Andhra
High Court
Goluguri
Eswara Reddy And Another vs The State Of Andhra Pradesh, Rep. ... on 19 Sept 2014
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
CRL.P.No.11055
of 2014
19-09-2014
Goluguri
Eswara Reddy and another.....Petitioners
The
State of Andhra Pradesh,
rep. by its Public Prosecutor. Respondent
Counsel
for the Petitioners : Sri Mangena Sree Rama Rao
Counsel
for the Respondent : Public Prosecutor
THE
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
CRIMINAL
PETITION No.11055 of 2014
ORDER:
1. This
Criminal Petition is filed under Section 438 Cr.P.C by petitioners/A-1 &
A-2 seeking anticipatory bail in connection with a case in P.R.C. No.11 of 2011
on the file of Judicial Magistrate of the First Class, Alamuru, East Godavari
District registered against the petitioners and others for the offences
punishable under Sections 324 read with 34 I.P.C read with Section 34 I.P.C and
Section 3(i)(x) of Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (for short, the Act).
2.
Heard the Learned Counsel for the Petitioners, the Learned Additional Public
Prosecutor for the Respondent-State and perused the material placed on record.
3. The Petitioners are A-1 and A-2. The
petitioners moved the Honourable High Court in Crl.P.No.3361 of 2009 for
quashing of the proceedings and by order of this Court (another bench)
dated 08.12.2011 while dismissing the
application for quashing from prima facie accusation, there was a direction not
to arrest pending investigation. It is pursuant to which the police after
completion of investigation, filed charge sheet under the above provisions
against the accused persons 1 to 4 including the petitioners herein. It appears
after taken cognizance under Section 190 Cr.P.C for committal of the case under
Section 209 Cr.P.C, P.R.C. No.11 of 2011 allotted and the case is pending
committal stage and before committing as presence of the accused is necessary
and he was not arrested earlier by virtue of the order supra of the Honourable
High Court, the N.B.W was issued against the accused persons for execution of
N.B.W and production of them by showing in abscondence after completion of the
investigation for the concession not available beyond investigation completion.
It is because of the N.B.Ws pending, this application for anticipatory bail
application is filed. Even post cognizance of such pending of N.B.W is not a
bar for maintainability of anticipatory bail as held by the Full Bench of this
Court, the decision referred in Smt.Sheik Khasim Bi V. The State .
4.
However, coming to the facts, there is a bar under Section 18 of the Act, but
for maintainability of the anticipatory bail, as there is a prima facie
accusation as accused insulted by way of abuse in
public view by touching the caste name of the
defacto-complainant to attract the Section 3(1)(x) of the Act. Coming to the
bar under Section 18 of the Act, learned counsel for the petitioner placed
reliance on the proposition of law laid down by the Apex Court in Shobhan
Singh Khanka
V. State of Jharkhand drawing attention
of this Court to para 22 so also to para 14, wherein it was held that personal
liberty is a fundamental right and imposition of conditions as laid down in
Section 438 Cr.P.C are to be applied or not to be specified. The learned
counsel for the petitioners has also relied on the decision of this Court in
Paracha Mohan Rao V. State of Andhra Pradesh , and drawn attention to para 11
which clearly speaks irrespective of the bar under Section 18 of the Act, a
bail application is maintainable and it is for the Court to consider whether
the allegations in the complaint or F.I.R attracts the prohibition under
Section 18 of the Act or a case to grant anticipatory bail. It is clearly
observed at the end of para 11 that when the allegations mentioned in the first
information report/complaint in their entirety do not attract a particular
offence under the Act, then the High Court or the Court of Session can exercise
their discretion to grant anticipatory bail.
5.
In fact, the Apex Court
in the very recent expression in Bachu Das V. State of Bihar , wherein at para
6 by referring to para 9 of the earlier expression in Vilas Panduranga
Pawar V.
State of
Maharashtra
observed as under: 6. It is clear that the learned Magistrate carefully perused
the complaint petition, as well as the statement of the complaint and four
witnesses examined during enquiry and arrived at a prima facie conclusion
against the accused persons that the offence under Sections 147, 148, 149, 323,
448 IPC and Section 3 of the SC/ST Act, is made out. In such circumstance and
in view of the bar under Section 18 of the SC/ST Act, the learned counsel
relying on the decision of this Court in Vilas Pandurang Pawar V. State of
Maharashtra, submitted that the High Court is not justified in granting anticipatory
bail. In similar circumstances, this Court has considered the offence under
Section 3(1), as well as the bar
provided under Section 18 of the SC/ST Act and concluded as under:
“9. Section 18 of the SC/ST Act creates a bar
for invoking section 438 Cr.P.C. However, a duty is cast on the Court to verify
the averments in the complaint and to find out whether an offence under Section
3(1) of the SC/ST Act has been prima facie made out. In other words, if there
is a specific averment in the complaint, namely, insult or intimidation with
intent to humiliate by calling with caste name, the accuse persons are not
entitled to anticipatory bail.
9) The scope of Section 18 of the SC/ST Act
read with Sections 438 Cr.P.C is such that it creates a specific bar in the
grant of anticipatory bail. When an offence is registered against a person
under the provisions of the SC/ST Act, no Court shall entertain application for
anticipatory bail, unless it prima facie finds that such an offence is not made
out. Moreover, while considering the application for bail, scope for
appreciation of evidence and other material on record is limited. Court is not
expected to indulge in critical analysis of the evidence on record. When a
provision has been enacted in the Special Act to protect the persons who belong
to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in
granting bail under Section 438 Cr.P.C, the provision in the Special Act cannot
be easily brushed aside by elaborate discussion on the evidence”.
6. From the expression of the Apex Court, it is
crystal clear that when the allegations indicate abusing the complainant with
caste name with intent to humiliate, it is a bar for maintaining the
application for anticipatory bail under section 438 Cr.P.C, in view of Section
18 of the Act.
7.
Now, from the proposition of law adverting to the facts covered by the
complaint given by the
defacto-complainant
for registration of the crime, which is annexed to the application, it refers
to
pointing
out the occurrence and also abusing in caste name with intent to insult by the
petitioners.
When such are the averments in the complaint
abusing in caste name in public view with an intent to insult, there is a bar
under Section 18 of the Act for anticipatory bail, and thereby whether it is
false accusation or whether there is any truth in the allegations cannot be
gone into at this stage by this Court for the purpose of bail application as
per above law. Thus, it is not a case to grant anticipatory bail to the
petitioners from the bar; though otherwise the facts deserve consideration of
bail.
8. Having regard to the above, the Criminal
Petition is disposed of by giving liberty to the petitioners/A-1 & A-2 to
move regular bail application and surrender before the learned Special Judge
concerned and after notice to the Public Prosecutor and in such an event, the
learned Judge
shall
consider for granting of bail in favour of the petitioners with necessary
conditions preferably
on
the same day. The learned Judge in granting bail as per directions supra can
impose necessary
conditions
which include furnishing of address proof with bank account particulars if any
for
securing
presence before Court non- interference with witnesses and the like.
9.
Accordingly, the criminal petition is disposed of.
__________________________
Dr. B.SIVA SANKARA RAO J, 19th September, 2014
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