Patna High Court - Orders
Pappu Singh @ Pappu Kumar Singh vs The State Of Bihar on 9 August, 2017
Author: Kishore Kumar Mandal
Bench: Kishore Kumar Mandal, Madhuresh Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.411 of 2017
Arising Out of PS.Case No. -243 Year- 2016 Thana -RAJAULI District- NAWADA
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Pappu Singh @ Pappu Kumar Singh S/o Madan Singh @ Bhadan Singh,
Resident of Village-Radhey Bigha (Bharrara), P.S. Rajauli, District-
Nawada.
.... .... Appellant/s
Versus
The State of Bihar .... .... Respondent/s
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For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mr. Devendra Prasad Singh, Advocate
For the Respondent/s : Mr. Sadanand Paswan, Spl. P.P
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CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR
MANDAL
and
HONOURABLE MR. JUSTICE MADHURESH PRASAD
Orders on reference by learned Single Judge
(Per: HONOURABLE MR. JUSTICE MADHURESH PRASAD)
8 09-08-2017The appellant who is accused in F.I.R. lodged under Sections 341,323,325,379 and 504/34 of the Indian Penal Code and 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as ‗the SC/ST Act') has preferred the instant appeal against the rejection of his prayer for anticipatory bail by the Court of 1 st Additional District and Sessions, Judge - cum-Special Judge, Nawadah, in ABP No. 1157 of 2016/07 of 2017.
2. The matter was placed for consideration before the Hon'ble Single Judge. Considering the fact that the FIR has been drawn up for amongst other, the offences under Sections 3(1) (x) Patna High Court CR. APP (SJ) No.411 of 2017 (8) dt.09-08-2017 2/12 of the SC/ST Act along with Section 34 of the IPC, the learned Single Judge has referred the matter for proper interpretation of applicability of Section 6 of the SC/ST Act in the matter of entertainment of anticipatory bail in the light of Section 18 of the SC/ST Act, which bars exercise of jurisdiction under Section 438 of the Cr.P.C in any case involving the arrest of any person on accusation of having committed the offence under the SC/ST Act.
3. Mr. A.K. Thakur, learned counsel was requested by the Court to assist and has appeared and made his submission in the matter. Learned counsel has taken us through the scheme of the SC/ST Act contained in chapters 2 and 3 and has highlighted few provisions of the SC/ST Act.
4. He has drawn the attention of the Court towards Sub-section (1) of Section 3 and the opening line i.e., Sub-Section (1) of Section 4 of the SC/ST Act which is being reproduced herein below :
"3. Punishments for offences atrocities.-- 1[(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-- ........‖ 1 [4. Punishment for neglect of duties.--(1) Whoever, being a public servant but not being a member of a Scheduled Caste or a Scheduled Tribe, wilfully neglects his duties required to be performed by him under this Act and the rules made thereunder, shall be punishable with imprisonment for a term which shall not be less Patna High Court CR. APP (SJ) No.411 of 2017 (8) dt.09-08-2017 3/12 than six months but which may extend to one year........‖
5. Mr. Thakur has emphasized that in Section 3 as well as in Section 4, the opening word is ―whoever‖.
6. His submission is that these two penal provisions contemplate individual liability and expression ―whoever‖ connotes singularity.
7. He has then drawn our attention to Section 6 and Section 8 of the SC/ST Act which again for easy reference are reproduced herein below :
― 6. Application of certain provisions of the Indian Penal Code.--Subject to the other provisions of this Act, the provisions of section 34, Chapter III, Chapter IV, Chapter V, Chapter VA, section 149 and Chapter XXIII of the Indian Penal Code (45 of 1860), shall, so far as may be, apply for the purposes of this Act as they apply for the purposes of the Indian Penal Code.
8. Presumption as to offences.--In a prosecution for an offence under this Chapter, if it is proved that--
(a) the accused rendered 1[any financial assistance in relation to the offences committed by a person accused of], or reasonably suspected of, committing, an offence under this Chapter, the Special Court shall presume, unless the contrary is proved, that such person had abetted the offence;
(b) a group of persons committed an offence under this Chapter and if it is proved that the offence committed was a sequel to any existing dispute regarding land or any other matter, it shall be presumed that the offence was committed in furtherance of the common Patna High Court CR. APP (SJ) No.411 of 2017 (8) dt.09-08-2017 4/12 intention or in prosecution of the common object;
2 [(c) the accused was having personal knowledge of the victim or his family, the Court shall presume that the accused was aware of the caste or tribal identity of the victim, unless the contrary is proved.]‖
8. Having noted the above noted sections, as regards common intention and common object, we refer to the submissions made by Mr. Thakur. He submits that presumption contemplated under Section 8 is dependent upon proof of certain facts which have been specified in Sub-sections (a), (b) and (c) thereof.
