Supreme Court - Daily Orders
Rajendra Bharti vs State Of Madhya Pradesh on 7 December, 2021
Bench: Indira Banerjee, J.K. Maheshwari
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1572 OF 2021
(Arising out of SLP (Crl.) No. 8181 of 2021
RAJENDRA BHARTI … Appellant(s)
VERSUS
STATE OF MADHYA PRADESH & ANR. … Respondent(s)
O R D E R
Leave granted.
This appeal is against an order dated 29.09.2021 passed by the High Court of Madhya Pradesh, dismissing the Criminal Appeal being CRA No.5584 of 2021 filed by the Appellant under Section 14 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 hereinafter referred to as “the Atrocities Act”, rejecting the prayer of the Petitioner for pre-arrest bail under Section 438 of the Criminal Procedure Code, 1973.
Apprehending arrest in connection with Crime No.429 registered against the Petitioner at Police Station Kotwali, District Datia, Madhya Pradesh under Sections 406, 294 and 506 of the Indian Penal Code, read with Section 34 of the Indian Penal Code and Sections 3(1)(r), 3(1)(s) and 3(2)(va) of the Atrocities Act, the Appellant Signature Not Verified Digitally signed by Chetan Kumar Date: 2021.12.09 applied for pre-arrest bail under Section 438 of the Cr.P.C. before 17:35:48 IST Reason:
the Sessions Judge, Madhya Pradesh being the Special Judge under the Atrocities Act.2
A copy of the FIR lodged by the de-facto complainant being the Respondent No.2 in this Court, has been annexed to the Special Leave Petition. In the FIR it is stated that a vehicle belonging to the de-facto complainant had been rented to the Appellant. As the Appellant had not paid the rent, the de-facto complainant visited the house of the accused with one Shatrughan Yadav at around 1.30 p.m. on 26.8.2021 to collect rent and take the vehicle back. The Appellant refused to pay the rent or return the vehicle, but hurled caste abuses at the de-facto complainant and threatened him.
The allegations in the FIR are repetitive. There is not a whisper of any abuses being hurled at the de-facto complainant within public view. The conditions precedent for an offence under section 3(1)(r) or 3(1)(s) of the Atrocities Act were thus absent.
Since the offences under Section 406 or 294 or 506 of the Indian Penal Code are not punishable with imprisonment of 10 years or more, Section 3(2)(v) of the Atrocities Act is not attracted.
By an order dated 15th September 2021, the Special Judge under the Atrocities Act rejected the application of the Appellant for pre-arrest bail being CRA No. 5584 of 2021. From the said order dated 15th September, 2021, it transpires that:
(i) As per the complaint lodged by the complainant, the complainant had rented out his vehicle to the Appellant on a monthly rent of Rs.18,000/- per month. As the Appellant had not paid the rent, the complainant along with one Shatrughan Yadav 3 had gone to the house of the Appellant to demand outstanding rent and also return of his vehicle. The Appellant neither paid the rent nor returned the vehicle, but hurled abuses against the complainant in filthy language.
(ii) The Appellant contended that he was innocent and had falsely been implicated for political reason. He had nothing to do with the complainant.
(iii) The Appellant claimed he had good relationship with the complainant. The witness Shatrughan Yadav had enmity with the Appellant because the Appellant had sent notice to Shatrughan Yadav for initiation of defamation proceedings against him, claiming damages of Rs.50 lakhs.
(iv) The de-facto complainant had appeared before the Special Judge under the Atrocities Act, through his advocate and had given his consent to grant of bail to the appellant.
(v) The Special Judge found that there were allegations against the Appellant which constituted offences under Sections 406, 294 and 506 read with Sections 34 of the IPC and also Sections 31(r), 31(s) and 31 (2) (b) of the Atrocities Act.
Since, Section 18 of the Atrocities Act barred application of Section 438 of the Cr.P.C., it would not be appropriate to grant anticipatory bail to the appellant. The appeal filed by the appellant in the High Court under Section 14 of the Atrocities Act has been rejected by the impugned 4 order.
Section 18 of the Atrocities Act provides as follows :-
“18. Section 438 of the Code not to apply to persons committing an offence under the Act.— Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.” Section 18 of the Atrocities Act has been considered in several judgments of this Court.
In Prithvi Raj Chauhan vs. Union of India & others reported in (2020) 4 SCC 727 a three Judge Bench of this Court held :-
“10. ...The provisions were already in Section 18 of the Act with respect to anticipatory bail.
11. Concerning the applicability of provisions of Section 438 CrPC, it shall not apply to the cases under the 1989 Act. However, if the complaint does not make out a prima facie case for applicability of the provisions of the 1989 Act, the bar created by Sections 18 and 18-A(i) shall not apply. We have clarified this aspect while deciding the review petitions.
XXX XXX XXX
32. As far as the provision of Section 18-A and anticipatory bail is concerned, the judgment of Mishra, J. has stated that in cases where no prima facie materials exist warranting arrest in a complaint, the court has the inherent power to direct a pre-arrest bail.” In Union of India vs. State of Maharashtra and Others reported in (2020) 4 SCC 761, a three Judge Bench of this Court upheld the vires of Section 18 of the Atrocities Act and held that it was the 5 consistent view of this court that if prima facie case had not been made out attracting the provisions of the Atrocities Act, the bar created under Section 18 on the grant of anticipatory bail would not be attracted.
