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Madhya Pradesh High Court · body

2013 DIGILAW 103 (MP)

Ummed Singh v. State of M. P.

2013-01-22

Sujoy Paul

body2013
ORDER 1. In this case a preliminary objection was raised by the State regarding maintainability of this application under section 438, CrPC, in view of specific bar under section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, the “SC/ST Act”) for grant of anticipatory bail. In other words, it is the stand of the State Government that application for grant of anticipatory bail for offences under the SC/ST Act is not maintainable. 2. With the consent of parties, matter is finally heard on the question of maintainability as well as on merits. On maintainability : 3. In this case the offences are registered vide Crime No.476/2012 under sections 447, 294 of Indian Penal Code and section 3(1)(x) of SC/ST Act by Police Station Chachoda as well as by Police Station AJK, Guna. 4. Learned counsel for the State heavily relied on section 18 of SC/ST Act to submit that anticipatory bail is completely barred. It is profitable to quote section 18, which 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.” 5. Learned counsel for the State heavily relied on a recent judgment of Supreme Court delivered in the case of Vilas Pandurang Pawar v. State of Maharashtra [ (2012)8 SCC 795 ], to submit that anticipatory bail cannot be entertained in view of prohibition under section 18 of the SC/ST Act. Shri B.K. Sharma, learned Public Prosecutor for the State, submits that in Vilas Pandurang Pawar (supra), the apex Court has dismissed the anticipatory bail, which shows that the anticipatory bail application cannot be entertained. 6. Shri Ankur Maheshwari, learned counsel for the applicants, on the other hand, relied on various judgments of this Court and other High Courts to submit that when prima facie on reading of the complaint/FIR the ingredients of section 3(1)(x) of the SC/ST Act are not satisfied/attracted, bar of section 18 has no role to play for entertaining the application under section 3(1)(x) of the SC/ST Act. 7. In view of rival contentions of learned counsel for the parties, I deem it proper to trace the legal history on the subject. 7. In view of rival contentions of learned counsel for the parties, I deem it proper to trace the legal history on the subject. Section 438 of Code of Criminal Procedure was introduced pursuant to 41st report of Law Commission. The recommendation for introduction of anticipatory bail reads as under : “We agree that this would be a useful advantage. Though we must add that it is in very exceptional cases that such power should be exercised.” In the light of this recommendation, section 438 was incorporated, for the first time, in the Criminal Procedure Code of 1973. Thus, it is essentially a statutory right conferred long after coming into force of the Constitution of India. The apex Court considered this aspect in (1995)3 SCC 221 (State of M.P. v. Ram Krishna Balothia), wherein the constitutional validity of section 18 of SC/ST Act was called in question and opined that section 18 neither violates Article 14 nor 21 of the Constitution. Thus, the question is whether section 18 aforesaid provides a blanket prohibition for anticipatory bail under section 438? In other words, whether anticipatory bail is totally barred if offences under section 3(1)(x) are alleged against the accused. 8. In (2008)8 SCC 435 (Swaran Singh v. State), the apex Court opined as under : “24. In our opinion, calling a member of the Scheduled Caste “chamar” with intent to insult or humiliate him in a place within public view is certainly an offence under section 3(1)(x) of the Act. Whether there was intent to insult or humiliate by using the word “chamar” will of course depend on the context in which it was used. 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.” A bare perusal of the underlined portion shows that the Court may examine the FIR or complaint on its face value at this stage. 9. The Court has also examined the language employed in section 3(1)(x) of the SC/ST Act, wherein the legislature has chosen to use the words “in any place within public view”. 9. The Court has also examined the language employed in section 3(1)(x) of the SC/ST Act, wherein the legislature has chosen to use the words “in any place within public view”. The makers of law have not chosen to insert the word “public place” and deliberately chosen the words “in any place within public view”. The apex Court in para 27 of Swaran Singh (supra), opined as under : “27. Learned counsel then contended that the alleged act was not committed in a public place and hence does not come within the purview of section 3(1)(x) of the Act. In this connection it may be noted that the aforesaid provision does not use the expression “public place”, but instead the expression used it “in any place within public view”. In our opinion there is a clear distinction between the two expressions.” 