Allowed

Sri Bhushan S Kadam S/O Shivanand Kadam v. the State of Karnataka

Karnataka HC4 Oct 2023CRL.A/100388/2023

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court allowed the appellant's prayer for anticipatory bail. Finding that the offence was primarily civil in nature and no prima facie case was made out to attract the specific prohibitory provisions of the SC/ST Act, the Court granted bail subject to stringent conditions including surety and regular court appearances.

What did the court decide?

The impugned order was set aside, and the appellant was released on bail subject to execution of a personal bond, surety, and various conditions including regular court attendance and availability for

Sri Bhushan S Kadam S/O Shivanand Kadam Vs the State of… — Caste Atrocities | Karnataka HC (2023)

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NC: 2023:KHC-D:11656 CRL.A No. 100388 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 4^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MS. JUSTICE J.M.KHAZI CRIMINAL APPEAL NO. 100388 OF 2023

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BETWEEN:

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SRI. BHUSHAN S. KADAM, S/O SHIVANAND KADAM, AGE: 55 YEARS, OCC: BUSINESS, R/O. SALSET, MADGAON, NORTH GOA-403001, GOA STATE.

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…APPELLANT

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(BY SRI. PRAVEEN PRABHAKAR TARIKAR, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, THROUGH CHITTAKULA POLICE STAION, REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD, BENCH AT DHARWAD-580011.

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CHANDRASHEKARLAXMANKATTIMANI Digitally signed byCHANDRASHEKARLAXMANKATTIMANIDate: 2023.10.06 10:39:05 +0530

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SRI. UDAY N. BASHETTI, S/O. NARAYAN BASHETTI, AGED ABOUT 42 YEARS, R/O. SHEJWAD VILLAGE, KARWAR-581306, UTTARA KANNADA DISTRICT.

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…RESPONDENTS (BY SMT.GIRIJA S. HIREMATH, HCGP FOR R1; NOTICE TO R2 SERVED)

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THIS CRIMINAL APPEAL IS FILED U/SEC. 14A(2) OF SC/ST (PREVENTION OF ATROCITIES) ACT, 1989, PRAYING THIS COURT TO, ENLARGE THE APPELLANT/ACCUSED NO.1 ON ANTICIPATORY BAIL IN EVENT OF HIS ARREST IN CRIME NO. 26/2023 REGISTERED BY CHITTAKULA POLICE STATION REGISTERED FOR THE ALLEGED OFFENCES PUNISHABLE

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NC: 2023:KHC-D:11656 CRL.A No. 100388 of 2023

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U/SEC. 420, 464, 467, 468, R/W 34 OF IPC AND U/SEC. 3 OF SC/ST (PREVENTION OF ATROCITIES) AMENDMENT ACT 2014.

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Appellant who is arraigned as accused No.1 has filed this appeal under Section 14-A(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘SC and ST (POA) Act’, for short), seeking anticipatory bail in Crime No.26/2023 registered by Chittaakula Police Station for the offences punishable under Sections 420, 464, 467, 468 read with Section 34 of Indian Penal Code (‘IPC’, for short) and under Section 3 of the SC/ST (POA) Act.

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In support of the appeal, the appellant has pleaded that he is innocent and law abiding citizen. He has not committed the alleged offences. The Trial Court has erroneously rejected his bail petition, without appreciating

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the facts and circumstances of the case. Based on the false complaint filed by respondent No.2, the concerned

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police have registered the case and are making frantic effort to arrest the appellant. The alleged offences took place on 27.10.2021, but the complaint is filed on 22.12.2022 i.e., after a lapse of more than 1 year. However, the case is registered on 16.06.2023. The inordinate delay is not explained. Only with a view of harass the accused complaint is filed. The entire complaint averments does not attract the provisions for which the case is registered.

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Suppressing the fact that he had filed a police complaint and no FIR was registered on that basis, complainant filed PCR No.1/2023 on 22.12.2022 and vide order dated 31.05.2023, it was referred to the Dy.S.P. to investigate. The respondent-police have registered case on 14.12.2022 in Crime No.26/2023 and not on the directions given by the Spl.Court. The complaint is not supported by affidavit. Without examining the complainant and his witnesses, it is referred for investigation. It is denied that complainant has paid Rs.96,95,000/- to the appellant. He

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NC: 2023:KHC-D:11656 CRL.A No. 100388 of 2023

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never referring to his caste and as such provisions under

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SC and ST (POA) Act are not attracted.

