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Madhya Pradesh High Court · body

2021 DIGILAW 409 (MP)

Anil Patel v. State of M. P.

2021-04-01

RAJENDRA KUMAR SRIVASTAVA

body2021
JUDGMENT : 1. This Criminal Appeal under Section 14-A of the SC/ST (Prevention of Atrocities) Act, 1989 has been preferred by the appellants in form of anticipatory bail apprehending their arrest in connection with Crime No.331/2020 registered at Police Station-Pipariya, District-Hoshangabad (M.P.) for the offences punishable under Sections 294, 323 and 506 read with Section 34 of IPC and Section 3 (1)(r), 3 (1)(s) and 3(2)(va) of SC/ST Act, 1989 (hereinafter referred as ‘Act, 1989’). 2. According to prosecution case, on 01.11.2020, complainant-Raghuveer lodged the FIR against the present appellants stating therein that his agricultural land is situated near the river and construction work of pond was going over there. The soil of said land was sold by the complainant to one Rajeev Bakshi. On 31.10.2020, when complainant was in his field, present appellants came there, being annoyed for the reason of non-supply of soil by the complainant to them, they abused him on his caste. Appellants have also intimidated the complainant for demolishing his house and assaulted him with hosepipe on his backside and appellant-Mahesh Patel bore him down on the ground and trampled his face as a consequence of which, the complainant sustained injuries on his head and right eye. 3. Learned counsel for the appellants submits that the appellants are innocent and they have falsely been implicated in this case. In fact, on account of dispute between the appellants and one Rajeev Bakshi, the complainant has lodged false complaint against them. He submits that as per prosecution, the alleged incident was seen by witnesses, namely, Sita Ram and Halke Sahu, but they have given their affidavits denying the alleged incident. He also submits that there is no iota of evidence to constitute the alleged offences against the present appellants. It is further submitted by the counsel that now it is well settled by the Higher Court of law that only because the complainant belongs to a particular caste, offence under SC/ST Act, would not be attracted, it has to be demonstrated that the crime was committed to victimize the complainant only because he belongs to a particular caste. The appellants have also filed a representation before the concerning S.P. He further submits that incident was nothing but a minor tiff between the parties, however, Rajeev Bakshi and complainant have tried to somehow implicate the present appellants in non-bailable offences under the garb of SC/ST Act. The appellants have also filed a representation before the concerning S.P. He further submits that incident was nothing but a minor tiff between the parties, however, Rajeev Bakshi and complainant have tried to somehow implicate the present appellants in non-bailable offences under the garb of SC/ST Act. He has further argued that in the aforesaid circumstances as argued above, bar of Section 18 of the SC/ST Act would not be applicable in this case. The appellants have no criminal record and there is no likelihood of their absconding and tempering with the evidence of prosecution. The injuries sustained by the complainant are simple in nature. In support of his submissions, he has produced some catena of judgments passed by the Hon'ble Supreme Court as well as the High Courts', some are also mentioned herein under :- “1. Prathvi Raj Chauhan Vs. Union of India reported in (2020)4 SCC 427. 2. Vinay Kumar Chouhan Vs. The State (NCT of Delhi) in Bail Application No.2060/2020, passed by the High Court of Delhi. 3. Danish Khan @ Saahil Vs. The State (NCT of Delhi) in Bail Application No.3497/2020, passed by the High Court of Delhi. 4. Jones Vs. State reported in 2004 Cr.L.J. 2755 passed by High Court of Madras. 5. Rajsh Kumar Jain Vs. State of M.P. & Ors. reported in MANU/MP/0843/2020 passed by this High Court. 6. Balram Vs. State of M.P. in Cr.A.No.4880/2020 passed by this High Court. 7. Ramkumar Shukla Vs. State of M.P. & Ors. reported in MANU/MP/0071/2020 passed by this Bench.” With the aforesaid, he prays for allowing this appeal. 4. On the other hand, learned P.L. for the State as well as counsel for the objector opposes the submissions of appellants' counsel and submits that under the Act 1989, there is no provision for granting anticipatory bail. Learned counsel for the objector submits that in the alleged incident, the complainant sustained injuries on his body parts which is sufficient to presume that the appellants were involved in the offence. He has also submitted that as far as the affidavits of the witnesses, Sita Ram and Halke are concerned, same have no meaning at this stage and cannot be considered as evidence. In their statements recorded under Section 161 of Cr.P.C. they have supported the case of prosecution. He has also submitted that as far as the affidavits of the witnesses, Sita Ram and Halke are concerned, same have no meaning at this stage and cannot be considered as evidence. In their statements recorded under Section 161 of Cr.P.C. they have supported the case of prosecution. Looking to the seriousness of the offence and on account of restriction in grant of anticipatory bail under the Act 1989, appellants' anticipatory bail application may not be allowed. 