Uttarakhand High Court
Gita Ram Nautiyal vs State Of Uttarakhand And Another on 1 October, 2022
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Bail Cancellation Application No. 3 of 2022
Gita Ram Nautiyal ........Applicant
Versus
State of Uttarakhand and another ........Respondents
Present:-
Mr. Kishore Kumar, Advocate holding brief of Mr. N.K.
Papnoi, Advocate for the applicant.
Mr. Pankaj Joshi, Brief Holder for the State/respondent no.1.
Mr. C.K. Sharma, Advocate for respondent no.2.
Hon'ble Ravindra Maithani, J. (Oral)
Private respondent Chandra Sekhar Kargeti has been granted bail in Case Crime No.102 of 2016, under Sections 3(1)(p) and 3(1)(q) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, "the SC/ST Act"), Police Station Vasant Vihar, District Dehradun on 24.11.2021 in Bail Application No.2118 of 2021, Chandra Sekhar Kargeti vs. State of Uttarakhand, by the court of Special Judge (Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989)/Vth Additional Sessions Judge, Dehradun. The applicant seeks cancellation of the bail.
2. Heard learned counsel for the parties and perused the record.
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3. This case has a history. Facts briefly stated are as follows:-
(i) In Case Crime No.102 of 2016, under Sections 3(1)(p) and 3(1)(q) of the SC/ST Act, Police Station Vasant Vihar, District Dehradun. After investigation, charge-
sheet was submitted against the private respondent. Based on which, on 30.01.2017, cognizance was taken, which is basis of Special Sessions Trial No.04 of 2017, State vs. Chandra Shekhar, in the court of Sessions Judge/Special Judge SC/ST Act), Dehradun.
(ii) The cognizance and summoning order dated 30.01.2017 was challenged by the private respondent in Criminal Misc. Application (C-482) No.576 of 2017 before this Court ("the first petition").
(iii) The first petition was rejected vide order 08.08.2018 with a cost of `2 Lacs.
(iv) This order dated 08.08.2018 was further challenged by the private respondent 3 before the Hon'ble Supreme Court in Special Leave to Appeal (Crl.) No.6939 of 2018 ("the first SLP"), which was dismissed on 20.10.2021, but the cost was made easy.
(v) In the first SLP, the Hon'ble Supreme Court vide order dated 20.10.2021 gave the liberty to the private respondent to approach the concerned court within two weeks from that date and till then, directions were issued that no coercive action shall be taken against him.
(vi) The private respondent filed review
against the order dated 20.10.2021,
passed in the first SLP. It was dismissed on 11.01.2022.
(vii) The private respondent moves this Court seeking anticipatory bail, which was registered ABA No.230 of 2021.
(viii) The anticipatory bail application filed by the private respondent was disposed of on 26.10.2021. Certain directions were given 4 to the private respondent to appear before the lower court with the further observation that if the private respondent appears and move an application seeking bail, the court will decide the said bail application, as per the law laid down by the Hon'ble Supreme Court in the case of Satendra Kumar Antil vs. Central Bureau of Investigation and another, 2021 SCC Online SC 922
(ix) The private respondent moved an anticipatory bail application no.2119 of 2021 in the court of Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989/ Vth Additional Sessions Judge, Dehradun, which was rejected on 23.11.2021. The court in that order also observed that the regular bail application of the private respondent would be decided on 24.11.2021 and shall be heard without the private respondent having been taken into custody as per the directions of 5 Hon'ble Supreme Court in the case of Satender Kumar Antil (supra). On 24.11.2021, the court granted bail to the private respondent.
(x) The order dated 26.10.2021, passed by this Court in ABA No.230 of 2021 was challenged by the applicant before the Hon'ble Supreme Court in SLP (Crl.) No.30317 of 2021 ("the second SLP"), which was decided on 03.01.2022, the Hon'ble Court passed the following order:-
"Permission to file special leave
petition is granted.
We dispose of this special leave
petition by stating that the Trial Court must decide the bail application on its own merits and in accordance with law uninfluenced by the order impugned in this special leave petition dated 26.10.2021.
If the Trial Court has already passed the order, it is open to the challenge that order before the appropriate forum.
Pending applications, if any, stand disposed of."
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4. Learned counsel for the applicant would submit that in the instant case the applicant ought to have been taken into custody because the offences falls into the category "C" of the offences as specified by the Hon'ble Supreme Court in the case of Satendra Kumar Antil (supra).
5. It is argued that the court below did commit an error in treating the offence as one falling under the category "A".
6. Learned counsel would argue that, in fact, in the case of Satendra Kumar Antil (supra), while categorizing the offences under category "C", the last word "etc" has been used. It according to learned counsel, means that all the offences under the Special Acts are included therein. Therefore, it is argued that the bail order dated 24.11.2021, which is passed without taking the private respondent into custody, is bad in the eyes of law. Learned counsel has also referred to the principle of law as laid down in the case of Niranjan Singh and another vs. Prabhakar Rajaram Kharote and other, (1980)2 SCC 559.
