Research › Search › Judgment

Chhattisgarh High Court · body

2008 DIGILAW 207 (CHH)

Mukesh Jain v. State of Chhattisgarh

2008-08-13

DHIRENDRA MISHRA

body2008
Judgement ORDER :- The applicant has preferred this application under Section 438 of the Code of Criminal Procedure, 1973 (for short 'Cr. P.C.'), as he apprehends arrest in connection with Crime No. 160/08 registered in Police Station Dongargaon, District Dongargaon for commission of offence punishable under Sections 354, 294 and 323 of the IPC and Section 3 (i)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'Act of 1989'). 2. Case of the prosecution, in brief, is that complainant Urmila Bai lodged report on 31-5-2008 at about 8.10 p.m. alleging that she was inside her house at about 5.30 p.m. on that day and labourer Subhash Mahar was chiseling stone outside her house, when the applicant abusing him in the name of his caste asked him as to who has asked him to work and when she came out, the applicant caught her arm with an intention to rob her honour and abused her by the name of her mother and caste. When her husband reached there, he also abused him in the name of his caste. 3. Learned counsel for the applicant submits that husband of the complainant has encroached upon the Government land in front of the land of the applicant. The Tehsildar after registering the case against him for the encroachment had imposed fine in the year 1988 as well as 1995 also. Since the applicant is directly affected person, he had filed an application before the Tehsildar complaining about the encroachment of the husband of the complainant and the Tehsildar vide order dated 28-5-2008 directed him to stop construction forthwith. When the husband of the complainant learnt about the above fact he has made a false complaint against the applicant through his wife just three days after the order dated 28-5-2008 i.e., on 31-5-2008. Allegations present in the FIR do not constitute offence under Section 3 (i) (xi) of the Act of 1989, as the offence in question was not committed because of caste of the complainant or with a view to outrage the modesty of the complainant belonging to the scheduled caste. Reliance is placed in the matter of Abdul Abbas v. State of C. G. reported in 2005 (2) C.G.L.J. 235 : 2005 Cri LJ 3051. 4. Reliance is placed in the matter of Abdul Abbas v. State of C. G. reported in 2005 (2) C.G.L.J. 235 : 2005 Cri LJ 3051. 4. On the other hand, learned counsel for the State opposing the bail application argued that undisputedly the complainant is a lady belonging to scheduled caste. She has made categorical allegation that the applicant abused her and her husband in the name of their caste. Her version is also supported by the statements of witnesses namely Maya Soni, Sukhlal Meshram, husband of complainant, Sakhan Mahar and Ramu Ramteke. Section 18 of the Act of 1989 specifically bars application of Section 438 of Cr. P.C. on an accusation of having committed an offence under that Act. 5. I have heard learned counsel for the parties. 6. In the matter of Abdul Abbas (supra) learned single Judge referring to the judgment of this High Court rendered in the matter of Satya Prakash v. State of C. G. reported in 2004 (1) CGLJ 162 has observed thus :- "The law in relation to entertaining the application under Section 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 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 F.I.R. 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 enquiry as to the reliability or a genuineness or otherwise of the allegations made in the F.I.R. or the complaint." However, considering the allegations in the FIR registered on the basis of written report by the complaint has observed that the complaint was in relation to erection of a well on a piece of land which according to him is the land of his ownership and possession. It has been further observed that ingredients of offence of 'wrongful dispossession' for enjoyment over the land and 'intentional insult' or 'intimidation' with an intention to humiliate the members of the Scheduled Castes or the Scheduled Tribes are missing in the FIR. The offence has not been committed on account of the complainant being the member of special caste. Even the complaint does not contain the name of the applicant. On the basis of facts case it has been held that prima facie requirement in relation to attraction of the offences alleged under the Act of 1989 are not fulfilled and therefore, bar under Section 18 of the Act would not be attracted. 7. However, in the instant case the complainant, a lady of Mahar caste, has specifically alleged that applicant firstly abused the labourer of the complainant, who was chiseling stone, in the name of his caste and thereafter when she came out, he hurled abuses at her also naming her caste and on arrival of her husband, he was also similarly abused. 8. 8. So far as the defence of the applicant that a false complaint has been lodged as some stay order has been passed by the Tehsildar on the complaint of the applicant against construction over the encroached land by the husband of complainant is concerned, this fact may be gone into of the stage of defence and this Court cannot enter into an enquiry by examining the material produced by the applicant/accused to ascertain whether the allegations are true or false and the veracity of the complaint/ FIR cannot be ascertained at this stage as Section 18 of the Act of 1989 specifically bars application of Section 438 of the Cr. P.C. 9. Looking to the allegations made in the FIR as also statement of the witnesses recorded during investigation it cannot be said that the ingredients of offence under the Act of 1989 are absent. 10. For the aforesaid reasons the application of the applicant is dismissed as not maintainable in view of the bar contained in Section 18 of the Act of 1989. However, if the applicant prefers an application for grant of regular bail before the Special Court after arrest, the same shall be considered expeditiously by the Special Court, preferably on the date of presentation itself. Application dismissed.