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2015 DIGILAW 144 (CHH)

Shishir Shrivastava v. State Of Chhattisgarh

2015-05-08

SANJAY K.AGRAWAL

body2015
Order Sanjay K. Agrawal, J. 1. The applicant has preferred this bail application under Section 438 of the Cr.P.C. for grant of anticipatory bail, apprehending his arrest in connection with Crime No. 40 of 2015, registered in Police Station Kotwali, Kondagaon, District Kondagaon, District Kondgaon (Chhattisgarh), for offence punishable under Sections 365, 384 of IPC and Section 3(1)(vii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, "the Act, 1989"). The Act of 1989 was subjected to amendment by the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Ordinance, 2014 and Section 3(1)(vii) of the Act of 1989 is substituted in the Act of 1989 as Section 3(1)(I)(A). The case of the prosecution, in brief, is that on 12.02.2015 present applicant wrongfully confined Smt. Rukhdei Korram and forced her to voters in favour of particular candidate knowing fully well that she is a member of Scheduled Tribe and also subjected her to extortion thereby he committed the aforesaid offences. 2. Mr. Kanak Tiwari, learned Sr. Advocate assisted by Mr. Sourabh Sharma, counsel appearing for the applicant would submit that after recording of Smt. R. Korram statement under Section 161 Cr.P.C. on 14.02.2015 offence under Section 363 of the IPC was registered against the applicant and he was arrested on 22.02.2015 and the offence under Section 363 of the IPC being bailable offence, he was released on bail by the officer arresting him on 22.02.2015 and thereafter the statement of the Smt. R. Korram was recorded under Section 164 Cr.P.C. was recorded on 25.02.2015 and thereupon additional charges for offence under Sections 365 and 384 of the IPC and Section 3(1)(vii) amended as 3(1)(I)(A) of the Act, 1989 have been added against the present applicant which is outcome of after-thought in order to harass the applicant by sending him in jail. He would further submit that the applicant has not misused the bail granted by the trial Court for offence under Section 363 of the IPC. He would further submit that the applicant has not misused the bail granted by the trial Court for offence under Section 363 of the IPC. He would additionally submit that the prima facie offence under Section 3(1)(vii) as amended as 3(1)(I)(A) of the Act, 1989 is not made out as there is no allegation of intimidation or forcing the complainant to vote in a favour of particular candidate or to vote in a manner other than that provided by law, and as such bar of Section 18 of the Act, 1989 is not attracted at all, therefore the benefit of Section 438 of the Cr.P.C. may be extended to the present applicant and he be granted the privilege of anticipatory bail. 3. On the other hand, Mr. S.P. Kale, learned Deputy Advocate General appearing for the respondent/State, opposing the bail application would submit that Smt. R. Korram (Victim) in her statement recorded under Section 164 of the Cr.P.C. has clearly named the applicant who has forced her to vote in favour of a particular candidate and as such bar under Section 18 of the Act, 1989 is squarely applicable to the facts of the present case, therefore, the benefit of Section 438 of the Cr.P.C. should not be extended to the applicant and applicant* deserves to be rejected. 4. I have heard learned counsel for the parties and perused the case diary of concerned crime with utmost circumspection. 5. The short question for consideration would be whether the applicant is entitled for anticipatory bail for the offence punishable under Section 3(1)(vii) amended as 3(1)(I)(A) of the Act, 1989, in view of the bar contained in Section 18 of the Act, 1989. 6. At this stage, it would be appropriate to notice Section 3(1)(vii) of the Act, 1989, which reads as under:-- "Section 3. Punishment for offences of atrocities - (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe - (i) to (vi) [***] (vii) "force" or "intimidates" a member of a Scheduled Caste or a Scheduled Tribe not to vote or to vote to a particular candidate or to vote in a manner other than that provided by law, 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". 7. 7. Now after 2014 amendment, the aforesaid provision stood substituted as Section 3(1)(I)(A) of the Act, which states as under:- "Section 3. Punishment for offences of atrocities - (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe - [***] (I) forces or intimidates or prevents a member of a Scheduled Caste or a Scheduled Tribe- (A) not to vote or to vote for a particular candidate or to vote in a manner other than that provided by law; [***] 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. A careful reading of the aforesaid provision would show that following are the ingredients of Section 3(1)(vii) amended as 3(1)(I)(A) of the Act, 1989:- "(i) A person not being a member of Scheduled Caste or Scheduled Tribe. (ii) forcing or intimidating a member of a Scheduled Caste or a Scheduled Tribe not to vote or to vote to a particular candidate or to vote in a manner other than that provided by law, (iii) knowing him to be a member of Scheduled Caste or Scheduled Tribe, commits an offence under this clause. 