Criminal Appeal No. 767 of 2025 · The High Court
Case Details
- 1 - NC: 2025:KHC:17969 CRL.A No. 767 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF MAY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.767 OF 2025 BETWEEN: 1. NIKHATH UI AIN D/OF LATE NASEEM PASHA AGED ABOUT 30 YEARS 2. MOHAMMED ISMAIL S/OF LATE NASEEM PASHA AGED ABOUT 30 YEARS Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA BOTH ARE R/AT JAYAMMA BUILDING NEAR VEERABHADRA SWAMY TEMPLE BILEKAHALLI BENGALURU-560 076.
Legal Reasoning
(BY SRI. PRASANNA D.P., ADVOCATE) AND: …APPELLANTS 1. THE STATE OF KARNATAKA BY MICO LAYOUT POLICE STATION MICO LAYOUT SUB-DIVISION BENGALURU REP. BY STATE PUBLIC PROSECUTOR HIGH COURT COMPLEX BENGALURU-560001 2. SHIVANADA M., S/O B.K.MARIMUTTU AGED ABOUT 28 YEARS R/AT NO.552, - 2 - NC: 2025:KHC:17969 CRL.A No. 767 of 2025 29TH A MAIN ROAD CORPORATION COLONY JAYANAGARA 9TH LAYOUT BENGALURU-560 069. …RESPONDENTS (BY SMT.K.P.YASHODA, HCGP FOR R1; SRI.PRADEEP, ADVOCATE FOR R2) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 14(A)(2) OF SC/ST (POA) ACT, 2015 PRAYING TO SET ASIDE THE ORDER PASSED BY THE LXX ADDL. CITY CIVIL AND SESSIONS JUDGE, AND SPECIAL JUDGE, BENGALURU DATED 19.02.2025 AND ENLARGE THE APPELLANTS ON BAIL IN THE EVENT OF ARREST BY THE MICO LAYOUT POLICE IN CR.NO.13/2025 PUNISHABLE UNDER SECTIONS 115(2), 189(2) R/W 190 OF BNS 2023 AND SECTION 3(1)(r )(s) OF SC/ST (POA) ACT 1989. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT Learned counsel for the appellants has filed a memo stating that accused No.2 is arrested and the appeal has become infructuous in respect of appellant No.2 is concerned and appeal may be dismissed as not pressed. Accordingly, the appeal in respect of appellant No.2 is dismissed as not pressed, in view of arrest of appellant No.2. - 3 - NC: 2025:KHC:17969 CRL.A No. 767 of 2025 2. Heard learned counsel for appellant No.1, the learned High Court Government Pleader for respondent No.1- State and complainant, who is present personally before the Court, who claims to be an Advocate. 3. Having heard learned counsel for the appellant, the learned High Court Government Pleader for respondent No.1- State and respondent No.2-complainant, the factual matrix of case of prosecution is that the complainant in the complaint stated that his brother one Balakrishna is running a cloth shop at Bilekahalli near Veerabhadra Swamy temple. After opening the said shop, some unknown persons used to abuse the complainant's brother and the unknown persons also used to take drugs and narcotic substances in the said place. In the complaint, it is stated that a complaint was lodged before the police on 08-01-2025 that on 10-10-2025, when the complainant opened the shop at about 5.00 p.m., same unknown persons came near complainant's brother shop and abused him in filthy language and ran away on opposite house. Thereafter, the complainant's brother followed the said persons. During that time, one lady, who is petitioner No.1 i.e., Nikhath Ul Ain, came out from the house and questioned the - 4 - NC: 2025:KHC:17969 CRL.A No. 767 of 2025 complainant's brother. During that time, the brother of the complainant informed that he is running cloth shop in front of her house. At that time, petitioner abused the complainant's brother in filthy language by using his caste and after that, about six persons, who are relatives of the petitioner came and assaulted the complainant's brother. When the complainant came to the said spot, the said persons again abused the complainant in filthy language by using his caste name. Hence complaint was lodged. 