learned counsel appearing for the respondentaccused referred to Sub-section (7) of Section 18 of the PoA Act, which makes it clear that Section 438 CrPC is not a bar for the offence punishable under the provisions of the PoA Act suffers from constitutional validity. The said Section was the subject matter in the case of VILAS PANDURANG PAWAR (supra) wherein the validity has been upheld and it is also made clear in the said judgment that the Court, for a limited purpose, has to examine as to whether the contents in the complaint constitute the offence under Section 3(1)(x) of the PoA Act, and except this, it is impermissible for the Courts to proceed further. 20. The Hon ble Supreme Court in the case of SHAKUNTALA DEVI (supra) after referring to the case of VILAS PANDURANG PAWAR (supra) has observed that Section 18 of the Act creates a specific bar to grant anticipatory bail to a person against whom any offence that is registered under the provisions of the aforesaid Act, and therefore no court shall entertain an application for anticipatory bail unless it, prima facie, finds that an offence under the Act is not made out.

18 The submission of the learned counsel for the respondent-accused that there was a lis between the parties and the complainant had instituted a suit in OS No.815 of 2008 on the file of the Senior Civil Judge, Devanahalli and in order to fortify the said suit he has made the said case which is false one and the said submission cannot hold water. 22. As is held by the Hon'ble Supreme Court in the case of BACHU DAS (supra) the accused was granted anticipatory bail by the High Court on 26 th February 2010, no untoward incident had occurred and they co-operated with the investigating officer; and he also brought to the notice of the Hon'ble Supreme Court that on 26 th February 2010 wherein it is mentioned that there is a serious land dispute between the parties and the use of filthy language by the accused is unacceptable. Considering the submission of the respondent-accused, the Hon'ble Supreme Court has refused to interfere and at paragraph 7 of the judgment has observed thus: 7. In the light of the factual details, as found in the order of the learned Sessions Judge, Saran at Chapta,

19 19 dated , and in the light of the statutory provision as interpreted by this Court in the above cited decision, we are satisfied that the High Court has committed an error in granting anticipatory bail. Accordingly, the said order is set aside. Respondents 2 to 8-accused are granted four weeks time from today to surrender before the appropriate court and seek for regular bail. 23. When such being the case, in the instant case, the learned Judge has committed a serious error in examining the case of the parties at a premature stage and observing that there is no independent witness to constitute an offence under the provisions of PoA Act, is unacceptable. 24. When there is a specific provision enacted in the PoA Act, and when there is a bar, the Courts should abstain from entertaining any application for anticipatory bail, and further, held that when a constitutional validity was challenged in VILAS PANDURANG PAWAR case (supra), even then proceeding further and granting of anticipatory bail by the learned Sessions Judge is to be taken note of seriously by this Court as this amounts to

20 20 indiscipline and amounts to brushing aside the observation made by the Hon'ble Supreme Court which has a binding nature. 25. Further, with regard to the submission of inordinate delay in approaching this Court, it is submitted that the bail was granted on 2 nd July 2015 whereas charge sheet was also filed on 2 nd July 2015 and the petitioner had approached this Court on 18 th March 2016 which itself is sufficient to dismiss the petition on the ground of unexplained delay in approaching the Court, the said submission cannot be accepted for the reason that when the Court lacks power to entertain the petition, the question of granting bail itself is contrary to law and also contrary to the judgments of the Hon'ble Supreme Court. In fact, in the case of BACHU DAS (supra) this very ground was raised about inordinate delay in which the High Court granted anticipatory bail on 5 th May, 2010, whereas the Crime was of the year 2008, i.e. almost after two years. Even then, Hon'ble Supreme Court has set aside the order of the High Court and directed the accused to surrender. Under the circumstance, limitation and delay stated

21 21 by the respondent-accused is liable to be rejected and accordingly it is rejected. 26. In the light of the discussions made above, the order dated 2 nd July 2015 and 20 th July 2015 passed in Criminal Miscellaneous No.3618 of 2015 and 4289 of 2015 respectively, by the II Additional City Civil and Sessions Judge and Special Judge (CCH No.17) is to be set aside and accordingly it is set aside. The respondents No.2 to 4-accused are granted four weeks time to surrender before the appropriate Court and seek regular bail. If the accused appear before the Court and make application for regular bail, it is for the Court to pass appropriate order, if possible on the same day. Criminal Petition is accordingly allowed. Nm/lnn Sd/- JUDGE