10. Kerala High Court in E. Krishnan Nayanar v. Dr. M.A. Kuttappan [1997 Cri.LJ 2036 (Ker.)], opined that the words used in section 3(1)(x) are not “in public place” but “within public view” which means the public must view the person being insulted for which he must be present and no offence on the allegations under the said section gets attracted. Kerala High Court opined on the basis of complaint that no offence is made out against the petitioner. This judgment of Kerala High Court was considered by Supreme Court in the case reported in (2011)11 SCC 259 (Asmathunnisa v. State of Andhra Pradesh), and apex Court opined as under : “9. The aforesaid paragraphs clearly mean that the words used are “in any place but within public view”, which means that the public must view the person being insulted for which he must be present and no offence on the allegations under the said section gets attracted if the person is not present.” In para 11 of the same judgment the apex Court opined as under : “11. The learned counsel for the appellant has also drawn our attention to a judgment of this Court in Gorige Pentaiah v. State of Andhra Pradesh. The relevant paragraph of this judgment is as under : “6. .... The learned counsel for the appellant has also drawn our attention to a judgment of this Court in Gorige Pentaiah v. State of Andhra Pradesh. The relevant paragraph of this judgment is as under : “6. .... According to the basic ingredients of section 3(1)(x) of the Act, the complainant ought to have alleged that the appellant-accused was not a member of the Scheduled Caste or a Scheduled Tribe and he (respondent 3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere is it mentioned that the appellant-accused was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate respondent 3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law.” 11. Pausing here for a moment, it is profitable to quote the judgments of this Court and other High Courts on the subject : 1991 JLJ 468 (Ramdayal and others v. State of M.P.) : “8. On the allegation that a particular person has committed an offence or is an accused under the Act or if he has been so described by the police as an accused, the Court would not without examining the merits of the accusation, dismiss his application. Where there is no material to reasonably raise a suspicion of the commission of an offence, it cannot be said that there is an accusation within the meaning of section 18 of the Act and the maintainability of application under section 438 CrPC, cannot be challenged.” 1999(1) JLJ 84 (Suresh Kumar v. State of M.P.) : “4. On considering the submissions of the learned counsel and perusing the orders of this Court in cases of Kalyan Singh v. State of M.P. and Bablu v. State of M.P. (supra), it is not disputed that the bar created to grant anticipatory bail for under the SC and ST Act u/s 18 of the said Act shall not apply when no prima facie material is available on the case diary to raise suspicion of commission of any offence under the Act is found out against the accused-applicant. In Ramdayal and others v. State of M.P. [1999 JLJ 498], this Court has also held that, “a particular person has committed an offence or is an accused under the Act or if he has been so described by the police as an accused, the Court would not without examining the merits of the accusation dismiss his application filed u/s 438 CrPC. Where there is no material to reasonably raise a suspicion of commission of the offence it cannot be said that there is an accusation within the meaning of section 18 of the Act and the maintainability of application u/s 438 CrPC cannot be challenged. 5. In view of the above, on considering the allegations made against the applicant and the evidence available on the case diary, without commenting on the merits of the case at this stage, I do not find material for prima facie suspecting the applicant of having committed an offence under the Act. As such, the ban imposed by section 18 of the Act does not come into play and the applicant, under the facts and the circumstances of the case deserves the benefit of anticipatory bail u/s 438 CrPC.” 2004(4) MPHT 78 (CG) (Dilip Chhabariya v. State of Chhattisgarh) : “7. In order to attract the provisions of section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, it is necessary that the accused intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine. 8. Perusal of the first information report shows that, at the time of the incident the accused abused the complainant in the name of the caste and mother. There is no mention in the first information report that the accused abused the complainant with intention to intimidate or insult or humiliate him being a member of the Scheduled Caste. 9. Therefore, looking to the above facts, I am of the opinion that it is case to grant anticipatory bail to the applicant. Accordingly, the bail application is allowed.” 2006(I) MPWN 84 = 2006(1) MPLJ 400 (Shyam Singh @ Dhannu v. State of M.P.) : “5. 9. Therefore, looking to the above facts, I am of the opinion that it is case to grant anticipatory bail to the applicant. Accordingly, the bail application is allowed.” 