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2023 DIGILAW 1739 (ALL)

Brijesh v. State of U. P.

2023-07-20

NALIN KUMAR SRIVASTAVA

body2023
JUDGMENT : NALIN KUMAR SRIVASTAVA, J. 1. Heard learned counsel for the applicant, Shri Pankaj Kumar Tripathi, learned A.G.A. for the State and perused the record. 2. Apprehending his arrest in Case Crime No. 133 of 2022, under Sections 376, 323, 504, 506, 328 IPC and 3 (2) (V) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 Police Station-Civil Lines, District-Prayagraj the present anticipatory bail application has been moved by the applicant Brijesh. 3. The prosecution story as unfolded in the FIR is that the prosecutrix was intending to marry with co-accused Vishal Gupta and in this regard she was persuaded by the present applicant to go to Allahabad High Court with him and accordingly he took her to a hotel at Allahabad and thereafter after administering some intoxicant substance to her, in an unconscious state he committed rape with the prosecutrix and due to shame she did not disclose this incident to anyone. When co-accused Vishal Gupta came out from jail and the prosecutrix went to his home with the present applicant they kept her there for two days and again rape was committed to her. Subsequently Vishal Gupta refused to marry her and both of them threatened her for life. FIR was lodged on 30.3.2022 and investigation started, which culminated into charge sheet. Applicability of Bar Created by Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 4. At the very outset learned A.G.A. has made a preliminary objection that the present anticipatory bail application moved under Sections 376, 323, 504, 506, 328 IPC and 3 (2) (V) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is not maintainable as Sections 18 & 18A (2) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 specifically provide that: “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. (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.” 5. It is submitted that in view of the provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 above mentioned, the present anticipatory bail application is not maintainable. 6. Contending to that the learned counsel for the applicant has vehemently submitted that from perusal of the entire record no where even any whisper is found that the applicant at any stage of the case was known to the fact that the victim belongs to SC/ST community. It is further submitted that the alleged offence was not committed on account of the prosecutrix being a member of SC/ST community. Even in the statement of prosecutrix made under sections 161 or 164 Cr.P.C. or of other relevant witnesses made to the I.O there is no such averment that the prosecutrix belongs to SC/ST community and the accused was aware of that, hence the barring provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 do not apply to this case. 7. In support of her contention learned counsel for the applicant has relied upon the judgment of the Hon’ble Apex Court passed in Prathvi Raj Chauhan vs. Union of India, 2020 Law Suit (SC) 143 wherein the law propounded by the Hon’ble Apex Court is that if the complaint does not make out a prima facie case for applicability of the provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 the bar created by Sections 18 and 18 A of the said Act does not apply. Likewise, observations made in Subhash Kashinath Mahajan vs. State of Maharashtra, (2018) 6 SCC 454 in almost similar background also expound the same principle. 8. Section 3 (2)(v) Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (as substituted by Act 1 of 2016) provides that: “Section 3(2) whoever, not being a member of the Scheduled Castes and Schedule Tribes” - “(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more 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 imprisonment for life and with fine.” 9. In the present case although the charge sheet has been submitted by the I.O. before the Court and cognizance has been taken under sections 376, 323, 504, 506, 328 IPC and 3 (2) (V) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 but prima facie there is no allegation to constitute any offence under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Even in the FIR there is no mentioning of the fact that the prosecutrix belongs to SC/ST community. This Court finds an opportunity to peruse the statements made by the prosecutrix under Sections 161 and 164 Cr.P.C. wherein nowhere it has been stated by the prosecutrix that she belongs to SC/ST community and she has not even been interrogated on this point. At the time of her medical examination the prosecutrix did not disclose this fact before the doctor as well. The charge sheet submitted by the I.O. also does not reveal as to on what basis the said police report under Section 173 (2) Cr.P.C. was submitted under the provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Whether the alleged offence was committed by the applicant knowing this fact that the prosecutrix belongs to SC/ST community was the key question to bring the case under the cover of the provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 but not even an iota of evidence is available on record in this regard. In such a situation in my view so far as the present anticipatory bail application is concerned there is no bar to move such an application before this Court in view of the law laid down in the cases of Prathvi Raj Chauhan (supra) and Subhash Kashinath Mahajan (supra). Proclaimed Offenders Whether entitled for Anticipatory Bail 10. Another preliminary objection raised by the learned counsel for the State is to the effect that the accused has been declared a proclaimed offender and on this ground also his prayer for anticipatory bail, can not be countenanced. 11. Proclaimed Offenders Whether entitled for Anticipatory Bail 10. Another preliminary objection raised by the learned counsel for the State is to the effect that the accused has been declared a proclaimed offender and on this ground also his prayer for anticipatory bail, can not be countenanced. 11. Expostulating this objection, the learned counsel for the applicant has urged that although a process under Section 82 Cr.P.C. was issued against the applicant and he has been declared a proclaimed offender by the Court and a process under Section 83 Cr.P.C. was also subsequently issued against him but since he was engaged in taking shelter of the Court of law by way of several legal proceedings and in the interregnum period such coercive processes were issued against him, he cannot be debarred from taking protection from arrest by way of anticipatory bail. 12. A perusal of the record reveals that the first anticipatory bail application was moved by the applicant before the Sessions Judge, Prayagraj on 21.10.2022 which was rejected by the said Court on 15.12.2022. In the charge sheet submitted against the applicant, the I.O. has mentioned that on 25.11.2022 process under Section 82 Cr.P.C. was ordered to be initiated under the instructions of the Court and it explicitly shows that process under Section 82 Cr.P.C. was issued against the applicant during pendency of the first anticipatory bail application before the Sessions Court, Prayagraj. The record further reveals that the order for proclamation was passed by the Court on 2.12.2022 and the said order was also challenged before this Court by way of Cr. Appeal No. 9977 of 2022, which was filed on 12.12.2022 but the same was withdrawn on 20.12.2022. In the aforesaid appeal the factum of issuance of process under Section 82 Cr.P.C. was also disclosed. 13. It is noteworthy that in continuation of the aforesaid process under Section 82 Cr.P.C. issued against the applicant Case Crime No. 43 of 2023 under Section 174 (A) I.P.C. was also registered against him. It also reflects from perusal of the record that after rejection of first anticipatory bail application on 15.12.2022, anticipatory bail was granted to the present applicant in Cr. Misc. It also reflects from perusal of the record that after rejection of first anticipatory bail application on 15.12.2022, anticipatory bail was granted to the present applicant in Cr. Misc. Anticipatory Bail U/s 438 Cr.P.C. No. 234 of 2023 by the co-ordinate Bench of this Court vide order dated 22.3.2023 although a process under Section 83 Cr.P.C. was already issued against the applicant on 24.02.2023 and attachment of his property had also taken place on 4.3.2023 as reflects from the perusal of the record, whereas he was already granted anticipatory bail till the submission of the police report under Section 173 (2) Cr.P.C. by the order dated 22.3.2023 above mentioned. The charge sheet in this matter was filed and cognizance was taken by the Court concerned on 9.5.2023 and straightway non-bailable warrant was issued on the same day by the Court concerned but in the meanwhile after submission of the charge sheet anticipatory bail application was moved before the Court concerned, which was rejected on 12.6.2023 and subsequently the present anticipatory bail application was moved before this Court on 28.6.2023. Hence, it is discernible that the applicant has been taking legal recourse and he was not absconding from the clutches of the Court or wilfully avoiding the process of the Court but he was making sincere efforts to get protection before different legal forums. 14. The Hon'ble Apex Court in the case of Lavesh vs. State (NCT of Delhi), (2012) 8 Supreme Court Cases 730, referred in Prem Shankar Prasad Versus State of Bihar and Another, 2021 SCC OnLine Supreme Court 955 and relied upon by the learned counsel for the applicant has laid down the relevant law on this point and paragraph 12 of the said decision is as under: “12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and declared as “absconder.” Normally, when the accused is “absconding” and declared as a “proclaimed offender” there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code is not entitled to the relief of anticipatory bail.” 15. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code is not entitled to the relief of anticipatory bail.” 15. From the aforesaid dictum of law, it can safely be held that it is a normal rule that when an accused is absconding and declared as proclaimed offender, there is no question of granting anticipatory bail to him but it is not a universal rule because if the bar is made absolute, it is thereby meant that if an accused is absconding and has been declared proclaimed offender, he has no occasion to say anything to defend himself as to in what compelling circumstances he could not appear before the Court and was declared as proclaimed offender and that is the reason there is no bar to move anticipatory bail application in case the accused has been declared a proclaimed offender but, however, if he is unable to satisfy the Court regarding his bona-fide, the law on the point will be applicable to him and anticipatory bail cannot be granted to him, as he is a proclaimed offender. So far as the present case is concerned, from the perusal of the record it appears that to avoid summons of the Court and to appear before the Court in compliance thereof, was not a wilful default on the part of the applicant and the coercive processes were issued against him during the interregnum period when he was engaged in adopting legal recourse to defend himself. 16. In the peculiar facts and circumstances, the applicant cannot be debarred to move an application for anticipatory bail and the coercive processes issued against him also create no bar in considering the same. Factual Matrix of the matter 17. So far as the factual aspect of the matter is concerned, the prosecutrix in her statement under Section 161 and 164 Cr.P.C. has categorically stated about the guilt of the applicant. It is noteworthy that co-accused Vishal Gupta has already been exonerated in the matter and no charge sheet has been submitted against him as the Investigating Officer found no evidence against him but at the same time sufficient evidence was collected against the present applicant. It is noteworthy that co-accused Vishal Gupta has already been exonerated in the matter and no charge sheet has been submitted against him as the Investigating Officer found no evidence against him but at the same time sufficient evidence was collected against the present applicant. It is a case of rape with the poor prosecutrix by the applicant by taking advantage of her belief and trust. The applicant cannot be given benefit of this fact that since charge sheet has been submitted and he was already been granted anticipatory bail till submission of the police report under Section 173 (2) Cr.P.C. and now no custodial interrogation is required, hence he is entitled for anticipatory bail because the active role of the accused in the commission of the henious offence has been established by cogent and reliable evidence collected during course of investigation. 18. No doubt anticipatory bail can be extended and granted after submission of the charge sheet. In Sushila Aggarwal and Others vs. State (NCT of Delhi) and Another, (2020) 5 SCC 1 , the Hon'ble Apex Court has settled the controversy finally by holding the anticipatory bail need not be of limited duration invariably. In appropriate case, it can continue upto conclusion of trial. 19. It has been further held therein that anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial. 20. It has been further held by the Hon'ble Apex Court that while considering an application for grant of anticipatory bail, the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence including intimidating witnesses, likelihood of fleeing justice, such as leaving the country, etc. It has further been held that Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion. 21. In view of the law laid down by the Hon'ble Apex Court and taking into account the enormity of the crime, I deem it not a fit case to grant anticipatory bail to the present applicant. Prayer made in the application is refused. 22. Whether to grant or not is a matter of discretion. 21. In view of the law laid down by the Hon'ble Apex Court and taking into account the enormity of the crime, I deem it not a fit case to grant anticipatory bail to the present applicant. Prayer made in the application is refused. 22. The anticipatory bail application is rejected. 23. However, it is clarified that the views expressed in this order are limited strictly only to the extent of grant of anticipatory bail and are not concerned in any way with the merits of the case and the Court concerned is always at liberty to take a different view of its own, as per law.