4. Learned counsel for the appellant No.1 would submit that on reading the entire complaint, nowhere it is specifically stated, who attributed the complainant’s brother taking the caste name and only there is general allegation taking the caste name and using of filthy language is stated in the complaint. The counsel also would submit that to invoke the SC/ST Act, there must be presence of public and in the presence of general public, if any abuse is made taking the caste name with an intention to humiliate a person, then there is a bar under Section 18A of the Special Enactment and no such materials are found in the complaint. - 5 - NC: 2025:KHC:17969 CRL.A No. 767 of 2025 5. Per contra, the complainant-respondent No.2 party- in-person, who claims to be an Advocate, who filed the complaint makes the submission that assault was made and abused taking their caste name and in Tamil, they will be called as Kongaru and when such word was used taking their caste name and when such abuse was made taking their caste name, there is a bar under Section 18A of the Special Enactment. 6. The learned High Court Government Pleader for the respondent No.1-State also would submit that Police have investigated the matter and filed the charge sheet. Hence, appellants are not entitled for anticipatory bail. 7. Having heard learned counsel for the appellants, the learned High Court Government Pleader for the respondent No.1-State and the complainant-respondent No.2 party-in- person, while considering the anticipatory bail, the Court has to look into the contents of the complaint and contents of the complaint is placed on record before the Court and so also the typed copy. Having read the contents of the complaint and though it is mentioned that they belong to Hindu and Konga community, but a general omnibus allegation is made and it is - 6 - NC: 2025:KHC:17969 CRL.A No. 767 of 2025 not specifically stated in the complaint who abused by taking the caste name. When such omnibus allegation is made in the complaint and not specified the person, who has taken the caste name and abused with an intention to humiliate a person, who belongs to a particular community and in view of the judgment of the Apex Court in PRATHVI RAJ CHAUHAN v. UNION OF INDIA reported in AIR 2020 SC 1036, the Apex Court has specifically held that if complaint does not disclose the ingredients of the offence, the Court can grant anticipatory bail invoking Section 438 Cr.P.C. It is very clear that in the complaint, nowhere they have stated that in the presence of general public with an intention to humiliate them, an abuse was made. When such ingredients are missing in the complaint, it is a fit case to exercise the discretion in favour of the appellants granting anticipatory bail and bar under Section 18A will not come in the way of exercising the discretion. Hence it is a fit case to grant anticipatory bail. 8. In view of the discussion made above, I pass the following: - 7 - NC: 2025:KHC:17969 CRL.A No. 767 of 2025
Decision
ORDER The criminal appeal is allowed. Consequently, the appellant No.1 shall be released on bail in the event of her arrest in connection with Crime No.13/2025 of Mico Layout Police Station, Mico Layout Sub-Division, Bengaluru City for the offences punishable under Sections 3(1)(r) and 3(1)(s) of the SC/ST (POA) Act, 1989 and Sections 115(2), 189(2) and 190 of the Bharatiya Nyaya Sanhita (BNS), 2023, subject to the following conditions:- (i) The appellant No.1 shall surrender herself before the Investigating Officer within ten days from the date of receipt of a certified copy of this order and shall execute a personal bond for a sum of Rs.2,00,000/- (Rupees two lakhs only) with two sureties for the like-sum to the satisfaction of the concerned Investigating Officer. (ii) The appellant No.1 shall not indulge in hampering the investigation or tampering the prosecution witnesses. (iii) The appellant No.1 shall co-operate with the Investigating Officer to complete the investigation and she shall appear before the Investigating Officer, as and when called for. - 8 - NC: 2025:KHC:17969 CRL.A No. 767 of 2025 (iv) The appellant No.1 shall not leave the jurisdiction of the Investigating Officer without prior permission till the charge sheet is filed or for a period of three months, whichever is earlier. (v) The appellant No.1 shall mark her attendance once in a month i.e., on 30th of every month between 10.00 am and 5.00 pm., before the Investigating Officer for a period of three months or till the charge sheet is filed, whichever is earlier. Sd/- (H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 49