(Prayer: Crl.P Filed U/S.439(2) Cr.P.C By the SPP for the State Praying that this Hon'ble Court may be pleased to set aside the order dated 17.10.2015 Passed in Crl.Misc.No.727/2015 by the I Addl. Dist. and SPL. Judge, Mandya, Granting Anticipatory Bail to the Accused-Respondents tn Cr.No. 141/2015 of Keragodu P.S., Registered for the offence P/U/S 143,147,148,504,506, 324,307,436 R/W 149 of IPC and Sec.3(Ii)(X) of SC/ST (POA) Act, 1939 and Cancel the Said Order bail and Direcst that the Accused-Respondents be arrested and Committed to Custody.)
1. A case was registered in Crime No.141/2015 dated 03.09.2015 by Mandya Rural Police for the offence punishable under Sections 143, 147, 148, 504, 506, 324, 427, 436 read with Section 149 of IPC and Section 3 (1) (ii) and (x) of SC and ST (POA) Act, 1989.
2. The accused persons approached the Sessions Judge at Mandya and the learned Sessions Judge has granted anticipatory bail on 17.10.2015 against which this petition is filed for cancellation of bail. The ground urged by the petitioner is, under Section 18 of SC and ST (POA) Act there is a bar for granting anticipatory bail for the offence committed under SC and ST (POA) Act. When a Sessions Judge has no authority to grant anticipatory in view of the bar under provisions, the order of the Sessions Judge is to be set aside. In support of this, the judgment of the Hon'ble Supreme Court in case of Vilas Pandurang Pawar and Another Vs. State of Maharastra and others reported in (2012) 8 SCC 795 is referred. The constitutional validity of Section 18 of POA Act was challenged, the same was upheld by the Hon ble Supreme Court and it is held by the Hon ble Supreme Court that Section 18 of POA Act is specifically made for the special circumstances under which the Sessions Court is incompetent to grant anticipatory bail in case a prima facie case is made out, if it is found in the complaint for the purpose of PGA Act. The respondents are served but unrepresented.
3. When an offence is alleged against the accused punishable under the provisions of POA Act, the question would be whether the Trial court is competent to grant anticipatory bail in view of the bar under Section 18 of POA Act. In order to answer to this question, the judgment of the Hon'ble Supreme Court in the judgment referred above, it is made clear that the Sessions Judge is not competent to consider the petition filed for granting anticipatory bail. However, it is also made clear by the Hon'ble Supreme Court that for the purpose whether the offence is alleged in the complaint whether it is prima facie attracts the provisions 3 (1) (x) of the Act, and the court has got jurisdiction to entertain. The order passed by the learned Judge has not discussed as to whether there is a prima facie case is found in the complaint. However as it is a case of petition under Section 438 of Cr.P.C., the case of the petitioners is considered. The learned Sessions Judge at Para - 13 referred that:
"There is no material forthcoming from the prosecution to show any of the antecedents of petitioners that they committed any similar offence or any offence earlier. No special ground is made out by the prosecution to deny benefit of anticipatory bail to the petitioners at this stage. There is no reason to reject this application. Hence, the petitioners have made out sufficient ground for granting anticipatory bail in their favour at this stage as prayed for".
4. The observations made by the learned Sessions Judge is a premature and he has lost his sight in examining Section 18 of SC and ST (POA) Act and also the judgment of the Hon ble Supreme Court. The Hon ble Supreme Court has held that only if there is a prima facie case found in the complaint, the court cannot interfere. It is made further observation that the court cannot be indulged in allowing the application as there was no specific purpose of granting of bail.5. It is too early for the Sessions Judge to make an observation that there are no materials or evidence extracted for the purpose of granting anticipatory bail. This court by referring the judgment of the Hon ble Supreme Court in Crl.P. No.2141/2016 held that the trial court cannot assume the power under Section 438 of Cr.P.C. for granting anticipatory bail in view of offence is under the provisions of Section 18 of SC and ST (POA) Act. As it is already observed by this court in the light of the judgment of the Honble Supreme Court, the Sessions Court and also the High Court having jurisdiction has to examine as to prima facie materials that are available on the complaint. For the said purpose, I have gone through the complaint. The complainant is the mother of the victim. She has stated in her complaint that one Santosh S/o. Byraiah who was in love with a girl belongs to Lingayath community and they were preparing to get marry and in that background, the persons who belongs to non SC/ST community hatched conspiracy and ganged together. On 02.09.2015 at 8.00 p.m. they came with a deadly weapons and destroyed the house of the victim. The victim Santosh made a written complaint on 03.09.2015 in the Keragodu Police Station for the atrocity committed on 03.09.2015 at about 8.30 p.m., the police came to the house of Santosh s/o. Byraiah and drew Mahazar. When they came near the house of Dileep, the accused persons about 58 in numbers referred in the complaint and other 250-300 persons threaten the victim with dire consequences since he belongs to SC/ST and also attributed him in a filthy language and destroyed the roof tiles of the house and also assaulted the complainant. They torched motor cycle and shed and also they pelted stones on the police and also their vehicles, attempted to task the police vehicle and some more police came to the spot and those persons have been taken to the custody from that spot and the persons who got assaulted and injured were taken to Mandya Government Hospital for treatment. It is very nature of the complaint examined for the purpose to decide as to whether the learned Sessions Judge has got power under Section 438 of Cr.P.C. to entertain anticipatory bail, I found there is no material available and also the complaint made is sufficient for the purpose of .Section 3 (1) (x) of SC and ST (POA) Act. Such information available which is very sufficient to constitute an offence under SC and ST (POA) Act and such being the case, it is Section 18 of SC and ST (POA) Act which is bar to the learned Sessions Judge to grant anticipatory bail under Section 438 of Cr.P.C. Under these circumstances as held by this Court in the criminal petition referred above in the light of the Judgment of the Hon ble Supreme Court, the anticipatory bail granted by the learned Judge is contrary to Section 18 of SC and ST (POA) Act and also the judgment of the Hon'ble Supreme Court. Hence, the impugned order passed is liable to be set aside. The liberty is reserved to the accused persons to approach the Sessions Judge after they surrender before the jurisdictional Sessions Judge and make necessary application, if such application is made, it is for the learned Judge to pass appropriate orders in case if the applications are filed under Section 439 of Cr.P.C, if possible on the same day taking into consideration that the petitioner was granted anticipatory bail.
With these observations, the petition stands allowed.