Chattisgarh High Court
Somesh Das vs State Of Chhattisgarh on 21 August, 2003
Equivalent citations: 2004CRILJ680, 2004(2)MPHT17(CG)
Author: L.C. Bhadoo
Bench: L.C. Bhadoo
ORDER L.C. Bhadoo, J.
1. The accused/applicant has preferred this application under Section 438 of the Cr.PC, apprehending arrest in Crime No. 88/2003, Police Station, Surajpur, District Sarguja, of the offence punishable under Sections 294 and 506 of the IPC and Section, 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 for releasing him on anticipatory bail before arrest.
2. The prosecution case is that on 27-4-2003 Naib Tehsildar had convened a meeting of villagers in the primary school of the Village Gaitera with regard to settlement of disputes of the claimants whose land was acquired for South Eastern Coalfields Ltd., and in that meeting the complainant and other persons were present, Naib Tehsildar H.S. Dhurve, Up Tehsil Lakhanpur was also present. At about 3 p.m. accused Somesh Das Bangali arrived at that place in his car. On seeing him, complainant Kalicharan greeted him. Accused Somesh Das Bangali started abusing him with the filthy language and said that you do not deserve to greet me and abused him that "Madarchod Bhosadiwale GondAdivasi" how your are creating hurdles in their work, you will be killed. On hearing this, all the persons who were sitting on the spot felt it bad and they did not took it in a good taste. Being aggrieved by the behaviour of the accused Kalicharan lodged a complaint in the Police Station, Surajpur. A case was registered under Sections 294 and 506 of the IPC and Section 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the matter is still under investigation.
3. I have heard Shri S.C. Dutt, Senior Advocate for the accused/appellant and Shri Pravin Das, Panel Lawyer for the State.
4. Mr. Dutt argued that it is not disputed that the agricultural land of the Village Gaitera was acquired for the mining purposes for South Eastern Coalfields Ltd., and compensation to the tune of Rs. 3,31,960/- was paid to the complainant. Compensation to Devcharan and other villagers was also paid, as per the agreement grand son of Kalicharan, Bhagat Singh was given employment. Similarly, son of Devcharan, Amrit Singh was also given employment and Kripal Singh son of Arjun Singh was also given employment. But, even then the complainant was not satisfied and he was asking for other employment which was not possible. Therefore, this false complaint has been lodged against the accused/applicant, who is very senior officer of the South Eastern Coalfields Ltd., it can not be believed that such a senior officer would use such filthy language and abuse the complainant by calling him in the name of caste. He further argued that the report itself was lodged on 11th May, 2003, i.e., after 14 days of the incident which itself shows that the complaint is false and in this complaint itself it has been written that on account of compromise talks which were going on, the same was delayed. He further argued that on 2nd July, 2003, the complainant himself made an application before the Station House Officer, Surajpur with a copy to Police Station Scheduled Castes and Scheduled Tribes, Ambikapur to the effect that he made the complaint on account of anger because the sufficient compensation was not paid to them and now they have compromised the matter and he does not want to pursue the matter. He further argued that moreover by using the word "Madarchod Bhosadiwale GondAdivasi "prima facie the offence is not made out, therefore, the accused/applicant is entitled for bail under Section 438 of the Cr.PC. He further argued that as the villagers were not allowing for mining activities to the persons of SECL, therefore, officers of SECL made complaints on 7-11-2002 and 7-5-2003 to the S.H.O., Surajpur.
5. On the other hand, Mr. Das, Panel Lawyer opposed the bail application and submits that as per the provisions of Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'Act') anticipatory bail can not be granted. The accused/ applicant is not entitled for the benefit of Section 438 of the Cr.PC.
6. In order to appreciate the argument of the learned Panel Lawyer if we look into the Section 18 of the Act, Section 18 lays down that :--
"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."
The provisions of Section 18 time and again, came up before the various High Courts for their consideration as to whether in view of the provisions of Section 18 of the Act there is a complete ban and the Court is not entitled to extend the benefit of Section 438 of the Cr.PC to a person against whom an accusation of having committed an offence under the Act has been levelled or in the appropriate cases, looking to the facts and circumstances of the case, whether the Court can extend the benefit of Section 438 of the Cr.PC to a person against whom an accusation has been levelled.