9. 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." 10. A meaningful 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 Sessions 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 Sessions for grant of anticipatory bail under any circumstances? In the matter of Vilas Pandurang and another v. 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 as to whether the High Court or the Court of Sessions can exercise the discretion to grant anticipatory bail when a case is registered against an accused under the provisions of Act, 1989. It has been answered 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 compliant 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." 11. 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." 11. Thereafter, the principle of law laid down in the aforesaid case was followed and reiterated by their Lordships of the Supreme Court in Bachu Das v. State of Bihar and others, (2014) 3 SCC 471 . 12. From the principles enunciated by their Lordships of the Supreme Court in the aforesaid judgments Vilas Pandurang, (2012) 8 SCC 795 (supra) and Bachu Das, (2014) 3 SCC 471 (supra), 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)(vii)amended as 3(1)(I)(A) of the Act, 1989 has been registered against the applicant. 13. The word "force" or "intimidation" has not been defined in the Act of 1989. However, Section 349 of the Indian Penal Code defines "force". Likewise Section 503 of the Indian Penal Code defines the "criminal intimidation". "Section 349. Force.--A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as beings that substance into contact with any part of that other's body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other's sense of feeling : Provided that the person causing the motion, or change of motion, or cessation of motion, causes that motion, change of motion, or cessation of motion in one of the three ways hereinafter described. First.--By his own bodily power. First.--By his own bodily power. Secondly.--By disposing any substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part, or on the part of any other person. Thirdly.--By inducing any animal to move, to change its motion, or to cease to move. ***** Section 503. Criminal intimidation - Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation.-A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section." 14. Section 2(f) of the Act of 1989 provides that words and expressions used but not defined in this Act and defined in the Code or the Indian Penal Code (45 of 1860) shall have the meanings assigned to them respectively in the Code, or as the case may be, in the Indian Penal Code. 15. Thus by virtue of provisions contained in Section 2(f) of the Act of 1989 meaning and definition of the "force" or "intimidation" as used in Act of 1989 would be same meaning as defined in Indian Penal Code by Section 349 and Section 503 respectively. 16. Way back, the Supreme Court in the matter of Chandrika Sao and another v. State of Bihar, AIR 1967 SC 170 has held that mere use of force is not enough to bring an act within the meaning of Section 353 IPC by holding as under:-- "5. Mere use of force, however is not enough to bring an act within the terms of S. 353 IPC. It has further to be shown that force was used intentionally to any person without that person's consent in order to commit an offense or with the intension or with the knowledge that the use of force will cause injury, fear or annoyance to the person against whom the force is used...." 17. It has further to be shown that force was used intentionally to any person without that person's consent in order to commit an offense or with the intension or with the knowledge that the use of force will cause injury, fear or annoyance to the person against whom the force is used...." 17. In a extremely recent judgment reported in Manik Taneja & another v. State of Karnataka and another, (2015)1 Scale 484, their Lordships of the Supreme Court have explained the meaning of criminal intimidation, in paragraph 14 of the judgment which reads as under:-- "14. A reading of the definition of "Criminal intimidation" would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any which he is not legally bound to do or omit to do an act which he is legally entitled to do." 18. Having examined the jurisdiction of this Court to consider application for grant of anticipatory bail for offence under Section 3(1)(vii) amended as 3(1)(I)(A) of the Act of 1989, it is necessary to revert back to the facts of the case to find out as to