Sri G R Sudeendhra Vs State of Karnataka

THIS CRL.RP IS FILED U/S 397 R/W 401 CR.PC (FILED U/S 438 R/W 442 BNSS) BY THE ADVOCATE FOR THE PETITIONER PRAYING TO ALLOW THIS PETITION AND SET ASIDE THE ORDER DATED 26.10.2024 PASSED IN SPL.C.NO.330/2018 BY THE LEARNED III ADDL.DISTRICT AND SESSIONS JUDGE, TUMKUR AND DISCHARGE THE PETITIONER OF THE OFFENCES ALLEGED AGAINST HIM.

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THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MS JUSTICE J.M.KHAZI

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ORAL ORDER

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This petition filed under Section 397 of Cr.P.C r/w 438 of BNSS 2023, is by the accused challenging the impugned order dated 26.10.2024 passed by the trial Court rejecting the application filed by him under Section 227 of Cr.P.C.

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For the sake of convenience, parties are referred to by their ranks before the trial Court.

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On the basis of complaint filed by respondent No.2/complainant and after conducting detailed

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investigation, the respondent police have filed charge sheet against accused for the offences punishable under Sections 504 and 506 of IPC and Sections 3(1)(r), 3(1)(s) and 3(2)(V-a) of SC/ST prevention of atrocities act.

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It is alleged that complainant belong to Nayak community coming under Schedule Caste. He is also member of Bugudanahalli Gram Panchayath, President of Primary Agriculture Credit Co-operative society and Milk Produces Co-Operative Society of Bugudanahalli. On 14.03.2018 accused being the owner of a service station situated inside KSFC compound uploaded a post in Facebook through his cell No.9660914388 insulting the complainant.

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4.1 On 21.03.2018 while complainant and one Jayadevaiah S/o Malingappa of Harenahalli and Umesha S/o Doddachannaiah of Bugudanahalli were standing by the side of their garden land and chit chatting, accused

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who was going to his garden land come across them. On sighting the complainant and others, he stopped his car. Complainant questioned him as to why he has uploaded a post insulting him. Suddenly accused became furious and started abusing him referring to his caste and said that a person like him belonging to lower community is not having the capacity to become the president of the Cooperative society. He would continue to write and complainant may do whatever he can. He abused complainant in filthy language and tried to assault him. He

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also gave threat saying that he is an RTI activist and complainant would see what his capacity is and so saying he caught hold of the complainant with his collar. Jayadevaiah and Umesha intervened and rescued him. Despite the same accused went on abusing him referring to his caste and left the place.

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Based on the complaint the concerned police registered the case and after detailed investigation filed charge sheet.

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Accused sought discharge contending that there

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are no sufficient material to proceed against him. Facebook is a public forum meant for helping public and posting a comment would not attract penal provision. There is inordinate delay in filing the complaint. Due to political reasons, a false complaint is filed.

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After considering the objections filed by the prosecution the trial Court refused to discharge the accused.

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Aggrieved by the same accused has approached this Court contending that the impugned order is opposed to law and not sustainable. The alleged incident took place on 21.03.2018, but the complaint is filed on 25.05.2018. The inordinate delay in filing the complaint is not explained. The complainant is not a member of schedule caste. His father's name is stated to be Cheluvaiah whereas in the caste certificate it is noted as Rangappa.

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This aspect is not properly investigated by the concerned police.

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In support of his arguments learned counsel for

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accused has relied upon following decisions.

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(i) Hitesh Verma Vs. State of Uttarakhand and Anr. ( Hitesh Verma )¹

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(ii) Khuman Singh Vs. State of Madhya Pradesh ( Khuman Singh )²

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On the other hand learned High Court Government Pleader appearing for respondent No.1-State and learned counsel for respondent No.2 - complainant submitted that there is sufficient material to proceed against the accused. Though the facebook post was published on 14.03.2018, no action was taken by the complainant. However, on 21.03.2018 when he confronted the accused about the said post, the incident in question

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abusing him referring to his caste took place. It is true that with regard to this complaint is filed on 25.05.2018.

