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2006 DIGILAW 225 (CHH)

BALDAU KAUSHIK v. STATE OF C. G.

2006-03-30

S.K.SINHA

body2006
ORDER Sunil Kumar Sinha, J. : - 1. This is an application filed under section 438 of Cr.P.C. for grant of anticipatory bail to the applicant who is apprehending his arrest in connection with Crime No.37/2006 registered at Police station Kabirdham (C.G) for the offence punishable under sections 294, 323, 506(B) of I.P.C. and 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the 'Special Act'). 2. The case of the prosecution is that on 25.1.2006 at about 5 p.m., this applicant and the victim namely Milan were playing cards at a place in the village. Some hot exchanges took place between them. On this, the applicant assaulted the victim with his leg. The victim lodged the First Information Report on 25.1.2006. It comes in the F.I.R. that while assaulting, the applicant abused the complainant saying that" 3. Learned counsel for the applicant submits that in the facts and circumstances of this case, an offence u/s 3(l)(x) of the Special Act would not be made out. His submission is that the F.I.R. does not contain that the complainant belongs to Gond caste. He further submits that the exact version mentioned in the F.I.R. does not constitute the ingredients of the offence u/s 3(1)(x) of the Act, hence, this application filed under section 438 Cr.P.C. would be maintainable and the bar u/s 18 of the Act would not be attracted. 4. On the other hand, learned State Counsel opposes the bail application and raises the point that a bar u/s 18 of the Act would be attracted in this case. 5. The law in relation to entertaining the application u/s 438 Cr.P.C. in such offences is well settled. The point raised by the State and learned counsel for the applicant is no longer res integra. It has been held that if the contents of the F.I.R. or the complaint disclose the commission of offence under the Special Act, the Courts would not be justified in entering into a further enquiry 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 for 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 the entertainment of an application for anticipatory bail where prima facie the contents of the F.I.R. disclose the ingredients of the 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 F.I.R. itself with a view to find out if the facts emerging there-from 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 enquiry as to the reliability or a genuineness or otherwise of the allegations made in the F.I.R. or the complaint. Please see Satya Prakaah Vs. State of C.G. 6. It has also been held by High Court of Madhya Pradesh in the matter of Dule Singh Vs. State of M.P. through Police Rajgarh, that a strict construction should be placed on the word "accusation" within the meaning of Section 18 of the Act. As such the "intention" or "intent" which is material ingredient of the offence u/s 3(1)(x) of the Act not being clearly stated by the witnesses and there being no statement that the offence was committed because the complainant belonged to Scheduled Caste, it cannot amount to an 'accusation' of an offence within the meaning of Section 18 of the Act so as to bar an application u/s 438 Cr.P.C. 7. The High Court of Orissa has also held in the matter of Ramesh Prasad Bhanja Vs. State of Orissa, that if no prima facie case u/s 3 of the Act has been made out, it cannot be said that there is an "accusation of commission of an offence under the Act" and in that case there can be no hesitation to say that the applicability of the provision of section 438 of the Code is not excluded. 8. 8. On many occasions, it has come before this court that in the matter of commission of offences punishable under section 294 etc., of the Indian Penal Code, in a place within public view, if the victim, by chance, happens to be the member of Scheduled Castes or Scheduled Tribes, and the accused(s) is not the member of the said castes or tribes, the State Agencies are straightway utilizing the provisions of section 3(1)(x) of the aforesaid Act, irrespective of nature of accusation. The preamble of the Act provides that "The Act has been enacted to prevent the commission of the offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. The expression 'atrocity' is defined in Section 2(1)(a) of the special Act to mean an offence punishable under Section 3. This definition of the word "atrocity" used by the legislature in clause (a) of sub-section (1) of section 2 explains the atrocity in a very few words simply saying "means an offence punishable u/s 3" of the said Act. Therefore, in a case like this, sine qua non for application of provisions of section 3(1)(x) of the aforesaid Act is that an offence must have been committed against a person on the ground that such person is a member of Scheduled Castes or Scheduled Tribes, that is to say, that if the offence is not committed on the ground or for the reason that the victim belongs to the Scheduled Castes or Scheduled Tribes, the provisions of section 3(1)(x) would not be attracted and if the evidence of this nature is lacking in any case and the victim, by chance, happens to be the member of Scheduled Caste or Scheduled Tribe, merely on this ground the aforesaid provisions would not be attracted in addition to the provisions of the I.P.C. 9. If we examine the contents of the F.I.R., it does not appear that the aforesaid crime under section 294, 323 or section 506(Part-II) of the I.P.C, as is alleged by the prosecution, was committed for the reason or on the ground that the victim belongs to a particular caste. Therefore, in absence of any evidence to this effect, the provisions of the special Act would hardly be applicable in such cases. 10. Therefore, in absence of any evidence to this effect, the provisions of the special Act would hardly be applicable in such cases. 10. In view of the above discussion, this petition filed under section 438 of the Cr.P.C. is maintainable, In the facts and circumstances of this case, for the foregoing reasons, I am inclined to admit the applicant to anticipatory bail. 11. His application filed u/s 438 Cr.P.C. is allowed. 12. It is directed that in the event of arrest, the applicant shall be released on bail on his furnishing a personal bond in sum of Rs.5000/- with one surety in the like amount to the satisfaction of the officer arresting him. 13. Keeping in view the principles laid down in the matter of Salauddin Abdul Samad Sheikh Vs. State of Maharashtra, I hereby direct that this order shall remain in force for a period of six weeks from today, during which the applicant may apply for regular bail before the concerned Court. Application Allowed.