7. The offences which are enumerated in Section 3 of the Act are offences which, denigrate members of Scheduled Castes and Scheduled Tribes in the eyes of society, and prevent them from leading a life of dignity and self respect. Such offences are committed to humiliate and harass the members of Scheduled Castes and Scheduled Tribes with a view to keep them in State of servitude. These offences constitute a separate class and can not be compared with offences under the Penal Code. Therefore, Section 18 of the Act which excludes the provision of anticipatory bail under Section 438 of Criminal Procedure Code from being applicable to persons committing offences under the Act. After considering the provisions of Section 18 of the Act, the general view which has been taken by the various High Courts is that merely because a case has been registered by the police under this Act, an application for grant of anticipatory bail should not be thrown out without finding out whether there are accusations of commission of offence under this Act. Thus, wherever it is pointed out by the accused/applicant in an offence registered under this Act while moving application for release under Section 438 of Cr.PC, that the accusation made in the FIR do not constitute any offence under this Act, the complaint is false or stems out of malafides to blackmail or to wreck some personal vengeance for settling and scoring personal vendetta or by way of some counter-blasts or found to be misuse of judicial process. It is the duty of the Court to examine and judicially scrutinize whether on its facts, the FIR and the case diary do constitute any offence under this Act before refusing bail on that ground and whether there is no material for prima facie suspecting the petitioner of having committed an offence under the Act, the ban imposed by Section 18, does not come into play and the petitioner under the circumstances deserves the benefit of anticipatory bail.
8. The High Court of Madhya Pradesh in the matter of Dule Singh v. State through Police Rajgarh, reported in 1993 (1) MPJR 223 held that :--
"A strict construction should be placed on the word "accusation" within the meaning of Section 18 of the Act. As such, the 'intention' or 'intent' which is material ingredient of the offence under Section 3(1)(x) of the Act not being clearly stated by the witnesses and there being no statement that the offence was committed because the complainant belonged to Scheduled Caste, it can not amount to an 'accusation' of an offence within the meaning of Section 18 of the Act so as to bar an application under Section 438, Cr.PG."
Again the Madhya Pradesh High Court in the matter of Bablu v. State of M.P., reported in 1996 (II) MPWN 141, held that :--
"delayed FIR lodged after lodging the complaint by accused -commission of offences found doubtful even by police officers -anticipatory bail granted."
Similarly, the same High Court in the matter of Raj Kumar Jain v. State of M.P., reported in 2000(2) M.P.H.T. 35 (NOC) = 2000 (3) MPLJ-Note 10, held that :--
"There was exchange of hot words and in that the applicant was said to have uttered word "Chamar"-- Contention that merely by using the word "Chamar", Atrocities Act, 1989 was not attracted--Bar of applicability of Section 438 was not attracted-- Complainant Principal of Institution and applicant a teacher in the same Institution-- Incident arose due to non-disbursement of scholarship to students by complainant."
High Court of Delhi in the matter of Mukesh KumarSaini and Ors. v. State (Delhi Administration), reported in 2001 Cr.LJ 4587, has also held that:--
"Humiliating words allegedly uttered by petitioner while dragging complainant inside his house-- Neighbours gathered thereafter to rescue him-- Humiliating words thus not uttered before public view--Prima facie offence under'Section' 3(1)(x) not made out, therefore, anticipatory bail can be granted."
When the provisions of Section 18 of the Act and Section 438 of the Cr.PC came up for consideration before the Punjab & Haryana High Court in the case of Phulla Dass v. State of Punjab, reported in 1998 Cr.LJ 157, the Court held that:--
"If the Court comes to the conclusion that the process of law is being misused, the petition is totally malafide and vexatious, on the basis of which first information report is recorded, the Court would certainly exercise its inherent powers."
The High Court of Punjab and Haryana in the matter of Om Parkash Sharma Vs. Union Territory Chandigarh, reported in 2001 (4) Crimes 208, held that:--
"Petitioner summoned for offences under atrocities Act for having humiliated complainant by calling him Churn-- Scope of scrutiny of process of law being misused or that complaint was malafide or vexatious-- Anticipatory bail was granted while referring the question to the Larger Bench."
The High Court of- Orissa in the matter of Ramesh Prasad Bhanja v. State of Orissa, reported in 1996 Cr.LJ 2743, held that :--
"If no prima facie under Section 3 of the Act has been made out, it can not be said that there is an "accusation of commission of an offence under the Act" and in that case there can be no hesitation to say that the applicability of the provision of Section 438 of the Code is not excluded."
The High Court of Gujrat in the matter of Pankaj D. Suthar v. State of Gujrat, reported in 1992 (1) Crimes 1122, held that :--
" ....... beneficial legislation can not be permitted to be abused and converted into an instrument to blackmail to wreck some personal vengeance for settling and scoring personal vendetta or by way of some counter-blasts against opponents some public servants, as prima facie appears to have been done in the present case. The basic question in such circumstances, therefore -Whether a torch which is lighted to dispel the darkness can it be permitted to set on fire the innocent surroundings ? Whether a knife, an instrument which is meant for saving human life by using the same in the course of operation by a surgeon, can it be permited to be used in taking the life of some innocent ? When the accusation is found false, vexatious and by way of counterblast as stemming from the ulterior motive to humiliate, disgrace and demoralize the petitioner, accused who is a public servant and such circumstance the provision of Section 18 of the Act can not come in the way of Section 438 of the Cr.PC."
