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2021 DIGILAW 33 (ALL)

Gopal Mishra v. State Of U. P.

2021-01-08

SHAMIM AHMED, SURYA PRAKASH KESARWANI

body2021
JUDGMENT : 1. Heard learned counsel for the petitioner and learned A.G.A. 2. This writ petition has been filed, praying for the following relief:- “(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned First information Report dated 11.10.2020 registered as Case Crime No. 0476 of 2020, under Sections 34, 452, 354, 323, 504, 506 I.P.C. and Section 3 (1) (dha) of SC/ST Act, 1989, Police Station Shivli, District Ramabai Nagar (Annexure No.1 to the writ petition.) (ii) Issue a writ, order or direction in the nature of mandamus directing the respondent no.2 not to arrest the petitioner in pursuance of the impugned First information Report dated 11.10.2020 registered as Case Crime No. 0476 of 2020, under Sections 34, 452, 354, 323, 504, 506 I.P.C. and Section 3 (1) (dha) of SC/ST Act, 1989, Police Station Shivli, District Ramabai Nagar (Annexure No.1 to the writ petition.) 3. Learned counsel for the petitioner submits that no offence under Section 3 (i) (dh) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is made out, inasmuch as, as per allegations made in the impugned FIR, neither the incident took place at any public place nor any specific role of the petitioner has been assigned. It is further submitted that accused Nos. 1 and 2 namely, Deepak and Anil Kumar @ Kater are close relatives of the informant-respondent no.3 and all are residing in one and the same house. Accused No.1 Deepak is “Dever” and accused No.2 Anil Kumar @ Kater is the “Nephew” of the informant-respondent no.3 and the petitioner, who is the accused No.3 has merely tried to intervene between the petitioner and her Dever and Nephew and consequently he has been falsely implicated. He further submitted that although no prima facie case under SC/ST Act has been made out and yet petitioner could not apply for anticipatory bail as Sections 18 and 18-A of the Act, 1989 specifically bar the applicability of Section 438 Cr. P.C. 4. Learned A.G.A. submitted that since on bare reading of the FIR, a cognizable offence is made out, therefore, no interference can be made with the impugned FIR. Discussion and Finding 5. We have carefully considered the submissions of the learned counsel for the parties. 6. As per submissions of the learned counsel for the petitioner, the provisions of anticipatory bail under Section 438 Cr. Discussion and Finding 5. We have carefully considered the submissions of the learned counsel for the parties. 6. As per submissions of the learned counsel for the petitioner, the provisions of anticipatory bail under Section 438 Cr. P.C. shall not be available to the petitioner to apply for anticipatory bail in view of the bar imposed under Sections 18 and 18A of Act 1989. 7. For ready reference, the provisions of Sections 18, 18-A and Section 3 (1) (Dha) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 are reproduced below: The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 also contains similar provisions, which exclude the application of Section 438 of Cr. PC. Sections 18 and 18-A provide as follows:- “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. 18-A. No enquiry or approval required.—(1) For the purposes of this Act—(a) preliminary enquiry shall not be required for registration of a first information report against any person; or(b) the investigating officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation of having committed an offence under this Act has been made, and no procedure other than that provided under this Act or the Code shall apply.(2)The provisions of Section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court.” 3¼1½¼/k½ yksd n`f”V esa vkus okys fdlh LFkku ij tkfr ds uke ls vuqlwfpr tkfr ;k vuqlwfpr tutkfr ds fdlh lnL; dks xkyh xykSt djsxkA 8. Similar submissions with regard to exclusion of Sections 18 and 18-A of Act, 1989 was considered by Hon’ble Supreme Court in the case of Rahna Jalal Versus State of Kerala and another (Criminal Appeal No. 883) of 2020, decided on 17.12.2020, and it was observed as under:- Section 18 explicitly excludes the application of Section 438 of the CrPC in relation to any case involving the arrest of any person on an accusation of having committed an offence under the Act. Sub-section (2) of Section 18-A specifically excludes the application of the provisions of Section 438 of the CrPC, notwithstanding any judgment, order or direction of a court. The provisions of Section 18 and 18A have been interpreted by a three Judge Bench of this Court Crl.A./202012 in Prathvi Raj Chauhan v. Union of India and Others (2020) 4 SCC 727 (“Chauhan”). Justice Arun Mishra speaking for himself and Justice Vineet Saran, while construing these provisions, observed that: “11. Concerning the applicability of provisions of Section 438 CrPC, it shall not apply to the cases under the 1989 Act. However, if the complaint does not make out a prima facie case for applicability of the provisions of the 1989 Act, the bar created by Sections 18 and 18-A(i) shall not apply. We have clarified this aspect while deciding the review petitions.” 