whether the ingredients of offence under Section 3(1)(vii) of Act, 1989 is available in the First Information Report lodged on 12.05.2014 made by complainant Jayantu Korram and husband of the victim that the applicant and two other persons on 11.02.2015 abducted his wife Smt. Rukhdei Korram from the hospital. Statement of Smt. Rukhdei Korram under Section 161 Cr.P.C. was recorded on 14.02.2015. Statement of Smt. Rukhdei Korram under Section 161 Cr.P.C. was recorded on 14.02.2015. Since, the First Information Report is only about offence under Section 363 IPC and it is silent so far as offence under Section 3(1)(vii) amended as 3(1)(I)(A) of the Act is concerned, it would be appropriate to refer her statement of Smt. R. Korram (Victim) under Section 161 Cr.P.C. ^^-----------------eS detksjh esa py ugh ij jgh Fkh rks esjk gkFk idM+dj lhf<+;ks ls uhps mrkjdj esjs dks] vkSj esjh uan fctarh o csVk jhrs’k dks viuh pkj pDdk xkM+h esa cSBkdj vius lkFk txnyiqj jksM esa rkykc ds vkxs cka;s rjQ ds ?kj esa ys x;sA ogk¡ ij ,d efgyk Fkh tks ml vkneh dks f’kf’kj JhokLro ds uke ls cqyk jgh FkhA ftlls esjs dks irk pyk fd ml vkneh dks uke f’kf’kj JhokLro o mldk ,d lkFkh FkkA ogka ij nks&rhu yksx Fks ftudks eS ugh igpkurh gw¡A ge yksxks dks cgqr M+kVs vkSj cksys fd dy ds tuen v/;{k ds pquko esa dkaxzsl ikVhZ es oksV nsuk cksydj MkaVsA^^ 19. A careful perusal of the aforesaid statement of the victim Smt. Rukhdei Korram, it is quite vivid that the principal ingredient of Section 3(1)(vii) amended as 3(1)(I)(A) of the Act of 1989 is that a person must have used "force" or "intimidation" to a member of Scheduled Caste/Scheduled Tribe not to vote or vote to a particular candidate. Thus the use of "force" or "intimidation" is referable to a particular candidate. "Candidate" in ordinary parlance means someone who is competing in an election referable to a person in contradistinction to party, a political organization with particular beliefs and aims. In case in hand there is no allegation that the applicant forced or intimidated her to vote in the election of janpad panchayat to a particular candidate but allegation is applicant forced her to vote in favour of a particular party (Congress). Similarly, the victim/Smt. Rukhdei Korram has not stated application of "force" or "intimidation" in terms of definition as used in Section 349 and 503 of the Indian Penal Code by the applicant to her except strong warning by the three persons present there to vote in favour of Congress party without naming the applicant as such the necessary ingredients constituting an offence under Section 3(1)(vii) amended as 3(1)(I)(A) of Act, 1989 is absolutely lacking in the material collected by prosecution. Thus this Court is of considered opinion that the applicant has made out a prima facie case for grant of anticipatory bail under Section 438 Cr.P.C., overcoming the bar created under Section 18of the Act of 1989. 20. Taking into consideration the facts and circumstances of the case, nature and gravity of the offence, and having regard to the law laid down by their Lordships of the Supreme Court with regard to bar engrafted by Section 18 of Act and taking note of absence of necessary ingredients constituting offence under Section 3(1)(vii) amended as 3(1)(I)(A) of the Act of 1989 and also taking into account that earlier the applicant was granted bail for offence under Section 363 of the IPC by the Officer arresting him and he has not misused the liberty granted to him, I am of the considered opinion that prima facie it is a fit case where the applicant can be extended the privilege of anticipatory bail to the instant case. 21. Accordingly, the application is allowed. It is directed that in the event of arrest, the applicant shall be released on bail on his furnishing a personal bond in the sum of Rs. 25,000/- with one surety of the like sum to the satisfaction of the Officer arresting him and he shall abide by all the following terms and conditions:-- "(i) that the accused/applicant shall make himself available for interrogation before the concerned Investigating Officer as and when required; (ii) that the accused/applicant 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/applicant shall not act, in any manner, which will be prejudicial to fair and expeditious trial; and (iv) that the applicant shall appear before the trial Court on each and every date given to him by the said Court till disposal of the trial." 22. It is made clear that observation made herein is only for the purpose of considering the application for grant of bail under Section 438 of the Code of Criminal Procedure at this stage and it shall not be taken in consideration in the other stages including while considering the question of charge and case will be considered on its own merit on the basis of material available without being influenced by observation made hereinabove. Certified copy as per rules.