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1 (2020) 10 SCC 710

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2 (2020) 18 SCC 763

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There is delay of nearly two months in filing the said complaint. However mere delay in filing the complaint is not a ground for discharging the accused. It is for the complainant and prosecution to explain the delay and for the trial Court to examine whether there is any justification in the delay or whether it is a case of false implication. Without providing prosecution opportunity to explain the delay, its case cannot be thrown out.

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In support of his arguments learned counsel for

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complainant has relied upon the following decision.

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(i) Patan Jamal Vali Vs. The State of Andhra Pradesh ( Patan Jamal Vali )³

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12. Heard arguments and perused the record.

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The first and foremost contention of the accused is that complainant does not belong to schedule caste. It is the specific case of the prosecution that accused belong to Nayak community which comes under schedule caste category. In the complaint and all other

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3 Crl.A.No.452/2021 (SLP(Crl)No.1795/2021)

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documents he is described as son of Cheluvaiah. However in the order dated 17.09.2019 passed by the Addl. Director General of Police, Civil Enforcement Directorate, Bengaluru, the complainant is described as son of Late Rangappa. In fact, it refers to a complaint given by accused stating that complainant Krishnappa S/o Late Rangappa, belongs to Thigala community and has falsely claimed SC certificate and on that basis received the grant payable from Grama Panchayathi for his daughter Swathi. After conducting enquiry, the directorate of Civil Enforcement has held that he belongs to Nayak community which comes under schedule caste.

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So far as discrepancy of his father's the complainant has given statement before the investigating officer that he is the son of Rangappa. His father died when he was 3 years old. After the death of his father he, his mother and siblings were taken care of by his maternal uncle. Somehow in his election ID card his father's name

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is noted as Cheluvaiah and therefore in the complaint also

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he as given his father's name as Cheluvaiah.

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It is not in dispute that complainant is the member of Bugudanahalli Gram Panchayat and President of Primary Agriculture Credit Co-operative society and Milk Produces Co-Operative Society, Bugudanahalli. In fact according to the prosecution, in the facebook post the accused has alleged that in his capacity as the gram panchayath member and President of these societies he

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has taken loan in the name of farmers and misused it. Such being the case, the person targeted by the accused is the complainant. There is also explanation for the discrepancy in the name of father of complainant. While initial burden is on the prosecution, during trial it is for the accused to demonstrate that complainant is not the son of Rangappa and that he does not belong to Nayak community coming under schedule caste category.

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The specific allegation against accused is that

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he committed the offence punishable under Section

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3(2)(v-a), which refers to offence specified in Schedule, for which knowledge that the victim is a member of Scheduled Caste or Scheduled Tribe is sufficient. This Section was introduced through the amendment dated 26.01.2016. The decision in Khuman Singh referred to supra pertains to 3(2)(v) before the amendment and therefore, it is not relevant to the present case.

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In fact in Patan Jamal Vali, referred to supra, the incident was prior to the amendment dated 26.01.2016 and the offence alleged was punishable under Section 3(2)(v) of SC/ST (POA) Act. However, the Hon'ble Supreme Court did not consider whether it would be necessary to prove that offence was committed only because victim belong to SC or ST community, as on facts, the requirement of clause (v) was not fulfilled in that case and on facts conviction under Section 3(2)(v) was not made out. In the present case since the offence alleged against the accused is punishable under Section 3(2)(v-a), this decision is also not applicable to the case on hand.

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At this stage there is sufficient material to proceed against the accused. Therefore, rightly the trial Court as refused to discharge the accused. This Court finds no justifiable grounds to interfere with the impugned order. In the result, the petition fails and accordingly the following:

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ORDER

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Petition filed by the accused under

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Section 397 of Cr.P.C. r/w Section 438 of

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BNSS, 2023 is dismissed.

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Sd/(J.M.KHAZI) JUDGE

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RR/ASN List No.: 1 Sl No.: 46

Sri G R Sudeendhra v. State of Karnataka

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Sri G R Sudeendhra v. State of Karnataka

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