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2014 DIGILAW 405 (CHH)

Umesh Prasad @ Nandev v. State of Chhattisgarh

2014-11-20

SANJAY K.AGRAWAL

body2014
ORDER 1. The short question requires to be adjudicated in the present bail application is whether the applicants, who have been made accused of an offence punishable under the provision of Section 3 (1)(x) [amended as 3 (1)(r)] of the Act, 1989, are entitled for anticipatory bail, in view of the bar engrafted under Section 18 of the Act, 1989? 2. The applicants have preferred this bail application under Section 438 of the Cr.P.C. apprehending arrest in connection with Crime No. 78 of 2014, registered in Police Station Balrampur, District Balrampur, Chhattisgasrh of offence punishable under Sections 294, 506, 323, 341, 342 read with Section 34 of the IPC and Section 3(1)(x) [amended as 3(1)(r)] of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, “the Act, 1989”) for releasing them on anticipatory bail. 3. The case of the prosecution, in brief, is that the dispute between complainant Anuj Tirki and the applicants Umesh Prasad @ Nandev, Kamesh Prasad, Roshan Gupta and Omprakash Gupta @ Mintu arose on account of the fact that the livestock (goats) of the applicants grazed out the standing crop of the complainant and on being persuaded by the complainant to the applicants, on 03-06-2014, the applicants abused the complainant and threatened him to kill. Thereafter, applicant No.1 Umesh Prasad @ Nandev along with applicant No.3 Roshan Gupta took him to his house and also committed “Marpeet” with him along with other applicants and insulted him intentionally with intent to humiliate him within public view. Being aggrieved by the act of the accused/applicants, the complainant lodged a complaint in Police Station Balrampur, District Balrampur, on the basis of which a case was registered against the applicants under Sections 294, 506, 323, 341, 342 read with Section 34 of the IPC and later on the offence under Section 3 (1)(x), which, after amendment, stands as 3(1)(r) of the Act, 1989. 4. Mr. Rahul Mishra, learned counsel appearing for the applicant would submit that the First Information Report filed by the complainant does not attract any provisions of the Act, 1989, as a concocted story has been framed against the applicants and a false complaint has been lodged against them. The complaint made by the complainant is an off-shoot of personal animosity and grudge. The complaint made by the complainant is an off-shoot of personal animosity and grudge. Learned counsel would further submit that prima facie the offence is not made out under the Act, 1989 and the provisions of the Act, 1989 are not attracted, therefore, the accused/applicants are entitled for bail under Section 438 of the Cr.P.C. and bar enacted under Section 18 of the Act, 1989 would not come into play. 5. Per contra, Mr. Neeraj Pradhan, learned Panel Lawyer appearing for the State, opposing the bail application, would submit that in view of the specific bar contained in Section 18 of the Act, 1989, the application for grant of anticipatory bail is not maintainable and, therefore, the same deserves to be dismissed. 6. I have heard learned counsel appearing for the parties and considered their rival submissions made therein and perused the case diary with utmost circumspection. 7. In order to appreciate the submissions raised at the bar, it would be proper to notice Section 18 of the Act, 1989 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”. 8. A bare reading of the aforesaid provision would show that Section 438 of the Cr.P.C. has no application to a person who is an accused of having committed the offence under the Act of 1989. It further shows that the allegations made in the First Information Report must show that the said allegations attract the provisions of the Act, 1989. The question to be considered is whether merely on registration of an offence against an accused under the provisions of the Act, 1989, he cannot move a jurisdictional Criminal Court i.e., the High Court or the Court of Session for grant of anticipatory bail under any circumstances?. The question to be considered is whether merely on registration of an offence against an accused under the provisions of the Act, 1989, he cannot move a jurisdictional Criminal Court i.e., the High Court or the Court of Session for grant of anticipatory bail under any circumstances?. In a decision referred in Vilas Pandurang and another vs. State of Maharashtra and others, (2012) 8 SCC 795 scope and ambit of Section 18 of the Act, 1989 came to be considered therein by their Lordships of the Supreme Court, whether the High Court or the Court of Session can exercise the discretion to grant anticipatory bail when a case is registered against an accused under the provisions of the Act, 1989. It has been held by their Lordships 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. 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.” 9. 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.” 9. Thereafter, the principle laid down in the aforesaid case was followed and reiterated by their Lordships of the Supreme Court in Bachu Das vs. State of Bihar and others, (2014) 3 SCC 471 . 10. From the principles laid down by their Lordships of the Supreme Court in the aforesaid cases, it would appear that the Jurisdictional Criminal Court invested with the discretion to grant anticipatory bail is not precluded from examining the allegation made in the First Information Report to find out whether prima facie, an offence under the provisions of the Act, 1989 is made out, but the Court is not supposed to examine the correctness/veracity of the allegation made in the First Information Report, but it can certainly be examined whether the provisions of the Act, 1989 are attracted, when the allegations mentioned in the First Information Report are taken at its face value considering them to be true. In the present case, offence under Section 3(1)(r) of the Act, 1989 as amended has been registered against the applicants. 