9. Having submitted so he further submits that till such facts, as contemplated under Section 8 are proved, presumption of common object or intention would not be proper, or legal, more so in view of the expression ―if it is proved‖ in Section 8.
10. It is further submitted that the legislative intent that emerges from the aforementioned provisions of the SC/ST Act is to the extent that responsibility is of the individual accused/offender for commission of offences under the SC/ST Act, like any other penal provisions. Presumption, even under the SC/ST Act can be raised only if such facts as mentioned in Sub- Sections (a), (b) and (c) are proved.
Patna High Court CR. APP (SJ) No.411 of 2017 (8) dt.09-08-20175/12
11. The same is further clarified from the provisions contained in Section 6 which is very clear, inasmuch as it specifically says that the provisions of Section 34 and Section 149 of the IPC shall apply for the purposes of the ―Act as they apply for the purposes of the Indian Penal Code‖. Thus, it is clear that the SC/ST Act does not contemplate any special application of the provisions of Sections 34 and 149 IPC, different from that under the Indian Penal Code.
12. The interpretation given by the Hon'ble Supreme Court with regard to Sections 34 and 149 IPC thus, assumes relevance. The Hon'ble Supreme Court has held that Section 34 is only a rule of evidence and does not create a substantive offence.
13. With regard to Section 34 IPC, the requirement of the statute is sharing of common intention upon being present at the place of occurrence. The Apex Court has further added that it will all depend upon the fact situation of the matter under consideration and no rule steadfast can be laid down therefor, (Lallan Rai v. State of Bihar reported in AIR 2003 S.C. 333).
14. As regard Section 149 IPC, the Apex Court has repeatedly pronounced that the said provisions has its foundation on constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on Patna High Court CR. APP (SJ) No.411 of 2017 (8) dt.09-08-2017 6/12 common intention. Section 149 IPC contemplates common object and mere presence of an accused in an unlawful assembly cannot render a person to be liable for the offence unless there was a common object shared by him and that he was actuated by that common object and that object is one of the offences alleged in the F.I.R. or complaint. State of Punjab v. Sanjiv Kumar AIR 2007 SC 2430 ; State of Karnataka v Chikkahottappa AIR 2008 SC 2692.
15. ―Common object and common intention‖ may also occur at two stages. In some cases the allegation(s) in the FIR or complaint may explicitly allege common object or common intention. In other cases during the course of investigation/trial, even a bystander though not named in the F.I.R. or complaint may be found to be a member of unlawful assembly having ―common intention and/or common object‖.
16. In the instant case, we, on the point of reference are only concerned with the former stage i.e., exercise of jurisdiction for grant of pre arrest bail which normally would be on the basis of allegations made in the FIR/complaint.
17. For the purposes of exercising jurisdiction under Section 438 Cr.P.C in the background of Section 18 of the Act, the applicability of Section 6, in light of the aforesaid discussion in Patna High Court CR. APP (SJ) No.411 of 2017 (8) dt.09-08-2017 7/12 our opinion does not contemplate any different approach than what has been decide in the case of Bishewshar Mishra vs. State of Bihar reported in 2016 (4) PLJR 1058, more specifically paragraphs 25-27 thereof which are extracted below :
―25. It is clear from a close reading of the decision of the Supreme Court, in Vilas Pandurang Pawar (supra), that though Section
18 of the Act creates a bar in invoking Section 438 of the Code, a duty is cast on the Court to verify the averments in the Complaint/First Information Report to find out whether an offence, under Section 3 of the Act has been prima facie made out against the accused seeking pre-arrest bail or not. In case, a prima facie case, under the Act, is made out against the accused, the bar, under Section 18 of the Act, would, immediately, come into play.
26. On a careful consideration of the provisions prescribed under Section 18 of the Act, the law laid down by the Supreme Court, in State of M. P. vs. Ram Kishna Balothia (supra) and Vilas Pandurang Pawar (supra) and by the Full-
Bench of the Rajasthan High Court, in Virendra Singh (supra), and the other decisions of the different High Courts noticed hereinabove the answer to the first three questions framed by us becomes abundantly clear.
