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2002 DIGILAW 1387 (AP)

MAVURAM PAPI REDDY v. State Of A. P.

2002-12-02

P.S.NARAYANA

body2002
P. S. NARAYANA, J. ( 1 ) THIS Criminal Petition is filed under Section 438 of Criminal procedure Code, 1973, hereinafter referred to as "code" in short. ( 2 ) THE case of the petitioner, in nutshell, is that the petitioner is falsely implicated in Cr. No. 153/2002 on the file of choppadandi Police Station, Karimnagar district for offence under Section 323 IPC read with Section 3 (1) (x) of the S. Cs and sts. (Prevention of Atrocities) Act, 1989, in short referred to as "act" hereinafter, for which the police are trying to arrest him. It is further stated that the petitioner never abused the complainant or any other person by caste name in public view of in any other place and it is only a concocted and fabricated case against the petitioner by his opponents by invoking the provisions of the Act. It is also stated that even if the allegations are taken into consideration, no case is made out under the said Act and hence the provisions of section 438 of the Code can be invoked. It is further stated that as per the complaint, elders from the village of de facto complainant i. e. , Velma Malla Reddy, ex. M. P. P. N. Malleshwari, M. P. P. , Upa sarpanch Anjaiah, Srinivas Reddy and 30 others came to Revelli village and at the relevant time it is stated that the petitioner, Ramana Reddy, Raji Reddy and raju abused him, which cannot be believed as the petitioner cannot abuse and beat the de facto complainant and others when they are 30 in number. It is further stated that the alleged crime is said to have occurred on 30-9-2002 and had been reported on 3-10-2002 after four days of the occurrence. No doubt, certain other allegations also had been made in paragraphs 7, 8 and 9 of the petition. It was also stated that the petitioner is aged suffering with blood Pressure and Heart problem and if he is arrested and kept in jail, his health will further deteriorate and he may even collapse. No doubt, certain other allegations also had been made in paragraphs 7, 8 and 9 of the petition. It was also stated that the petitioner is aged suffering with blood Pressure and Heart problem and if he is arrested and kept in jail, his health will further deteriorate and he may even collapse. ( 3 ) SRI Rajasekhar Reddy, the learned Counsel representing the petitioner had taken me through the contents of the First information Report and had contended that the allegations do not attract Section 3 (1) (x) of the Act and hence the bar imposed by section 18 of the Act cannot be made applicable to the present case. The learned Counsel further contended that while deciding an application for grant of bail under Section 438 of the Code, the Court can definitely appreciate whether the provisions of the Act are attracted while deciding whether the power imposed under section 18 of the Act can be applied to a particular case or not. The learned Counsel also had further elaborately argued about the powers of this Court both under Section 482 and under Section 438 of the Code. The learned Counsel further contended that in a case while deciding an application for grant of bail under Section 438 of the Code, the Court may examine whether prima facie the allegations made in the complaint or the fir constitute an offence at all under the provisions of the Act and if the Court is satisfied prima facie that the provisions of the Act are not attracted, then definitely this court can exercise the jurisdiction in enlarging the petitioner on bail under Section 438 of the Code. The learned Counsel also had placed strong reliance on Chandra poojari v. State of Karnataka, 1998 Crl. LJ 53, Bharat Petroleum Corporation Ltd. , mumbai v. Union of India, 2000 (5) ALD 566 , Potluri Poorna Chandra Prabhakara rao v. State of A. P. , 2001 (2) ALD (Crl.) 834 (AP), and Ramesh Prasad Bhanja v. State of Orissa, 1996 Crl. LJ 2743. ( 4 ) THE learned Additional Public Prosecutor Sri M. A. Khadeer, on the other hand had contended that this is a clear case of abusing specific Scheduled Caste people by caste in public view and hence the bar imposed by Section 18 of the Act is definitely operative. LJ 2743. ( 4 ) THE learned Additional Public Prosecutor Sri M. A. Khadeer, on the other hand had contended that this is a clear case of abusing specific Scheduled Caste people by caste in public view and hence the bar imposed by Section 18 of the Act is definitely operative. The learned Additional Public prosecutor had taken me through the relevant contents of the FIR and had contended that the allegations are clear that the abuse or scolding in the name of the Scheduled Caste was in public view only and hence when a crime had been registered under Section 323 IPC read with section 3 (1) (x) of the Act, this Court cannot entertain the present bail application filed under Section 438 of the Act. The learned additional Public Prosecutor also had placed strong reliance on K. Mallesham v. State of a. P. , 1998 (5) ALD 120 and also Ranjit singh v. State of Punjab, 2001 (2) RCR (Crl.) Pandh 813. " ( 5 ) HEARD both the Counsel and also perused the material available on record. ( 6 ) AS can be seen from the FIR, a specific allegation had been made that the specified Scheduled Caste persons were abused by pointing out the caste in public view and hence prima facie the provisions of the Act are attracted. Section 18 of the S. Cs. and S. Ts. (Prevention of Atrocities) Act, 1989 dealing with section 438 of the Code not to apply to persons committing an offence under the act reads as hereunder:"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. " ( 7 ) SECTION 438 of the Code reads as hereunder: direction for grant of bail to person apprehending arrest : (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of sessions for a direction under this Section; and that Court may, if it thinks fit, direct in the event of such arrest, he shall be released on bail. (2) When the High Court or the Court of sessions makes a direction under subsection (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave india without the previous permission of the Court; (iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section. (3) If such person is thereafter arrested without warrant by an Officer in-charge of a police Station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under subsection (1 ). In the S. Cs. and S. Ts. (Prevention of Atrocities) act, 1989 and Protection of Civil Rights act, 1955, by me, 3rd Edition, at page 232,1 had stated as hereunder:"section 18 of Act 33 of 1989 provides that Section 438 