Madhya Pradesh High Court
Shabir Khan vs The State Of Madhya Pradesh on 22 July, 2019
1
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
CRIMINAL APPEAL NO.5116 OF 2019
(Sabir Khan vs State of Madhya Pradesh)
Indore, Dated 22.07.2019
Mr. Gourav Shrivastava, learned counsel for the
appellant.
Mr. Arvind Yadav, learned counsel for the
respondent/State.
Ms. Seema Maheshwari, learned counsel for the
complainant/objector.
Arguments heard.
ORDER
Submissions were made on appeal filed under Section 14(A) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short the 'SC/ST Act') praying for anticipatory bail of the appellant-Sabir Khan against whom Crime No.01/2019 has been registered in Police Station- Agar (AJK) for committing offence under Sections 354, 354-B, 294, 506, 323/34 of IPC, 1860 and Sections 3(i)(r) and 3(i)(s), 3(ii)(5)(A) of SC/ST Act, 1989.
Learned counsel for the complainant/objector submits that the provisions of anticipatory bail are not applicable and Section 18(a) of the Act prohibits the grant of anticipatory bail. She has pointed out the judgment of Apex Court in the case of Vilas Pandurang and Another vs State of Maharashtra reported in LAWS (SC) 2012-9-21 in which the Apex Court has held that scope of Section 18 of SC/ST Act read with Section 438 of the Code is such that it creates a specific bar for grant of anticipatory bail.
Learned counsel for the respondent has also referred to 2 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE CRIMINAL APPEAL NO.5116 OF 2019 (Sabir Khan vs State of Madhya Pradesh) an order of this High Court pronounced in CRA No.4150/2019 Sanjay Keshwani vs State of Madhya Pradesh, order dated 19.06.2019 in which reference has been made of the new amended section 18A of SC/ST (PA) Act, 1989 and has observed that this amendment was incorporated to nullify the law laid down by the Apex Court in the case of Dr. Subhash Kashinath Mahajan vs State of Maharashtra (CRA No.416/2018) pronounced on 20.03.2018. The court further refers to a citation of Apex Court in Manju Devi vs Omkarjit Singh Ahluwalia and Others AIR 2017 SC 1583 in which it has been held that malafides or bonafides of a case can only be considered at the time of trial. In view of the specific bar under Section 18 of SC/ST Act, grant of anticipatory bail to the respondents was considered unjustified.
The coordinate bench in the case of Sanjay Keshwani (supra) ultimately observed that all those cases referred before it in which anticipatory bail was granted in respect of an offence allegedly under SC/ST Act, the reason assigned was that the offence was not committed due to the fact that or reason that complainant was a member of SC/ST.
Thus, the yardstick, as per Sanjay Keshwani's case (supra) is that anticipatory bail can be granted if offence under SC/ST is not made out primafacie.
Per contra, the learned counsel for the appellant points out that prohibition against grant of anticipatory bail was provided in unamended Section 18 of the SC/ST Act. There is no change in this regard in the newly amended Section 18A of 3 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE CRIMINAL APPEAL NO.5116 OF 2019 (Sabir Khan vs State of Madhya Pradesh) SC/ST Act. He submits that the Apex Court had provided a window for obtaining anticipatory bail as under:
"...........No Court shall entertain an application for anticipatory bail, unless it primafacie finds that such an offence is not made out.........."
Learned counsel submits that the dictum in Vilas Pandurang's case (supra) has not been diluted due to incorporation of new amendment under Section 18A of SC/ST Act.
It would be pertinent to compare the old Section 18 and the relevant portions of new Section 18A of SC/ST Act as under:-
Section 18 Section 18A(2) Nothing in Section 438 of Nothing in Section 438 of the Code shall apply in the Code shall apply in relation to any case relation to any case
involving the arrest of any involving the arrest of any person on an accusation person on an accusation of having committed an of having committed an offence under this Act. offence under this Act.
Thus, one can see that there is virtually no difference between the old Section 18 and the new Section 18A(2) of SC/ST (PA) Act, as far as the prohibition of anticipatory bail is concerned. Thus, the ratio of Vilas Pandurang's case (supra) applies with same force even after amendment meaning thereby that if the Court prima facie finds that offence under the provisions of SC/ST (PA) Act is not made out, then anticipatory bail can be granted.
