Judgment:
(Prayer: This Criminal Petition is filed under Section 438 of Cr.P.C., praying to issue directions to the University police to release the petitioners on bail in the event of their arrest in Crime No.190/2017 of University Police Station, Kalaburagi.)
1. The present petition is filed by the petitioners/accused Nos.1 to 6 under Section 438 of Cr.P.C., seeking anticipatory bail in Crime No.190/2017 of University Police Station, Kalaburagi, registered for the offences punishable under Sections 143, 147, 148, 323, 324, 354, 307, 336, 504, 506 r/w Section 149 of IPC and Under Section 3(I)(X) of Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989. (For short 'SC/ST Act')
2. Brief facts leading to filing of the complaint are that, on 5.6.2017 at about 8:30 PM when the petitioner Nos.3 and 6 had picked up quarrel with the cousin of the complainant near Badiger Katti, the complainant had pacified the quarrel. On the same day at about 10:00 PM when the complainant was speaking with few members of the community near village entrance, at that juncture petitioners along with other 20 to 25 members came by constituting into an unlawful assembly by holding sticks, stones and started abusing the complainant in filthy language and also abused the complainant by taking the name of caste. When the complainant obstructed the petitioners from going to the graveyard, at that time, petitioners assaulted the complainant. When the complainant and his men tried to escape, accused persons hurled stones against them, due to the said impact a stone was hit to the stomach portion of the complainant and a contusion was caused. Immediately, thereafter two ladies intervened and pacified the said galata. At that time, accused No.1 dragged the lady, kicked her and caused a contusion. Accused No.3 abused in filthy language and assaulted with stick on the right leg and thereby caused grievous injuries and when the petitioners were making life attempt on the complainant party, other members of the village timely rescued the complainant party. At that point of time, petitioners have threatened the complainant with dire consequences. Thereafter, the complainant went to the Government hospital for treatment and thereafter lodged a police complaint.
3. I have heard the learned counsel for the petitioners and the learned High Court Government Pleader appearing for respondent-State.
4. The main grounds urged by the learned counsel for the petitioners are that the petitioners are innocent and they have falsely implicated in this case. He would further contend that a counter case has been registered by the petitioners against the complainant in Crime No.191/2017. He would further contend that the complainant has assaulted the petitioners and was intending to take away their lives. He would further contend that the provisions of SC/ST Act have been invoked only with an intention to harass the petitioners. He would further contend that the alleged offences are not punishable with death or imprisonment for life. The petitioners are from respectable family. It is further contended that if the petitioners are enlarged on bail, they are ready to abide by the conditions to be imposed by this Court and they are ready to offer sureties. On these grounds, he prays for allowing the petition.
5. On the contrary, learned High Court Government Pleader appearing for the respondent-State vehemently contended that the petitioners have not approached the jurisdictional District Court for obtaining bail and have directly approached this Court without exhausting efficacious remedy. He would further contend that petitioners have committed offences under SC/ST Act and there is a bar to grant anticipatory bail under Section 18 of the SC/ST Act. He would further contend that the complaint clearly goes to show that accused persons have abused by taking the name of the caste and they have assaulted the complainant and other two ladies besides causing grievous injuries. He would further contend that investigation is still under progress and if at this juncture, if the petitioners are enlarged on bail, they may tamper with the prosecution evidence, they may abscond and they may not be available for trial. On these grounds, he prays for dismissal of the petition.
6. At this juncture, learned counsel for the petitioners has filed a memo stating that he will not press the petition in so far as petitioner Nos.1 and 5 since they have been arrested and as such the petition under Section 438 of Cr.P.C. is not maintainable. In view of the memo, the petition as against petitioner Nos.1 and 5 is dismissed.
7. I have gone through the copy of the FIR, complaint and other material produced along with the petition.
8. There is an allegation to the effect that the accused persons by taking the name of caste abused the complainant. In order to attract the provisions of Section 18 of the Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act there must be a clear offence or material to show that the petitioners have abused the complainant and his men by taking the name of the caste. But, by going through the contents of the complaint it indicates that about 20-25 persons by constituting unlawful assembly by holding clubs, stones came therein and only used that persons of his caste are not allowing them to go to graveyard and thereafter they abused with filthy language and assaulted. By going through the contents of the complaint, nowhere it clearly indicates that the accused persons have abused the complainant by taking the name of the caste. When there is no clear cut material to show that the petitioners have abused by taking the name of the caste of the complainant, then under such circumstance, the provisions of Section 18 of the SC/ST Act will not come in the way for grant of anticipatory bail.
9. Though the learned High Court Government Pleader would submit that the petitioners without exhausting the remedy before the District Court have directly come to this Court and filed the bail petition. But, as could be seen from the provisions of Section 438 and 439 of Cr.P.C, both District Court as well as High Courts are having concurrent power to exercise the powers under Section 438 and 439 of Cr.P.C. Though the petitioners ought to have approached the District Court and exhausted the remedy available to them, however by directing the petitioners to approach the trial Court or district Court it is going to consume lot of time and Court time is also going to be wasted. Only because of the said reason, the petition has been entertained. In that view of the matter and also the offences leveled against the petitioners are not punishable with death or imprisonment fore life and even the injuries said to have been sustained by the complainant and other two ladies, they are only contusions and are simple in nature. By taking into consideration the above said facts and circumstances of the case, I feel that if the petitioners are enlarged on bail by imposing some stringent conditions, it is going to meet the ends of justice.
For the aforementioned reasons, the petition is allowed.
The respondent-Police are hereby directed to release the petitioners/accused Nos.1 to 6 on bail, in the event of their arrest, for the above said offences, subject to the following conditions:-
i. The petitioners shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees Two Lakhs Only) each with two solvent sureties for the likesum to the satisfaction of the arresting authority.
ii. The petitioners shall not tamper with any of the prosecution witnesses directly or indirectly.
iii. The petitioners shall appear before the investigating officer as and when required and co-operate for investigation.
iv. The petitioners shall appear before the jurisdictional Court and execute personal bond, surety bond and furnish surety within thirty days from the date of receipt of certified copy of this order.