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2024 DIGILAW 1500 (AP)

Deepak Kumar Tala v. State Of Andhra Pradesh

2024-10-22

V.R.K.KRUPA SAGAR

body2024
ORDER: V.R.K.Krupa Sagar, J. This Criminal Petition, under Section 438 of Cr.P.C. (New Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023), is filed by the petitioner/A.2 seeking anticipatory bail in connection with Crime No.69 of 2024 of G.D. Nellore Urban Police Station, Chittoor District, registered for the offences punishable under Sections 364 read with 511, 307, 343, 419, 506 and 120B read with 34 I.P.C. and Sections 3(1)(r)(s) and 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. 2. Heard Ms. Aishwarya Nagula, the learned counsel for petitioner and Sri Paleti V.R.Maheswara Rao, the learned counsel appearing on behalf of respondent Nos.2 and 3 and the learned Assistant Public Prosecutor for respondent No.1-State. 3. It is to be stated that respondent No.2 and respondent No.3 are brothers. Stating that respondent No.3 was missing since 18.04.2024 a written information was lodged by respondent No.2 upon which, F.I.R. No.69 of 2024 was registered on 20.04.2024 as a case of man missing. 4. During investigation, victim/respondent No.3 was rescued, and his statement was recorded on 29.04.2024 and it is thereafter all the penal provisions were added. 5. In this pre-arrest bail filed by Sri Deepak Kumar Tala a few principles of law have emerged for consideration in the context of following facts and circumstances: Sri N.Ramachandran is the victim in this case and he is Mala by caste and is thus a person of scheduled caste. Petitioner is not a member of the scheduled caste. The victim has been a soothsayer in Agaramangalam Village of Andhra Pradesh. Petitioner belongs to Bangalore of Karnataka State. In Agaramangalam Village there is Sri Sri Gurrappa Ankala Parameswari Temple. There has been acquaintance between the petitioner and the victim for about 10 years and through the efforts of the petitioner a Trust was established and the temple was developed and with reference to trusteeship disputes arose between the petitioner and the victim. It is in that regard the petitioner and others as against the victim and others filed O.S.No.683 of 2018, O.S.No.714 of 2019, O.S.No.32 of 2020 and O.S.No.4 of 2021. Those suits are pending. It is in that regard the petitioner and others as against the victim and others filed O.S.No.683 of 2018, O.S.No.714 of 2019, O.S.No.32 of 2020 and O.S.No.4 of 2021. Those suits are pending. The allegations in the present crime are to the effect that the victim claims that the temple is on the land belonging to him and his family and the way leading to the temple was also part of their property and this petitioner has been trying to secure it unlawfully and on one occasion the petitioner abused the victim by his caste name and threatened him that he should not further do his work of soothsaying and in the event of any violation of his command he would see that his men kill him. It is alleged that on 18.04.2024 at the behest of this petitioner his personal assistant and other persons who were hired and employed by him forcibly abducted him and took him in a car and one of the persons came on that day was in police dress claiming that he was from Katpadi Police Station and the victim was taken to various places and was confined and was threatened and his efforts to escape failed and people in guard once flashing a knife threatened to kill him if he attempted to escape once again. It is stated that he overheard the conversation among the accused and understood that they all did this to obtain his signatures on certain documents to swallow the properties. Finally, when he was brought by them in a vehicle to a petrol bunk on 29.04.2024 at about 3:00 P.M. police came and rescued him. It is alleged that the petitioner knows that the victim belonged to scheduled caste and yet he was criminally intimidated and he was abducted/kidnapped with a view to forcibly obtain his signatures on documents. 6. It is undisputed that the other accused involved in this crime were arrested during investigation and according to the learned counsel for petitioner all of them were also released on regular bail granted by the Special Court. 7. The present petitioner moved Crl.M.P.No.1738 of 2024 before the learned Special Judge-cum-I Additional District and Sessions Judge, Chittoor seeking anticipatory bail. 6. It is undisputed that the other accused involved in this crime were arrested during investigation and according to the learned counsel for petitioner all of them were also released on regular bail granted by the Special Court. 7. The present petitioner moved Crl.M.P.No.1738 of 2024 before the learned Special Judge-cum-I Additional District and Sessions Judge, Chittoor seeking anticipatory bail. After hearing both sides, by an order dated 24.08.2024 the learned Special Judge observed that there was prima facie case against the petitioner and therefore, the prayer for pre-arrest bail having been debarred by virtue of Section 18A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, ‘the Act, 1989’) it refused to grant bail and dismissed the said petition. It is thereafter that the petitioner filed this pre-arrest bail under Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023/Section 438 of Code of Criminal Procedure, 1973. 