Learned counsel for the appellant has quoted number or 4 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE CRIMINAL APPEAL NO.5116 OF 2019 (Sabir Khan vs State of Madhya Pradesh) orders of coordinate benches in which anticipatory bail has been granted even though the case was registered under the provisions of SC/ST (PA) Act. These orders are CRA No.6464/2018 dated 19.09.2018, CRA No.5883/2017 dated 24.01.2018, CRA No.2948/2019 dated 08.04.2019, CRA No.9672/2018 dated 10.01.2019, CRA No.4754/2019 dated 03.07.2019, CRA No.540/2019 dated 23.01.2019, CRA No.4904/2019 dated 03.07.2019, CRA No.4697/2019 dated 17.06.2019 and CRA No.3915/2019 dated 04.07.2019.
Coming to the case in hand, the facts are that an FIR was lodged on 09.04.2019 at Police-Station-Agar (AJK) by respondent No.2 to the effect that on 09.10.2018 at about 8:30 am, his wife-Premabai (prosecutrix) was going to her Aaganwadi Centre where she works. The appellant subsequently came over and tried to outrage her modesty and abused her with casteist slurs On resisting, she was pushed over by the appellant and threatened with dire consequences. The complainant also alleged that he is having his personal DP on his agricultural land and the appellant has installed five-six electric motors with that DP and upon removing the wires by the complainant, the appellant not only abused him but has also had beaten him. Consequently, FIR has been lodged by the complainant against the appellant.
Learned counsel for the appellant submits that appellant has been falsely implicated in this case. It has been pointed out that one Devilal, father of respondent No.2 had earlier lodged a complaint against the appellant on 22.11.2018 in which it was 5 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE CRIMINAL APPEAL NO.5116 OF 2019 (Sabir Khan vs State of Madhya Pradesh) alleged that he had removed the wires connected by appellant- Sabir Khan from DP which had stood on the field of complainant-Devilal, hence on 19.11.2018, appellant-Sabir Khan had entered the field of complainant-Devilal and abused him and threatened him with dire consequences if he again removes the wires from the DP. The statement of prosecutrix- Premabai was also recorded who stated that on 01.10.2018, the appellant-Sabir Khan had came to Aaganwadi Centre where prosecutrix-Premabai works and asked her for mobile number which was refused by Premabai. Thereafter, appellant- Sabir Khan on 20.11.2018 had abused the father-in-law of prosecutrix-Premabai.
It was thus pointed out that regarding the same incident of 09.10.2018, two FIRs were lodged, the first one on 22.11.2018, and the second on 09.04.2019. The reason for the second FIR was that the investigation in first FIR was carried out by unauthorized Officer which was remedied in the second investigation.
Even though, the first investigation was by unauthorized officer, the statements of prosecutrix-Premabai under Section 161 Cr.PC carry her signatures and she states that appellant had only asked for her mobile number whereas in the police statements of Premabai recorded regarding the same incident of 01.10.2018, Premabai states that the accused pressed her mouth and on her resistance abused her by making casteist slurs.
The above contradiction coupled with the delay in making 6 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE CRIMINAL APPEAL NO.5116 OF 2019 (Sabir Khan vs State of Madhya Pradesh) report and the real reasons being the dispute arising due to the complainant Devilal removing the wires connected by the appellant from a DP erected on complainant's land, profoundly show that the prosecution case regarding appellant abusing the Premabai intentionally with casteist remarks is just a facade and the real reason of dispute is removal of wires by Devilal which were connected by appellant on DP which stood on the field of complainant.
Consequently, this appeal is allowed and it is ordered that in the event of arrest of appellant-Sabir Khan in connection with the aforesaid offence, the appellant shall be released on bail upon furnishing a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand) with one local surety in the like amount to the satisfaction of the Arresting Officer. It is specifically ordered that the appellant shall appear before the Investigating Officer on 08.08.2019 and further when his presence is required and on failure to do so, his anticipatory bail granted by this Court shall liable to be canceled. This order shall be governed by the conditions No.1 to 3 of sub-section (2) of Section 438 of Criminal Procedure Code, 1973.
Certified copy as per Rules.
(SHAILENDRA SHUKLA) JUDGE Arun/-
Digitally signed by ARUN NAIR Date: 2019.07.23 18:00:31 +05'30' 7HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE CRIMINAL APPEAL NO.5116 OF 2019 (Sabir Khan vs State of Madhya Pradesh)