Uday vs State of Karnataka

K. Sreedhar Rao, J.—The petition is filed u/s 438 Code of Criminal Procedure for grant of anticipatory bail. The Petitioner is accused of committing offences punishable under Sections 323, 504, 506 Indian Penal Code and Section 3(1)(10) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short ''the Act'').

The facts of the prosecution reveal that Bharath M. Magdoor and the accused-Petitioner were colleagues working for a developers. It appears that there was a written agreement between them. The complainant was insisting for furnishing copy of a written agreement. The accused used to postpone the delivery of copy on the pretext that the documents are with their Advocate. On 6.4.2002 the complainant had demanded the delivery of copy of the agreement and again on 8.4.2002 at about 2 p.m. In Kamath Cafe, Cotton Market area when the complainant met the accused and demanded the copy, the accused refused to give the copy and on persistent demands, the accused got wild assaulted him and also abused the complainant in filthy language and abused him by his caste name "valmiki" and "beda" and the complainant refused to furnish the copy. The incident is said to have been witnessed by one Chennabasappa Kallappa Bhavi and Mobasa Shettappa Karishety who intervened and pacified the parties. Upon the complaint, the police have registered a case against the accused-Petitioner for the aforesaid offences.

In the anticipatory bail application, it is contended that the Petitioner is innocent and vindictively for oblique reasons a false case is registered. It is also said that Petitioner is not aware of the caste of the complainant as such, the question of commission of offence u/s 3(1)(10) of the SC/ST Act does not arise.

The Counsel for the Petitioner relied on the ruling of this Court in Chikkappa and Others Vs. State, . On carefully going through the said decision, I find the ratio laid down in the said case has absolutely no application to the facts of the present case. In the said decision, it is held that the Court will have to take a look at the first information report and the allegations made therein to find out whether prima facie an offence under the SC/ST Act is made out. If there is material to suggest the commission of such offence then the provision of Section 18 of the SC/ST Act applies in the result, no petition u/s 438 Code of Criminal Procedure can be entertained. However, if there is no prima facie case, the Court including the Sessions Court can certainly consider the material available to pass appropriate orders u/s 438 of Code of Criminal Procedure.

On facts, the Court found that there was no material to suggest that the accused persons were not the members of the Scheduled Caste or Scheduled Tribe and also found that there was no intention to intimidate or humiliate the victim as a member of the Scheduled Caste or Scheduled Tribe. In that view, the petition u/s 438 Code of Criminal Procedure was entertained and allowed. However, in the present case, I find that there is no averment or assertion on the part of the Petitioner that he is a member of the Scheduled Caste or Scheduled Tribe. In the absence of such positive assertion or averment, it is impermissible for the Court to assume or infer that the provisions of section SC/ST Act do not apply to the Petitioner. Secondly, the averments in the FIR clearly indicate that the complainant belongs to a Scheduled Tribe and he was abused in filthy language by his caste name in public view. Therefore, there is a prima facie material in the instant case to suggest the commission of an offence u/s 3(1)(10) of the SC/ST Act.

The Counsel for the Petitioner submitted that he may be permitted to withdraw the petition and to file a petition u/s 482 Code of Criminal Procedure for quashing of the proceedings. In the face of a prima facie material to attract the provisions of Section 3(1)(10) of the SC/ST Act, the question of quashing of the proceedings does not arise at all.

The Police have registered the case for several Indian Penal Code offences including an offence u/s 3(1)(10) of the SC/ST Act. Whether the accused has committed an offence u/s 3(1)(10) of the SC/ST Act or not, is a matter that should be gone into and is to be considered by the Investigation Officer by a full scale investigation. After the conclusion of the investigation and in the final report it is to be seen whether the accused could be charged for committing the offences u/s 3(1)(10) of the SC/ST Act also. When the FIR discloses composite and multiple offences from the given transaction and when there is absence of prima facie material in respect of any one of the named offence/offences it would not be proper to quash the FIR in toto as there would be a necessary prima facie material in respect of other offences. Further it would be highly premature and not proper to quash the FIR partially also in respect any of the offence or some of the offences for want of prima facie material in the FIR. The Investigation Officer should be given free hand and discretion to conduct the investigation to collect all necessary material available to enable him to file the final report. When the Investigation Officer does not get necessary material in respect of any of the offence/offences after the completion of investigation, necessarily for the offence/offences for which when there is no material, no prosecution would be launched. The FIR is not a complete document relating to offence/offences. It is only a preliminary First Information Report. In the course of investigation, it is open for the Investigation Officer to conduct the investigation and collect all necessary material, even if some of the offences not named in FIR are found to have been committed, it does not prevent the Investigation Officer from laying a final report including such of the offences which have come to light in the course of investigation. In that view of the matter, I do not find any merit in the petition. Accordingly, the petition is dismissed.