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2008 DIGILAW 338 (CHH)

Leeladhar Yadav v. State of Chsattisgarh

2008-11-21

T.P.SHARMA

body2008
ORDER This application has been filed for anticipatory bail as the applicant is apprehending his arrest in connection with Crime No. 121/2008 registered at police station Bageecha, District Jashpur for the offences punishable under sections 384, 386, 294, 506(B) and 323 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 the present applicant is the Panch, complainant Kuldeep Tirky is the Sarpanch and one Selbestar Minj is the Secretary of Gram Panchayat, Budhadand. The applicant filed an application before the competent authority under the provisions of Right to Information Act, 2005 seeking certain information relating to developmental work carried by the Gram Panchayat Budhadand in the year 2005-06 and 2006-07. After filing the said application, the applicant was threatened by complainant Kuldeep Tirky, Secretary Selbestar Minj and the Up Sarpanch that he should withdraw the application filed under the provisions of Right to Information Act otherwise they would drag him in a false case. Thereafter, the applicant intimated the same to the Police and the Deputy Collector vide intimation dated 17.5.2008. On the application filed by the applicant seeking certain information, the District Information Officer, Jashpur, directed the Chief Executive Officer, Bageecha to ensure that information sought for by the applicant be provided to him. But instead of providing the information to the applicant, complainant Kuldeep Tirky, the Sarpanch of the said Gram Panchayat, made a written complaint to the Superintendent of Police on 22.6.2008 against the applicant stating that the applicant has humiliated him on the basis of caste, demanded from him Rs. 1,50,000.00 and also threatened to kill him and also the Secretary. 3. Counsel for the applicant submits that the applicant has not committed any offence and he has been falsely implicated in the present case. He has not said anything insulting to the complainant on the basis of his caste nor did he demand any money. He has not assaulted the Sarpanch. When the applicant applied for certain documents under the Right to Information Act then firstly he was threatened by the complainant to withdraw the said application and when the applicant did not withdraw the same, he made a false complaint against him. He has not assaulted the Sarpanch. When the applicant applied for certain documents under the Right to Information Act then firstly he was threatened by the complainant to withdraw the said application and when the applicant did not withdraw the same, he made a false complaint against him. It is submitted that though section 18 of the Act creates bar to the applicant from filing an application under Section 438 of the Code for the offence punishable under Section 3(1)(10) of the Act, the Court is required to see whether the prosecution has collected any material to show that the applicant has committed an offence punishable under Section 3(1)(10) of the Act and only on the basis of false complaint his liberty cannot be curtailed. Reliance is placed on the decision of this Court in the matter of Somesh Das v. State of Chhattisgarh 1 in which it has been held that if the allegation made in the complaint raises doubt about genuineness of complaint, on the basis of previous dispute between the parties it cannot be said that there is prima facie case in terms of Section 3 (1) (10) of the Act. Further reliance is placed on the decision of this Court in the matter of Satyaprakash v. State of C.G. 2 in which it has been held that in the absence of allegation for the offence punishable under section 3(1)(10) of the Act in the FIR or complainant, application under section 438 of the Code is maintainable. Further reliance is placed on the decision of this Court in the matter of Abdul Abbas v. State of C.G. 3 in which it has been held that if the intentional insult or intimidation with an intention to humiliate the member of the Scheduled Tribe is not discovered from the FIR, application under Section 438 of the Code is maintainable. 4. On the other hand counsel for the State opposes the application for anticipatory bail and submits that the complaint prima facie shows that the applicant has insulted the complainant who is a member of Scheduled Tribe in public view and also committed the offence of extortion punishable under section 384 and 386 of the IPC which are non bailable offences, therefore, the applicant is not entitled for the privilege of anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973. 5. 5. In the instant case, the offences punishable under sections 384, 386, 294, 506(B) and 323 of the Indian Penal Code and section 3 (1) (10) of the Act have been registered against the applicant. 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 4 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. 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. 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 5 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. 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. In the light of the aforesaid legal proposition if we see the facts of the present case, it is revealed that the applicant is a Panch of the Gram Panchayat who had applied for seeking certain information under the provisions of Right to Information Act, 2005 relating to sanction and allotment of the developmental work and the Chief Executive Officer was directed to ensure that the same are provided to the applicant. Copy of the application dated 17.5.2008 shows that the present applicant also intimated to the Police and the Higher Authorities that because of his application seeking certain documents the complainant of the present case along with other person threatened him to withdraw the said application otherwise, he would face the consequences of his implication in a false case. Thereafter on 23.6.2008 a written complaint has been filed by the complaint to the Superintendent of Police that too after more than one month of such apprehension of the applicant. It created doubt about the genuineness of the complaint especially taking into consideration the apprehension of the applicant which he has informed in writing to the Police and also the Superior Authorities. 10. As regards the offence under sections 384, 386, 294, 506(B) and 323 of the Indian Penal Code, the complaint shows that the applicant came to the complainant in the Gram Panchayat and told that earlier he had demanded Rs. 10. As regards the offence under sections 384, 386, 294, 506(B) and 323 of the Indian Penal Code, the complaint shows that the applicant came to the complainant in the Gram Panchayat and told that earlier he had demanded Rs. 1,50,000.00 but he did not pay the same to him, he again demanded the money, threatened to kill him and also slapped him saying he was misappropriating the government money. The applicant is a Panch working with the complainant. He was not pleased with the working of the complainant. The application filed by the applicant under the Right to Information Act, 2005, shows that the applicant was not satisfied with the working of the complainant. 11. Taking into consideration the aforesaid facts, the previous dispute and apprehension of the applicant prior to the lodging of the written complaint, I am of the view that at this stage, the prosecution has not collected any material against the applicant to prima face show that the applicant has committed the offence punishable under section 3 (1)(x) of the Act. 12. 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/applicant. Accordingly, the application is allowed. It is, therefore, directed that in the event of arrest of the accused/applicant namely Leeladhar Yadav if he furnishes a personal bond of Rs. 10,000/- with a surety in the like sum to the satisfaction of the arresting Officer, he be released on bail. 13. The applicant shall make himself 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/applicant may apply for regular bail. 13. This order shall remain effective for a period of two months from today. During this period the accused/applicant may apply for regular bail. 13. Trial Court shall not be influenced by any of the observations made in this order and shall proceed in accordance with law.