9. The sum and substance of the above decisions is that the benefit of Section 438 of the Cr.PC can be extended to a person against whom an accusation is levelled of having committed offences enumerated in Section 3 of the Act in the following circumstances :--
(i) If on the basis of the complaint and other material evidence collected by the Investigating Agency on the face of the material prima facie no offence is constituted/made out, i.e., if the essential ingredients to constitute the offence under Section 3 of the Act are missing then the benefit of anticipatory bail can be extended to such person.
(ii) If on judicial scrutiny by the Court the facts of the case discloses that the complaint is false, vexatious, frivolous and by way of counter-blasts and found to be misuse of judicial process and stems from the ulterior motive to humiliate, disgrace and demoralize the person in order to blackmail to wreck some personal vengeance for settling and scoring personal vendetta.
10. Now, coming to the present case, it is not disputed that the land o the complainant and other villagers of Village Gaitera was acquired for the purposes of mining activities to be conducted by the SECL and the present applicant Somesh Das is Deputy Chief Mining Engineer/Sub Area Manager, Rehar and some dispute had arisen regarding the distribution of compensation and other related issues and for that purpose a meeting was convened by the Naib Tehsildar, on the fateful day, i.e., on 27-4-2003, therefore, it is apparent that the relations between the SECL officials on the one hand and the villagers on the other hand were not good on account of dispute regarding the payment of compensation and for giving employment to the family members of those person whose land was acquired.
11. It is also admitted position that as per the complaint of complainant Kalicharan the alleged offence was committed by the applicant on 27-4-2003, whereas the complaint was lodged on 11-5-2003, i.e., about 14 days after the incident and in the complaint itself it has been written that it is delayed because some compromise talks were going on and moreover, as per the complaint, the allegations against the present accused/applicant are that when he reached at the site Kalicharan greeted him. Accused Somesh Das said that you do not deserve "Namaskar", Madarchod Bhosadiwale GondAdivasi, how are you creating hurdles in their activities, you will be murdered. This complaint was lodged after consultation and after 14 days of the incident. This fact itself creates doubt about the genuineness of the complaint.
12. It has also come on record that the villagers sat on "Dharna" on 6th, 7th and 8th May, 2003 and they had not allowed the mining activities of the SECL and in that connection on 7th May, 2003 a complaint was lodged by the SECL authorities against the villagers and much prior to that on 7-11-2002 also Engineer of SECL made complaint to the SHO that the villagers are not allowing mining activities and huge loss is being caused to the public money. Thereafter on 11th May, 2003 this complaint was lodged. Moreover, in order to attract penal consequences of Section 3(1)(x) of the Act it is necessary that the person against whom accusations have been levelled must have used those words intentionally to insult or intimidate with an intent to humiliate the member of Scheduled Castes and Scheduled Tribes and with the intention to denigrate the members of the castes.
13. Here, from the allegations as alleged by Kalicharan the accused/ applicant used the word "Madarchod Bhosadiwale Gond Adivasi" and for using filthy languages separate offence under Sections 294 and 506 of the IPC has also been registered.
14. Without expressing any further opinion on this subject, as mentioned above in the earlier judgments of High Court of Madhya Pradesh and High Court of Punjab and Haryana merely using the word "Chura" and "Chamar" and calling in the name of the caste creates reasonable doubts as to whether the provision of Section 3(1)(x) of the Act are attracted.
15. Therefore, having regard to the above facts and circumstances of the case and also having regard to the law laid down by the various High Courts with regard to the ban imposed by Section 18 of the Act, I am of the opinion that it is a fit case in which the accused/applicant should be enlarged on anticipatory bail by extending the benefit of Section 438 of the Cr.PC. Accordingly the application is allowed. It is, therefore, directed that in the event of arrest of the accused/applicant, if the accused/applicant furnishes a personal bond in sum of Rs. 10,000/- with one surety in the likewise amount to the satisfaction of the Investigating Officer, he be released on anticipatory bail. However, he shall abide the conditions provided under Section 438 of the Cr.PC, i.e., he shall make himself available for interrogation by a police officer as and when required; he 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.
16. This order will remain effective for a period of two months from today.
17. Meanwhile, the accused/applicant is at liberty to approach the regular Court for grant of regular bail.
18. Parties are entitled for certified copy of this order.