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2023 DIGILAW 64 (ALL)

Sohit Kumar v. State of U. P.

2023-01-06

MANJU RANI CHAUHAN

body2023
JUDGMENT : [Manju Rani Chauhan, J.] 1. Heard Mr. Gaurav Kakkar, learned counsel for the applicants, Mr. Manoj Kumar Tripathi, learned counsel for the opposite party no.2, Mr. Amit Singh Chauhan, learned A.G.A. for the State and perused the record. 2. The present application has been moved seeking anticipatory bail in S.T. No.145 of 2022 arising out of Case Crime No. 840 of 2021, under Sections 452, 354, 323, 325, 504, 506 IPC and Section 3(2) (V)a, 3(1)r and 3(1)s of S.C./S.T. Act, P.S.-Kotwali Shahar, District-Bijnor, with the prayer that in the event of arrest, applicants may be released on bail. 3. A preliminary objection for admissibility of jurisdiction of the aforesaid bail application vide concurrent jurisdiction enshrined in Section 438 of Cr.P.C. has been raised by learned counsel for the opposite parties. 4. While answering the preliminary objection, the learned counsel for the applicant submits that there can be no absolute bar against grant of anticipatory bail in cases under the SC/ST Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. As per the settled law of the Apex Court passed in case of Prathvi Raj Chauhan vs. Union of India & Others reported in (2020) 4 SCC 727 , if the complaint does not make out a prima facie case for the applicability of the provisions of the SC/ST Act, 1989, the bar created by Sections 18 and 18A(i) shall not apply. The only caveat is that the power has to be used sparingly and is not to be used so as to convert the jurisdiction into that under Section 438 of the Code of Criminal Procedure. 5. The only caveat is that the power has to be used sparingly and is not to be used so as to convert the jurisdiction into that under Section 438 of the Code of Criminal Procedure. 5. Thus, while entering into the merits of the case to see whether the bar under Section 18 and 18A(i) of the SC/ST Act is applicable to the present case, the applicant counsel has placed the following facts:- i) An FIR has been lodged by Smt. Sunita on 08.12.2021 at about 13:50 p.m. against the present applicants and one Anil Kumar alleging therein that the victim's husband has a grocery shop and while asking for the goods, Anil Kumar, the named accused entered the shop and when the victim restrained him from entering the shop, asking him to stand outside the shop, finding her to be all alone in the shop, with bad intention, caught hold of the victim and tried to outrage her modesty. The aforesaid accused person used caste indicative words like “Chamar Chatta”. Alarm was raised by the victim, on which her son, Manish and brother-in-law, Dinesh reached the shop and thereafter, the aforesaid accused, Anil Kumar called other co-accused persons, who are the applicants in the present case and all of them with common intention entered the house of the victim having rod, danda and sharp edged weapon in their hands and assaulted the victim and her family members. The accused Anil Kumar was carrying countrymade pistol whereas Sohit (applicant no.1) was having iron rod. The accused Akash and Akshay (applicant nos.2 &3 respectively) had carried danda with them. The aforesaid accused persons with intention to kill the victim, her son and brother-in-law assaulted them. On hearing the noise of the victim and her family members, people gathered there to save the aforestated persons. Thereafter, the accused persons while running away from the place used caste indicating words. ii) The FIR has been lodged after a delay of about one month and three days without giving any plausible explanation for the same, which falsifies the entire story. iii) Only general allegations have been made against the applicants in the first information report. iv) It was a sudden fight between the parties and there is no motive or intention on part of the applicants to cause injury to the injured. iii) Only general allegations have been made against the applicants in the first information report. iv) It was a sudden fight between the parties and there is no motive or intention on part of the applicants to cause injury to the injured. v) Perusal of the statement of the victim under Section 164 Cr.P.C. goes to show that no offence under Section S.C./S.T. Act is made out against the applicants. vi) The applicants have been falsely implicated in the present case due to village party bandi as has been emphasized in para 24 of the affidavit in support of bail application. vii) Offence under Section SC/ST Act is not attracted against the applicants because as per Section 3(2) (Va) of SC/ST Act, such offence would be made out only when caste indicative words are used 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. viii) In the present case, it was a sudden fight between two group of persons, therefore, in case any such words have been used, it was by chance, not knowing that the victim belongs to the SC/ST community. 6. On the cumulative strength of the aforesaid submissions, learned counsel for the applicant submits that the applicants are innocent and they have an apprehension that they may be arrested in the above-mentioned case, whereas there is no credible evidence against them. He further submits that the applicants have been falsely implicated in the present case due to party bandi. The offence under Section 325 IPC is bailable. The applicants undertake to co-operate during investigation and trial and they would appear as and when required by the investigating agency or Court. It has been stated that in case, the applicants are granted anticipatory bail, they shall not misuse the liberty of bail and will co-operate during investigation and would obey all conditions of bail. 7. Per contra, learned AGA as well as learned counsel for the opposite party no.2 opposed the prayer for granted anticipatory bail to the applicants by contending that the applicants are named in the FIR. From the submissions made by learned counsel for the applicants that it was a sudden fight between persons of the two groups, is self