Allowed

Sri Prashant D Naik S/O Dataram Naik v. the State of Karnataka

Karnataka HC14 Sept 2023CRL.A/100389/2023

Case brief

AI extract

What is this about?

High Court allowed three criminal appeals for anticipatory bail against accused in a dispute over a land sale. The court held that since the allegations did not attract specific prohibitive offences under the SC/ST Act and were essentially civil, anticipatory bail was granted subject to stringent conditions including surrender of bonds and cooperation with investigation.

What did the court decide?

Criminal Appeals allowed; accused Nos. 2 to 5 released on bail in Crime No. 26/2023 subject to execution of personal bonds of Rs. 50,000/- each with sureties and presence for investigation.

Sri Prashant D Naik S/O Dataram Naik Vs the State of… — Caste Atrocities | Karnataka HC (2023)

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NC: 2023:KHC-D:10640 CRL.A No. 100389 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 14^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MS. JUSTICE J.M.KHAZI

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CRIMINAL APPEAL NO. 100389 OF 2023 (U/S 14 A(2) of SC and ST ACT-) C/W

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CRIMINAL APPEAL NO. 100390 OF 2023 C/W CRIMINAL APPEAL NO. 100391 OF 2023

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IN CRL.A.NO. 100389/2023:

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BETWEEN:

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SRI. PRASHANT D. NAIK, S/O. DATARAM NAIK, AGE: 45 YEARS, OCC: BUSINESS, R/O: MUDAGERI VILLAGE, KARWAR TALUK, U. K. DISTRICT.

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CHANDRASHEKAR LAXMAN KATTIMANI

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Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Date: 2023.09.19 10:09:25 +0530

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SRI. VILAS P GAONKAR S/O. PRABHAKAR GAONKAR, AGE: 45 YEARS, OCC: BUSINESS, R/O: MUDAGERI VILLAGE, KARWAR TALUK, U. K. DISTRICT.

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(BY SRI. PRAVEEN P. TARIKAR, ADVOCATE)

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…APPELLANTS

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AND:

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

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SRI. UDAY N. BASHETTI

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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. 14(A) OF SC/ST (POA) ACT, SEEKING TO ENLARGE THE APPELLANTS /ACCUSED NO.2 AND 3 ON BAIL IN EVENT OF HIS ARREST IN CRIME NO.26/2023 REGISTERED BY CHITTAKULA POLICE STATION REGISTERED FOR THE ALLEGED OFFENCES PUNISHABLE U/S 420, 464, 467, 468 R/W. 34 OF IPC AND U/S. 3 OF SC/ST (POA) AMENDMENT ACT 2014.

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IN CRL.A.NO. 100390/2023:

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BETWEEN:

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KALIDINDI SURYANARAYANA RAJU, AGED ABOUT 53 YEARS, OCC: BUSINESS, R/O. FLAT NO.WR.1403, TRIVIK WINDWALK, ATTUR LAYOUT, YELAHANKA NEW TOWN, YELAHANKA, BENGALURU-560064.

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…APPELLANT

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(BY SRI. ARAVIND D. KULKARNI, ADVOCATE)

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AND:

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STATE OF KARNATAKA, THROUGH SUB-INSPECTOR OF POLICE, CHITTAKULA POLICE STATION, REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, HIGH COURT BUILDING, DHARWAD.

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UDAY NARAYAN BASHETTI, AGED ABOUT 43 YEARS, OCC: CONTRACTOR, R/O. SHEJAWADA, KARWAR,

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UTTARA KANNADA-581301.

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…RESPONDENTS

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(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 (POA) ACT, SEEKING TO GRANT ANTICIPATORY BAIL TO THE APPELLANT, DIRECTING THE RESPONDENT POLICE TO RELEASE APPELLANT/ACCUSED NO.5 ON BAIL IN THE EVENT OF HIS ARREST IN CHITTAKULA POLICE STATION, IN CRIME NO.26/2023 REGISTERED FOR THE OFFENCES PUNISHABLE U/S 420, 464, 467, 468 R/W 34 OF IPC AND SEC. 3 OF SC AND ST (POA) ACT BY ALLOWING THIS PETITION.

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IN CRL.A.NO. 100391/2023:

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BETWEEN:

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DEEPAK SADANAND NETALKAR, AGED ABOUT 56 YEARS, OCC: BUSINESS, R/O. NANDANGADDA, KARWAR, UTTARA KANNADA-581301.

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…APPELLANT

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(BY SRI. ARAVIND D KULKARNI, ADVOCATE)

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AND:

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STATE OF KARNATAKA, THROUGH SUB-INSPECTOR OF POLICE, CHITTAKULA POLICE STATION, R/BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, HIGH COURT BUILDING, DHARWAD.

