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2007 DIGILAW 74 (CAL)

KHADEM-E DASTEGIR v. STATE

2007-02-09

AMIT TALUKDAR, RUDRENDRA NATH BANERJEE

body2007
BANERJEE, J. ( 1 ) THIS is an application under Section 438, Cr. P. C. and the present petitioners have prayed for an order of anticipatory bail in connection with offences under Section 406, 120b, I. P. C. and under Section 3 (1) of the scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short the said Act) and also under Sections 419 and 420 of the I. P. C. ( 2 ) BEFORE entering into the merit of the case it is better to mention at the very outset that learned Advocate for the State has raised an objection to entertaining the application under Section 438, Cr. P. C. in view of the Section 18 of the Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities)Act, 1989. To oppose such objection of the learned Advocate for the State, learned Advocate for the petitioners have referred to the decisions reported in 2006 Cr LJ (SC) 1679 : (2006)1 C Cr LR (SC) 580, Dinesh alias Buddha v. State of Rajasthan ; 2002 Cr LJ 3311, Sri N. B. Gungarakoppa and Ors. v. State of Karnataka ; 2002 Cr LJ 4130, Pishora Singh v. State of Punjab and Anr. ; 2004 cr LJ 680, Somesh Das v. State of Chattisgarh ; and 2005 Cr LJ 2989, Dr. Rabindra Nath Pradhan v. State of Orissa. Prosecution case itself to find out whether the inclusion of such offence is genuine or apparently false on the face of the record. ( 3 ) THE prevention of Section 18 of the said Act reads as follows :. . "18. Section 438 of the Code not to apply to persons 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. " ( 4 ) THE word, "on an accusation of having committed an offence under this Act" appearing in Section 18 of the said Act, in my view goes to indicate a genuine accusation against the accused and not a mere cloak of accusation to debar the accused from applying for anticipatory bail. ( 5 ) WE have carefully heard the submission of the learned Public prosecutor and learned Advocate for the petitioners on this preliminary point. ( 5 ) WE have carefully heard the submission of the learned Public prosecutor and learned Advocate for the petitioners on this preliminary point. We have also gone through the judgments referred to by the learned Advocate for the petitioners opposing the submission of the learned acting Public prosecutors for the State I find that even though the section provides that an application under Section 438, Cr. P. C. will not be maintainable intangibly in connection with offences under Section 3 (1) of the Scheduled Castes and the scheduled Tribes (Prevention of Atrocities) Act, 1989, but in appropriate case, where there is allegation against the accused in connection with the Scheduled castes and Scheduled Tribes (Prevention Atrocities) Act, 1989 and if the Court finds that there has been a case of false implication apparent on the face of the record the Court can definitely interfere on this point. I find the Division bench judgment of the Kamataka High Court (Supra) is applicable and I find substance in the submission of the learned Advocate for the petitioners that blindly Section 438, Cr. P. C. cannot be denied, to an accused of an offence under Section 3/1 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 where the above criteria is satisfied. ( 6 ) ACCORDINGLY I agree with the aforesaid decision and in my view the application would be maintainable on the said ground. ( 7 ) WE have thereafter heard the matter on merit and have considered the submission and materials available and we find that there are sufficient materials made in the Case Diary which does not warrant an order of anticipatory bail in favour of the petitioners. A considerable amount of Government money is also involved and accordingly I am not inclined to grant any order of anticipatory bail. ( 8 ) ACCORDINGLY I reject this application for anticipatory bail. Talukdar, J.