indicated of the fact that caste indicative words have been used knowingly. From the submissions made by learned counsel for the applicants that it was a sudden fight between persons of the two groups, is self indicated of the fact that caste indicative words have been used knowingly. From perusal of the FIR itself, it is clear that offence under Section SC/ST Act has made out. 8. They further submits that from the material as collected by the Investigating Officer, credible, clinching as well as documentary evidences showing the complicity of commission of the crime has been found, therefore, the charge sheet has been submitted against the applicants on 24.12.2021 under Sections 452, 354, 323, 325, 504, 506 IPC and Section 3(2)(V)a, 3(1)r and 3(1)s of S.C./S.T. Act. Thereafter, on the basis of the aforesaid charge sheet, cognizance has been taken by the concerned court below on 04.03.2022. They further submits that as the charge sheet has been submitted against the applicants including the sections of SC/ST Act, therefore, the present anticipatory bail application is not maintainable as in view of Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, provisions of Section 438 Cr.P.C. are not applicable pertaining to offence committed under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 9. So far as the merits of the case are concerned, in the present case, two persons, namely, Manish and Dinesh sustained injury and they have been medically examined on 06.11.2021. From perusal of the X-ray report of the Manish and Dinesh, it is clear that they have sustained fracture. The applicants are avoiding to face trial, therefore, non-bailable warrants have already been issued against them. They further submits that the case does not fall under the category of section 438 Cr.P.C. Therefore, the relief as prayed cannot be granted. 10. Considering the submissions made by learned counsel for the parties and perused the record, this Court finds that from the allegations made in the FIR, prima facie offence is made out against the applicants. 11. For ready reference, the provisions of Sections 18 and 18-A and Section 3 (1) (Dha) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 are reproduced below:- "18. 11. For ready reference, the provisions of Sections 18 and 18-A and Section 3 (1) (Dha) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 are reproduced below:- "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. Section 3 (1) (s) of SC/ST Act--abuses any member of a Schedule caste or a Scheduled Tribe by caste name in any place within public view." 12. The legal position is that an anticipatory bail in a crime where an offence under SC/ST Act is alleged can be granted only if the Court is satisfied that the allegations levelled do not prima facie make out a case under SC/ST Act. The position of law remains same even after the enactment of Section 18A of the Act. The Apex Court in the case of Prathvi Raj Chauhan vs. Union of India & Others reported in (2020) 4 SCC 727 , has observed as under:- "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." 13. From perusal of the FIR itself, it is clear that the offence under SC/ST At is made out against the applicants. We have clarified this aspect while deciding the review petitions." 13. From perusal of the FIR itself, it is clear that the offence under SC/ST At is made out against the applicants. Therefore, the present anticipatory bail application is not maintainable in view of Section 18 (2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 wherein it has been mentioned that provisions of Section 438 Cr.P.C. are not applicable pertaining to offence committed under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 14. So far as the merits of the case, it would be appropriate to refer Section 438 Cr.P.C., which is reproduced herein below:- "438. Direction for grant of bail to person apprehending arrest. (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. (2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including- (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person 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 from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, be shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub- section (1)." 15. Grant of anticipatory bail may hamper the custodial interrogation and will lead to nondisclosure of useful information and material facts and information. In the case of P. Chidambaram vs. Directorate of Enforcement, reported in (2019) 9 SCC 24 , the Apex Court held as under:- "74. Ordinarily, arrest is a part of the process of the investigation intended to secure several purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. Pre-arrest bail is to strike a balance between the individual's right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In State Rep. By The CBI v. Anil Sharma (1997) 7 SCC 187 , the Supreme Court held as under:- "6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders." 81. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. ........." 16. In another judgment of Apex Court in case of Sadhna Chaudhary Vs. State of Rajasthan & Anr., reported in 2022 (237) AIC 205 (SC), the Apex Court had held as under:- "14. Law on the applicability or grant of anticipatory bail under section 438 Cr.P.C. may be briefly summarised as under: 14.1. In Shri Gurbaksh Singh Sibbia and Others v. State of Punjab, a Constitution Bench of this Court, Chief Justice Y.V. Chandrachud, speaking for the Court dealt with in detail on the considerations for grant of anticipatory bail. 14.2. Law on the applicability or grant of anticipatory bail under section 438 Cr.P.C. may be briefly summarised as under: 14.1. In Shri Gurbaksh Singh Sibbia and Others v. State of Punjab, a Constitution Bench of this Court, Chief Justice Y.V. Chandrachud, speaking for the Court dealt with in detail on the considerations for grant of anticipatory bail. 14.2. In Siddharam Satlingappa Mhetre vs. State of Maharashtra and Others; this Court relying upon the Constitution Bench judgment in Shri Gurbaksh Singh Sibbia laid down in paragraph 