8. Learned counsel for the petitioner submits that the allegations do not prima facie indicate commission of an offence of caste atrocity and therefore the bar contained in Section 18 and 18A of the Act, 1989 do not hold anymore and the learned Special Judge failed to appreciate this. Learned counsel also contended that this is a foisted litigation to arm-twist the petitioner who has been studiously pursuing the civil litigation for vindication of rights. That he is falsely implicated in this case. He is likely to be arrested and therefore, seeks pre-arrest bail. 9. Appearing on behalf of the victim/respondent No.3 and the de facto complainant/respondent No.2, learned counsel submits that there is a prima facie case attracting the provisions under the Act, 1989 and this being a pre-arrest bail the bar under Sections 18 and 18A of the Act, 1989 do apply and the learned Special Judge correctly recorded its observation and this Court may also have to dismiss this petition as not maintainable. It is further argued that what is alleged in this case include offence under Section 3(2)(va) of the Act, 1989 under which provision a schedule containing various penal provisions are mentioned in the statute itself and Section 506 I.P.C. is one of the scheduled offences and the F.I.R. in this case refers to Section 506 I.P.C. and in such cases irrespective of the intentions to cause humiliation, provisions of the Act, 1989 do attract and the bar for anticipatory bail cannot be overlooked. The learned counsel further submitted that this petition is not maintainable in terms of Section 14A(2) of the Act, 1989 and seeks dismissal of the petition. 10. Learned Assistant Public Prosecutor appearing for respondent No.1-State submits that the petitioner is not entitled to seek bail on the original jurisdiction of this Court as Section 14A of the Act, 1989 indicates exclusion of original jurisdiction in these type of matters and the only remedy for the petitioner is to prefer an appeal against the order of the Special Court and seeks dismissal of the petition. 11. At the bar the following rulings are cited: 1. Shajan Skaria v. State of Kerala, 2024 SCC OnLine SC 2249 2. Dr Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454 3. In re Provision of Section 14A of SC/ST (Prevention of Atrocities) Amendment Act, 2015 v. Nil, 2018 SCC OnLine ALL 2087 4. State of Andhra Pradesh v. Mohd. Hussain alias Saleem, (2014) 1 SCC 258 12. From the material on record and the rival submissions, the following points emerged for consideration: 1. Whether this pre-arrest bail cannot be maintained by virtue of Section 14A of the Act, 1989? 2. Whether a prima facie case is not made out to attract the penal provisions in terms of the Act, 1989 and therefore, the bar contained in Sections 18 and 18A of the Act, 1989 do not operate? POINT No.1 13. A perusal of Sub-Section (1) of Section 438 Cr.P.C. indicates that an application seeking anticipatory bail can be moved either before the High Court or the Court of Sessions. Thus, there is concurrent jurisdiction with the above referred Courts to entertain such an application. In the present case this petitioner seeking anticipatory bail moved Crl.M.P.1738 of 2024 before the learned Special Judge designated under the Act, 1989. Thus, there is concurrent jurisdiction with the above referred Courts to entertain such an application. In the present case this petitioner seeking anticipatory bail moved Crl.M.P.1738 of 2024 before the learned Special Judge designated under the Act, 1989. On merits and in terms of principles of law enumerated in the said order, the learned Special Judge declined to grant the relief. Then the question is as to whether the petitioner who exhausted his remedy before one of the two Courts provided by the statute could once again move a similar application for anticipatory bail invoking the concurrent jurisdiction of High Court. It is here one must notice what is stipulated in Section 14A of the Act, 1989 and for benefit, the same is reproduced here: “14A. Appeals:—(1) Notwithstanding anything contained in the Code of Criminal Procedure,1973 (2 of 1974), an appeal shall lie, from any judgment, sentence or order, not being an interlocutory order, of a Special Court or an Exclusive Special Court, to the High Court both on facts and on law. (2) Notwithstanding anything contained in sub-section (3) of section 378 of the Code of Criminal Procedure, 1973 (2 of 1974), an appeal shall lie to the High Court against an order of the Special Court or the Exclusive Special Court granting or refusing bail. (3) Notwithstanding anything contained in any other law for the time being in force, every appeal under this section shall be preferred within a period of ninety days from the date of the judgment, sentence or order appealed from: Provided that the High Court may entertain an appeal after the expiry of the said period of ninety days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of ninety days: Provided further that no appeal shall be entertained after the expiry of the period of one hundred and eighty days. (4) Every appeal preferred under sub-section (1) shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal.” 14. The above provision mandates the Court to see that what is provided in Section 14A of the Act, 1989 is irrespective of whatever is provided in the Code of Criminal Procedure, in the present context, with reference to bails. The above provision mandates the Court to see that what is provided in Section 14A of the Act, 1989 is irrespective of whatever is provided in the Code of Criminal Procedure, in the present context, with reference to bails. Sub-Section (2) therein shows that applications for bail are to be considered by the Special Court and in the event of either granting or refusing bail the remedy provided to the aggrieved is to prefer an appeal before the High Court. Thus, the concurrent jurisdiction for consideration of anticipatory bails provided in Section 438 Cr.P.C. thus stands excluded. It is not as though the aggrieved is deprived of all other remedies. After inviting an order of rejection of bail from the Special Court the aggrieved is entitled to prefer an appeal in terms of Section 14A of the Act, 1989. In the case at hand, no such appeal is preferred and the petitioner prays the Court to exercise