Madhya Pradesh High Court
Totaram vs The State Of Madhya Pradesh on 2 August, 2018
THE HIGH COURT OF MADHYA PRADESH
CRA-2733-2018
(TOTARAM & ORS. Vs STATE OF MADHYA PRADESH & ANR.)
1
Jabalpur, Dated : 02-08-2018
Shri Manish Datt, Senior Advocate with Shri Pawan Gujar,
counsel for the appellants.
Shri Arvind Singh, learned Govt. Advocate for the
respondent/State.
Shri Vikas Jyotishi, counsel for the complainant. At the outset, learned counsel for the appellants submitted that he does not wish to press this appeal filed on behalf of appellants Totaram, Raju and Kunwarlal @ Guddu.
In view of the aforesaid, the appeal filed on behalf of appellants Totaram, Raju and Kunwarlal @ Guddu is dismissed as not pressed.
Heard with the aid of case diary.
This appeal has been filed under Section 14 (A) of SC/ST (Prevention of Atrocities) Act against the order dated 19.03.2018 passed by Special Judge, SC/ST (Prevention of Atrocities) Act, Betul, whereby learned Judge rejected the bail application filed by the appellant under Section 438 of Cr.P.C. to get anticipatory bail in Crime No.149/2018 registered at Police Station Multai, District Betul for the offences under Sections 294, 324, 435, 506, 307, 34 of IPC and Section 3 (1)(r), 3 (1)(s), 3(2) (va) and 3 (2)(v) of SC/ST (Prevention of Atrocities) Act, 1989, who apprehend his arrest in the crime.
As per prosecution case, on 05.03.2018 at 4.30 pm, injured Bablu Nagle was working on Umesh Sahu's JCB machine and digging drain in the field of complainant Umesh Sahu by that JCB Machine. At that time, appellant Balkishan @ Bala and co- accused Totaram, Raju and Kunwarlal @ Guddu came there. They abused him and co-accused Totaram poured petrol on the JCB machine and appellant and other co-accused set fire on that JCB machine. When Babul Nagle ran from the spot to save himself, THE HIGH COURT OF MADHYA PRADESH CRA-2733-2018 (TOTARAM & ORS. Vs STATE OF MADHYA PRADESH & ANR.) 2 present appellant and other co-accused set him too on fire due to which, he sustained burn injury and JCB machine was also destroyed. On the report of complainant, police registered Crime No.149/2018 for the offence punishable under Sections 294, 324, 435, 506, 307, 34 of IPC and Section 3 (1)(r), 3 (1)(s), 3(2)(va) and 3 (2)(v) of SC/ST (Prevention of Atrocities) Act, 1989. The appellant filed an application under Section 438 of Cr.P.C. before the Trial Court for grant of anticipatory bail, which was rejected. Being aggrieved by that order, present appeal has been filed.
Learned counsel for the appellant submitted that the appellant Balkishan @ Bala is innocent and has falsely been implicated in the matter. In the FIR, name of the present appellant is not mentioned. Even in the statement of person injured recorded by Naib Tahsildar as dying declaration, it is only mentioned that at the time of incident, only three persons i.e., Totaram, Guddu and Raj came there and committed incident. It is not mentioned that appellant was also involved in the crime. From the FIR and the statement of injured Bablu Nagle, no offence under the SC/ST (Prevention of Atrocities) Act is made out against the appellant. So the provisions of Section 18 of SC/ST (Prevention of Atrocities) Act are not attracted. Hence, counsel prayed for grant of anticipatory bail.
Learned counsel for the State as well as learned counsel for the objector submitted that in the FIR it is mentioned that nephew of co-accused Totaram was also involved in the crime and appellant is the nephew of co-accused Totaram and sufficient evidence is available on record to connect the appellant with the offence in question so he may not be released on bail.
Although offence under Sections 3 (1) (da) & 3 (2)(5 ka) of the SC/ST (Prevention of Atrocities) Act, 1989, has been registered against the appellant and according to Section 18 of the THE HIGH COURT OF MADHYA PRADESH CRA-2733-2018 (TOTARAM & ORS. Vs STATE OF MADHYA PRADESH & ANR.) 3 Act provisions of Section 438 of the Criminal Procedure Code does not apply to the persons committing an offence under the Act, but in Pankaj D. Suthar V/s. State Of Gujarat reported in (1992) 1 GLR 405 while considering the scope of Section 18 of the Prevention of Atrocities Act, the Gujarat High Court observed as under :-
"Section 18 of the Atrocities Act gives a vision, direction and mandate to the Court as to the cases where the anticipatory bail must be refused, but it does not and it certainly cannot whisk away the right of any Court to have a prima facie judicial scrutiny of the allegations made in the complaint. Nor can it under its hunch permit provisions of law being abused to suit the mala fide motivated ends of some unscrupulous complainant."
Apex Court in the case of Vilas Pandurang and another V/s. State of Maharashtra and others reported in (2012) 8 SCC 795 held as under :-
"The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST (Prevention of Atrocities) Act, no Court shall entertain application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. Court is not expected to indulge in critical analysis of the evidence on record."
The Apex Court also in the case of Dr. Subhash Kashinath Mahajan reported in 2018 SCC OnLine SC 243 held that the bar under Section 18 of the SC/ST Act would apply only, where there is 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/applicant 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.
THE HIGH COURT OF MADHYA PRADESH CRA-2733-2018 (TOTARAM & ORS. Vs STATE OF MADHYA PRADESH & ANR.) 4 This shows that in the crime registered for the offences under Atrocity Act anticipatory bail can be granted when it is prima facie found that such an offence is not made out or accused/applicant is able to show to the court the existence of malice and ill-will in the registration of the FIR.
In the FIR lodged by complainant Bablu Nagle, the name of the nephew of co-accused Totaram is not mentioned. On the other hand, in the statement of injured Bablu Nagle recorded by the Executive Magistrate, only it is mentioned that Totaram, Guddu and Raj were involved in the crime so from the FIR as well as statement of injured recorded by Naib Tahsildar, prima-facie, offence under SC/ST (Prevention of Atrocities) Act, 1989 is not made out against the appellant Balkishan @ Bala, so without commenting on merits, the appeal is allowed and it is directed that in the event of arrest of appellant Balkishan @ Bala in Crime No.149/2018 registered at Police Station Multai, District Betul, the present appellant be released on bail on his furnishing personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) with one solvent surety of the like amount to the satisfaction of the Investigation Officer/Arresting Officer for his regular appearance before the Police during the investigation or before the Court during trial.
This order will remain operative subject to compliance of the following conditions by the appellant :-
1. The appellant will comply with all the terms and conditions of the bond executed by him;
2. The appellant will co-operate in the investigation/trial, as the case may be;
3. The appellant will not indulge himself in extending inducement, threat or promise to any person acquainted with the THE HIGH COURT OF MADHYA PRADESH CRA-2733-2018 (TOTARAM & ORS. Vs STATE OF MADHYA PRADESH & ANR.) 5 facts of the case so as to dissuade him/her from disclosing such facts to the Court or to the Police Officer, as the case may be;
4. The appellant shall not commit an offence similar to the offence of which he is accused;
5. The appellant will not seek unnecessary adjournments during the trial; and
6. The appellant will not leave India without previous permission of the Trial Court/ Investigating Officer, as the case may be.
A copy of this order be sent to the concerned court for compliance.
Accordingly, appeal is disposed of.
C.c. as per rules.
(Rajeev Kumar Dubey) Judge (ra) Digitally signed by RANJEET AHIRWAL Date: 2018.08.03 11:05:41 +05'30'