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3.1 Appellant is ready and willing to abide any

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conditions that may be imposed and offer substantial

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surety to the satisfaction of the Trial Court and prays to allow the appeal and grant anticipatory bail.

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In support of his arguments, learned counsel for

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the appellant has relied upon the following decisions:

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i) Prathvi Raj Chauhan vs. Union of India and Other¹ (Prathvi Raj Chauhan)

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ii) Chandra Poojari vs. State of Karnataka Seshadripuram police, Bangalore .²

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( Chandra Poojari)

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Learned High Court Government Pleader appeared for respondent No.1-State.

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1 (2020) 4 SCC 727

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2 1997(4) Kar. L.J.81

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Notice is duly served to respondent

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No.2/complainant. However he has not chosen to appear and contest the matter.

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Learned HCGP submitted oral objections stating

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that complainant belongs to Korava caste, coming under Scheduled Caste category. One Kamalesh Ashok Chipkar of Janabagh, Kodibag, Karwar informed him that land of accused No.1 is available for sale. Complainant wanted to purchase the same. In this connection, accused Nos.1 to 3 came to the spot and showed the land and offered to sell it. He agreed to sell the said land at the rate of Rs.1,15,000/- per gunta. In this connection, complainant paid Rs.1,00,000/- as token of advance. On 24.07.2020, the complainant got the sale agreement executed by accused No.1 and paid Rs.5,00,000/- by crediting same to his account. He also paid Rs.5,00,000/- in cash. On 25.07.2020, accused No.1 entered into one more sale agreement to sell the said land to the complainant. On the

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same day, he has executed GPA in favour of the complainant. On 25.08.2021, a sum of Rs.1,10,950/- is

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debited from the account of the complainant towards deficit stamp duty. In all the complainant has paid Rs.96,95,000/- to accused No.1 as detailed in the complaint. He has also paid balance amount to the accused No.1.

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7.1 It is further submitted that accused No.1 went on postponing execution of sale deed. On 27.10.2021, complainant happened to go to the Sub Registrar office in connection with some work. He found that accused Nos.1 to 4 were present and accused No.1 was executing the sale deed in favour of accused No.5. In fact, complainant informed accused No.5 about the sale agreement between him and accused No.1 and payments made by him. However accused No.5 adamantly replied that he has purchased the land knowing fully well that already sale agreement is made in his favour. Accused No.1 gave threat to the complainant saying that he is going to finish him and kill him by shooting. All the accused persons abused the complainant referring to his caste and challenged him to do whatever he can do.

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7.2 The incident took place in the presence of Kamalesh Ashok Chipkar, Ajay Mohan, Belurakara, Prashurama and Surya Prakash and other staff of the SubRegistrar office. On 03.01.2022 to correct his mistake, accused No.1 has entered into another agreement with the complainant to sell a flat worth Rs.25,00,000/- standing in the name of his wife and to return the balance amount. However he went on postponing the same. Accused No.1 has also refused to receive the legal notice. The concern police have failed to receive the complaint filed by the complainant. Without any alternative, he has filed the private complaint.

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7.3 The private complaint filed by the complainant was referred to the concerned police for investigation in Crime No.26/2023 and it is registered in Crime No.26/2023 for the offences punishable under Sections 420, 464, 467, 468 read with Section 34 of IPC and under Section 3 of SC and ST (POA) Act and investigation is taken up. From the date of registration of the complaint, the appellant is absconding. His presence is required for

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investigation. Having regard to the prohibition contained under Section 18 of SC and ST (POA) Act, anticipatory bail cannot be granted and prays to reject the appeal.

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Heard arguments and perused the record.

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Before appreciating the facts of the case and grounds urged by the appellant while seeking anticipatory bail, it is relevant to note that Section 18(A)(2) of SC and ST (POA) Act, 1989, provides that the provisions of Section 438 of Cr.P.C. are not applicable to a case, where the accused persons are alleged to have committed the offences punishable under Sections 3(1)(r), 3(1)(w)(i)(ii), 3(2)(v) and 3(2)(va) of SC/ST Act. In other words, where the accused persons alleged to have committed the offence punishable under Sections 3(1)(r), 3(1)(w)(i)(ii), 3(2)(v) and 3(2)(va) of SC/ST Act, they are not entitled for anticipatory bail. However, in Chandra Poojari, the co-ordinate Bench of this Court held that where the allegations does not attract the provisions of Sections 3(1)(r), 3(1)(w)(i)(ii), 3(2)(v) and 3(2)(va) of SC/ST Act,

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the prohibition under Section 18(A)(2) of SC/ST (Prevention of Atrocities) Act, 1989, is not applicable. In Prathvi Raj Chauhan also the Hon'ble Supreme Court has held that where a prima facie case is not made out, then Section 18 and 18(A) have no application. In the light of the ratio of decision in Prathvi Raj Chauhan , it is necessary to examine whether the prosecution has made out the prima facie case against appellants so far as Sections 3(1)(r), 3(1)(w)(i)(ii), 3(2)(v) and 3(2)(va) of SC/ST Act, is concerned.

