Research › Search › Judgment

Chhattisgarh High Court · body

2008 DIGILAW 337 (CHH)

Dinesh Kumar Sahu v. State of Chhattisgarh

2008-11-21

T.P.SHARMA

body2008
ORDER This application has been filed for anticipatory bail as the applicants are apprehending their arrest in connection with Crime No. 16/2008 registered at police station AJK, Raigarh for the offences punishable under sections 452, 294, 506/34 of the Indian Penal Code and section 3 (1) (10) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short the Act). 2. Case of the prosecution in brief is that complainant lodged a report against the applicants to the effect that they intentionally abused him and used insulting language on the ground of his caste. 3. Counsel for the applicants submits that the applicants are innocent and except the offence under section 452 IPC and section 3(1)(x) of the Act, all the offences are bailbale in nature. He further submitted that the applicants removed the material lying in front of the house of the complainant only on the direction of the Chief Executive Officer. 4. On the other hand counsel for the respondent/State opposes the application for anticipatory bail and submits that the complaint prima facie shows that the applicants have insulted the complainant who is a member of Scheduled Caste and used the words "Gandwa Madarchod" and therefore, they are not entitled for anticipatory bail. 5. In the instant case, the offences punishable under sections 452, 294, 506/34 of the Indian Penal Code and section 3 (1) (10) of the Act have been registered against the applicants. Application for grant of anticipatory bail in terms of Section 438 of the Code is sustainable for the offences punishable under the Indian Penal Code. The only bar is created under Section 18 of the Act for the offence punishable under Section 3 (1) (10) of the Act. While dealing with the applicability of section 438 of the Code for the offence punishable under section 3 (1) (10) of the Act, in the matter of State of M.P. and another v. Ram Krishna Balothia and another 1 it has been held by the Apex Court that Section 438 of the Code does not form an integral part of Article 21 of the Constitution of India. Section 18 of the Act denying the application of provisions for anticipatory bail to those accused under the Act, cannot be said as violative of Articles 14 and 21 of the Constitution of India. 6. Section 18 of the Act denying the application of provisions for anticipatory bail to those accused under the Act, cannot be said as violative of Articles 14 and 21 of the Constitution of India. 6. Provision of Section 438 of the Code is a general rule for granting anticipatory bail but bar of anticipatory bail under Section 18 of the Act is an exception to the general rule. In case of any exception the prosecution is required to show prima facie the facts which attract the bar in the general rule. Without there being any material to this effect it cannot be said that the person concerned would not be entitled for anticipatory bail as he has been merely described as accused by the Police for committing an offence punishable under the provisions of the Act. There must be material available on record to show that the person is involved in the offence punishable under the provision of the said Act. While dealing with the application under section 438 of the Code, the Court is required to examine the material collected by the prosecution or the complainant and if the Court finds prima facie sufficient material for the commission of the offence under the Act, then the bar created under Section 18 of the Act comes into play and it is not competent to grant bail under Section 438 of the Code. But if it does not find any such material against the applicant under the provisions of the Act, then it is competent to consider the application filed under Section 438 of the Code. Merely by mentioning section of the Act does not create a bar for considering the application under Section 438 of the Code. 7. As held in the case of Satya Prakash (supra) at the time of examination of the material, the Court is required to see whether the FIR or the complaint discloses the commission of offence punishable under the provisions of the Act. The Court is required to see the FIR or the complaint in its face value and at this stage it is not necessary for it to closely examine or scrutinize the material available on record in order to ascertain the veracity of the allegations made in the FIR or the complaint. The Court is required to see the FIR or the complaint in its face value and at this stage it is not necessary for it to closely examine or scrutinize the material available on record in order to ascertain the veracity of the allegations made in the FIR or the complaint. In the case of Somesh Das (supra) it has been held by this Court that if on the face of the record it raises doubt about the genuineness of the FIR or the complaint and that there was an earlier dispute between the parties, it may be inferred for the purpose of entertaining the application under Section 438 of the Code that the complainant or the prosecution could not be able to collect the prima facie material against the applicant. In the case of Abdul Abbas (supra) it has been held that if the intention of humiliation to the member of the Scheduled Tribe is not discovered from the FIR, application under section 438 of the Code is maintainable. 8. While dealing with insult in respect of a member of Scheduled Caste community, in the matter of Swarn Singh and others v. State through Standing counsel and another 2 it has been held by the Apex Court calling a member of Scheduled Caste "chamar" with intent to insult or humiliate him in a place within the public view is certainly an offence punishable under Section 3 (1) (10) of the Act. Relevant portion reads thus: "Para 25: A perusal of the FIR clearly shows that, prima facie, an offence is made out against appellants 2 and 3. As already stated above, at this stage we have not to see whether the allegations in the FIR are correct or not. We only have to see whether treating the FIR allegations as correct an offence is made out or not. In our opinion, treating the allegations in the FIR to be correct an offence under Section 3(1)(x) of the Act is prima facie made out against Appellants 2 and 3 because it prima facie seems that the intent of the appellants was to insult or humiliate the first informant, and this was done within the public view." Thus from the above-cited decision it is clear that prima facie commission of offence has to be seen from the FIR treating the allegations contained in it to be correct. 9. 9. Taking into consideration the rival contentions of the parties and going through the material available on record and the fact that the applicants tried to remove the material lying in front of the house of the complainant only on the direction of the superior officer, I am of the view that at this stage, the prosecution has not collected any material against the applicants to prima face show that the applicants have committed the offence punishable under section 3 (1)(x) of the Act. 10. Consideration for bail is different from that of framing the charge or making out the case against the applicant for trial even if strong suspicion is there. Therefore, in the light of the above discussion and the law laid down by the Apex Court in respect of entertaining the application under Section 438 of the Cr.P.C. in the matter of offences relating to the Act, 1989, I am of the opinion that it is a fit case in which the benefit of Section 438 of the Cr.P.C. should be extended to the accused/applicants. Accordingly, the application is allowed. It is, therefore, directed that in the event of arrest of the accused/applicants namely Dinesh Kumar Sahu, Rajesh Kumar Sahu, Subhash Kumar Sahu and Tikeshwar Malakar if they furnishes a personal bond of Rs. 10,000/- each with a surety in the like sum to the satisfaction of the arresting Officer, they be released on bail. 11. The applicants shall make themselves available for interrogation by a police officer as and when required and shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to any police officer. This order shall remain effective for a period of two months from today. During this period the accused/applicants may apply for regular bail. 12. Trial Court shall not be influenced by any of the observations made in this order and shall proceed in accordance with law.