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2006 DIGILAW 581 (CHH)

PRAMILA BAI v. STATE

2006-12-13

SUNIL KUMAR SINHA

body2006
SUNIL KUMAR SINHA, J. ( 1 ) THIS is an application filed under Section 438 of the Code of Criminal Procedure for grant of anticipatory bail to the applicants, who are apprehending their arrest in connection with crime No. 157/2006, registered at Police station-Special Police Station, Dhamtari, district-Dhamtari (C. G.) for the offence punishable under Section 3 (1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Special Act")and Section 3, 4, and 5 of the Chhattisgarh Tonahi pratadna Nivaran Act, 2005 and Section 294 and 506 Part-II of the IPC. ( 2 ) THE case of the prosecution is that these applicants went to the premises of the complainant namely Smt. Jamna Bai and they tried to dismantle the Khaprel house of the complainant. It is stated that when they were doing the said act, they had abused the complainant by caste and they had also used the word like 'tonahi'. ( 3 ) LEARNED counsel for the applicants submits that in fact, this matter appears to be a civil dispute between the parties. Referring to the copies of 2 sale-deeds, he submits that the land in question bearing khasra No. 966 area 1. 182 acres were purchased by the family members of the accused party by 2 different sale-deeds of area 1. 40 acres and 0. 42 acre on two different dates. Later on this old number of 966 was changed as the new revenue number of 1771 in revenue records. He refers to document annexure-A/5. His submission is that the matter pertaining to this land is sub-judice before the revenue Court as against the order passed by the Teshildar, a revision was filed by the complainant party, which has been dismissed by the Upper Collector dhamtari by order dated 8. 9. 2006 (Annexure-A/7 ). He submits that after dismissal of the revision, the matter is pending before the Teshildar. His submission is that looking to the provisions of Special Act, 1989 and also looking to the provisions of the chhattisgarh Tonahi Pratadna Nivaran Act, 2005, the offence under the aforesaid Sections would not be made out. He prays for releasing the applicants on anticipatory bail. ( 4 ) ON the other hand, learned counsel for the State opposes the bail application. He prays for releasing the applicants on anticipatory bail. ( 4 ) ON the other hand, learned counsel for the State opposes the bail application. His submission is that in the facts and circumstances of the case, an offence under the special Act would be made out and this application filed under Section 438 Cr. P. C. would not be maintainable in view of the provisions of Section 18 of the said Act, 1989. ( 5 ) IT has been held in many decisions that if the contents of the FIR 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 of 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 FIR/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 FIR 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 FIR 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 FIR or the complaint. Please see Satya Prakash v. State of C. G. and Abdul Abbas v. State of chhattisgarh. ( 6 ) IN the facts and circumstances of the case, now the question arises as to whether the FIR lodged in this case answers the requirement of prima facie construction of a case under Section 3 (1) (x) of the Act 1989 or not? After perusal of the aforesaid Section, it would appear that prima facie requirement of this section is an intentional insult or intimidation with an intention to humiliate a member of Scheduled Caste or scheduled Tribe in any place within public view. After perusal of the aforesaid Section, it would appear that prima facie requirement of this section is an intentional insult or intimidation with an intention to humiliate a member of Scheduled Caste or scheduled Tribe in any place within public view. That is to say that for the purpose of constituting this offence, the alleged act of insult or intimidation must be intentional with intent to humiliate the member of the special category. ( 7 ) IT appears to this Court that most oftenly in the matter of commission of an offence under Section 294 IPC, 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 straight-way utilizing the provisions of section 3 (1) (x) of the aforesaid Act, irrespective of nature of accusation. It is to be kept in mind that 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 few words simply saying "means an offence punishable under section 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 IPC or any other law violated. ( 8 ) IF we examine the contents of the FIR of this case, it does not appear that the offence was committed by the accused persons for the reason or on the ground that the victim belongs to a particular caste or category. A perusal of the records would show that in normal course, on a land dispute between the parties, one party had tried to take over the possession or dispossession, other party from the house in question which may result into a civil action or appropriate criminal action to be held under the law against the party concerned and if such act is not commit with an intention and reason that the victim belongs to or is a member of particular caste (SC or ST), the provisions of act would not be applicable. A perusal of the FIR may not attract the commission of said offence under the Special Act and in the facts and circumstances of the case, the objection raised by counsel for the State cannot be sustained and the same is overruled. ( 9 ) SO far as the merits of the case are concerned, on the basis of facts and circumstances referred to above, and further the documents produced before the Court, I am of the opinion that these applicants deserve to be admitted to anticipatory bail. ( 10 ) THEIR application filed under Section 438 of the Code of Criminal Procedure is allowed. ( 11 ) IT is directed that in the event of arrest of these applicants, they shall be released on bail on each of them furnishing a personal bond in sum of Rs. 5,000/- with one surety each in like amount to the satisfaction of the Officer arresting them. ( 12 ) THIS order shall remain in force for a period of 60 days from today, during which, the applicants may apply for regular bail before the concerned Court. Certified copy as per rules. Bail application allowed. --- *** ---