Mayappa and Others vs The State of Karnataka

Budihal R.B., J.—This is the petition filed by the petitioners/accused under Section 438 of Cr.P.C. seeking anticipatory bail to direct the respondent-police to release them on bail in the event of their arrest for the alleged offences punishable under Sections 323, 354, 504 R/w. Section 34 of IPC and Section 3(1)(10) of SC/ST Act, 1989 registered in respondent-police station Crime No. 93/2015.

The brief facts of the case of the prosecution as per the averments in the complaint are that on 28.08.2015 at about 7.30 p.m., when the son-in-law of the complainant and others were firing the crackers, as a result, the cow, which was tied in front of the house of the complainant was getting disturbed, as such the complainant abused his son-in-law at that time the petitioners thinking that the complainant is abusing them, picked up quarrel with the complainant abused him in filthy language and assaulted him. When his wife and mother intervened to rescue him, the accused have abused and assaulted them also. The elders pacified the said incident and the mother of the complainant was taken to the hospital for treatment. On the basis of the said complaint, a case has been registered for the above said offences.

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

Learned counsel for the petitioners made the submission that, since this petition is under Section 438 of Cr.P.C. and in view of the Section 18 of the SC/ST (Prevention of Atrocities) Act, it is to be seen whether the complainant and the prosecution has made the case under the provisions of SC/ST Act so as to disentitle to claim for anticipatory bail. He made the submission that, looking to the averments made in the complaint it is not specifically mentioned about the abusive words and out of two accused, which accused used which abusive words is also not specified in the averments. Only vague allegations are made. Hence, he submitted the provision of offence under the SC/ST Act are not attracted prima facie. Therefore, Section 18 of the said Act cannot be bar in entraining the petition for grant of anticipatory bail. He also made the submission that, so far as other alleged offences under the IPC are not the serious offences and they are triable by the Magistrate Court. Hence, he submitted, by imposing reasonable conditions, the petitioners may be enlarged on bail. In support of his contention, the learned counsel for the petitioners has relied upon the decision reported in 2014(5) KCCR 949.

Per contra, the learned HCGP during the course of arguments made the submission that so far as the abusive words are concerned, it is mentioned in the complaint and at the stage while lodging complaint the complainant was not expected to mention which accused used which abusive words. Hence, she made the submission that the complaint averments clearly show the commission of the offence. Even under the provisions of SC/ST (Prevention of Atrocities) Act, Section 18 of the said Act is a bar to entertain the present petition for grant of anticipatory bail. Hence, she submitted on this ground itself the petition be rejected.

I have perused the averments made in the bail petition, FIR, complaint and other materials produced by the petitioner along with the petition so also the order passed by the learned Sessions Judge, rejecting the bail petition. It is no doubt true, since, the petition is under Section 438 of Cr.P.C., firstly the petitioners have to convince the Court that Section 18 of the SC/ST (Prevention of Atrocities) Act will not come in the way in entertaining this petition for grant of anticipatory bail. Perusing the complaint averments, it is no doubt true that, there is allegation in the complaint that the accused persons abused the complainant and his relatives in filthy language and also taking the name of the caste. But when there are two accused persons it cannot be accepted that both the accused persons in the same voice and in the similar words abused the complainant and his relatives. Apart from that, the materials on record goes to show that the incident was going on not directly between the present petitioners and the complainant, but it was with the school boys because of firing of the crackers in front of the house of the complainant and at that movement the accused and his relatives came there. Because of this the alleged incident said to have been taken place, even as per the averments in the complaint. Looking to the said allegations, in my opinion, prima-facie the offence under the provisions of SC/ST Act are not attracted and I have also perused the decision relied upon by the learned counsel for the petitioners referred above.

So far as, other offences are concerned, they are triable by the Magistrate Court and they are not serious offences. The petitioners have undertaken in the bail petition that they are ready to abide by any conditions imposed by the Court and they will cooperate with the investigating agency.

Hence, petition is allowed and the respondent-police is hereby directed to release the petitioners-accused on bail in the event of their arrest, subject to the following conditions:

"1) Each petitioner to execute personal bond for Rs. 25,000/- with one surety for the likesum, to the satisfaction of the concerned Court.

2) They shall not tamper with any prosecution witness directly or indirectly.

3) They have to appear before the concerned Court within 30 days from the date of this order and to execute the personal bond and surety bond.

4) They have to appear before the I.O. as and when called for and co-operate with the investigation."