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UDAY NARAYAN BASHETTI, AGED ABOUT 43 YEARS, OCC: CONTRACTOR, R/O. SHEJAWADA, KARWAR, UTTARA KANNADA-581301.

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…RESPONDENTS

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(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 (POA) ACT, SEEKING TO GRANT ANTICIPATORY BAIL TO THE PETITIONER, DIRECTING THE RESPONDENT POLICE TO RELEASE APPELLANT/ACCUSED NO.4 ON BAIL IN THE EVENT OF HIS ARREST IN CHITTAKULA POLICE STATION, IN CRIME NO.26/2023 REGISTERED FOR THE OFFENCES PUNISHABLE U/S 420, 464, 467, 468 R/W 34 OF IPC AND SEC. 3 OF SC AND ST (POA) ACT BY ALLOWING THIS PETITION.

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

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JUDGMENT

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These appeals are filed under Section 14-A(2)

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of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘SC/ST (POA) Act’, for short), seeking anticipatory bail in Crime No. 26/2023 registered by Chikakula Police Station registered for the offences punishable under Sections 420, 466, 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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While Criminal Appeal No.100389/2023 is filed by accused Nos.2 and 3, Criminal Appeal No.100390/2023 is filed by accused No.5 and Criminal Appeal No.100391/2023 is filed by accused No.4.

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Since these appeals arise out of same crime

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number, they are clubbed together and decided by common order.

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In support of their appeals, the appellants have pleaded that they are innocent and have not committed the alleged offences. The Trial Court has rejected their bail petitions erroneously, without appreciating the facts and circumstances of the case. Based on the false complaint filed by respondent No.2, the concerned Police have registered the case and are making frantic effort to arrest the appellants. 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 complaint is filed. The entire complaint averments do not attract the provisions for which the case is registered. From the complaint averments, it is evident that there was an agreement between the complainant and accused No.1

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and the present appellants have nothing to do with the same. Accused No.5 is a bonafide purchaser for valuable consideration. The matter is of civil in nature. The provisions of SC/ST (POA) Act are not attracted. Appellants are ready and willing to abide any conditions that may be imposed and offer substantial surety to the satisfaction of the Trial Court and prays to allow the appeals and grant anticipatory bail.

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Learned High Court Government Pleader

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appears for respondent No.1-State.

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In support of their arguments, learned counsel

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for the appellants have relied upon the following decisions:

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i) Prathvi Raj Chauhan vs. Union of India and Other¹ (Prathvi Raj Chauhan) ii) Chandra Poojari vs. State of Karnataka Seshadripuram police, Bangalore.²

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(Chandra Poojari)

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1 (2020) 4 SCC 727

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

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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 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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It is further submitted that however accused No.1 went on postponing execution of sale deed. On 27.10.2021, complainant happened to got to the Sub Registrar office of 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

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going to furnish 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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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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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

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420, 464, 467, 468 read with Section 34 of IPC and under Section 3 of SC/ST (POA) Act and investigation is taken up. From the date of registration of the complaint, the appellants are absconding. Their presence is required for investigation. Having regard to the prohibition contained under Section 18 of SC/ST (POA) Act, anticipatory bail cannot be granted and prays to reject the appeals.

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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 appellants while seeking anticipatory bail, it is relevant to note that Section 18(A)(2) of SC/ST (Prevention of Atrocities) 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

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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, 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 a 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, appellants who are arraigned as accused Nos.2 to 5 are before this Court seeking anticipatory bail contending that they have nothing to do with the alleged transaction between the complainant and accused No.1. Accused No.5 is a bonafide purchaser of the land from

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accused No.1 for valuable consideration. It is a civil dispute between the complainant and accused No.1 and unnecessarily they have been implicated in the crime.

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From the perusal of the complaint averments, it

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is evident that the matters appear 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 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 of these incidents having been taken

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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 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, 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 produce copies of both complaint as well as proof of having sent the said complaint and file an affidavit in support of the

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3 (2015) 6 SCC 287

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allegations made and also the fact of having approached

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the police and their failure to register the case.

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In the present case, no such formalities have 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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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 appellants is not required. The apprehension of the prosecution that

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the appellants may threaten or tamper witnesses or

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abscond and thereby delay or protract the proceedings may be overcome by imposing stringent conditions and accordingly the following:

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ORDER

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Criminal Appeals are allowed.

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In the event of their arrest appellants/accused Nos.2 to 5 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/ST (POA) Act by allowing these appeals, subject to following:

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CONDITIONS

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a) The appellants/accused Nos.2 to 5 shall execute a personal bond in a sum of Rs.50,000/- each with two sureties for the like-sum.

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b) They 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) Appellants/accused Nos.2 to 5 shall make themselves available for the purpose of investigation as and when required and they shall co-operate with the investigation.

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d) Appellants/accused Nos.2 to 5 shall furnish their residential address proof and shall inform the investigating officer/Court if there is any change in the address.

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