- I have had the advantage of listening to the Order which was read out by my learned Brother just now. Even though I agree that the present Application should be rejected; but, I am unable to persuade myself to the reasoning adopted by my learned Brother while disposing of this Application. ( 9 ) HENCE I would like to incorporate my own views, which I find are not compatible with the same which has been expressed by my learned Brother. Even though I agree that the present Application should be rejected; but, I am unable to persuade myself to the reasoning adopted by my learned Brother while disposing of this Application. ( 9 ) HENCE I would like to incorporate my own views, which I find are not compatible with the same which has been expressed by my learned Brother. ( 10 ) IN this Application, filed under Section 438 of the Code of Criminal procedure (hereinafter referred to as the said Code) following a prayer made by the Investigating Agency the provisions of Section 3 (ix) of the Scheduled castes and the Schedule Tribes (Prevention of Atrocities) Act, 1989 (for short, the said Act) has been incorporated against the Petitioners along with Sections 406 and 120b and other Penal Sections. ( 11 ) AT the very outset, the learned Acting Public Prosecutor took a preliminary point in view of addition of Section 3 (ix) of the said Act, no Application under Section 438 of the said Code could be maintainable on account of the bar imposed by Section 18 of the said act. ( 12 ) SHRI Sanyal the learned Senior Counsel for the Petitioners has rebutted the objection of the Earned Acting Public Prosecutor and had submitted that simply by invoking the provisions of Section 3 of the said Act the jurisdiction to deal with an Application under Section 438 of the said Code is not taken away, even by virtue of the bar of Section 18 of the said Act as the Court has the right to see as to whether there is a prima facie case made out. Shri Sanyal implored us to consider that as the allegations in the Case Diary do not justify incorporation of the provision of Section 3 (ix) of the said Act and as no prima facie case has been made out the Court should interfere on merit, without being guided by the provisions of Section 18 of the said Act. ( 13 ) TO buttress his point Shri Sanyal had referred to several decisions of the various High Courts including the Supreme Court. Those have been dealt with elaborately by my learned Brother in his Order. As such, I do not wish to individually refer to it. ( 13 ) TO buttress his point Shri Sanyal had referred to several decisions of the various High Courts including the Supreme Court. Those have been dealt with elaborately by my learned Brother in his Order. As such, I do not wish to individually refer to it. ( 14 ) MY learned Brother has taken note of the Division Bench decision of the Karnataka High Court in Sri N. B. Gungarakoppa and Ors. v. State of karnataka, 2002 Cr LJ 3311 and the Single Bench decision of the. Chhattisgarh high Court in Somesh Das v. State of Chha. ttisgarh, 2004 Cr LJ 680 and was of the view that in appropriate cases where Court finds there has been a case of false implication apparent on the face of the an offence under Section 3 (i) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. ( 15 ) IN this crossroad I find that my judicial mind is not responding to the said logic and accordingly, I set forth to give my differing view. ( 16 ) PRIOR to assessing the impact of Section 18 of the said Act, on my analysis I feel that it would be profitable if I, in the inception, refer to the legislative intent behind the enactment of the said Act. ( 17 ) IN the Fortieth Year of the Republic the Parliament enacted the said Act to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for Special courts for the Trials of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto. In other words, it was very much a piece of Social Welfare Legislation, aimed at protecting the interests and amelioration of the plights of a weaker section of the society, who were hitherto the target of the onslaught of victimization. ( 18 ) FURTHER from the Statement of Objects and Reasons of the said Act amongst other things it is found a special legislation was necessary to check and deter crimes against them committed by non Scheduled Caste and non scheduled Tribe. Hence this Act was promulgated with above object. ( 18 ) FURTHER from the Statement of Objects and Reasons of the said Act amongst other things it is found a special legislation was necessary to check and deter crimes against them committed by non Scheduled Caste and non scheduled Tribe. Hence this Act was promulgated with above object. ( 19 ) ONCE it is found the spirit behind the legislation, it would now be appropriate to advert to the provisions of Section 18 of the said Act which reads as follows : "18. Section 438 of the Code not to apply to persons 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. " ( 20 ) IT would be equally more profitable If one step is moved ahead and the provision of Section 20 of the said Act is glanced. ( 21 ) COMING back to the provisions of Section 18 of the said Act, which has been caught in the eye of a storm in the light of Shri