5. Heard both the parties and perused the case diary. 6. On perusal, an FIR for the offences under Sections 294, 323 and 506 read with Section 34 of IPC and Section 3 (1)(r), 3 (1)(s) and 3(2)(va) of the SC/ST Act has been registered against the present appellants. The offences of IPC are bailable in nature. The Only obstruction on the way of present appellants to be released on anticipatory bail, is that the offences of Act 1989 levelled against them are non-bailable and further, the Act 1989, prescribes bar in grant of anticipatory bail under Section 18 and 18-A. The learned counsel for the appellants has tried to convince this Court to grant anticipatory bail to the appellants raising the ground of necessity of showing intention of appellants to humiliate the person of SC/ST community. The learned counsel for the appellants has argued that it is necessary to show that the accused committed a crime against the person of SC/ST community because the person belongs to such community and not for the reason that the victim is only a member of SC/ST community. The victim must be humiliated and insulted by the accused intentionally. 7. Before considering the merits of the matter, I would prefer to go into the background of the Act 1989. Before enactment of this act, the members of Scheduled Caste and Scheduled Tribe were subjected to various offences, indignities, untouchability, humiliations and harassment by the dominant castes, thus, the Act is provided by the legislature with the object to deliver justice to these communities through proactive efforts to enable them to live in the society with dignity and self respect and without fear or violence or harassment from the dominant castes. Another salient feature of this Act is to eliminate casteism and bring equality for the member of SC/ST community. Another salient feature of this Act is to eliminate casteism and bring equality for the member of SC/ST community. The enactment of Act 1989 was also for freedom of the person of such community from the caste based atrocities. Therefore, the intention of the Legislature for enacting the Act 1989, is to protect the person of SC/ST community from the harassment made by the dominant castes, on their belonging to SC/ST community. 8. In the case of Hitesh Verma v. State of Uttarakhand reported in (2020) 10 SCC 710 , the Hon’ble Apex Court has reiterated the principle laid down in the case of Khuman Singh v. State of M.P. reported in (2020) 18 SCC 763 and held that under the Act 1989 the offence is not established merely on the fact that the informant is a member of Scheduled Castes or a Scheduled Tribes unless there is an intention to humiliate a member of such community. The relevant para is also quoted herein under :- “17. In another judgment reported as Khuman Singh v. State of M.P., this Court held that in a case for applicability of Section 3(2)(v) of the Act, the fact that the deceased belonged to Scheduled Caste would not be enough to inflict enhanced punishment. This Court held that there was nothing to suggest that the offence was committed by the appellant only because the deceased belonged to Scheduled Caste. The Court held as under: “15. As held by the Supreme Court, the offence must be such so as to attract the offence under Section 3(2) (v) of the Act. The offence must have been committed against the person on the ground that such person is a member of Scheduled Caste and Scheduled Tribe. In the present case, the fact that the deceased was belonging to “Khangar” Scheduled Caste is not disputed. There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste and therefore, the conviction of the appellant-accused under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable.” 18. There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste and therefore, the conviction of the appellant-accused under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable.” 18. Therefore, offence under the Act is not established merely on the fact that the informant is a member of Scheduled Caste unless there is an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste. In the present case, the parties are litigating over possession of the land. The allegation of hurling of abuses is against a person who claims title over the property. If such person happens to be a Scheduled Caste, the offence under Section 3(1)(r) of the Act is not made out.” 9. Now, I come to the another point whether anticipatory bail can be entertained for the offence alleged under the Act 1989. On careful reading of Section 18 of Act 1989, there is restriction to avail the remedy of section 438 of Cr.P.C. but, in the case of Prathvi Raj Chauhan (supra), the principle is emerged that if the complaint does not make out a prima facie case for applicability of the provisions of Act 1989, bar created by Section 18 and 18-A shall not be applied. 10. Therefore, now the only question is to be seen by this Court as to whether the material annexed with the case diary shows any prima facie case under the Act 1989, to be made against the appellants or not ? 