16. The same view has been taken in the concurring judgment of Justice S.Ravindra Bhat, in the following observations: “32.As far as the provision of Section 18-A and anticipatory bail is concerned, the judgment of Mishra, J. has stated that in cases where no prima facie materials exist warranting arrest in a complaint, the court has the inherent power to direct a prearrest bail.” 17. Thus, even in the context of legislation, such as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)Act 1989, where a bar is interposed by the provisions of Section 18 and Sub-section (2) of Section 18-A on the application of Section 438 of the CrPC, this Court has held that the bar will not apply where the complaint does not make out “a prima facie case” for the applicability of the provisions of the Act. A statutory exclusion of the right to access remedies for bail is construed strictly, for a purpose. Excluding access to bail as a remedy, impinges upon human liberty. Hence, the decision in Chauhan(supra) held that the exclusion will not be attracted where the complaint does not prima facie indicate a case attracting the applicability of the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989. 18. Excluding access to bail as a remedy, impinges upon human liberty. Hence, the decision in Chauhan(supra) held that the exclusion will not be attracted where the complaint does not prima facie indicate a case attracting the applicability of the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989. 18. For the above reasons, we have come to the conclusion that on a true and harmonious construction of Section 438 of CrPC and Section 7(c) of the Act, there is no bar on granting anticipatory bail for an offence committed under the Act, provided that the competent court must hear the married Muslim woman who has made the complaint before granting the anticipatory bail. It would be at the discretion of the court to grant ad-interim relief to the accused during the pendency of the anticipatory bail application, having issued notice to the married Muslim woman. 9. Perusal of the law laid down by Hon'ble Supreme Court in the case of Rahna Jalal (supra) and in the case of Prithvi Raj Chauhan vs Union of India and others, (2020) 4 SCC 727 (supra) would show that Section 438 shall apply to the cases under the Act, 1989 if the complainant does not make out a prima facie case for applicability of the provisions of the Act, 1989. If an accused is able to demonstrate that the complaint does not make out “a prima facie case for applicability of the provisions of the Act, 1989, then the bar created by Sections 18 and 18(A) shall not apply. 10. In view of the above discussion we hold that provision of Section 438 Cr. P.C. shall be available to an accused for anticipatory bail for alleged offences under the Scheduled Castes and Scheduled Tribes Act, 1989, if the accused/applicant is able to demonstrate that the complaint/F.I.R. does not make out “a prima facie” case for applicability of the provisions of the Act 1989. In such cases the bar created under sections 18 and 18A of the Act, 1989 shall not apply. 11. In such cases the bar created under sections 18 and 18A of the Act, 1989 shall not apply. 11. Since the learned counsel for the petitioner has taken a stand before us that prima facie no case has been made out under Section 3 (1) (dh) of the Act, 1989, therefore, it is for the petitioner to demonstrate the position before the competent court in his anticipatory bail application and if the petitioner succeeds in demonstrating, then the bar of Sections 18 and 18-A of the Act, 1989 shall not come in the way of the application of the petitioner for anticipatory bail under Section 438, Cr.P.C. 12. With the aforesaid observations, we dispose of this writ petition, leaving it open to the petitioner to apply for anticipatory bail before the competent authority. It is made clear that we have not expressed any opinion on merits of the case of the petitioner.