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2015 DIGILAW 58 (ORI)

RATIKANTA RAY v. STATE OF ORISSA

2015-01-29

S.K.MISHRA

body2015
ORDER Heard learned counsel for the petitioner and the learned Addl. Government Advocate. 2. This order arises out of an application under Section 438 of the Code of Criminal Procedure 1973 hereinafter referred to as the Code for brevity. The petitioner is apprehending arrest for alleged commission of offences under Sections 341 294 323 325 and 506 of the I.P.C. and Section 3 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act 1989 hereinafter referred to as S.C. & S.T. (P.A.) Act in G.R. Case No. 3 of 2015 of the court of S.D.J.M. Bhadrak arising out of Bhandaripokhari P.S. Case No.1 of 2015. 3. The allegation against the present petitioner is that the informant was working in the brick kiln of the petitioner. There was some dispute regarding the payment of the dues for which the informant worked in a different brick kiln for one day for which the petitioner became angry and said KANA MO MUNHARE UTARA KARUCHU MAGIA PANA . Then he pushed him from the brick stack for which he sustained injury. This incident took place on 21.12.2014. However the informant lodged the F.I.R. on 02.01.2015. 4. Important question that arises in this case is whether an application under Section 438 of the Code can be maintained in view of the provision under Section 18 of the S.C. & S.T. (P.A.) Act. The relevant provision under Section 3(1)(x) of the said Act is quoted below: 3. Punishment for offences of atrocities:- (1) Whoever not being a member of a Scheduled Caste or a Scheduled Tribe- xxx xxx xxx (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 xxx xxx xxx 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. Section 18 of the said 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. 5. Section 18 of the said 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. 5. While dealing with similar matter this Court in Ramesh Prasad Bhanja and others v. State of Orissa 1996 Cri L.J. 2743 has held that the expression accusation of having committed an offence under this Act does not mean that mere registration of the case under the Act would ipso facto attract the prohibition contained in Section 18. This Court further held that the opinion of the police regarding the nature of alleged offence is neither final nor conclusive. The Single Bench of this Court further held that merely because a case is mechanically registered under the Act the provision of Section 438 of the Code cannot be said to be inapplicable in each and every case. If the allegations make out a prima facie case under Section 3 or for that matter Sections 4 and 5 of the Act the jurisdiction to entertain an application under Section 438 is definitely ousted. It was further held that where however the allegations do not make out any prima facie case punishable under any of the provisions of the Act the bar under Section 18 is inapplicable and the provision of Section 438 of the Code can be availed of. 6. While considering an appeal arises out of an order passed by the High Court under Section 482 of the Cr.P.C. the Supreme Court in the case of Gorige Pentaiah v. State of A.P. and others 2009 Cri.L.J 350 has held that in order to constitute an offence under Section 3(1)(x) of the said Act the allegation must contain basic ingredients of Section 3(1)(x) of the said Act and that the complainant ought to have alleged that the accused-appellant was not a member of a Scheduled Caste or a Scheduled Tribe and the respondent was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. 7. 7. A Single Judge of the Delhi High Court in the case of Sajjan Kumar v. The State and another 132 (2006) DLT 18 has the occasion to examine this aspect of the case. After taking into consideration various decisions of the Supreme Court as well as different High Courts the learned Single Judge has held as follows: 7. The basic ingredients of the offence under Clause (x) of Sub-section (1) of Section 3 of the SCST Act are : (a) that there must be an intentional insult or intimidation with intend to humiliate SCST member by a non-SCST member and (b) that insult must have been done in any place within the public view . The use of expression intentional insult or intimidation with intention to humiliate makes it abundantly clear that the mens rea is an essential ingredient of the offence and it must also be established that the accused had the knowledge that the victim is the SCST and that the offence was committed for that reason. Merely calling a person by caste would not attract the provisions of this Act. There must be specific accusation alleged against each of the accused. 8. In the case of Bilas Pandurang Pawar and another v. State of Maharashtra and others AIR 2012 SC 3316 the Supreme Court held that Section 18 of the S.C. & S.T. (P.A.) 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 S.C. and S.T. (P.A.) Act has been prima facie made out. 9. Keeping in view the aforesaid discussions this Court is of the opinion that legislature intended an act to be an offence under Section 3(1)(x) of the SC and ST (PA) Act the ingredients of the offence i.e. insult intimidation and humiliation of a member of the Scheduled Caste or a Scheduled Tribe by person(s) not belonging to the aforesaid categories in any place in public view must be satisfied. It is the further opinion of this Court that the expression public view in Section 3(1)(x) of the said Act has been incorporated to mean that the persons howsoever small in number should be independent impartial and not interested in any of the parties. It is the further opinion of this Court that the expression public view in Section 3(1)(x) of the said Act has been incorporated to mean that the persons howsoever small in number should be independent impartial and not interested in any of the parties. In other words the persons having any kind of association with the complainant would be necessarily excluded. 10. Keeping in view the aforesaid consideration this Court is of the opinion that prima facie from the F.I.R. following facts are discernible: (a) Though he has uttered the name of the caste of the informant there is no justification to hold that an insult or intimidation or humiliation of a member of the scheduled caste has been made out (b) Moreover there is no reference of a public remaining present at the spot. Keeping in view the aforesaid consideration this Court is of the opinion that an offence under Section 3(1)(x) of the S.C. & S.T. (P.A.) Act is not made out against the petitioner and therefore Section 18 of the said Act shall not be a bar. Considering the fact that the other offences are minor in nature and only the offence under Section 506 of the I.P.C. is non-bailable the application for grant of anticipatory bail is allowed. It is directed that in the event the petitioner is arrested in the aforesaid case he shall be released on bail by the Arresting Officer on such terms and conditions as deems just and proper by him. The Bail Application is accordingly disposed of. Urgent certified copy of this order be granted on proper application.