Mallikarjun vs State

Budihal R.B., J. - This petition is filed by the petitioners-accused Nos. 1,2 and 4 under Section 438 of Cr.P.C., seeking anticipatory bail to direct the respondent-Police to release the petitioners on bail in the event of their arrest for the offences punishable under Sections 504, 143, 341, 506, 148, 148, 307, 323, 147 of EPC and Sections 3(l)(x), 2(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ''the Act''), registered in respondent-Police Station Crime No. 105/2016.

Heard the arguments of the learned counsel appearing for the petitioners-accused and also the learned Government Pleader for the respondent - State.

The counsel for the petitioners made the submission that the allegations made in the complaint are not sufficient to attract the provisions of Section 18 of the Act so that the petitioners are not entitled to anticipatory bail. He also made the submission that Raju the brother of the complainant informed the complainant that the accused abused him by taking his caste. It is also his submission that though as per the case of the prosecution Raju was present at the spot when the accused persons abused him by taking his caste, but he has not filed any complaint. The learned counsel also taken this court to the order passed by the learned Sessions Judge granting bail to some of the accused persons. The learned counsel draw the attention of the court at paragraph-13 of the said order and made the submission that looking to the observation made by the court this itself clearly goes to show that intention on the part of the accused was not at all prima facie established by the prosecution. Because it has been observed by the court below that intention of the accused creates a doubt. Hence, he submitted that the petitioners have not at all committed alleged offences under the provisions of the Act. So far as other offences are concerned, the learned counsel submitted that there is no allegation that Raju the brother of the complainant has been assaulted by any of the accused. Hence, he submitted to allow the petition.

The learned Government Pleader made the submission that so far as petitioner Nos.1 and 2 who are accused Nos. 1 and 2 there is clear allegation that they have abused the complainant and brother of the complainant by taking the name of the caste and thereby committed offence under the provisions of the Act. Therefore, as per Section 18 of the said Act, there is a clear bar to entertain the petition to grant anticipatory bail in favour of petitioner Nos. 1 and 2 is concerned. So far as petitioner No.3 who is accused No.4 learned Government Pleader fairly submitted that there are no such allegation as against petitioner No.3 is concerned. Hence, he submitted to pass appropriate order.

I have perused the grounds urged in the bail petition, F.I.R., complaint and also the other materials, so also the orders passed by the learned Sessions Judge. Copy of which is produced in this case. Looking to the allegations in the complaint, it is stated by the prosecution that one Bhashu the elder brother of Raju lodged a complaint alleging that on 27.07.2016 at about 8:30 p.m. that on 26.06.2016 when there was Gram Panchayat meeting regarding allotment of houses under Dr. Ambedkar Vasati Yojana, there was verbal quarrel between accused No. 1 and complainant regarding allotment of houses. It is the further case of the complainant that on the same day, at about 8:30 p.m. when the complainant was near Taluk Panchayat office at Yadgir, about 8 accused persons armed with stick, axe and stones restrained the complainant from going further and abused the complainant and tried to assault the complainant. The complainant left his motorcycle and started running towards his Tanda so as to escape from the clutches of the accused. It is further allegation in the complaint that as the complainant had left his motorcycle during the incident on 27.07.2016 the complainant instructed his brother Raju to get the motorcycle from the said place. As such when Raju and his relative one Ravi went to Yadgiri, to get the motorcycle, his brother Raju made a telephone call at about 4:40 p.m. to the complainant and informed him that Raju and Ravi were proceeding on the motorcycle and when they crossed Chaman halli cross and were near Yadgiri Welcome Board at that time all 8 accused persons stopped them. They were armed with axe and stick. Mallikarjun - accused No.1 abused Ravi and asked him about the complainant saying (Vernacular matter omitted Ed.) and further told Ravi that all the accused persons were waiting for arrival of complainant Basha and it is further alleged that Mallappa-accused No.2 also abused Ravi as (Vernacular matter omitted.....Ed.) and further that all the accused persons threatened Raju to take away the life of complainant tonight and saying so boarded Cruiser vehicle. On the basis of the said complaint case came to be registered for the alleged offences.

Looking to the allegations in the complaint so far as the allegations as against the complainant is concerned, the complainant was not present at the spot and it is only as per say made by Raju the brother of the complainant that, the accused persons abused him. Therefore, the complainant is hearsay so for as the said allegations are concerned and so far as Raju is concerned, he has not lodged the complaint and the allegations are yet to be considered during die investigation. I have also perused the order passed by the Trial Court at paragraph-13 it is observed by the Trial Court "Having regard to the totality of the circumstances in this case, the incident occurred on a sudden provocation and in a heat of moment and thereby prima facie intention of the accused creates a doubt" when the learned Sessions Judge observed like that the doubt was raised about the commission of the offence under the provisions of the Special Act as well as under the IPC. Perusing these materials placed on record, I am of the opinion at this stage they are not sufficient to constitute an offence under the provisions of the Act. Therefore, Section 18 cannot be a bar to the petition for granting anticipatory bail.

So far as the other offences are concerned, as he is submitted that, there is no assault even on Raju and Ravi but only the allegation is that they have threatened to lake away the life. In the petition, the petitioners have stated that they are innocent and not committed any offences and they are ready to abide by any conditions that may be imposed by the Court. Under these circumstances, I am of the opinion that the petitioners have made out a case and it is a fit case to exercise discretion in favour of the present petitioners.

Accordingly, the petition is allowed and the respondent-Police is directed to enlarge the petitioners on bail in the event of their arrest for the alleged offences, subject to the following conditions:

(1) Each petitioners - accused Nos. 1, 2 and 4 shall execute personal bond for a sum of Rs.50,000/- with one surety for the like sum to the satisfaction of the arresting authority;

(2) They shall not tamper any of the prosecution witnesses directly or indirectly;

(3) They shall appear before the Investigating Officer as and when called for interrogation and to co-operate with the Investigating Officer for further investigation of the matter;

(4) They shall appear before the concerned Court within 30 days from the date of receipt of a copy of this order and shall execute personal bonds and also surety bonds as stated above.