Sanyal's stand. The provision of the said Section of the said Act is absolutely clear. The opening words of the said Act are "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". ( 22 ) IN my understanding of the said Section, I am of the considered view that the phrase "an accusation of having committed an offence" where accusation clearly means labeling of an accusation and not detail satisfaction of a Court with regard to the intrinsic merit of the accusation. ( 23 ) WHEN the Legislatures in their wisdom have incorporated the provision of Section 18 in the said Act, in my view, it is not open to the Court to interpret it in some other way. The words of the said Section cannot be read in such a fashion that when the accusation is not correct or is false, the provisions of Section 438 of the said Code would have application. ( 24 ) THIS, according to my view, would cause violence to the said section. The words of the said Section cannot be read in such a fashion that when the accusation is not correct or is false, the provisions of Section 438 of the said Code would have application. ( 24 ) THIS, according to my view, would cause violence to the said section. The Rule of Literal Construction - the Golden Rule expects that the words of a Statute must prima facie be given their ordinary meaning. In this context, I feel the decision of the Supreme Court in Chandavarkar Sita Ratna rao v. Ashalata S. Guram, (1986)4 SCC 447 where Sabyasachi Mukharji, J. (as the learned Chief Justice of India then was) writing the Judgment for the bench consisting of His Lordship and K. N. Singh (as the learned Chief Justice of India then was) held: "the rule of construction Is to give effect to the intention of the legislature and not to amend what is actually expressed ; where the language is plain and admits of one meaning, the task of interpretation can hardly be said to arise. " His Lordship further held : "the words of a statute must prima facie be given their ordinary meaning. See Nokes v. Doncaster Amalgamated Collieries Ltd. where the grammatical construction is clear and manifest and without doubt that construction ought to prevail unless there are some strong and obvious reasons to the contrary. " ( 25 ) TO wrap up, I feel the language of the statute should be read as it is and where the words of a statute can be understood in their natural and grammatical sense the Court should avoid creating a casus omissus where there is none. Just the other day the Supreme Court in M. P. Gopalkrishnan nair and Anr. v. State of Kerala and Ors. , (2005)11 SCC 45 in paragraph 55 has held : "a statute, it is trite, should not be interpreted in such a manner as would lead to absurdity. " and referring to the principle of Ut res magis valeat quam pereat Their lordships held "in terms whereof a statute must be read in such a manner which would make it workable. " ( 26 ) VERY recently the Supreme Court in Delhi Financial Corporation v. Rajeev Anand, (2004)11 SCC 625 in paragraph 17 of the said Judgment held as follows : ". . . . . . . . . . . " ( 26 ) VERY recently the Supreme Court in Delhi Financial Corporation v. Rajeev Anand, (2004)11 SCC 625 in paragraph 17 of the said Judgment held as follows : ". . . . . . . . . . . reliance was placed upon the case of P. K. Unni v. Nirmala industries wherein it has been held that the Court must proceed on the assumption that the legislature did not make a mistake and that it intended to say what it said. It was held that assuming there is a defect or an omission in the words used by the legislature, the Court cannot correct or make up the deficiency. It was held that the Court cannot add words to a statute or read words into it which are not there, especially when a literal reading thereof produces an intangible result. It was held that the court is not authorised to alter a word or provide a casus omissus. Reliance was also placed on the case of Union of India v. Elphilstone spg. Wvg. Co. Ltd. which is to a similar effect. " And further held : "it is presumed that the legislature intended what it said. " ( 27 ) ALSO in the decision of State of Jharkhand and Anr. v. Govind Singh, 2005 SCC (Cr) 1570 : (2005)1 C Cr LR (SC) 422 the Supreme Court in paragraph 10 held : "10. When the words of a statute are clear, plain or unambiguous i. e. they are reasonably susceptible to only one meaning, the Courts are bound to give effect to that meaning irrespective of consequences. The intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. " ( 28 ) IF would be of abiding interest to find that Their Lordships