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Madhya Pradesh High Court · body

2010 DIGILAW 798 (MP)

Kapil Durgwani v. State of M. P.

2010-08-06

N.K.GUPTA

body2010
ORDER N.K. Gupta, J. 1. This application under Section 438, Code of Criminal Procedure is filed by the present applicant for grant of anticipatory bail in connection with Crime No. 87/2010 registered at Police Station (AJK) Pali District, Umariya for the offence punishable under Sections 294, 323, 506, 326 of IPC and Sections 3(1)(x) and 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred as the 'SC/ST Act'). 2. The prosecution story in short is that the applicant assaulted the complainant Guddu Sonkar by knife causing grievous hurt to him. It is also alleged that the applicant abused the complainant Guddu Sonkar mentioning his caste. The complainant also stated in FIR that the applicant has committed the aforesaid crime to insult the complainant on the basis of caste. 3. The learned Counsel for the applicant submits that the applicants' date of birth was 10-8-1993 and, therefore, he was below 18 years of age at the time of incident, in such circumstances he comes under the category of 'juvenile' and, therefore, he is entitled for anticipatory bail. It has been urged on his behalf that no offence under Sections 3(1)(x) and 3(2)(v) of the SC/ST Act' is made out. And, therefore, bar of Section 18 of the SC/ST Act is not attracted in present case. 4. On the other hand learned Govt. Advocate urges that due to bar of Section 18 of SC/ST Act bail of anticipatory nature cannot be accepted in favour of the applicant. 5. At present the subject matter of examination is the extent upto which the merits of the case can be touched in terms of provision of Section 18 of the SC/ST Act. The provision of Section 18 of the SC/ST Act reads as under: 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. 6. 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. 6. On perusal of the aforesaid provision, it is clear that the Court which is granting bail under Section 438 of Code of Criminal Procedure has to pass an order either expressly or impliedly that the offence under the SC/ST Act is not made out, though it may be written in the order that it will not cause any prejudice to the Trial Court on merits. Language of Section 18 of the SC/ST Act is specific and, therefore, if either Special Court or any Superior Court passes an order that provisions of Section 18 of the SC/ST Act are not attracted then it means that, the Court has given a negative indication about commission of that crime and that would be binding on the Trial Court. 7. The scope of Section 18 of the SC/ST Act read with Section 438 of the Code, is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no Court shall entertain application for anticipatory bail, unless it prima facie finds that such offence is not made out. 8. It is settled position of law that at the time of framing charges, Court is expected to appreciate the evidence, but the material which is available on record should be considered as it is. While considering the bail application scope for appreciation of evidence and other material on record is limited. Court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Special Act to protect the persons who belong to Scheduled Caste and Scheduled Tribe and a bar has been imposed in granting bail under Section 438, Code of Criminal Procedure, the provision in the Special Act cannot be easily brushed aside by elaborate discussion of the evidence. 9. In support of his contention, the learned Counsel for the applicant has placed reliance on the following case law: (i) R.K. Singh and Anr. v. State of Chhattisgarh 2007 (2) Crimes 44 (Chhattisgarh) (ii) Narendra Singh Yadav and Anr. 9. In support of his contention, the learned Counsel for the applicant has placed reliance on the following case law: (i) R.K. Singh and Anr. v. State of Chhattisgarh 2007 (2) Crimes 44 (Chhattisgarh) (ii) Narendra Singh Yadav and Anr. v. Stale of Chhattisgarh 2007 (2) Crimes 46 (Chhattisgarh) (iii) Praveen Kumar Sahu v. State of Chhattisgarh 2007 (1) Crimes 452 . In the aforesaid cases, the Single Bench of the Chhattisgarh High Court has granted anticipatory bail to the concerned applicants after considering the facts of the cases. No fresh legal interpretation appears in the aforesaid cases. Facts of each case differ from other case and, therefore, consideration made on the basis of facts cannot be taken as a precedent in another case. 10. Learned Counsel for the applicant further submits that the present applicant is a juvenile and, therefore, provisions of Section 12 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short 'the Juv. Act') have overriding effect on the provisions of Section 18 of the SC/ST Act. In support of his contention, he has placed reliance on the case law Tara Chand v. State