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2004 DIGILAW 57 (CHH)

Satyaprakash v. State of Chhattisgarh,

2004-03-16

L.C.BHADOO

body2004
ORDER The accused/applicant has preferred this bail application under Section 438 of the Cr.P.C. apprehending arrest in Crime No.88/2002, Police Station: Special SC/ST Police Station, Durg, for commission of the offence punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, for releasing him on anticipatory bail before arrest. (2) Brief facts relevant for the disposal of this bail application are that one Mangaldas Barle lodged a report on 6- 10-2002 with the Police Station Anusuchit Jati Kanyan, Durg, with the allegations that on 26-8-2002 at about 5:30 pm in the evening he went to meet Mr. Jangde, Assistant Commissioner, in his office situated near Ravishankar Stadium, Manas Bhawan, Durg. When he reached at the gate of the office, he saw that one person wearing dark red shirt coming out of the gate. He enquired from him whether Mr. Jangde, Assistant Labour Commissioner, is in office or not, then that person asked for his name and in reply he introduced himself to that person. He again enquired about the presence of Mr. Jangde then that person said that "Woh Chammar Sale Beech ke kamre mein Baitha Hai Mil Lo" (that Chammar is sitting in the middle room, you meet him). Then he asked him as to why he is abusing him in the name of the caste, as he is also from the same caste, then he said that `you are also Chammar', if I would not address Chammar to Chammar then I should address you as `Brahmin' and while abusing, he started beating him. On hearing the noise Jangde Saheb along with three persons came out, saw that incident, and intervened. Thereafter that person went away abusing in the filthy language. Then he enquired from Jangde that who was this person? Then he said that he was Satyaprakash Verma, Assistant Labour Commissioner. On this report the Police registered the case under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as `the Act, 1989) and the matter is under investigation. (3) Mr. Then he enquired from Jangde that who was this person? Then he said that he was Satyaprakash Verma, Assistant Labour Commissioner. On this report the Police registered the case under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as `the Act, 1989) and the matter is under investigation. (3) Mr. Tiwari, learned Panel Lawyer opposed the bail application by raising preliminary objections that the offence is alleged to have been committed under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 under Section 3(1)(x) of the Act and Section 18 of the Act put a bar against the consideration of the application for anticipatory bail. It would be relevant here to refer Section 18 of the Act which reads as under:- Section 18. Section 438 of the Code do not apply to the person committed offence under the Act: "Nothing in Section 438 of the Code shall apply in relation to the nature of case involving the arrest of the person on accusation of having committed the offence under this Act." (4) On the other hand, learned counsel for the accused/applicant argued that as per the settled law the High Court is not prevented from entertaining the application under Section 438 of the Cr.P.C. if the contents of the F.I.R. do not disclose the commission of the offence under the Act, 1989. He further argued that on the facts and in the circumstances if prima facie it appears to the Court that the allegations in the F.I.R. are so exaggerated, improbable and unbelievable and the applicant is able to establish that the allegations in the said F.I.R. appear to blackmail or to wreck some personal vengeance for settling and scoring personal vendetta or by way of some counter-blasts against opponents some public servants, then the Court is entitled to entertain the application. (5) Learned counsel for the accused/applicant further argued that if we take this F.I.R. in the background in which the case was registered that when the applicant was a successor Assistant Labour Commissioner to Mr. Jangde, he made a complaint about the embezzlement committed by Mr. Jangde to the Chief Secretary, Arun Kumar on 19-8-2002 in which he said that "presently I am faced with such a situation where I have no way except to report to the guardian of all officers of the State. Jangde, he made a complaint about the embezzlement committed by Mr. Jangde to the Chief Secretary, Arun Kumar on 19-8-2002 in which he said that "presently I am faced with such a situation where I have no way except to report to the guardian of all officers of the State. Sir I had surfaced a very big financial misappropriation involving lacs of rupees and as a result of my endeavour Challan was filed in the Court and the Court of Additional Chief Judicial Magistrate, Durg while taking the cognizance of the crime ordered the registration of Criminal Case under Section 409, 120-B, 34 of I.P.C. against PN Ratrey Labour Inspector and SL Jangde and Shri P.N. Ratrey in conspiracy with S.L. Jangde had taken Rs.30/- per labour from the Thekedars and thereby huge loss has been caused to the State Government." Copy of the complaint is Annexure-A/5. Therefore, in this background Shri S.L. Jangde and another conspired to implicate the applicant in a false case and that is why Mangaldas Barle has been used as a tool to falsely implicate the applicant. Apart from Annexure-A/5, the complaint was made by the accused/applicant against Mr. Jangde and Labour Inspector P.N. Ratrey. (6) Now, the point raised by the learned counsel for the State and the learned counsel for the applicant is no longer res integra. As per the settled law on this point the High Court while deciding the bail application under Section 438 of the Cr.P.C. pertaining to commission of the offence under the provisions of Act, 1989, if the contents of the F.I.R. or the complaint disclose the commission of the offence, the courts would not be justified in entering into a further inquiry by summoning the case diary or any other material as to whether the allegations are true or false or whether there is any preponderance of probability of commission of such an offence. At this stage, the Court cannot examine and scrutinize the record of the case in order to ascertain the veracity of the F.I.R./complaint. At this stage, the Court cannot examine and scrutinize the record of the case in order to ascertain the veracity of the F.I.R./complaint. The provisions of Section 18 of the Act, 1989 put a complete bar against entertainment of application of anticipatory bail where prima facie the contents of the F.I.R. disclose the ingredients of commission of the offence under the Act of 1989, which is apparent from the perusal of the section itself and thus the Court at the most would be required to evaluate the FIR itself with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of the ingredients constituting the alleged offence, then the Court would not be justified in entering into an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint by calling for the case diary, charge sheet or any other material gathered at the time of investigation. But, if the allegations in the F.I.R. or the complaint even if they are taken at their face value are accepted in their entirety do not