11. Section 3 (1) (x) of the Act, 1989 as amended as 3(1)(r) by Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) amendment Ordinance 2014 with effect from 4-3-2014 reads as under: “3. Punishments for offences of atrocities – (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe-(r) 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. 12. Thus, to bring home an offence punishable under Section 3 (1)(r) of the Act, 1989 the prosecution has to prove the following ingredients. “i) That the accused was not a member of Scheduled Caste or Scheduled Tribe; ii) That the complainant was intentionally insulted or intimidate by the accused. 12. Thus, to bring home an offence punishable under Section 3 (1)(r) of the Act, 1989 the prosecution has to prove the following ingredients. “i) That the accused was not a member of Scheduled Caste or Scheduled Tribe; ii) That the complainant was intentionally insulted or intimidate by the accused. iii) that intentional insult or intimidation was “with intent to humiliate” such member; iv) that insult or intimidation with an intent to humiliate must be in a place within “public view”. 13. In case of Gorige Pentaiah vs. State of Andhra Pradesh (2008) 12 SCC 531 , the Supreme Court has clearly held that intentional insult or intimidation by the accused with intent to humiliate in a place within public view is a necessary ingredient for the said offence and held as under: “6...... …..According to the basic ingredients of Section 3 (1)(x) of the Act, the complainant ought to have alleged that the accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he (respondent No.3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint nowhere it is mentioned that the accused appellant was not a member of the Scheduled Caste or a Scheduled Tribe and the intentionally insulted or intimidated with intent to humiliate respondent No.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 m leading to abuse of process of law.” 14. 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 m leading to abuse of process of law.” 14. The First Information Report lodged after the incident by the complainant Anuj Tirki against the applicants in Police Station reads as under: ^eSa xzke >yih ds fpjdksek ikjk ds fuoklh gwa i<+kbZ djrk gwa fd fn0 3@6@14 ds 'kke 06-00 cts eSa cjx<+ cktkj ls lk;dy ls vius ?kj vk jgk Fkk fd uannso xqIrk vius ?kj ds ikl eq>s jksdk vkSj xanh&xanh xkyh nsrs gq, dgus yxk fd rqe yksx [ksr esa D;k yxk;s gks js] eSa cksyk fd cgqr dqN yxk;s gSa] rc vkos'k esa vkdj tku ls ekjus dh /kedh nsrs gq, jks'ku ds lkFk eq>s idM+dj vius ?kj vUnj ys x;s vkSj gkFk eqDdk ls nksuksa feydj ekjus yxs brus esa dkes'k xq:th rFkk uannso dk csVk feUVw Hkh vk x;s-pkjksa feydj esjs xnZu dks idM+dj ekjus yxs ftlls esjs xnZu eas pksV yxh gS rFkk isV o 'kjhj ds vU; fgLlksa esa ekj&ihV ls pksV yxh gS rFkk nnZ gks jgk gS ckn esa pkjksa eq>s ekj ihV dj vius ?kj esa can dj fn;s dqN nsj ckn esjs firkth] eka] vkSj cgu vkdj eq>s NqM+ok dj ?kj ys x;s ?kj tkus ds ckn firk th crk;s fd uannso dh cdjh gekjs [ksr esa yxs Qly dks pjus ij cdjh laHkkydj j[kus uannso dks le>k'k fn;s Fks blh ckr ij jaft'k j[krs gq, esjs lkFk ekjihV fd;k gksxk A fjiksVZ djrk gwa dk;Zokgh dh tkosA^ 15. Thus, a bare perusal of the aforesaid contents of the First Information Report as well as the statement of complainant Anuj Tirki and other witnesses recorded under Section 161 of the Cr.P.C. would show that the applicants were not members of Scheduled Caste or Scheduled Tribe and the complainant is a member of Scheduled Tribe and there was no intention or intimidation by the accused against the complainant as the dispute arose on account of the fact that the livestock (goats) of the applicants grazed out the standing crop of the complainant and there was no intention to commit as it was a sudden marpeet took place between the complainant and the accused/applicants and the marpeet which took place was not with an intention to humiliate the complainant who is a member of Scheduled Tribe and such dispute took place partly in front of the house of the complainant and inside the house of the applicants and it cannot be said to be in public view. Thus, the ingredients of Section 3(1) (r) of the Act, 1989 are prima facie lacking and the provisions of the Act, 1989are not attracted to the present case. When the ingredients of the provision of Section 3(1)(r) of the Act, 1989 are not at all attracted, there is no legal impediment for this Court to exercise its jurisdiction to grant anticipatory bail to the applicants notwithstanding there being a bar under Section 18 of the Act, 1989. 16. Therefore, having regard to the above facts and circumstances of the case and also having regard to the law laid down by their Lordships of the Supreme Court with regard to the bar imposed by Section 18 of the Act, 1989, I am of the considered opinion that it is a fit case in which the accused/applicants should be extended the benefit of Section 438 of the Cr.P.C. 17. Accordingly, the application is allowed. Accordingly, the application is allowed. It is directed that in the event of arrest, the applicants shall be released on bail on each of them furnishing a personal bond in the sum of Rs.10,000/-with one local surety for the like sum to the satisfaction of the Officer arresting them and they shall abide by all the following terms and conditions: (i) that the accused/applicants shall make themselves available for interrogation before the concerned Investigating Officer as and when required; (ii) that the accused/applicants 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 him/her from disclosing such facts to the Court or to any police officer; (iii) that the accused /applicants shall not act, in any manner, which will be prejudicial to fair and expeditious trial; and (iv) that the applicants shall appear before the trial Court on each and every date given to them by the said Court till the trial is concluded. 18. Before parting with, it is made clear that observation made herein above is only for the purpose of considering the application for grant of anticipatory bail and it will not be taken into consideration while considering the question of charge and case will be considered on its own merits without being influenced by observation made herein above.