of Rajaslhan 2008 (2) RCR 764 , as published in a book "Digest on Bails" written by Shri Chander Kanta Dateer, Advocate in 2009 Edition at Page No. 197, wherein it has been held: In the light of above, I am of the view that the provisions of Section 12 of the Act of 2000 shall have an overriding effect over the provisions of Section 18 of the Act of 1989 and a juvenile who is brought before the Board or "appears" even by means of an application for being granting anticipatory bail, then notwithstanding the provisions of Section 18 of the Act of 1989 could be dealt with by the Board/Court [in the light of Section 6(2) of the Act of 2000 as Section 12 is a special provision meant exclusively for Juveniles as such the exclusion of Section 438, Code of Criminal Procedure under Section 18 of the Act of 1989 shall not apply in the case of a juvenile who is to be governed by the Act of 2000 and dealt as such. 11. It is here relevant to consider the provisions of Section 12(1) of the Juv. Act, which are as under: 12. 11. It is here relevant to consider the provisions of Section 12(1) of the Juv. Act, which are as under: 12. Bail to Juvenile.- (1) When any person accused of a bailable or non-bailable offence, and apparently a juvenile, is arrested or detained or appears or is brought before a Board, such person shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law for the time being in force, be released on bail with or without surety but he shall not be so released if there appear reasonable grounds for believing that the release is likely to bring him into association with any known criminal or expose him to moral, physical or psychological danger or that his release would defeat the ends of justice. It is true that the Juv. Act has been enacted for the benefit of juvenile delinquents and, therefore, it has an overriding effect over the SC/ST Act, but when the words used in Section 12 of the Juv. Act, are considered in juxtaposition with the wordings of Section 18 of SC/ST Act, it would be clear that the scope of the application of both the provisions is different, therefore, provisions of Section 12 of the Juv. Act cannot be held to have any overriding effect over the provision of Section 18 of the SC/ST Act. The interpretation given by learned Single Judge of Rajasthan High Court, if accepted as it is, it will give arise to an inference that the Board constituted under Juv. Act would have powers of Section 438 of Code of Criminal Procedure, meaning thereby that the accused would be entitled to appear before the Board by filing an application under Section 438 of Code of Criminal Procedure instead of appearing in person. But the legal position is otherwise. Provisions of Section 12 of the Juv. Act do not provide such power to the Board which is equivalent to Section 438 of Code of Criminal Procedure. The Board has no jurisdiction to entertain an application under Section 438 of Code of Criminal Procedure. Therefore, I respectfully, disagree with the interpretation advanced by the learned Single Judge of Rajasthan High Court in case of Tarachand (supra). 12. As per the provisions of Section 6 of the Juv. The Board has no jurisdiction to entertain an application under Section 438 of Code of Criminal Procedure. Therefore, I respectfully, disagree with the interpretation advanced by the learned Single Judge of Rajasthan High Court in case of Tarachand (supra). 12. As per the provisions of Section 6 of the Juv. Act, the powers of the Board can be exercised by the Court of Sessions as well as by the High Court in an appeal, revision or otherwise. Apart from it, if a Board constituted under the Juv. Act rejects a bail application of the Juvenile, an appeal shall lie to the Sessions Court and against the order of the Sessions Court, revision may be preferred to High Court. Therefore, if the bail application is decided by the High Court for the first time and it is rejected, then the opportunity of appeal and revision will be lost by the juvenile. Thus, directly approaching to High Court under the provisions of Section 438 of Code of Criminal Procedure, shall result in a loss of the opportunity to prefer appeal and revision to a Juvenile, therefore, such practice should be discouraged. 13. I have already discussed that in deciding bail application scope of appreciation of evidence is much limited. In the present circumstances and in view of the facts of the case, as mentioned in FIR, it cannot be held that the offence alleged against the applicant does not fall within the purview of SC/ST Act. 14. In view of the aforesaid discussion, this application is disposed off with an observation that the applicant if so advised may appear before the appropriate Board constituted under the Juvenile Justice (Care and Protection of Children) Act, 2000 as per provisions of Section of the Juv. Act and apply for bail according to law.