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Madhya Pradesh High Court · body

2000 DIGILAW 1207 (MP)

Surendra Kumar Agrawal v. State of M. P.

2000-11-13

FAKHRUDDIN

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ORDER Fakhruddin, J. 1. This is an application for grant of anticipatory bail under Section 438 Code of Criminal Procedure against the order dated 5-10-2000, passed by the Court-below in Misc. Cri. C. No. 2010/2000. 2. The applicant apprehend his arrest in crime No. 347/1999, registered for the offence under Sections 420,467,468,471,409 of Indian Penal Code read with Section 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. Learned Counsel for the applicant submitted that the other co-accused persons have been released on bail and therefore he claims the bail on the ground of parity with other accused-persons. 4. Applicant Surendra Kumar is not a member of a Scheduled Caste or a Scheduled Tribe. Apart from other offences mentioned above, his arrest is required for the offence under Section 3(2)(5) of the S.C. and S.T. Act. Section 18 of the said Act excludes the applicability of Section 438 of the Code of Criminal Procedure in respect of any case involving arrest of any person accused of having committed an offence under this Act. 5. Section 18 of the said Act is relevant and quoted below: SECTION 438 OF THE CODE NOT TO APPLY TO PERSON COMMITTING AN OFFENCE UNDER THE ACT: Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act. 6. The Apex Court in the case of State of M. P. and Anr. v. Ram Krishna Balothia and Anr. (1995 MPLJ 303), has considered the matter in great detail. 7. Thus, in view of the provisions as contained in Section 18 of the aforesaid Act and the decision of the Apex Court in the case of State of M. P. and Anr. v. Ram Krishna Balothia and Anr. 1995 MPLJ 303, in the opinion of this Court, the provisions of Section 438 Criminal Procedure Code does not at all apply to the case involving arrest of any person accused of having committed an offence under this Act and in that view of the matter, the application is not maintainable. 8. v. Ram Krishna Balothia and Anr. 1995 MPLJ 303, in the opinion of this Court, the provisions of Section 438 Criminal Procedure Code does not at all apply to the case involving arrest of any person accused of having committed an offence under this Act and in that view of the matter, the application is not maintainable. 8. So far as the contention raised by the counsel representing the applicant that he be released on the ground of parity since other co-accused persons have been granted bail, that doctrine would not be applicable in the case where an order is passed ignoring the provisions of law and the decision of the Apex Court. The Court-below has considered that so far as co-accused Banwari Lal is concerned, who has been granted bail by this Court in Misc. Cri. C. No. 1835/2000, decided on 14-8-2000, himself is a person belonging to scheduled caste and as such, the provisions of the Atrocities Act are not attracted against him. 9. Learned Counsel for the applicant then submitted that other co-accused persons namely Kedar Nath Pal of Misc. Cri. C. No. 2231/1999, decided on 25-10-1999 and Ramesh Prasad Namdev of Misc. Cri. C. No. 3062/1999, decided on 11-12-1999, have been released on anticipatory bail, under Section 438, Code of Criminal Procedure by this Court. It is further pointed out that other co-accused Vinod Kumar Joshi has been granted bail in Misc. Cri. C. No. 1695/2000, decided on 20-7-2000, under Section 439, Code of Criminal Procedure so also co-accused Ramesh Prasad Namdev and one Kedarnath have been granted bail under Section 439 Criminal Procedure Code, in Misc. Cri. C. No. 3590/1999, decided on 22-3-2000. 10. So far as the bail granted to co-accused Kedar Nath and Ramesh Prasad in Misc. Cri. C. Nos. 2231 and 3062/1999, under Section 438, Code of Criminal Procedure is concerned, in the opinion of this Court, it was the duty of the arguing counsel appearing for the accused-applicant as well as the State to have pointed out that the offence alleged is under Section 3(2)(5) of the S.C. and S.T. Act and the accused-applicant belongs to the caste, other than scheduled caste and scheduled tribe and there is a bar for grant of anticipatory bail under Section 438, Code of Criminal Procedure under the provisions of Section 18 of the said Act. 11. 11. A perusal of the record and the order passed goes to show that the counsel for the parties failed to assist the Court properly. An advocate appearing for the defence or a Prosecutor is an officer of the Court; he is required to give due assistance. Heavy duty lies on the Public Prosecutor appointed under Section 24 of the Code of Criminal Procedure appearing for the State in the High Court. To inform that the bail application is not maintainable in case of the specified offence was a duty of both the counsel especially Public Prosecutor. 12. Counsel for the applicant vehemently contended that he is entitled to bail on the basis of doctrine of parity. Doctrine of parity would not be applicable in the present case where the provisions of Section 18 of the aforesaid Act specifically declares that Section 438, Code of Criminal Procedure will not apply to persons committing an offence under this Act. The Apex Court also considered and has held so in the case of State of M. P. and Anr. v. Ram Krishna Balothia and another cited supra, and the anticipatory bail order in the situation like this is against the provisions of Section 18 of the said Act and the decision of the Apex Court and as such, the said order is per incuriam. 13. So far as the rule of Public Prosecutor is concerned, their appointment is made under Section 24 of the Code of Criminal Procedure and under the facts and circumstances the matter being serious one, needs to be examined by the Advocate General of the State. The Advocate General would look into the matter and take appropriate steps in accordance with law. 14. In view of what has been stated above, the application fails and is dismissed. 15. Certified copy as per rules. 16. Photo Copy of this order to the State-Counsel for compliance.