its concurrent jurisdiction as is enumerated in Section 438 Cr.P.C. which this Court is unable to countenance. It is to be noticed that it is incongruous to think that on the same subject matter the High Court could hold concurrent jurisdiction to hear an anticipatory bail as well as appellate jurisdiction to hear an anticipatory bail application which impugns the order of granting or rejection of bail by the Special Court. It could never the contemplation of any law that the same Court could be the original Court as well as the appellate Court. If it is to consider that this Court still holds the concurrent jurisdiction to once again hear the anticipatory bail application, then Section 14A(2) of the Act, 1989 becomes otiose. A Court by exercising its jurisdiction can never resort to such interpretation which allows disuse of a statutory provision. A Full Bench of the Allahabad High Court in In re Provision of Section 14A of SC/ST (Prevention of Atrocities) Amendment Act, 2015 v. Nil (supra) while answering a reference had the occasion to consider the legality of Section 14A of the Act, 1989 and its purport and held that Section 14A of the Act, 1989 is constitutionally valid and the original concurrent jurisdiction for the High Court stand excluded and it holds only appellate jurisdiction. One may also make a reference to K.M.Basheer v. Rajani K.T., 2022 LiveLaw (Ker) 472 After making a detailed study, it concluded the principles at paragraph No.29 which are reproduced here for benefit: “29. In view of the above discussions, the following conclusions are arrived at: (i) In cases alleging offences under the SC/ST Act, an application for anticipatory bail can be filed only before the Special Court or the Exclusive Special Court, as the case may be, and not before the High Court. (ii) The High Court has neither concurrent jurisdiction under section 438 nor original jurisdiction under section 482 of Cr.P.C. Similarly, the Sessions Courts also do not have the jurisdiction to grant anticipatory bail. (iii) The Special Court, while dealing with an application for anticipatory bail must first ascertain whether a prima facie case for an offence punishable under the Act is made out. If the answer is ‘Yes’, the bar under sections 18 and 18A of the SC/ST Act will come into play and there cannot be any further consideration on the entitlement of anticipatory bail. If the answer to the above question is ‘No’, the Special Court will be entitled to consider the anticipatory bail application on merits. (iv) The order granting or rejecting the anticipatory bail will be subject to the appellate jurisdiction of the High Court under section 14A of the Act.” 15. To the similar effect is the ruling cited by the learned counsel for respondent Nos.2 and 3 in Atul Rajput v. The State of Madhya Pradesh, Order dated 10.04.2024 in Crl.A.No.3261 of 2024 of the High Court of Madhya Pradesh at Jabalpur. Therefore, the contention of the learned counsel for the petitioner that this petitioner can seek anticipatory bail by virtue of concurrent jurisdiction of this Court finds no merit at law and therefore is negatived and the point is answered against the petitioner. It is made clear that the petitioner is entitled to pursue legal remedies as per law. POINT No.2: 16. Learned counsel for the petitioner put forth all efforts to convince this Court that the facts on record do not indicate prima facie case and this Court in such cases can consider anticipatory bail and cited Shajan Skaria’s case (supra) and Dr Subhash Kashinath Mahajan’s case (supra). 17. POINT No.2: 16. Learned counsel for the petitioner put forth all efforts to convince this Court that the facts on record do not indicate prima facie case and this Court in such cases can consider anticipatory bail and cited Shajan Skaria’s case (supra) and Dr Subhash Kashinath Mahajan’s case (supra). 17. In Shajan Skaria’s case (supra) their Lordships at paragraph No.47 held that when the necessary ingredients to constitute the offence under the Act, 1989 are not made out upon the reading of the complaint, no case can be said to exist prima facie. However, one needs to see what their Lordships have also held at paragraph No.49 where their Lordships stated that if the accused puts forward the case of malicious prosecution on account of political or private vendetta such aspects can be considered only by the High Court in exercise of its inherent powers under Section 482 of the Code or in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. However, powers under Section 438 of the Code of Criminal Procedure cannot be exercised once the contents of the F.I.R. disclose a prima facie case. If all the ingredients necessary for constituting the offence are borne out from the complaint, then the remedy of anticipatory bail becomes unavailable to the accused. Be it noted that their Lordships had to state those aspects in a case where the bail plea was heard and rejected by the Special Judge and an appeal was preferred before the High Court and the High Court was pleased to dismiss the appeal and affirm the order of the Special Judge and as against that further appeal was preferred before their Lordships. While those principles are to be borne in mind, this Court refrains to delve into the aspect as to whether there is a prima facie case or not since it has already taken a view while answering point No.1 that this Court on the original side for concurrent jurisdiction could not entertain this petition. Any further discussion on facts and law in this regard may unnecessarily prejudice the contentions of both sides in the event an appropriate legal proceeding is taken by the petitioner seeking relief. Hence, this point is answered accordingly. 18. In the result, this Criminal Petition is dismissed. The petitioner is at liberty to pursue remedies in accordance with law.