Research › Search › Judgment

Andhra High Court · body

2013 DIGILAW 510 (AP)

Paracha Mohan Rao v. State of A. P.

2013-07-04

R.KANTHA RAO

body2013
Judgment : 1. This criminal petition is filed under Section 438 of the Code of Criminal Procedure seeking anticipatory bail to the petitioner, who is accused in FIR No.160 of 2013 on the file of Khammam I Town Police Station for an offence under Section 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the Act’). 2. I have heard Sri C. Ramachandra Raju, learned counsel appearing for the petitioner and the learned Additional Public Prosecutor representing the State. 3. The petitioner is the maternal uncle of the informant/de facto complainant, she married a person belonging to scheduled caste professing Christianity. On 14.04.2013 the informant went to the house of the petitioner along with her husband. According to her, on seeing her and her husband, the petitioner abused her and her husband in the name of caste and religion. She did not mention the actual utterances made by the petitioner in the first information report. The de facto complainant belongs to Brahmin community and she married a person belonging to scheduled caste. The petitioner, who is no other than the maternal uncle of the de facto complainant presumably, belongs to Brahmin community. It is mentioned in the FIR that on the same day she along with her husband went to the I Town Police Station, Khammam and gave a report to the Sub-Inspector of Police requesting him to take action against the petitioner under the provisions of Prevention of Atrocities Act. It is said that the Sub-Inspector of Police called both parties to the police station and tried to compromise the matter for which the de facto complainant and her husband disagreed. On that, she gave a report to the Inspector of Police requesting to register a case against the petitioner under the provisions of the prevention of Atrocities Act and to take action against him. Thereupon, on the instructions of the Inspector of Police, I Town Police Station, Khammam, the police registered a case under Section 3(i)(x) of the Act and now the matter is under investigation. 4. Thereupon, on the instructions of the Inspector of Police, I Town Police Station, Khammam, the police registered a case under Section 3(i)(x) of the Act and now the matter is under investigation. 4. The question requires to be considered in the present petition is when an individual is made an accused of an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 whether he is not entitled for anticipatory bail under any circumstances in view of the bar enacted under Section 18 of the Prevention of Atrocities Act? 5. The learned counsel appearing for the petitioner submits that in the instant case the contents of the first information report do not attract any of the provisions of the Prevention of Atrocities Act and therefore, the petitioner can be granted anticipatory bail notwithstanding the bar under Section 18 of the Act. He states that a portion of the petitioner’s house was let out to the father of the de facto complainant for some time, later on being insisted by the petitioner, father of the de facto complainant vacated the house, he developed grouse against the petitioner and got a false report lodged against the petitioner through his daughter. According to the learned counsel, neither the de facto complainant nor her husband visited his house on 14.04.2013 and therefore, there was no occasion for him to abuse the de facto complainant or her husband in the name of their caste. 6. On the other hand, the learned Additional Public Prosecutor would submit that in view of the specific bar enacted in Section 18 of the Prevention of Atrocities Act, this Court is not supposed to grant anticipatory bail to the petitioner in exercise of discretion under Section 438 of Cr.P.C. 7. It is essential to extract Section 18 of the Scheduled Castes and Scheduled Tribes Prevention of Atrocities) Act, 1989, which is as follows: “18. 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.” 8. A plain reading of the provision, therefore, indicates that Section 438 of the Code has no application to the persons committing an offence under the Prevention of Atrocities Act. A plain reading of the provision, therefore, indicates that Section 438 of the Code has no application to the persons committing an offence under the Prevention of Atrocities Act. From the language used in the provision, it is wrong to presume that whenever an accusation under the provisions of Atrocities Act is made, Section 438 of Cr.P.C. has no application. The allegation made in the first information report/complaint must show that the said allegation attracts the provisions of the Prevention of Atrocities Act. 9. Therefore, it is necessary to understand as to when Section 18 of the Prevention of Atrocities Act totally excludes the application of Section 438 of Cr.P.C. 10. Originally, the Code of Criminal Procedure did not contain any corresponding provision to Section 438 which empowers the High Court or Court of Session to grant anticipatory bail in certain circumstances. Section 438 of Cr.P.C was substituted by the Code of Criminal Procedure (Amendment Act, 25, 2005). By virtue of the said provision, special powers have been conferred only on the High Court and Court of Session to grant pre-arrest bail, which is commonly known as anticipatory bail. Earlier to the introduction of the provision relating to the anticipatory bail, there was a conflict of judicial opinion about the power of Court to grant anticipatory bail under the provisions then existing under the Code. The majority view was that there was no such power under the provisions then existing in the Code of Criminal Procedure. The provision for granting anticipatory bail was thereafter introduced setting at rest the conflict of judicial opinion. Apart from other things, the main purpose for introducing the provisions for granting anticipatory bail was that in our society it is not uncommon for influential and powerful persons to implicate their opponents in false cases and therefore it was felt to afford some protection to such victims, the prime object of the provision thus, seems to be to save the citizens from being falsely implicated in non-bailable offences and to protect the life and personal liberty of the citizens without being jeopardized at the instance of the unscrupulous elements. However, while introducing the scheduled castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 the legislature thought of safeguarding the rights of the Scheduled Castes and Scheduled Tribes and to make the provisions of the Act stringent, for the purpose of ensuring their proper implementation enacted Section 18 of the Prevention of Atrocities Act, which lays down that Section 438 of Cr.P.C. does not apply to the persons committing an offence under the Act. 11. The crucial question to be addressed is therefore; merely because a crime was registered against an individual under the provisions of the Prevention of Atrocities Act, whether he cannot move the