11. For better adjudication of this bail application, it becomes necessary to read the provision of the Act 1989 of which allegations have been made against the appellants. Same are reproduced herein 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, (s) abuse any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view. (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, - (va) commits any offence specified in the schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and shall also be liable to fine,” 12. Section 3(1)(r) of the Act, 1989 speaks about the intentionally insults or intimidates with an intent to humiliate a member of SC/ST community in any place within public view. Here, the word “Public View” is very important. In the case of Swaran Singh & Ors. Vs. State through Standing Counsel & Ors reported in (2008) 8 SCC 435 , the Hon’ble Apex Court observed the distinction between expression “public place” and “public view”. Relevant portion of said judgment is also quoted herein under : 28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by Appellants 2 and 3 (by calling him a “chamar”) when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression “place within public view” with the expression “public place”. A place can be a private place but yet within the public view. We must, therefore, not confuse the expression “place within public view” with the expression “public place”. A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies. (emphasis supplied) 13. Further, Section 3(1)(s) of Act 1989 makes the abuse given to a member of SC/ST community on his/her caste, to be punishable. In the case at hand, it has been alleged by the complainant that the appellants have abused him saying “Chamra”. It has been held in Swaran Singh’s case that calling a person of SC community “Chamar” is offensive under the Act, 1989. However, the Court observed that whether there was intent to insult or humiliate by using the word “chamar” will of course depend on the context in which it was used. 14. Here in the case, incident alleged to have been occurred at an open farm and seen by some persons too. Therefore, prima facie, it can be assumed that the incident was happened in public view. 15. However, the order has been passed by the Hon’ble Apex Court in relation to section 3(1)(x) which subsequently has been substituted vide Amendment Act 1 of 2016 and now it reads as Section 3(1)(r). The said Amendment has also brought section 3(1)(s) which made separate interpretation for abusement to any person of SC/ST community on their caste. Here, the word 'intentionally' has not been used by the law makers as that of Section 3(1)(r) and thus prima facie, it is seen that it does not require the intention of person of dominant caste abusing the victim on his/her caste, but on reading both the provisions together, the offence of Section 3(1)(s) seems similar of section 3(1)(r) as both speaks about the distasteful behavior of dominant cast person's towards the member of SC/ST community. Hence, this Court is of the opinion that even for the offence 3(1)(s), the condition precedent is intention of accused to commit offence against the person of SC/ST community and offence is made because the victim belongs to such community. 16. Hence, this Court is of the opinion that even for the offence 3(1)(s), the condition precedent is intention of accused to commit offence against the person of SC/ST community and offence is made because the victim belongs to such community. 16. As far as offence of Section 3(2)(va) of Act 1989 is concerned, it makes punishable any offence of IPC specified in the schedule, against a person of SC/ST community or property belongs to them with the punishment as such specified under the IPC. In the present case, section 294, 323, 506 and 34 of IPC has been leveled against the appellants and out of it offence 323 and 506 are specified in the schedule of Section 3(2)(va) of Act 1989 and same are bailable under the IPC. Now therefore, the question arises before the Court if the offences of IPC which are bailable in nature and allegation thereof is made under Section 3(2)(va) of Act 1989, then would it also be considered as bailable or not ? 17. The Act does not contain any provision which states whether the offence of Section 3(2)(va) of SC/ST is bailable or non-bailable. The offence made under Section 3(2)(va) of Act, 1989 is punishable with the same punishment for the offence under the Indian Penal Code. Under the IPC, it is specified in the Schedule that the punishment prescribed for an offence under any law other than IPC is less than 3 years or with fine only, such offence shall be treated as bailable. Here in the case, the appellants are facing allegation of Section 323 and 506 of IPC under Section 3(2)(va) of Act, 1989 which are not having punishment of more than 3 years and thus, same are bailable in nature. It is settled proposition of law that if the special enactment is silent on the above referred point, then Schedule of IPC will be applicable. Section 18 and 18-A of the Act, 1989 restrict the application of Section 438 of Cr.P.C. but when the offences are bailable in nature and need to get anticipatory bail does not arise then Section 18 and 18-A of Act 1989 would not be applicable in the said circumstances. Section 18 and 18-A of the Act, 1989 restrict the application of Section 438 of Cr.P.C. but when the offences are bailable in nature and need to get anticipatory bail does not arise then Section 18 and 18-A of Act 1989 would not be applicable in the said circumstances. Therefore, this Court is of the opinion that in the present case, the offence of Section 3(2)(va) of Act, 1989 be treated as bailable in nature and the right to bail of a person who is accused of only bailable offence, is absolute and indefeasible as per the Code of Criminal Procedure. 