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7. In the case of Niranjan Singh (supra), the Hon'ble Supreme Court discussed the word "custody" and in para 8 observed as hereunder:-
"8. Custody, in the context of Section 439, (we are not, be it noted, dealing with anticipatory bail under Section 438) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court."
8. The Hon'ble Supreme Court in the case of Niranjan Singh (supra) observed, "He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions. ................"
9. On the other hand, learned counsel appearing for the private respondent would submit that if an accused appears before the court, it tantamount to custody, no formal order, as such are required. Learned counsel would submit that what would be the ultimate result? Had the bail application of the private respondent been rejected by the court below? It is submitted that eventuality the private respondent would have been taken into custody.
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10. It is argued that no illegality has been committed in the matter. Learned counsel placed reliance on the principle of law as laid down in the case of Sandeep Kumar Bafna vs. State of Maharashtra and another, (2014)16 SCC 623.
11. In the case of Sandeep Kumar Bafna (supra), the Hon'ble Supreme Court referred to various judgments on the point. The law laid down in the case of Niranjan Singh (supra) has been followed in this case. In para 24 and 33, Hon'ble Supreme Court observed as hereunder:-
"24. In this analysis, the opinion in the impugned judgment [Sundeep Kumar Bafna v. State of Maharashtra, Criminal Bail Application No. 206 of 2014, order dated 6-2-2014 (Bom)] incorrectly concludes that the High Court is bereft or devoid of power to jurisdiction upon a petition which firstly pleads surrender and, thereafter, prays for bail. The High Court could have perfunctorily taken the appellant into its custody and then proceeded with the perusal of the prayer for bail; in the event of its coming to the conclusion that sufficient grounds had not been disclosed for enlargement on bail, necessary orders for judicial or police custody could have been ordained. A Judge is expected to perform his onerous calling impervious of any public pressure that may be brought to bear on him.
33. In conclusion, therefore, we are of the opinion that the learned Single Judge erred in law in holding that he was devoid of jurisdiction so far as the 9 application presented to him by the appellant before us was concerned. Conceptually, he could have declined to accept the prayer to surrender to the Court's custody, although, we are presently not aware of any reason for this option to be exercised. Once the prayer for surrender is accepted, the appellant before us would come into the custody of the Court within the contemplation of Section 439 CrPC. The Sessions Court as well as the High Court, both of which exercised concurrent powers under Section 439, would then have to venture to the merits of the matter so as to decide whether the applicant-appellant had shown sufficient reason or grounds for being enlarged on bail."
12. On another aspect, learned counsel for the private respondent would submit that the offence in the instant case does not fall in the category "C" as specified by the Hon'ble Supreme Court in the case of Satendra Kumar Antil (supra). Learned counsel would submit that in category "C" the word "etc" as used at the end does not mean to include all the Special Acts. But, it is argued that the word "etc" would qualify only such Special Acts which contain stringent provisions for bail. It is argued that the SC/ST Act does not make any stringent provisions for bail. The bail in the cases under SC/ST Act is governed by the provisions of the Code of Criminal Procedure Act, 1973.
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13. Had the private respondent been taken into custody on 24.11.2021, when his bail application was heard? Admittedly, he was present before the court on that date.
14. In so far as the question of custody is concerned, in the case of Niranjan Singh (supra), the Hon'ble Supreme Court, in para 8, categorically observed that custody means physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and answer it. The word coupled with had significance. Mere presence perhaps may not tantamount to custody. In para 9, the Hon'ble Supreme Court further qualified it and observed that, "He can be stated to be in judicial custody when he surrenders before the court and submits to its directions." It is not mere presence, but an expression of surrender and seeking directions. This is what is reiterated by the Hon'ble Supreme Court in the case of Sandeep Kumar Bafna (supra).
15. In the instant case, as stated, admittedly the private respondent appeared before the court on 24.11.2021, but did he express intention to surrender to the directions of the court? There is no such record, as 11 such. The court leaves this issue at it without determining factually, as to whether the applicant was in custody or not?
16. The question which falls for consideration is as to whether the word "etc." used in category "C" offences, as classified in the case of Satendra Kumar Antil (supra), include the offence under the provisions of the SC/ST Act.
17. In para 3 in the judgment of Satendra Kumar Antil (supra) the Hon'ble Supreme Court categorized the cases into four categories as hereunder:-
"3. We are inclined to accept the guidelines and make them a part of the order of the Court for the benefit of the courts below. The guidelines are as under:
"Categories/Types of Offences (A) Offences punishable with imprisonment of 7 years or less not falling in Categories B and D. (B) Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years.
