Vishwa Prasad vs State Of Karnataka & Others

K.Somashekar, J

Heard the learned counsel Shri Bharath Kumar V for the appellant / accused who is appearing through video conferencing and so also learned

HCGP for Respondent No.1 who is present before court physically.

In this appeal, notice has been duly served on Respondent No.2 / Smt. Sumithra R, through the police servicing agency, but Respondent No.2 who

is the author of the complaint, has not turned up to participate in these proceedings though the present appeal has been preferred by the accused /

appellant by challenging the order passed by the Trial Court in Crl.Misc.No.3620/2021 dated 30.04.2021.

The police are making hectic efforts to arrest this appellant / accused without any reason and though the ingredients of offences under the Special

Enactment of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 are not attracted. On these grounds, the learned counsel

for the appellant / accused seeks to allow the appeal and to set aside the impugned order passed by the Trial Court in Crl.Misc.No.3620/2021 dated

30.04.2021 and consequent upon allowing the appeal, to grant bail to the appellant / accused, as he is ready to abide by any terms and conditions while

granting bail under this appeal.

Learned counsel in this appeal has produced the impugned order passed by the Trial Court in Crl.Misc.No.3620/2021 vide Annexure-""B"" for the

purpose of perusal. Further, the learned counsel refers to the judgment of the Hon'ble Supreme Court in the case of PRATHVI RAJ CHAUHAN

vs. UNION OF INDIA ((2020 (4) SCC 727)) wherein, the Hon'ble Supreme Court of India has addressed the issues relating to offences under the

special enactment of the SC & ST (POA), Act, 1989, particularly of Section 18 and Section 18A of the said Act even though it has been stated that

there is an express bar to entertain the bail petition filed by the accused. On this premise, learned counsel for the appellant seeks to allow the appeal

and to set aside the impugned order passed by the Trial Court in Crl.Misc.No.3620/2021 and consequence upon allowing this appeal, that the petition

filed by the accused under Section 438 Cr.P.C. be restored and that petition as well be considered by granting bail as sought for.

Learned HCGP for the State in this appeal, argues counter to the arguments advanced by the learned counsel for the appellant who is challenging

the impugned order passed by the Trial Court in Crl.Misc.No.3620/2021. But subsequent to filing of a complaint by the complainant, the case in

Cr.No.53/2021 has been registered by the Rajajinagar P.S. for offences under Section 354 of the IPC besides section 3(1)(c), 3(1)(s) of the SC & ST

(POA) Act, 1989. The complainant who is working as a Meter Reader in BESCOM, Rajajinagar where the petitioner / accused in the aforesaid crime

was by avocation an Assistant Engineer in Rajajinagar BESCOM. He being the higher authority, used to harass the complainant. Consequent upon

certain harassment extended by the accused, on filing of a complaint by the complainant, the criminal law was set into motion by registering a case in

Cr.No.53/2021 by the Rajajinagar P.S. However, Respondent No.2 who is an informant / victim has not participated in the proceedings, the victim

cannot be deprived of her rights to respond to the crime registered by the Rajajinagar P.S. through the prosecution. Hence, prosecution has taken care

even under Section 301 Cr.P.C. on behalf of the informant / complainant / victim / dependant.

But in the instant case, there is an express bar relating to entertaining the bail petition filed under Section 438 of the Cr.P.C. and even dwelling into

the concept of Section 18 and Section 18-A of the Special Enactment of the SC & ST (POA) Act, 1989, wherein it is specifically stated that

provisions of Section 438 Cr.P.C. shall not apply to a case under this Act notwithstanding any judgment or order or direction passed by any court of

law.

When there is an express bar to entertain the bail petition filed by the accused under Section 438 Cr.P.C. seeking anticipatory bail, it does not arise

for consideration of the said application for grant of bail as sought for. Accordingly, the Trial Court has considered the scope and ambit of Sections 18

and 18-A of the aforesaid Special Enactment and passed the said order. Hence, at this stage, it is said that there is no prima facie case made out

against the accused by the informant / complainant / dependant. Consequently, the bail petition filed by the accused under Section 438 Cr.P.C. came

to be dismissed by order dated 30.04.2021. These are the contentions taken by the learned HCGP for the State and on all these premise, he seeks to

dismiss the appeal as being without any merit.

In view of the contentions taken by the learned counsel for the appellant / accused and so also the learned HCGP for the State by referring to the

substance in the FIR recorded by the Rajajinagar P.S. in Cr.No.53/2021 for offences under Section 354 of the IPC and offences under the Special

Enactment of the SC & ST (POA) Act, 1989 is concerned, it is seen that the aforesaid crime is under progress for investigation. At this stage, it

cannot come to the conclusion that there are no ingredients to constitute the offences lugged against the accused under the Special Enactment of the

SC & ST (POA) Act, 1989 and so also the offences under Section 354 of the IPC, 1860.

When there is an express bar, it cannot arise for consideration of this appeal for granting the relief of bail as sought for by the appellant / accused

by allowing this appeal.

The appeal has been preferred as contemplated under Section 14-A(2) of the SC & ST (POA) Act, 1989. But it is mandatory to prefer an appeal

challenging the impugned order passed by the Trial Court relating to bail matters filed under Section 438 Cr.P.C. Therefore, it is said that at this stage,

it does not arise to dwell in detail relating to involvement of the accused and so also commission of offences as narrated in the complaint as well as the

substance in the FIR said to have been recorded by the Rajajinagar P.S. Therefore, when there is an express bar as stated in Section 18A, it cannot

arise to grant the relief of bail as sought for by allowing the appeal and setting aside the impugned order.

In view of the aforesaid reasons, I proceed to pass the following:

ORDER The appeal preferred by the appellant / accused under Section 14-A(2) of the SC & ST (POA) Act, 1989 is hereby dismissed. Consequently,

the impugned order passed by the Trial Court in Crl.Misc.No.3620/2021 dated 30.04.2021 vide Annexure-""B"" is hereby confirmed.

However, keeping in view the submission of the learned counsel for the appellant / accused, it is deemed proper to state that rights of the accused

shall be protected. Hence, the appellant / accused is directed to surrender before the Trial Court where the case in Cr.No.53/2021 registered by the

Rajajinagar P.S. is pending, by filing a Regular Bail Petition under Section 439 Cr.P.C. within a period of seven (7) days from the date of this order.

Soon after the said petition is filed by the appellant / accused, the concerned Special Court shall consider the petition on the same day, by giving an

opportunity to the Public Prosecutor if he wants to file any response to the said petition filed under Section 439 Cr.P.C. But the said petition shall be

disposed of on merits, on the same day.

In the meanwhile, it is deemed appropriate to direct the Investigating Agency in Cr.No.53/2021 registered by the Rajajinagar P.S., shall not precipitate

the matter till disposal of the bail petition filed by the appellant / accused under Section 439 Cr.P.C. before the Special Court.

However, the Trial Court shall not be influenced by any observations made in this order, but the petition filed by the appellant / accused shall be

disposed of on merits, in accordance with law.