2006(I) MPWN 84 = 2006(1) MPLJ 400 (Shyam Singh @ Dhannu v. State of M.P.) : “5. Besides this, taking the name of caste of any citizen of this country itself is not the offence till it is not taken with the intention to humiliate that person because of his community. Thus, bar created by section 18 of the SC and ST Act does not attract in the case at hand. 6. So far breach of contract is concerned, it gives to Civil Right to the parties. Thus, in view of the aforesaid dictum of this Court and the apex Court and considering the other circumstances of the case, without expressing any opinion on the merits of the matter I deem fit to allow this application.Thus, the application is allowed.” 2006(I) MPWN 123 = 2006(1) MPLJ 439 (Rajendra Singh v. State of M.P.): “7. Having heard the learned counsel for the parties, after perusing the case diary, it is apparent that according to FIR incident did not take place because of that the victim was belonging to caste which is covered by the said Act. Beside this no ingredients are found in the FIR about the offences of the said Act and considering other facts and circumstances it appears that no act has been attributed to humiliate the victim on the basis of his caste, but alleged incident was happened because of earlier political enmity or sudden altercation in the function of marriage. Thus, in such circumstances the bar of section 18 of the said Act is not applicable while other alleged offences are bailable.” 2009(I) MPWN 91 = 2009(1) MPLJ 604 (Kavindra Nath Thakur v. State of M.P.) : “15. To attract section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act the intentional insults or intimidation must be at the place in the public view. According to Bharatlal Raut this incident took place in the house of appellant. No evidence is adduced as to how the place of occurrence was within the public view, therefore, this essential element to prove the offence under section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is missing in this case. 16. According to Bharatlal Raut this incident took place in the house of appellant. No evidence is adduced as to how the place of occurrence was within the public view, therefore, this essential element to prove the offence under section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is missing in this case. 16. In the case of J. Sumana v. Endluri Aseerwadamma [2003(1) ALD (Cri.) 252 (AP)], it has been held that where the petitioner was alleged to have abused in his chamber, the complainant on the ground of caste. But there was no public in the chamber and it was not within the public view. As such, no offence could be said to be committed under section 3(1)(x). 17. In the case of K. Padma Reddy v. Station House Officer, Bellampalli [2004 Cri.LJ 503 (AP)], it has been held that where FIR was registered on a complaint for abusing a person in the name of caste by the petitioner. Held that every utterance which came within the purview of provision of Act by itself was not offence, unless it was made in a place within the public view. In the instant case scene of offence was Chamber of Municipal Commissioner. As there was no allegation to effect that said utterance was made ‘within public view’, therefore, offence could not be said to have been committed by the petitioner. 18. To attract this section the alleged insult or intimidation is to be done within intent to humiliate a member belonging to that particular community. Merely call by caste is not sufficient to constitute the offence.” 2009(2) MPHT 13 (CG) (Leeladhar Yadav v. State of Chhattisgarh) : “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. 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. 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 facie 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 CrPC 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 CrPC 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.” 12. 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.” 12. Learned counsel for the State submits that although the judgments passed by this Court and various other High Courts on earlier occasions cannot be doubted but in view of recent judgment of Supreme Court in Vilas Pandurang Pawar (supra), no anticipatory bail is permissible. At the cost of repetition, Shri B.K. Sharma, learned Public Prosecutor for the State, by relying on paragraph 13 of the judgment of Vilas Pandurang Pawar (supra), submits that anticipatory bail is ultimately rejected by the Supreme Court, which goes to show that anticipatory bail itself is not tenable in view of bar under section 18 of SC/ST Act. 13. In the light of this contention, it is apt to quote the relevant paragraphs of the judgment in Vilas Pandurang Pawar (supra), which read as under : “9. Section 18 of the SC/ST Act creates a bar for invoking section 438 of the Code. However, a duty is cast on the Court to verify the averments in the complaint and to find out whether an offence under section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail. 10. 