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2007 DIGILAW 91 (CHH)

NARENDRA SINGH YADAV v. STATE. OF C. G.

2007-02-02

S.K.SINHA

body2007
ORDER 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. 133/2006, registered at Police Station Purani Basti, Raipur, Distt. Raipur (C.G.) for the offence punishable under Sections 302, 120-B read with section 34 IPC and section 3(2)(v) of The Scheduled Castes and scheduled Tribes (Prevention of Atrocities) Act, .1989 (hereinafter referred to as the Special Act). 2. The brief facts are that on account of some quarrel which took place on 8.7.2006, the deceased namely Deepak Raj was assaulted by 4 accused persons namely Dhruw Lal Chandrakar, Lokesh Chandrakar, Ravi Shankar Chandrakar and Smt. Prem Lata. The assault was made by hands and fists. Deepak died on the way to hospital. The First Information Report was lodged by the maternal uncle of the deceased namely Bhupat Vir in the concerned Police Station on 8.7.2006 at about 18.30 hours. It is stated in the report (Annexure A-2) that the incident took place at about 16.00 hours on the said date. The FIR contains the names of the above 4 co-accused persons. During the course investigation, 161 Cr.P.C. state-meat of mother of deceased namely Em Bai was recorded on 23.7.2006 (Annexure A -4) In the aforesaid statement, the main allegations are against the above co-accused persons and it comes in the middle of the statement that the applicant No.1 Narendra Singh Yadav who was a councilor of the concerned Municipal Corporation was also present there. After completion of the investigation , Police filed charge sheet against above 4 persons only on 21.8.2006. During the course of trial, Em Bai, mother of the deceased, was examined as P.W.5, Ambika Bai, matemal aunt of the deceased, was examined as P.W.7 and Gagan Vir, son of the maternal aunt of the deceased, was examined as P.W.8. 3. A perusal of their court evidence would show that they had deposed that while the other co-accused persons were assaulting the deceased with hands and fists, the present applicants were also present there and applicant no.! exhorted them to assault the deceased and on his exhortation the deceased was assaulted by them. It. 3. A perusal of their court evidence would show that they had deposed that while the other co-accused persons were assaulting the deceased with hands and fists, the present applicants were also present there and applicant no.! exhorted them to assault the deceased and on his exhortation the deceased was assaulted by them. It. appears that on this evidence, the learned Special Judge (Atrocities) took cognizance in the matter and applying the provisions of section 319 of Cr.P.C., issued warrant of arrest against the applicants holding that pima facie the involvement of these applicants also appears in the aforesaid case. A perusal of the order would show that the Special Judge has taken cognizance u/ss 302, 109 and 120-B/34 IPC read with section 3(2)(v) of the Special Act. It is after this, apprehending arrest in the aforesaid case, the applicants have approached this Court seeking grant of anticipatory bail. 4. Learned Senior Advocate appearing for the applicants raises two fold arguments. His first argument is that the procedure adopted by the Special Judge is not in accordance with law as without affording any opportunity of hearing to a person, he cannot be added as an accused in a case. He also argues that the evidence, on which, the applicants are being made accused, appears to be the exaggerations made by the witnesses, referred to above, therefore, there appears to be no prima facie case against them. He further argues that in the facts and circumstances of this case, even with the aid of section 34 of IPC, the ingredients of offence u/s 3(2) (v) of the Special Act would not be attracted, therefore, by entertaining an application filed u/s 438 Cr.P.C., anticipatory bail should be granted to these applicants. 5. On the other hand, learned State Counsel opposes the bail application. He firstly argues that since the cognizance has been taken for an offence under the Special Act, the provisions of section 18 of the said Act would be attracted and in such a situation, the petition filed u/s 438 Cr.P.C. would not be maintainable. Secondly, he argues that on the basis of court statements of the above 3 witnesses namely Em Bai (P.W5), Ambika Bai (P.W7) and Gagan Vir (P.W8), prima facie there appears to be involvement of the applicants, therefore, the Special Judge has rightly issued a warrant of arrest against them. 6. Secondly, he argues that on the basis of court statements of the above 3 witnesses namely Em Bai (P.W5), Ambika Bai (P.W7) and Gagan Vir (P.W8), prima facie there appears to be involvement of the applicants, therefore, the Special Judge has rightly issued a warrant of arrest against them. 6. I have heard learned counsel for the parties at length and also perused the records of the case. 7. So far as the maintainability of the petition u/s438 Cr.P.C. is concerned, the law is well settled on the point. The point raised by learned State Counsel as also learned counsel for the applicants 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. or the complaint. The provisions of section 18 of the Act, 1889 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.1.