Madhya Pradesh High Court
Nihal vs The State Of Madhya Pradesh on 13 August, 2018
THE HIGH COURT OF MADHYA PRADESH
Criminal Appeal No.5036/2018
(NIHAL VS. THE STATE OF MADHYA PRADESH)
JABALPUR Dated : 13.08.2018
Shri R.S. Saini, learned counsel for the appellant.
Shri Vivek Lakhera, learned Government Advocate for the
respondent/State.
This criminal appeal has been filed under Section 14-A (1) of SC/ST (Prevention of Atrocities) Act against the order dated 04/07/2018 passed by Special Session Judge, SC/ST (Prevention of Atrocities) Act, Damoh in B.A. No.438/2018; whereby learned Special Judge rejected the bail application filed by appellant Nihal, under Section 438 of the Cr.P.C. to get anticipatory bail in Crime No. 392/2018 registered at P.S. Damoh Dehat, District Damoh (M.P.) for the offences punishable under Sections 341, 323, 294, 506/34 of IPC and Section 3(1)(r), 3(2)(5-A) SC/ST (Prevention of Atrocities) Act, who apprehends their arrest in the crime.
[2] As per prosecution case, on 09/06/2018 at about 09:50 pm due to some dispute appellant and co-accused namely Amit Yadav, Ikka Rajput, Vickky and brother of Amit Yadav assaulted the complainant Kunjbihari by stick and also threatened to kill him. On that, police registered the Crime No. 392/2018 at P.S. Damoh Dehat, District Damoh (M.P.) for the offences punishable under Sections 341, 323, 294, 506/34 of IPC and Section 3(1)(r), 3(2)(5-A) SC/ST (Prevention of Atrocities) Act. The appellant filed an application before the trial Court for grant of anticipatory bail, which was rejected. Being aggrieved by the impugned order, appellant filed this Criminal Appeal.
[3] Learned counsel for the appellant submitted that appellant is innocent and has falsely been implicated in the case. Appellant has no criminal past. So, he be released on anticipatory bail. In this regard, he placed reliance on the apex Court judgment passed in the case of Dr. Subhash Kashinath Mahajan Vs. The State of Maharashtra reported in 2018 SCC online SC 243. [4] In the case of Dr. Subhash Kashinath Mahajan (supra) apex Court held that the bar under Section 18 of the SC/ST Act would apply only, where there is THE HIGH COURT OF MADHYA PRADESH prima facie case of an offence having been committed by the accused against a member of the SC/ST community. However, in the event, the accused/appellant is able to show to the Court the existence of malice and ill-will in the registration of the FIR, then the bar of Section 18 of SC/ST Act would not apply. In paragraph-83 of the said judgment, the Supreme Court laid down "Accordingly, we direct that in absence of any other independent offence calling for arrest, in respect of offences under the Atrocities Act, no arrest may be affected, if an accused person is a public servant, without written permission of the appointing authority and if such a person is not a public servant, without written permission of the Senior Superintendent of Police of the District. Such permissions must be granted for recorded reasons which must be served on the person to be arrested and to the concerned court. As and when a person arrested is produced before the Magistrate, the Magistrate must apply his mind to the reasons recorded and further detention should be allowed only if the reasons recorded are found to be valid. To avoid false implication, before FIR is registered, preliminary enquiry may be made whether the case falls in the parameters of the Atrocities Act and is not frivolous or motivated." (emphasis supplied). The direction in the said paragraph is categorical and unambiguous. [5] It also empowers the police to carry out a preliminary enquiry to find out whether the allegations levelled in the complaint by the affected person falls within the parameters of the atrocities Act or whether the same is frivolous or motivated. It is also the specific direction that the arrest may not be effected in a case, where the person is not a public servant without the written permission of the Senior Superintendent of Police and that such permission must be granted after recording the reasons which must be served on the person sought to be arrested and to the court concerned.
[6] In this case, the learned counsel for the State after going through the case diary has submitted that there is no report of the Superintendent of Police of District Damoh in line with the judgment of the Supreme Court warranting the arrest of the appellant herein.
[7] Under these circumstances, this appeal is disposed of with the liberty THE HIGH COURT OF MADHYA PRADESH given to the State to place the case before the Superintendent of Police, District Damoh who, if he feels necessary that the appellant arrest is warranted in this case, shall give his brief report stating the reasons to justify such an arrest, which shall be given to the appellant herein. Thereafter, the police shall not arrest the appellant for a period of one week in order to enable them to approach the Special Judge for bail.
With the above directions, the appeal stands disposed of. Certified copy as per rules.
(Rajeev Kumar Dubey) Judge vs Digitally signed by VARSHA SINGH Date: 2018.08.14 11:23:58 +05'30'