18. Now I come to the merits of the matter. 19. Here, it is not in dispute that the complainant belongs to SC community. Allegations against the present appellants are that on account of their anger against the complainant arose from the dispute of non-supplying of soil, on the day of incident, the appellants abused and assaulted the complainant by means of hosepipe. On perusal of MLC report, it is apparent that the complainant had two injuries on his body parts which were simple in nature. Offences of Sections 323 and 506 of IPC are specified in the Schedule of offence of Section 3(2)(v-a) of SC/ST Act, however, the same would be considered as bailable offence as discussed above. 20. As far as merits of the case in relation to offences of Sections 3(1)(r) and 3(1)(s) is concerned, the FIR shows that the incident was alleged to be happened at farm where presence of public can easily be assumed, therefore, public view is available in the case as the view taken by the Hon’ble Apex Court in the case of Swarn Singh (supra). The contention of the FIR clearly indicates that being annoyed from the action of complainant of selling the soil to other person, the appellants have intentionally insulted him in farm abusing on his caste. Accused persons and complainant are living in same village, therefore, it can not be said that the appellants were not aware of the caste of complainant, therefore, prima facie, the intention of the appellants to humiliate and insult the complainant is available in the case. Accused persons and complainant are living in same village, therefore, it can not be said that the appellants were not aware of the caste of complainant, therefore, prima facie, the intention of the appellants to humiliate and insult the complainant is available in the case. However, the appellants have filed some affidavits of witnesses who saw the incident and they have given statement in favour of the appellants but at this stage, while considering the anticipatory bail application, weightage cannot be given to their affidavits over the physical injuries sustained by the complainant and over other investigation of the case. Under which circumstances, the affidavits have been filed by the witnesses, cannot be determined at this stage. Therefore, bar of Section 18 and 18-A of SC/ST Act 1989 would be attracted in the case in relation to grant of anticipatory bail under Section 3(1)(r) and 3(1)(s). The pronouncements relied upon by the appellants have been passed under the different facts and circumstances and do not help the appellants as the circumstances are prevailing. Therefore, this Court is not inclined to allow this anticipatory bail application. Accordingly, the order passed by the Court below is hereby affirmed. 21. Since, the offences involved in the case are not punishable with more than 7 years of imprisonment and Section 41(1) of Cr.P.C. provides that the offences for which punishment prescribed is imprisonment for a term upto seven years, the accused may be kept in custody only if the condition enumerated in Section 41(1)(b)(ii) of Cr.P.C. exist. In Arnesh Kumar's case [ (2014) 8 SCC 273 ] , the Hon'ble Apex Court has held as under:- "..........the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention and release the accused......". 22. In view of the observations laid down in the judgment referred above, I deem fit to direct as under : (i) That, the police may resort to the extreme step of arrest only when the same is necessary and the appellants fail to cooperate in the investigation. (ii) That, the appellants should first be summoned to cooperate in the investigation. If the appellants cooperate in the investigation then the occasion of their arrest should not arise. (ii) That, the appellants should first be summoned to cooperate in the investigation. If the appellants cooperate in the investigation then the occasion of their arrest should not arise. (iii) That, if the appellants-accused are arrested and want to file application for regular bail before trial Court, then they will be produced before the trial Court without any delay subject to prior intimation to the complainant. Trial Court is also directed to consider their bail application as expeditiously as possible, preferably, on the same day after giving an opportunity to the complainant to oppose. 23. The interim order granted vide order dated 27.01.2021, shall no longer applicable. 24. This appeal is disposed of with the aforesaid directions. 25. C.c. as per rules.