constitute the offence alleged, it is only in those miniscule number of cases, the courts would be justified in entertaining the application, not because it is maintainable but clearly because the Act would be inapplicable on the facts and in the circumstances of that particular case. Thus the application for anticipatory bail can be entertained only on the ground of inapplicability of the Act of 1989 due to the facts of the case which will have to be gathered only from the FIR and not beyond that. Thus the application for anticipatory bail can be entertained only on the ground of inapplicability of the Act of 1989 due to the facts of the case which will have to be gathered only from the FIR and not beyond that. (7) In the light of the above principle in respect of entertaining the application for anticipatory bail in respect of offences relating to the Act, 1989, if we look into the ingredients of the offence alleged in the present case against the applicant, Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 lays down that "(a) there must be an "intentional insult" or "intimidation" with "intend" to humiliate SC/ST member by a non-SC/ST member; (b) and that insult must have been done in any place within the "Public view"." The wording of the section makes it crystal clear that the mens rea is an essential ingredient of the offence and it must also be prima facie established that the accused had the knowledge at the time of commission of the offence that the victim belongs to the SC/ST and that the offence was committed for that reason. Merely calling a person by caste would not attract the provisions of this Act. Merely alleging that the accused uttered humiliating words may not be enough. This being a penal provision has to be given a strict interpretation. If any of the ingredients is found missing, it would not constitute the offence. (8) In the light of the above, if we look into the facts of the present case Mr. Mangaldas Barle met with the person at the gate of the office and when he enquired from that person about Mr. Jangde that whether he is in office or not then said that "Woh Chammar Sale Beech ke kamre mein Baitha Hai Mil Lo", at that time apart from these two persons, no other person was there as per the allegations in the F.I.R.. Even Mr. Jangde was not present because with reference to him these words were used. Therefore, it cannot be considered that these words were uttered in the "Public view". "Public view" means that the words were uttered in the presence of some other persons and that too with an intention to `insult' or `humiliate' or `intimidate' the caste person. Even the word that "You are chammar"! Therefore, it cannot be considered that these words were uttered in the "Public view". "Public view" means that the words were uttered in the presence of some other persons and that too with an intention to `insult' or `humiliate' or `intimidate' the caste person. Even the word that "You are chammar"! If I shall not call you Chammar then shall I call you as Brahmin". These words were also not uttered in the public view. It has further been mentioned that after hearing the noise Mr. Jangde and 3 persons came on the scene and then the accused left the scene abusing him in the insulting language. But, it has not been made clear that what was the actual word used and merely omnibus statement that the accused abusing in the insulting language is not sufficient to constitute the offence. Therefore, if we take the F.I.R. on its face value then the essential ingredients for constituting the offence under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 are missing. (9) Learned Panel Lawyer placed reliance on the judgments of the Hon'ble Apex Court in the matter of State of M.P. V. Ram Kishna Balothia reported in AIR 1995 SC 1198 and Virendra Singh versus State of Rajasthan reported in 2000 (3) Crimes 473. Learned counsel for the accused/applicant also placed reliance on the same case of Virendra Singh (supra) and in the matter of Mukesh Kumar Saini and others v. State (Delhi Administration) reported in 2001 CRI. L.J. 4587. In the matter of Ram Kishna Balothia (supra) the Hon'ble Apex Court has held that:- "The above statement graphically describes the social conditions which motivated the said legislation. It is pointed out in the above Statement of Objects and Reasons that when member of the Scheduled Castes and Scheduled Tribes assert their rights and demand statutory protection, vested interests try to cow them down and terrorise them. It is pointed out in the above Statement of Objects and Reasons that when member of the Scheduled Castes and Scheduled Tribes assert their rights and demand statutory protection, vested interests try to cow them down and terrorise them. In these circumstances, if anticipatory bail is not made available to persons who commit such offences, such a denial cannot be considered as unreasonable or violative of Article 14, as these offences form distinct class by themselves and cannot be compared with other offences." It was further held that: "However, looking to the historical background relating to the practice of "Untouchability" and the social attitudes which lead to the commission of such offences against Scheduled Castes and Scheduled Tribes, there is justification for an apprehension that if the benefit of anticipatory bail is made available to the persons who are alleged to have committed such offences, there is every likelihood of their misusing their liberty while on anticipatory bail to terrorise their victims and to prevent a proper investigation." (Emphasis supplied) (10) Therefore, in the light of the above discussion and the law laid down by the Hon'ble Apex Court in respect of entertaining the application under Section 438 of the Cr.P.C. in the matter of offences relating to the Act, 1989, I am of the opinion that it is a fit case in which the benefit of Section 438 of the Cr.P.C. should be extended to the accused/applicant. Accordingly, the application is allowed. It is, therefore, directed that in the event of arrest of the accused/applicant namely, Satyaprakash if he furnishes a personal bond of Rs.10,000/- with a surety in the like sum to the satisfaction of the Investigating Officer, he be released on anticipatory bail. However, he shall abide the conditions provided under Section 438 of the Cr.P.C. i.e. he shall make himself available for interrogation by a police officer as and when required; he 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 them from disclosing such facts to the Court or to any police officer. This order shall remain effective for a period of two months from today. During this period the accused/applicant may apply for regular bail. This order shall remain effective for a period of two months from today. During this period the accused/applicant may apply for regular bail. (11) Before parting with this order, it is made clear that the above discussion has been used to decide the application for anticipatory bail and the trial Court shall not be influenced by any of the observations made in the said order at any stage of the matter because it became necessary to make these observations to decide the bail application in the light of the objections raised by the learned counsel for the State.