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 an application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. The Court is not expected to indulge in critical analysis of the evidence on record. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. The 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 the Scheduled Castes and the Scheduled Tribes and a bar has been imnposed in granting bail under section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence. 12. In view of the specific statutory bar provided under section 18 of the SC/ST Act, the above decisions relied on by the petitioners cannot be taken as a precedent and as discussed above, it depends upon the nature of the averments made in the complaint. 13. In view of the above discussion and in the light of the specific averments in the complaint made by the complainant respondent 3 herein, we are of the view that section 18 of the SC/ST Act is applicable to the case on hand and in view of the same, the petitioners are not entitled to anticipatory bail under section 438 of the Code. Accordingly, the special leave petition is dismissed. However, it is made clear that the present conclusion is confined only to the disposal of this petition and the trial Court is free to decide the case on merits.” (Emphasis supplied) 14. The highlighted portion by this Court shows that the argument of learned Public Prosecutor is devoid of merits and substance. The apex Court held that when offence under section 3(1)(x) of the SC/ST Act is prima facie not made out and if there is no specific averment in the complaint regarding insult or intimidation with intent to humiliate by calling with caste name, anticipatory bail is not barred. It is further held that although there is no scope of critical examination of evidence at the stage of considering anticipatory bail, consideration of the complaint, FIR or evidence on its face value is permissible for considering whether case under section 3(1)(x) of SC/ST Act is prima facie made out. A bare perusal of the judgment of Vilas Pandurang Pawar (supra), shows that if the litmus test laid down by Supreme Court is satisfied, anticipatory bail can be granted under section 438 of the Code of Criminal Procedure. A bare perusal of the judgment of Vilas Pandurang Pawar (supra), shows that if the litmus test laid down by Supreme Court is satisfied, anticipatory bail can be granted under section 438 of the Code of Criminal Procedure. It is also clear that the Court must satisfy itself that prima facie case under section 3(1)(x) is not made out and, therefore, anticipatory bail can be entertained. 15. Thus, the contention of the learned Public Prosecutor for the State cannot be accepted. In the opinion of this Court, the objection regarding maintainability of anticipatory bail in the teeth of section 18 of the SC/ST Act deserves to be and is accordingly overruled.The Supreme Court in para 13 in Vilas Pandurang Pawar (supra), dealt with the facts of the case on hand and it is of no assistance to the State. On merits : 16. In the present case, in the FIR it is stated that the applicants were not permitting the complainant to work on the agricultural field and was using abusive and filthy language. However, a bare perusal of the FIR shows that there is no allegation that the present applicants do not belong to SC/ST community. It is also not prima facie clear that the incident took place in public view and, therefore, prima facie the ingredients of section 3(1)(x) of the SC/ST Act are not satisfied. However, it is made clear that this discussion is only for the purpose of granting anticipatory bail and it will not affect the trial of the case in any manner. 17. In the light of aforesaid and applying the test laid down in various judgments of this Court and in recent judgment in Vilas Pandurang Pawar (supra), I deem it proper to enlarge the applicants on anticipatory bail. 18. Accordingly, this application is allowed. It is directed that in the event of arrest, applicants be released on bail on their executing a personal bond in the sum of Rs.50,000/- (Rupees Fifty thousand only) each and furnishing two solvent sureties, each of Rs.25,000/-, by each applicant to the satisfaction of the arresting officer subject to following conditions : 1. The applicants will comply with all the terms and conditions of the bonds executed by them; 2. The applicants will cooperate in the investigation/trial, as the case may be; 3. The applicants will comply with all the terms and conditions of the bonds executed by them; 2. The applicants will cooperate in the investigation/trial, as the case may be; 3. The applicants will not indulge themselves in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to the police officer, as the case may be; 4. The applicants shall not commit an offence similar to the offence of which they are accused; 5. The applicants will not seek unnecessary adjournments during the trial; and 6. The applicants will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be. Certified copy as per rules.