Patna High Court
Sona Kunwar vs The State Of Bihar on 7 January, 2021
Equivalent citations: AIRONLINE 2021 PAT 1030
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.1888 of 2020
Arising Out of PS. Case No.-41 Year-2019 Thana- SC/ST District- Kaimur (Bhabua)
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1. Sona Kunwar W/o Late Guddu Kushwaha Resident of Village-Saraiya, P.S.-
Umapur, P.S.-Bhagwanpur, District-Kaimur (Bhabua).
2. Rohit Kumar S/o Late Guddu Kushwaha Resident of Village-Saraiya, P.S.-
Umapur, P.S.-Bhagwanpur, District-Kaimur (Bhabua).
3. Rahul Kumar S/o Late Guddu Kushwaha Resident of Village-Saraiya, P.S.-
Umapur, P.S.-Bhagwanpur, District-Kaimur (Bhabua).
... ... Appellants
Versus
The State of Bihar
... ... Respondent
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Appearance :
For the Appellants : Mr. Ravi Shankar Sahay, Adv.
For the Respondent : Mr. Binay Krishna, APP
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date : 07-01-2021
Heard learned counsel for the appellants and learned
counsel for the State.
2. By way of the instant appeal preferred under Section
14-A(2) of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (for short 'the Act'), the
appellants have challenged the order dated 04.07.2020 passed by
the learned Additional District & Sessions Judge-1-cum-Special
Judge, Kaimur at Bhabua in A.B.P. No. 502 of 2020 whereby their
application for grant of pre-arrest bail in connection with Bhabua
Patna High Court CR. APP (SJ) No.1888 of 2020 dt.07-01-2021
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SC/ST P.S. Case No. 41 of 2019 registered under Sections 341,
323, 504, 506 of the Indian Penal Code and Sections 3(1)(r)(s) and
3(2)(va) of the Act has been rejected.
3. Learned counsel appearing for the appellants
submitted that the parties are next door neighbours and the dispute
arose between them only for keeping agricultural byproduct
consisting of dry stalks of cereal plants after the grain and chaff
were removed by the informant in the varandah of the appellants.
He contended that the informant just wants to disturb the peaceful
possession of the appellants over their land and in order to
humiliate and harass them a false and malicious prosecution has
been launched.
4. He contended that considering the nature of
allegation when the appellants appeared before the police pursuant
to notice issued under Section 41-A of the Code of Criminal
Procedure (for short 'Cr.P.C'), they were not arrested. He further
contended that even otherwise nothing has been alleged in the FIR
that what was the abusive word used against the informant by the
appellants. According to him, merely by saying that the accused
persons abused by taking his caste name would not be sufficient to
attract the ingredients of the offences punishable under the Act.
Patna High Court CR. APP (SJ) No.1888 of 2020 dt.07-01-2021
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5. Per contra, learned counsel appearing for the State
submitted that since these appellants had appeared pursuant to
notice issued under Section 41-A of the Cr.P.C before the
investigating officer, an application under Section 438 of the
Cr.P.C would not be maintainable. He further contended that since
the allegations are made under the Act, an application for grant of
pre-arrest bail would also be barred in view of Section 18 of the
Act.
6. In reply, learned counsel appearing for the appellants
submitted that in Gauri Shankar Roy Vs. State of Bihar, since
reported in 2015(3) PLJR 618, this Court has already held that if a
person has appeared upon notice issued to him under Section 41-
A(1) of the Cr.P.C and when the police officer forms an opinion
that such person ought not be arrested, the apprehension of arrest
does not completely vanish and under such circumstances, an
application under Section 438 of the Cr.P.C would be
maintainable. He further contended that since the ingredients of
the offence punishable under the Act are not attracted against the
appellants, Section 18 of the Act would not be a bar for
maintainability of an application under Section 438 of the Cr.P.C.
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7. Having heard the parties and perused the materials on
record, I am of the opinion that the appellants deserve to be
enlarged on pre-arrest bail.
8. Learned counsel for the appellants has rightly
submitted that there is nothing in the FIR to suggest as to what
were the abusive words hurled by the appellants. He is also correct
in his submission that this Court in the case of Gauri Shankar
Roy (Supra) has held that mere appearance of an accused pursuant
to notice under Section 41-A(1) of the Cr.P.C would not dis-entitle
him from maintaining an application for grant of pre-arrest bail as
the same cannot be equated with the police powers to grant bail.
9. In that view of the mater, the order impugned dated
04.07.2020passed by the learned Additional District & Sessions Judge-1-cum-Special Judge, Kaimur at Bhabua in A.B.P. No. 502 of 2020 is set aside.
10. The appeal stands allowed.
11. In the event of arrest or surrender before the court below within four weeks from today, the appellants shall be released on bail on furnishing bail bond of Rs.10,000/- (Rupees ten thousand) each with two sureties of the like amount each to the satisfaction of the learned Additional District & Sessions Judge-1- cum-Special Judge, Kaimur at Bhabua in connection with Bhabua Patna High Court CR. APP (SJ) No.1888 of 2020 dt.07-01-2021 5/5 SC/ST P.S. Case No. 41 of 2019 subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure.
(Ashwani Kumar Singh, J) Pradeep/-
AFR/NAFR NAFR CAV DATE N.A. Uploading Date 08.01.2021 Transmission Date 08.01.2021