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 Prakash Vs. State of C. G. 8. 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. Please see Satya Prakash Vs. State of C. G. 8. 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) (as it then was) 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. 9. 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. 10. With the above back ground, if we look into the provisions of section 3(2) (v), the same provides that whosoever not being a member of Scheduled Caste or a Scheduled Tribe commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of 10 years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine. The above command of law shows that for construction of such an offence, the emphasis has to be given to the specific words used by the Legislature like "on the ground that such person is a member of scheduled caste or scheduled tribe". That is to say that if an offence is not committed on the ground that the victim belongs to a particular caste or category, certainly, one can interpret that the material ingredient of the offence is prima facie lacking. That is to say that if an offence is not committed on the ground that the victim belongs to a particular caste or category, certainly, one can interpret that the material ingredient of the offence is prima facie lacking. In contradistinction, a view can be taken that if an offence is committed under the provisions of IPC, and the victim, by chance, happens to be a member of a Scheduled Caste or a Scheduled Tribe, such provisions of the Act would not be attracted because in that case, it would not be proper to say that the offence was committed for the reasons and on the ground that the victim belongs to a particular caste. 11. If such an interpretation is given to the facts and circumstances of the present case, prima facie, it does not appear that the ingredients of offence u/s 3(2)(v) are there against the present applicants, and in the said situation, a petition filed u/s 438 Cr.P.C. would be maintainable and I hold it accordingly. 12. Now the question arises about the merits of the case. It is admitted that in the first instance, these witnesses said nothing against the applicants and for that reason, the applicants were not made accused in the case at the initial stage and a charge-sheet was filed against the remaining 4 other co-accused persons. The averments made by the witnesses are there in their court statements dated 25.9.2006 in which they made allegations against these persons and said that applicant no. I was also present at the place of occurrence and he was exhorting for beating the deceased. Even in these statements, these witnesses have not said that the applicants have actually participated in commission of the crime or they have participated in assaulting the deceased. I was also present at the place of occurrence and he was exhorting for beating the deceased. Even in these statements, these witnesses have not said that the applicants have actually participated in commission of the crime or they have participated in assaulting the deceased. Rather it comes in the statements that there was a socio political rivalry between the deceased and these applicants particularly, applicant no.1 as the applicant no.1 is a Municipal Councilor and the deceased was a social worker and applicant no.1 wanted to dig a drainage in front of a temple and the deceased being a member of the locality and a social worker had opposed all that, on account of which, a quarrel took place between the deceased and the other accused persons, who had beaten the deceased by hands and fists and it also comes that in the said quarrel, there was an exhortation from the side of the applicant no.1 and the deceased who was so beaten died on the way to the hospital at a later stage. 13. Considering the facts and circumstances of this case, and the nature of allegations raised against the applicants particularly considering that those allegations are coming in the court statements of the witnesses and the Special Judge has taken cognizance with the aid of section 319 Cr.P.C. and has ordered for issuance of warrant of arrest against the applicants, I am of the opinion that present is a fit case in which the applicants should be extended benefit of section 438 Cr.P.C. Their application filed u/s 438 Cr.P.C. is allowed. 14. 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.5000/with one surety in like sum to the satisfaction of the Officer arresting them. 15. This order of anticipatory bail 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. Application Allowed.