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Thus, appellant who is arraigned as accused No.1 is before this Court seeking anticipatory bail contending that he has not committed the alleged offences and to make unlawful gain and after inordinate delay, the complainant has filed a false complaint, based on which he and other accused are proceeded against and there is imminent threat of he being arrested. He is also seeking bail on the ground that accused No.2 to 5 have been granted anticipatory bail.

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NC: 2023:KHC-D:11656 CRL.A No. 100388 of 2023

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From the perusal of the complaint averments, it

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is evident that the matter appears to be purely civil in nature. According to the complainant, on 23.07.2020 he agreed to purchase the land from accused No.1 and paid token advance of Rs.1 lakh. From 24.07.2020 to 25.07.2020, various payments have been made through

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bank as well as in person, totally in a sum of Rs.96,95,000/-. However accused No.1 went on postponing execution of sale deed. On 27.10.2021 while he had gone to the Sub-Registrar Office, he found all the accused persons and came to know that accused No.1 is executing regular sale deed in favour of accused No.5 and when he confronted him, accused No.1 abused him in filthy language especially referring to his caste and gave threat to his life.

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Despite these incidents having taken place, the complainant has not chosen to file a complaint or take action against accused No.1. After the happening of the alleged incident, complainant has claimed that on 03.01.2022, accused No.1 agreed to sell a flat worth

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Rs.25,00,000/- and to return the balance amount. There is inordinate delay in filing the complaint. Though the complainant has claimed that he filed regular complaint before the concerned police and it was not entertained, however, he has not produced copy of the said complaint. As held in Priyanka Srivastava and Another Vs. State of Uttar Pradesh and Others ( Priyanka )³ , on failure of the concerned police to entertain the complaint, the complainant is required to approach the higher police officer and send the complaint through RPAD and produced copies of both complaint as well as proof of having sent the said complaint and file an affidavit in support of the allegations made and also the fact of having approached the police and their failure to register the case.

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In the present case, no such formalities have

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been complied with. Along with the complaint, copies of the documents, based on which the complaint is filed are also not produced.

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3 (2015) 6 SCC 287

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In the light of the inordinate delay in filing the complaint and also non-compliance of the essential requisites before filing of private complaint, this Court is of the considered opinion that no prima facie case is made out to attract the prohibition contained in Section 18 of SC/ST (POA) Act.

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So far as the allegations with regard to the offences punishable under Sections 420, 466, 467, 468 read with Section 34 of IPC are concerned, though they are non-bailable, they are not punishable with death or imprisonment for life. Having regard to the nature of the allegations made, the custodial presence of the appellant is not required. Already anticipatory bail is granted to accused No.2 to 5 by this Court. The apprehension of the prosecution that the appellant may threaten or tamper witnesses or abscond and thereby delay or protract the proceedings may be overcome by imposing stringent conditions and accordingly the following:

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Criminal Appeal is allowed.

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ORDER

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NC: 2023:KHC-D:11656 CRL.A No. 100388 of 2023

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The impugned order dated 04.08.2023 in Crl.Misc.No.238/2023 passed by the II Addl.District and Sessions Judge, Uttara Kannada, Karwar is hereby set aside.

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In the event of his arrest appellant/accused No.1 shall be released on bail in Crime No.26/2023 of Chittakula police station, registered for the offences punishable under Sections 420, 464, 467, 468 read with Section 34 of IPC and Section 3 of SC and ST (POA) Act, subject to following:

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CONDITIONS

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a) The appellant/accused No.1 shall execute a personal bond in a sum of Rs.50,000/- with two sureties for the like-sum.

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b) He shall appear before the investigating officer within a period of 15 days and execute the bail bond and offer surety.

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c) Appellant/accused No.1 shall make himself available for the purpose of investigation as and when required and they shall cooperate with the investigation.

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