further held in paragraph 15 that -'15. Where, however, the words were clear, there is no obscurity, there is not ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the Court to innovate or take upon itself the task of amending or altering the statutory provisions. In that situation the judges should not proclaim that they are playing the role of a lawmaker merely for an exhibition of judicial valour. In that situation the judges should not proclaim that they are playing the role of a lawmaker merely for an exhibition of judicial valour. They have to remember that there is a line, though thin, which separates adjudication from legislation. That line should not be crossed or erased. This can be vouchsafed by "an alert recognition of the necessity not to cross it and instinctive, as well as trained reluctance to do so". ' ( 29 ) ONCE the position is found to be clear I am of the firm view that no other interpretation of Section 18 of the said Act can be made and even if there is a false accusation or prima facie case has not been made out, as has been held by the Division Bench of the Karnataka High Court in Sri N. B. Gungarakoppa and others v. State of Karnataka (supra) and the Single Bench decision of the Chhattisgarh High Court in Somesh Das v. Sfafe of Chhattisgarh (supra), which, I feel, cannot have any effect on my decision, in view of the clear position of law, which, in fact, has not been taken notice of in either of the said two decisions. ( 30 ) IF the Court looks into the veracity of the allegation or sifts the materials so as to see whether there is any prima facie case, I am of the considered view, would militate against the spirit of Section 18 of the said Act and would, in effect, be going beyond the scope of the said Section. ( 31 ) WHEN there is a bar, a statutory bar, imposed upon a Court, debarring it from considering a particular prayer in connection with an act, it is wholesome and not fragmented a Court cannot interpret it in such a way which would, in fact, defeat the legislative purpose, however, harsh or inconvenience it may be. 33. Long long ago Lord Atkin in the Privy Council decision of Pakala narayana Swami v. Emperor, AIR 1939 PC 47 held : "it therefore appears inadmissible to consider the advantages or disadvantages of applying the plain meaning whether in the interests of the prosecution or the accused. 33. Long long ago Lord Atkin in the Privy Council decision of Pakala narayana Swami v. Emperor, AIR 1939 PC 47 held : "it therefore appears inadmissible to consider the advantages or disadvantages of applying the plain meaning whether in the interests of the prosecution or the accused. " ( 32 ) THE Constitution Bench in Commissioner of Agricultural Income-lax, West Bengal v. Keshab Chandra Mandal, AIR 1950 SC 265 through S. R. Das (as the learned Chief Justice of India then was) on behalf of Fazl Ali, patanjali Sastri (as the learned Chief Justice of India then was), B. K. Mukherjea (as the learned Chief Justice of India then was), JJ. held : "'hardship or inconvenience cannot alter the meaning of the language employed by the Legislature if such meaning is clear on the face of the statute or the rules. Further, there is no hardship or inconvenience. " ( 33 ) THE said Act is a piece of Social Welfare Legislation and the Court is duty-bound to further the intent of the legislature in such a manner so that the scheme and object of the Act is not defeated. I am emboldened by the constitution Bench decision of the Supreme Count in Prakash Kumar @ prakash Bhutto v. Sfafe of Gujaraj, AIR 2005 SC 1075 where it has been held while dealing with Section 12 (1) and (2) of the TADA that : "this could be the only intendment of the legislature. To hold otherwise, would amount to rewrite or recast legislation and read something into it which is not there. " ( 34 ) FURTHERMORE, while coming to my conclusion I am of the view that the provisions of Section 20 of the said Act, as well as Section 5 of the said code should also be a guiding factor in the mind of the Court to foreclose any prayer of an accused under Section 438 of the said Code in view of the picture that emerges before the Court. ( 35 ) AS such, I am of the considered view that the Petitioners are not entitled to avail of the provisions of Section 438 of the said Code before this court in view of the bar imposed upon the Court by virtue of Section 18 of the said Act and without going into the merit of the case only on the said score I feel this Application should be rejected. Accordingly, the Application is dismissed in limine. .