Banti Gurjar @ Dharamveer Singh vs The State Of Madhya Pradesh on 14 October, 2019

[Cites 18, Cited by 16]

Madhya Pradesh High Court

Banti Gurjar @ Dharamveer Singh vs The State Of Madhya Pradesh on 14 October, 2019

Present appeal has been filed under Section 14(A)(2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter would be referred as to `the Act') against the order dated 27/9/2019 passed by Special Judge, Atrocities, District Morena, whereby the anticipatory bail application of the appellant under Section 438 of Cr.P.C seeking bail has been rejected.

2. The appellant is apprehending his arrest by Police Station Joura, District Morena (M.P.), in connection with Crime No.554/2019 registered in relation to the offence punishable u/Ss. 294, 323, 324, 34 of IPC and Section 3(1)(n) , 3(1)(/k), 3(2)(v) of Atrocities Act.

3. It is alleged by Counsel for appellant that he has been falsely implicated in the case. He has not committed the offence in any manner. It is alleged that there is nothing on record to show the Bar u/S.18 of SC/ST Act. Counsel for the appellant has relied upon the order passed by Co-ordinate Bench of this Court in the case of THE HIGH COURT OF MADHYA PRADESH 2 CR.A.-8520-2019 (BANTI GURJAR @ DHARAMVEER SINGH Vs THE STATE OF MADHYA PRADESH) Atendra Singh Rawat Vs. State of Madhya Pradesh passed in Criminal Appeal No.7295/18 vide order dated 11-10-2018 and has argued that the case of present appellant is identical to the aforesaid case. It is further submitted that the appellant is ready to abide by all the terms and conditions imposed by this court while considering the bail of the appellant. He has prayed for disposing the bail application in the light of directions issued by the Hon'ble Supreme Court in the case of Arnesh Kumar Vs. State of Bihar, reported in (2014) 8 SCC 273.

5. Per contra counsel for the State has opposed the bail application and has submitted that there is specific Bar under Section 18-A of SC/ST Act and the application for grant of anticipatory bail is not maintainable. He has further submitted that it is a named FIR and the allegations against the appellant is serious in nature. Therefore, he has prayed for dismissal of the criminal appeal.

6. Learned counsel for the rival parties are heard and Case-diary is perused.

7. From perusal of record, it is seen that Co-ordinate Bench of this Court in the case of Atendra Singh Rawat (supra) has THE HIGH COURT OF MADHYA PRADESH 3 CR.A.-8520-2019 (BANTI GURJAR @ DHARAMVEER SINGH Vs THE STATE OF MADHYA PRADESH) considered the object of SC/ST Act and the amendment in terms of Section 18-A of the Act further the concept of life and liberty has been taken into consideration. The Bench has considered the judgment passed by Hon'ble Supreme Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others, reported in 2011 SC 312 and has allowed the appeal and has granted the anticipatory bail.

8. At this juncture, it would be appropriate to refer the recent amendment in the 1989 Act by which Section 18-A was incorporated to the following extent;

"Section 18A (1) For the purpose 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 provision 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."

9. Hon'ble Supreme Court in the case of Arnesh Kumar Vs. State of Bihar, reported in (2014) 8 SCC 273 and held as under;

"7.1. From a plain reading of the aforesaid provision u/S.41 Cr.P.C., it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than THE HIGH COURT OF MADHYA PRADESH 4 CR.A.-8520-2019 (BANTI GURJAR @ DHARAMVEER SINGH Vs THE STATE OF MADHYA PRADESH) seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts.

7.2. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. The law further requires the police officers to record the reasons in writing for not making the arrest. 7.3. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required ? What purpose it will serve ? What object it will achieve ? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 Cr.P.C."

10. Once it is clear from the very language employed by amended section 18-A(1)(a) that all provisions relating to arrest THE HIGH COURT OF MADHYA PRADESH 5 CR.A.-8520-2019 (BANTI GURJAR @ DHARAMVEER SINGH Vs THE STATE OF MADHYA PRADESH) under the Cr.P.C. are applicable then the provision of Chapter V of Cr.P.C. which relates to arrest of person shall apply with full vigor to regulate the process of arrest adopted by police officer while deciding the question as to whether a person accused of offence punishable under the 1989 Act is required to be arrested or not.

11. From the aforesaid analysis and the discussions, the accusation made against the appellants reveals a prima facie case of offence punishable u/S.3(1)(n), 3(1)(/k), 3(2)(v) and therefore statutory bar contained in Sec.18 of the 1989 Act comes in way of this court to grant anticipatory bail but the mandatory procedure prescribed in Sec.41-A, 41-B, 41-C and 41-D Cr.P.C. would apply with full vigor and the pre-conditions contained in Chapter V Cr.P.C. shall have to be satisfied before the extreme step of arrest can be taken.

12. In view of above and considering the principles laid down by the Apex Court in the case of Arnesh Kumar (supra) this court without interfering in the impugned order dated 27/09/2019 passed by the court below is inclined to direct thus: -

(i) that, the police may resort to the extreme step of arrest only when the same is necessary and the appellant fails to cooperate in the investigation.

(ii) that, the appellant should first be THE HIGH COURT OF MADHYA PRADESH 6 CR.A.-8520-2019 (BANTI GURJAR @ DHARAMVEER SINGH Vs THE STATE OF MADHYA PRADESH) summoned to cooperate in the investigation. If the appellant cooperate in the investigation then the occasion of his arrest should not arise.

13. Subject to above modification in the order of the trial court dated 27/09/2019, the appeal stands disposed of.

14. A copy of this order be sent to the trial court for necessary compliance.

(Vishal Mishra) Judge vpn VIPIN KUMAR AGRAHARI 2019.10.17 10:50:56 +05'30'

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