(C) Offences punishable under Special Acts containing stringent provisions for bail like NDPS (Section 37), PMLA (Section 45), UAPA [Section 43- D(5)], Companies Act [Section 212(6)], etc. (D) Economic offences not covered by Special Acts."12
18. Under category "C" certain specified Special Acts have been mentioned in the case of Satendra Kumar Antil (supra), but before the Special Acts are detailed, the opening words are important, they are, "offences punishable under Special Acts containing stringent provisions for bail like" and at the end of this clause "C" a word "etc" is used. According to the Oxford English Dictionary, the word "etc" means "et cetera". It means, and other similar things; and so on.
19. In fact, in the case of M/s Glamour Cuttack vs. State of Odisha, STREV No.8 of 2013, for the State of Orissa, in para 11 to 15 of the judgment, the word "etc" has been discussed as hereunder:-
"11. The word "etc." has been defined in Collins Thesaurus of English Language, 3rd Edition 2008, Page-343 as "and so on, and so forth etc.". In legal parlance, if one turns to Black's Law Dictionary (8th Edition, 2004) p 592 the expression et cetera has been defined as "and other things; the term usually indicates additional, unspecified items in a series".
12. Turning to the Indian context The Law Lexicon of P. Ramanatha Aiyar (Second Edition Reprint 2008 Page-678), defines it thus:
"Etc or & C. is an abbreviation of Et Cetera, and therefore may mean and others, and so forth; and the rest; other things; of the same character, or only those things ejusdem generis. Custom, the intention of the 13 parties, the context, and the manner and place in which the abbreviation is used may govern its meaning; but where it can have one certain meaning, it will be given that meaning; although as sometimes used it is considered as meaningless and without effect, and is often disregarded as surplusage (Cyc)."
13. In Rajagopala Pandarathar v. Thirupathia Pillai AIR 1923 Madras 511 the words used in the mortgage-deed, on which the suit was based, came for interpretation. The question was whether the residence of the first defendant was included in the description contained in the decree? The plaintiff sought to rely on the word 'et cetera' occurring in the following line in the mortgage-deed to contend that the defendant's residence would be included and cold:
"4......I possess in the waste lands, poramboke and other lands attached thereto, all kinds of trees, topes, wells, ponds, tank-bunds, fruit trees, wood trees, foot- paths, elevated and low portions, etc., be they a little more or a little less, have been given as security."
14. The Madras High Court did not agree with the Plaintiff's contention and held:
"6....But the only argument advanced is that the palace building must be regarded as included in the expression 'the remaining lands' or 'poramboke and other lands' or the words 'etc.' I find it impossible to hold that the words 'the remaining lands' or 'poramboke and other lands attached thereto (remaining lands)' can be regarded as including the residential building of the Zamindar.
Turning to the words 'etc.,' they follow an enumeration of specific things beginning with "all kinds of trees"
having some characteristic, and the words should be restricted to things of the same nature as those which 14 have been already mentioned. In such a case the rule of ejusdem generis will apply and the residential building cannot be said to be ejusdem generis with the things already enumerated."
15. In K.V. Mathew v. District Manager, Telephones, Ernakulum, AIR 1984 Ker 40, the High Court was considering the expression 'institution' and in the context of scope of the expression, it was held that "the word et cetera does not share the character of an inclusive definition and cannot therefore enlarge the scope of the expression 'institution'"
(emphasis supplied)
20. The literal meaning of the word "etc" with the discussion, as quoted hereinabove makes it abundantly clear that when the word "etc" is used it is used for similar kinds of things or only those things which are ejusdem generis with the things already enumerated. The rule of ejusdem generis was discussed by the Hon'ble Supreme Court in the case of Maharashtra University of Health Sciences and others vs. Satchikitsa Prasarak Mandal and others, (2010)3 SCC 786. In paragraph 27, 28, 31 and 32 of the judgment, the Hon'ble Supreme Court observed as hereunder:-
"27. The Latin expression "ejusdem generis" which means "of the same kind or nature" is a principle of construction, meaning thereby when general words in a statutory text are flanked by restricted words, the meaning of the general words are taken to be restricted 15 by implication with the meaning of the restricted words. This is a principle which arises "from the linguistic implication by which words having literally a wide meaning (when taken in isolation) are treated as reduced in scope by the verbal context". It may be regarded as an instance of ellipsis, or reliance on implication. This principle is presumed to apply unless there is some contrary indication, see Glanville Williams, The Origins and Logical Implications of the Ejusdem Generis Rule, 7 Conv (NS) 119.