112 of the report the following factors and parameters to be considered while dealing with an application for anticipatory bail: "(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witnesses or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail." 14.3. In yet another recent Constitution Bench judgment in the case of Sushila Aggarwal and Others vs. State (NCT of Delhi) and Another, in paragraph 85 of the report Justice Ravindra Bhatt laid down the guiding principles in dealing with applications under Section 438. Justice M.R. Shah had authored a separate opinion. Justice Arun Misra, Justice Indira Banerjee and Justice Vineet Saran agreed with both the opinions. The concluding guiding factors stated in paragraphs 92, 92.1 to 92.9 are reproduced hereunder: "92. This Court, in the light of the above discussion in the two judgments, and in the light of the answers to the reference, hereby clarifies that the following need to be kept in mind by courts, dealing with applications under Section 438 CrPC. 92.1. Consistent with the judgment in Shri Gurbaksh Singh Sibbia and others v. State of Punjab, when a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts (and not vague or general allegations) relatable to one or other specific offence. The application seeking anticipatory bail should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story. The application seeking anticipatory bail should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story. These are essential for the court which should consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not essential that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest. 92.2. It may be advisable for the court, which is approached with an application under Section 438, depending on the seriousness of the threat (of arrest) to issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail. 92.3. Nothing in Section 438 Cr. PC, compels or obliges courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. 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. The courts would be justified -and ought to impose conditions spelt out in Section 437 (3), Cr.P.C. [by virtue of Section 438 (2)]. The need to impose other restrictive conditions, would have to be judged on a case-by-case basis, and depending upon the materials produced by the state or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed. 92.4. 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. 92.4. 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; equally whether and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court. 92.5. Anticipatory bail granted can, depending on the conduct and behaviour of the accused, continue after filing of the chargesheet till end of trial. 92.6. An order of anticipatory bail should not be "blanket" in the sense that it should not enable the accused to commit further offences and claim relief of indefinite protection from arrest. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence. 92.7. An order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted prearrest bail. 92.8. The observations in Sibbia regarding "limited custody" or "deemed custody" to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e deemed custody). In such event, there is no question (or necessity) of asking the accused to separately surrender and seek regular bail. Sibbia (supra) had observed that "if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v Deoman Upadhyaya." 92.9. It is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, for a direction under Section 439 (2) to arrest the accused, in the event of violation of any term, such as absconding, non cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc." 17. From these materials and information, it is clear that the present applicants were not available for interrogation and investigation and non-bailable warrants were issued against them, therefore, a person against whom a warrant has been issued and, is absconding or concealing himself in order to avoid execution of warrants, is not entitled to the relief of anticipatory bail. The aforesaid has been held by the Apex Court in the case of Prem Shankar Prasad vs. The State of Bihar and another reported in AIR (2021) SC 5125. Relevant paragraph no.16 of the afroresaid judgment is as under:- "16. Recently, in Lavesh v. State (NCT of Delhi) [ (2012) 8 SCC 730 ] , this Court (of which both of us were parties) considered the scope of granting relief under Section 438 vis-à-vis a person who was declared as an absconder or proclaimed offender in terms of Section 82 of the Code. In para 12, this Court held as under : (SCC p. 733) "12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was 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 he is not entitled to the relief of anticipatory bail." It is clear from the above decision that if anyone is declared as an absconder/proclaimed offender in terms of Section 82 of the Code, he is not entitled to the relief of anticipatory bail." Thus the High court has committed an error in granting anticipatory bail to respondent No.2 – accused ignoring the proceedings under Section 8283 of Cr.PC." 18. In the light of above, looking to the facts and circumstances of this case, submissions of learned counsel for the parties, taking into consideration the role assigned to the applicants as per prosecution case, gravity and nature of accusation as well as reasons mentioned above, this Court is of the view that no case for exercising its discretionary power under section 438 Code of Criminal Procedure is made out in favour of applicant. 19. Accordingly this application under section 438 Cr.P.C. is rejected with liberty to avail appropriate remedy as provided under the law. 20. It is clarified that observations made in this order at this stage is limited for the purpose of determination of this anticipatory bail application and will in no way be construed as an expression on the merits of the case. The investigating officer of this case shall be absolutely free to arrive at its independent conclusions according to law on the basis of materials/evidences on record.