Patna High Court CR. APP (SJ) No.411 of 2017 (8) dt.09-08-20178/12
27. In view of specific embargo of Section 18 of the Act and the binding precedents of the Supreme Court noticed above, we hold that pre- arrest bail, under Section 438 of the Code, is not available to persons committing offences under the Act. We further hold that Section 18 of the Act totally bars a court from either making a judicial scrutiny of the case or granting pre-arrest bail to the accused of committing offence under the provisions of the Act. However, from the law laid down by the Supreme Court in Vilas Pandurang Pawar (supra), it becomes clear that notwithstanding the embargo created by Section 18 of the Act against grant of pre-arrest bail, a duty is cast upon the court, hearing an application under Section 438 of the Code, to determine, on the basis of the statements, made in the Complaint/First Information Report, if the ingredients of any offence, under the Act, are made out or not. If the ingredients of the offence are attracted against a person seeking pre-arrest bail, the embargo of Section 18 of the Act would, immediately, come into play against such person ; but merely because a criminal case is instituted against a person under the Act without there being any allegation against him of having committed an offence under the Act, the Court can very well entertain an application under Section 438 of the Code and under such circumstance, the embargo, created under Patna High Court CR. APP (SJ) No.411 of 2017 (8) dt.09-08-2017 9/12 Section 18 of the Act, would not come into play inasmuch as the legislative intent is to exclude the power of the Court to grant pre-arrest bail to a person apprehending arrest, who is alleged to have committed an offence under the Act and not a person, whose name finds place in the column of accused either in Complaint or in the First Information Report without there being any accusation against him of having committed an offence under the Act.‖
18. The said judgment in the case of Bishewshar Mishra (supra) casts a duty upon the Court considering pre-arrest bail of an accused under the SC/ST Act, to look at the allegations made in the FIR or the complaint to gather whether ingredients of the offence under the SC/ST Act are made out, or not, for deciding whether or not to exercise jurisdiction under Section 438 Cr.P.C.
19. In our opinion the said standard of scrutiny can very well apply to an FIR/complaint alleging offences under the Act wherein Section 34 IPC or Section 149 IPC has been added. In such cases also the duty cast upon the Court would remain the same as contemplated in the case of Bisheshwar Mishra (supra) Para 25 to 27 thereof, wherein the earlier a Division Bench of this Court has relied upon the law declared by the Hon'ble Apex Court Patna High Court CR. APP (SJ) No.411 of 2017 (8) dt.09-08-2017 10/12 in paragraph 9 and 10 in the case of Vilas Pandurang Pawar vs State of Maharastra reported in (2012) 8 SCC 795, which also is being reproduced herein below :-
―9 Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail.
10) The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail.
When an offence is registered against a person under the provisions of the SC/ST Act, no Court shall entertain application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. Court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed Patna High Court CR. APP (SJ) No.411 of 2017 (8) dt.09-08-2017 11/12 in granting bail under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence.‖
20. Cases under the SC/ST Act, wherein Sections 34 and 149 IPC have been added, in view of the provisions contained in Section 6, does not contemplate any treatment different, for application of the said two sections, as they apply to IPC.
21. Thus, in light of the discussions aforesaid and the earlier decision of the Division Bench of this court in the case of Bisheshwar Mishra (supra), relying upon the law as declared by the Apex Court in the case of Villas Pandurang (supra), in our opinion, reference made by the learned single Judge would be aptly answered by reiterating the same standard of scrutiny as laid down in the case of Bisheshwar Mishra (supra).
22. If in a given case the allegations against the accused in the FIR or complaint alleging offences under the SC/ST Act discloses the ingredients of Section 34 & 149 IPC i.e., ―common intention and/or common object‖ respectively to commit the offences under the Act then the situation may be different and exercise of powers under Section 438 would not be permissible in view of Section 18 of the SC/ST Act. In case, the Patna High Court CR. APP (SJ) No.411 of 2017 (8) dt.09-08-2017 12/12 FIR or complaint lodged or registered under the SC/ST Act does not disclose the aforesaid essential ingredients of Section 34 and Section 149 IPC, then the Court can very well entertain an application under Section 438 for grant of pre arrest bail of an accused and the embargo created under Section 18 of the Act, would not come into play, on the same footing as an accused in a case where Section 34 or Section 149 of the IPC has not been added and prima facie offence is not made out.
Having answered the issue referred, we remit the matter to the learned Single Judge for disposal in accordance with law.
(Kishore Kumar Mandal, J) (Madhuresh Prasad, J) Prakash/-
U NAFR/AFR