28. This ejusdem generis principle is a facet of the principle of noscitur a sociis. The Latin maxim noscitur a sociis contemplates that a statutory term is recognised by its associated words. The Latin word "sociis" means "society". Therefore, when general words are juxtaposed with specific words, general words cannot be read in isolation. Their colour and their contents are to be derived from their context. (See similar observations of Viscount Simonds in Attorney General v. Prince Ernest Augustus of Hanover [1957 AC 436 : (1957) 2 WLR 1 : (1957) 1 All ER 49 (HL)] , AC at p. 461.)
31. This Court while construing the principle of ejusdem generis laid down similar principles in Kavalappara Kottarathil Kochuni v. State of Madras [AIR 1960 SC 1080] . A Constitution Bench of this Court in Kochuni [AIR 1960 SC 1080] speaking through Subba Rao, J. (as His Lordship then was) opined: (AIR p. 1103, para 50) "50. ... The rule is that when general words follow particular and specific words of the same nature, the general words must be confined to the things of the same kind as those specified. But it is clearly laid down by decided cases that the specific words must form a distinct genus or category. It is not an inviolable rule of law, but is only permissible 16 inference in the absence of an indication to the contrary."
32. Again this Court in another Constitution Bench decision in Amar Chandra Chakraborty v. Collector of Excise (1972) 2 SCC 442 : AIR 1972 SC 1863, speaking through Dua, J. reiterated the same principles in para 9, at p. 1868 of the Report. On the principle of ejusdem generis, the learned Judge observed as follows: (SCC p. 447, para 9) "9. ... The ejusdem generis rule strives to reconcile the incompatibility between specific and general words. This doctrine applies when (i) the statute contains an enumeration of specific words; (ii) the subjects of the enumeration constitute a class or category; (iii) that class or category is not exhausted by the enumeration;
(iv) the general term follows the enumeration; and
(v) there is no indication of a different legislative intent.""
21. The rule of ejusdem generis has also been discussed by the Hon'ble Supreme Court in the case of Rajasthan State Electricity Board, Jaipur vs. Mohan Lal and others, AIR 1967 SC 1857. The Hon'ble Supreme Court in para 4 of the judgment observed as hereunder:-
"4. In our opinion, the High Courts fell into an error in applying the principle of ejusdem generis when interpreting the expression "other authorities" in Article 12 of the Constitution, as they overlooked the basic principle of interpretation that, to invoke the application of ejusdem generis rule, there must be a distinct genus or category running through the bodies 17 already named. Craies on, Statute Law summarises the principle as follows:
"The ejusdem generis rule is one to be applied with caution and not pushed too far.... To invoke the application of the ejusdem generis rule there must be a distinct genus or category. The specific words must apply not to different objects of a widely differing character but to something which can be called a class or kind of objects. Where this is lacking, the rule cannot apply, but the mention of a single species does not constitute a genus [Craies on Statute Law, 6th Edn, p 181] ."
Maxwell in his book on 'Interpretation of Statutes' explained the principle by saying: "But the general word which follows particular and specific words of the same nature as itself takes its meaning from them, and is presumed to be restricted to the same genus as those words .... Unless there is a genus or category, there is no room for the application of the ejusdem generis doctrine [Maawell on Interpretation of Statutes, 11th Edn pp 326, 327] ". In United Towns Electric Co., Ltd. v. Attorney-General for Newfoundland [(1939) I AER 423] , the Privy Council held that, in their opinion, there is no room for the application of the principle of ejusdem generis in the absence of any mention of a genus, since the mention of a single species -- for example, water rates -- does not constitute a genus. In Article 12 of the Constitution, the bodies specifically named are the Executive Governments of the Union and the States, the Legislatures of the Union and the States, and local authorities. We are unable to find any common genus running through these named bodies, nor can these bodies be placed in one single category on any rational basis. The doctrine of ejusdem generis could not, therefore, be, applied to the interpretation of the expression "other authorities" in this article." 18
22. In view of the settled law, the meaning of the word "etc." under such context, is not unguided, but it is qualified always subject to what precedes it.
23. In category "C" as defined in the case of Satendra Kumar Antil (supra), various Special Acts have been made, but they are not Special Act alone, they are also qualified. Those Special Acts are qualified with the words, "containing stringent provisions for bail like". Therefore, the word "etc." is qualified with only such Special Acts, which contained stringent provisions for bail. Therefore, it may not be the intention of legislature to interpret "etc" used in category "C" so as to mean each and every Special Act. The word "etc" in category "C" in the case of Satendra Kumar Antil (supra) has to be interpreted to include only such Special Acts which have stringent provisions for bail. In the case of SC/ST Act there is no such stringent provision. Therefore, this Court concludes that SC/ST Act does not fall into the category "C".
24. In view of what is stated hereinbefore, this Court is of the view that the court below did not commit 19 any error while passing the impugned order. The bail order is in accordance with law. Therefore, the bail cancellation application deserves to be rejected.
25. The bail cancellation application is rejected.
(Ravindra Maithani, J.) 01.10.2022 Sanjay