Cr. P. C. will not apply to persons committing an offence under that act. The Act is not hit by Article 21 of the constitution on the ground that Section 18 of the Act excludes the application of section 438 Cr. P. C. (Jai Singh v. Union of india, AIR 1993 Raj. 177 ). Section 18 of act 33 of 1989 does not unexceptionally bar grant of anticipatory bail when the offence punishable under the Act is alleged in the complaint (Pankaj v. State of Gujarat - 1992 (1) Crimes 1122 ). P. C. (Jai Singh v. Union of india, AIR 1993 Raj. 177 ). Section 18 of act 33 of 1989 does not unexceptionally bar grant of anticipatory bail when the offence punishable under the Act is alleged in the complaint (Pankaj v. State of Gujarat - 1992 (1) Crimes 1122 ). Where the injuries sustained by complainant side were simple in nature and the incident took place because of some dispute relating to agricultural land, accused belonging to a different caste can be enlarged on bail (Mangalram v. State of Rajasthan - 1992 (3) crimes 478 ). Where a case was registered under Section 3 of Act 33 of 1989 and anticipatory bail application was filed on the ground that he is a juvenile, such application need not be allowed in view of Section 18 of the Act (Prakash v. State of Rajasthan - 1992 (3) Crimes 934 ). Where the delay of three days for lodging FIR was explained, it cannot be a ground for granting anticipatory bail (Gordhanbhai v, State of Gujarat -1993 (2) Crimes 839)". In the decision referred in Ranjit Singh case (supra), it was held that in view of the bar under Section 18 of the Act, the petitioner is not entitled to anticipatory bail. The same view was expressed in the decision referred in K. Mallesham case (supra), and this Court in the same decision had further held:"the Court s jurisdiction to issue appropriate directions in exercise of its jurisdiction under Section 438 of the Code would in not way be excluded by mere mentioning the provisions of the Prevention of Atrocities act in the FIR or in the complaint, as the case may be. The Court s jurisdiction in no way could be effected by what the station House Officer does at the time of registration of the crime. The crucial question would be as to whether the contents of the complaint or the FIR would attract the provisions of the Prevention of Atrocities act. Mere mention or non-mention of the provisions of the Prevention of Atrocities act is of no consequence. In a given case, the contents of the allegations may attract the provisions of the Prevention of Atrocities act, though there is no such mention of the provisions at the time of registration of the crime. Mere mention or non-mention of the provisions of the Prevention of Atrocities act is of no consequence. In a given case, the contents of the allegations may attract the provisions of the Prevention of Atrocities act, though there is no such mention of the provisions at the time of registration of the crime. Likewise, the allegations in the FIR or the complaint may not attract the provisions of the Prevention of Atrocities act, at all, though a mention is made in the fir of those provisions. What is required is a pragmatic assessment of the contents of the complaint in every given case. Even if there is a single averment attracting the provisions of the Prevention of Atrocities act, it would be enough to exclude the operation of Section 438 of the Code. What is important is to have an assessment of the cumulative effect of the allegations made in the complaint or the FIR, as the case may be". In State of Karnataka v. Irappa dhareppa Hosamani, 2001 Crl. LJ 3566, it was held that the accused cannot be held guilty under Section 3 (1) (x) of the Act on the allegations of insulting complainant in name of his caste without knowledge that the complainant belonged to Scheduled caste. In the decision referred in Chandra poojari case (supra), it was held that there must be disclosure in the complaint that the occurrence had taken place in public view and that merely calling some one by his caste will not attract Section 3 (ix) of the act. In the decision referred Bharat petroleum Corporation Limited, Bombay, case (supra), where the complaint was filed by an employee of the Bharat Petroleum corporation Limited that he was humiliated in the chamber of the Officer, it was held that the same does not constitute an offence under the Act since the alleged humiliation did not take place in public view. In the decision referred in Ramesh Prasad Bhanja case (supra), it was held that mere registration of the case under Section 3 (1) of the Act would not ipso facto attract the prohibition under Section 18 of the Act and the applicability of Section 438 of the Code is not excluded. In Rakesh Kumar Mishra v. State of Chattisgarh, 2002 Crl. In Rakesh Kumar Mishra v. State of Chattisgarh, 2002 Crl. LJ 4394, it was held that the grant of anticipatory bail for an offence under the Act is expressly barred and Section 18 of the Act excludes the applicability of Section 438 of the Code in respect of the offence under the Act. The same view was expressed in Surendra Kumar agarwal v. State of M. P. , 2001 (1) MP JR 399, and also in State of MP. v. Ramakrishna balothia, 1995 MP LJ 303. In Narahari prasadv. State of MP. , 2001 Crl. LR (MP) 101, the High Court while granting the anticipatory bail had recorded a categorical finding that no offence was committed by the applicants against the victims on the basis that those persons belong to Scheduled caste and Scheduled Tribe and the decision is distinguishable on facts. ( 8 ) IT is no doubt true that merely because a crime had been registered under the provisions of the Act, automatically it cannot be said that the Court has no jurisdiction to entertain an application under section 438 of the Code. But however, in view of the facts on hand in the present case, since there is specific allegation, the truth or otherwise of the allegations cannot be gone into at the stage of deciding a bail application under Section 438 of the code and hence in view of the fact that there is a prima facie allegation attracting the bar under Section 18 of the Act, I am inclined to hold that the present bail application filed by the petitioner under section 438 of the Code is not maintainable in the facts and circumstances of the present case and accordingly there are no merits in the bail petition and the same is dismissed. However, it is made clear that this order will not come in the way of the petitioner surrendering before the concerned Court for seeking regular bail which shall be considered by the said court in accordance with law keeping in view the facts and circumstances of the case.