In Rehana Jalan vs. State of Kerala & another reported in (2021) 1 SCC 733, a three Judge Bench of this Court, considering the statutory bar to the grant of anticipatory bail under the Muslim Women Act, 2019, referred to and relied upon Prithvi Raj Chauhan (supra) and held :
23. The provisions of Sections 18 and 18-A have been interpreted by a three-Judge Bench of this Court in Prathvi Raj Chauhan v. Union of India [Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727 : (2020) 2 SCC (Cri) 657] (“Chauhan”). Arun Mishra, J. speaking for himself and Vineet Saran, J. while construing these provisions, observed that: (SCC p. 751, para 11) “11. Concerning the applicability of provisions of Section 438 CrPC, it shall not apply to the cases under the 1989 Act. However, if the complaint does not make out a prima facie case for applicability of the provisions of the 1989 Act, the bar created by Sections 18 and 18-A(i) shall not apply. We have clarified this aspect while deciding the review petitions.”
24. The same view has been taken in Prathvi Raj Chauhan [Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727 : (2020) 2 SCC (Cri) 657] in the concurring judgment of S. Ravindra Bhat, J. in the following observations: (Prathvi Raj Chauhan case [Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727 : (2020) 2 SCC (Cri) 657] , SCC p. 759, para 32) “32. As far as the provision of Section 18-A and anticipatory bail is concerned, the judgment of Mishra, J. has stated that in cases where no prima facie materials exist warranting arrest in a complaint, the court has the inherent power to direct a pre-arrest bail.”
25. Thus, even in the context of legislation, such as the Scheduled Castes and Scheduled Tribes (Prevention 6 of Atrocities) Act, 1989, where a bar is interposed by the provisions of Section 18 and sub-section (2) of Section 18-A on the application of Section 438 CrPC, this Court has held that the bar will not apply where the complaint does not make out “a prima facie case” for the applicability of the provisions of the Act. A statutory exclusion of the right to access remedies for bail is construed strictly, for a purpose. Excluding access to bail as a remedy, impinges upon human liberty. Hence, the decision in Chauhan [Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727 : (2020) 2 SCC (Cri) 657] held that the exclusion will not be attracted where the complaint does not prima facie indicate a case attracting the applicability of the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.” The appeal has vehemently been opposed by learned counsel appearing on behalf of the respondent-State referring to the counter affidavit and a map prepared by the Police in course of investigation. It is contended that the incident did not take place inside the house but near the road in public view. Reference has been made to the examination of a sole witness. However, these allegations are completely contrary to the FIR lodged by the de-
facto complainant himself which shows that the conditions precedent of an offence under the Atrocities Act were absent. It would perhaps not be out of context to note that the High Court itself recorded that the disputes with the de-facto complainant with regard to the vehicle had been compromised and the de-facto complainant was not even objecting to the prayer for anticipatory bail.
In the special facts and circumstances, of this case, we are of the view that the High Court fell in error in refusing the prayer of the Appellant for pre-arrest/anticipatory bail. We deem 7 it appropriate to grant anticipatory bail to the Appellant on terms and conditions specified in sub-section (2) of Section 438 of the Code of Criminal Procedure and subject to such further considerations, inter alia, with regard to the furnishing of security and bonds, as may be directed by the concerned Magistrate.
The appeal is, accordingly, disposed of. Pending applications, if any, also stand disposed of.
………………………………………………………,J.
(Indira Banerjee) ………………………………………………………,J.
(J.K. Maheshwari) New Delhi;
December 07, 2021.
8
ITEM NO.7 COURT NO.8 SECTION II-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s). 8181/2021
(Arising out of impugned final judgment and order dated 29-09-2021 in CRA No. 5584/2021 passed by the High Court Of M.p At Gwalior) RAJENDRA BHARTI Petitioner(s) VERSUS STATE OF MADHYA PRADESH & ANR. Respondent(s) (FOR ADMISSION ) Date : 07-12-2021 This petition was called on for hearing today. CORAM : HON'BLE MS. JUSTICE INDIRA BANERJEE HON'BLE MR. JUSTICE J.K. MAHESHWARI For Petitioner(s) Dr. Abhishek Manu Singhvi, Sr. Adv.
Mr. Amit Bhandari, Adv.
Mr. L. Nidhi Ram Sharma, Adv.
Mr. Aman Sharma, Adv.
Mr. Rajiv Bakshi, Adv.
Ms. Kajal Sharma, AOR For Respondent(s) Mr. Bharat Singh, AAG Mr. Gopal Jha, AOR Mr. A. Shankar, Adv.
Mr. Nishant Verma, Adv.
UPON hearing the counsel the Court made the following O R D E R In the special facts and circumstances, of this case, we are of the view that the High Court fell in error in refusing the prayer of the Appellant for pre-arrest/anticipatory bail. We deem it appropriate to grant anticipatory bail to the Appellant on terms and conditions specified in sub-section (2) of Section 438 of the Code of Criminal Procedure and subject to such further 9 considerations, inter alia, with regard to the furnishing of security and bonds, as may be directed by the concerned Magistrate. The appeal is disposed of in terms of the signed order. Pending applications, if any, also stand disposed of.
(GULSHAN KUMAR ARORA) (MATHEW ABRAHAM)
AR-CUM-PS COURT MASTER (NSH)
(Signed order is placed on the file)