High Court or Court of Session for anticipatory bail under any circumstances. In this context, it would be relevant to notice that any provision of law can be misused for various reasons. A duty is cast upon the Court to protect the individuals from false implication in grave crimes, in cases where the provisions of the anticipatory bail are excluded. For this purpose, it is true that the Courts are not supposed to test the veracity of the version mentioned in the first information report/complaint. But, when the allegations mentioned in the first information report/complaint in their entirety do not attract a particular offence under the Act, then the High Court or the Court of Session can exercise their discretion to grant anticipatory bail. 12. In GORIGE PENTAIAH v STATE OF ANDHRA PRADESH AND OTHERS ( (2008) 12 SCC 531 ) a petition was filed under Section 482 Cr.P.C. in the High Court, to quash the proceedings under Section 3(i)(x) of the Prevention of Atrocities Act. But High Court dismissed the said petition. Aggrieved by the dismissal of the petition, an appeal was preferred to the Supreme Court by special leave. In the said case, it was alleged in the first information report that the accused abused the informant and his people in the name of their caste after demolition of compound wall and the informant therein requested to take action against the appellants. In the said case, it was alleged in the first information report that the accused abused the informant and his people in the name of their caste after demolition of compound wall and the informant therein requested to take action against the appellants. While allowing the appeal, the Supreme Court held that when the basic ingredients of the offence under Section 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act are missing in the complaint, permitting such a complaint to continue and compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law. The Supreme Court expressed the view that the High Court was not justified in not exercising jurisdiction under Section 482 of Cr.P.C. 13. Similarly in ASMATHUNNISA v STATE OF ANDHRA PRADESH AND ANOTHER ( (2011) 11 SCC 259 ) the Supreme Court took the view that when the appellant had not uttered the offending words but only accompanied her husband, who uttered the offending words, the proceeding can be quashed against the appellant. 14. Though the aforesaid two judgments were rendered with reference to the powers of the High Court under Section 482 Cr.P.C., it has to be borne in mind that the principle laid down is that when the words uttered do not attract the provisions under Section 3(i) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the complaint/FIR itself is liable to be quashed. 15. The Supreme Court in VILASPAWAR AND ANOTHER VS STATE OF MAHARASTRA AND OTHERS had an occasion to deal with the question as to whether the High Court or Court of Session can exercise discretion to grant anticipatory bail when a case was registered against the accused under the provisions of Prevention of Atrocities Act, the Supreme Court laid down the law in the following terms. “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. “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.” “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 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. 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 imposed 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.” 16. From the judgment of the Supreme Court, it is clear that the Court invested with the discretion to grant anticipatory bail is not precluded from examining the contents of FIR/complaint to find out whether prima facie an offence under the Provisions of the Prevention of Atrocities Act is made out. The Court however, is not supposed to examine the veracity of the allegations mentioned in the first information report, but it can examine the limited question as to whether the offence under the Provisions of Atrocities Act is attracted or not even the allegations mentioned in the first information report/complaint are taken at their face value considering them to be true. 17. Turning to the facts of the present case, basing on the FIR lodged by the de facto complainant, the police registered a case under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 18. 17. Turning to the facts of the present case, basing on the FIR lodged by the de facto complainant, the police registered a case under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 18. Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 reads as under: 3. (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- (x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view; 19. From the provision it has to be understood that the main element constituting the offence is causing intentional insult or intimidation. Further, such an act must be with a intention to humiliate a member of scheduled caste or scheduled tribe in any place within public view. Therefore, unless there is intentional insult or intimidation, mere utterance of words in the caste name does not constitute the offence. Moreover, unless it is alleged that the informant/complainant was insulted or intimidated in any place within public view, the offence would not be attracted. 20. In the present case, the de facto complainant merely stated that she and her husband were insulted in the name of caste and religion. She did not even mention in the first information report the actual words uttered by the petitioner, who is no other than her maternal uncle. The entire incident even according to the de facto complainant took place inside the house of the petitioner where the petitioner, de facto complainant and her husband were only present. Even if the entire allegations mentioned in the first information report are considered to be true, they do not attract the ingredients of Section 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. When the offence of 3(i)(x) of the Prevention of Atrocities Act is not at all attracted, there is no legal impediment for this Court to exercise its jurisdiction to grant anticipatory bail to the petitioner notwithstanding the bar under Section 18 f the Prevention of Atrocities Act. 21. Therefore, this is a fit case wherein the petitioner can be granted anticipatory bail in exercise of powers under Section 438 of Cr.P.C. and consequently the petitioner is granted anticipatory bail. 22. 21. Therefore, this is a fit case wherein the petitioner can be granted anticipatory bail in exercise of powers under Section 438 of Cr.P.C. and consequently the petitioner is granted anticipatory bail. 22. The petitioner is therefore, directed to surrender before the Station House Officer, I Town Police Station, Khammam within a period of 30 days from the date of this order and in the event of his arrest, the SHO, I Town Police Station, Khammam is directed to release the petitioner on bail on his executing a personal bond in a sum of Rs.10,000/-(Rupees ten thousand only) with two sureties for a like sum each. 23. In the result, the criminal petition is allowed.