Jharkhand High Court
Ram Kumar Sinha vs State Of Jharkhand on 20 April, 2005
Equivalent citations: 2005CRILJ3302, [2005(3)JCR476(JHR)], 2005 CRI. L. J. 3302, 2005 AIR - JHAR. H. C. R. 1473, (2005) 3 JCR 476 (JHA), (2005) 32 ALLINDCAS 382 (JHA), (2005) 2 EASTCRIC 321, (2005) 4 RECCRIR 575, (2005) 3 CRIMES 258, (2005) 2 JLJR 564
Author: Amareshwar Sahay
Bench: Amareshwar Sahay
ORDER Amareshwar Sahay, J.
1. The question for consideration in this case is, as to whether, in view of Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, this application for grant of Anticipatory Bail, which arises of Complaint Case No. 630 of 1996 in which cognizance has been taken under Sections 420 and 384 of the Indian Penal Code and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is maintainable and whether the petitioner is entitled to the relief prayed for by him in this application?
2. The complainant Most. Parvatia Harin, filed a complaint case before the Chief Judicial Magistrate, Giridih, against four accused persons, including the petitioner, which was registered as Complaint Case No. 630 of 1996. It has been alleged in the complaint petition that she retired as a Sweeper from Giridih Municipality. She was entitled to get gratuity after retirement but in spite of repeated demands, she was not paid gratuity, which was equal to the salary of six and half months. It is alleged that the accused persons with a common intention decided to show an ad hoc payment of Rs. 6,000/- in the relevant Register of the Municipality but actually to pay her a lesser amount, so that they can misappropriate the money. It was further alleged that the accused persons paid only Rs. 2,800/- to the complainant and they misappropriated Rs. 3,200/- and also obtained a thumb impression on a blank paper. When the complainant made enquiry, it is said that she was threatened by the accused persons. It was further said that a sum of Rs. 1,000/- was paid by the accused persons to the complainant in two installments of Rs. 500/- each and nothing was disclosed as to why they have paid this amount to her. Lastly, it was alleged that the accused had made interpolation in the Register and thereby they have cheated a Harizan lady.
3. An enquiry under Section 202, Cr PC was made by the learned Magistrate and thereafter cognizance for the offences under Sections 420 and 384, IPC and also under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was taken against the accused persons including the petitioner.
4. The petitioner moved before the Sessions Judge for grant of Anticipatory Bail, who after hearing the parties, dismissed the Anticipatory Bail petition by the impugned order dated 19.3.2005, holding it to be not maintainable in view of the bar under Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Hence this application.
5. The case of the petitioner is that the petitioner was only a Law Clerk in the Giridih Municipality during the relevant year i.e. 1996 and the payment of gratuity amount was made to the complainant on 27.3.1996 by the then cashier, Mr. Indradeo Singh and not by the petitioner and the petitioner was not in any way connected with the payment of gratuity to the petitioner. In support of the said statement a Certificate duly issued by the Special Officer, Giridih Municipality has been annexed as Annexure-5 to this petition, wherein, it has specifically been stated that so far as the payment of gratuity to the complainant is concerned, the petitioner was not in any way connected or concerned with the same and as a matter of fact, the Cashier Indradeo Singh had made the alleged payment to the complainant and the complainant in her turn had put her signature on the relevant Registers. Copies of those relevant Registers have been annexed as Annexure-3 to this application.
6. Learned counsel for the State has submitted that in view of bar under Section 18 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned Sessions Judge, Giridih rightly held that the Anticipatory bail application of the petitioner was not maintainable in view of the fact that the cognizance for the offence under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was taken against the petitioner and others.
7. Learned counsel for the petitioner has submitted that Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is not applicable in the facts and circumstances, of the present case. It is submitted that even if the entire allegation is taken to be true in its entirety, no case whatsoever under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is made out. It is further submitted that there is no allegation whatsoever that the complainant was insulted or intimidated in public view because she was a member of the Scheduled Caste. Nothing was alleged in the complaint petition that the accused persons had any knowledge that the complainant was a member of the Scheduled Caste and, therefore, bar under Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 can't come in the way for grant of anticipatory bail. The petitioner has not committed any offence whatsoever and the false fabricated case has been lodged with ulterior motive at the instance of vested interest.
8. On behalf of the petitioner, the following decisions have been cited : (1) 2000 (3) Cr LJ 2899; (2) 1999 (1) Cr LJ 325 and (3) 2002 Cr LJ 4130.
9. Now I shall deal with the decision relied on behalf of the petitioner.
In the case of Virendra Singh v. State of Rajasthan, reported in 2000 (3) Cr LJ 2899 : 2000 (3) East Cr C 1923 (Raj) (FB), the full Bench of the Rajasthan High Court has held as follows :
"If a person is even alleged of accusation of committing an offence under the Act of 1989 the intention of Section 18 is clearly to debar him from seeking the remedy of anticipatory bail and it is only in the circumstances where there is absolutely no material to infer as to why Section 3 has been applied to implicate a person for an offence under the Act of 1989 the Courts would be justified in a very limited sphere to examine whether the application can be rejected on the ground of its maintainability. What is intended to be emphasized is that while dealing with an application for anticipatory bail, the Courts would be justified in merely examining as to whether there is at all an accusation against a person for registering a case under Section 3 of the Act of 1989 and once the ingredients of the offence are available in the FIR or the complaint, the Courts would not be justified in entering into a further inquiry by summoning the case diary or any other material as to whether the allegations are true or false or whether there is prepondrence of probability of commission of such an offence. Such an exercise is intended to put a complete bar against entertainment of application of anticipatory bail which is unambiguously laid down under Section 18 which is apparent from the perusal of the section. Itself and thus the Court at the most would be required to evaluate the FIR itself with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of the ingredients constituting the alleged offence. The Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint by calling for the case diary, charge-sheet or any other material gathered at the time of investigation but if the allegations in the FIR of the complaint even if they are taken at their face value are accepted in their entirety do not constitute the offence alleged, it is only in those miniscule number of cases, the Courts would be justified in entertaining the application, not because it is maintainable but clearly because the Act, would be inapplicable in the facts and circumstances of that particular case. Thus the application for anticipatory bail can be entertained only on the ground of inapplicability of the Act of 1.989 due to the facts of the case which will have to be gathered only from the FIR and not beyond that because once it is gathered from the FIR that the applicant is an accused of committing an offence laid down under Section 3 of the Act of 1989, the bar of Section 18 would instantly operate against the person who has been made an accused of the offence under the Act of 1989. To put it differently, once it is apparent from the FIR that an offence under the Act of 1989 is even alleged the Courts would not be justified at all in weighing or scrutinizing the prepondrence of the probability of commission of the offence by the accused, but if from the FIR itself the ingredients of offence a laid down under Section 3 of the Act, itself is found to be missing, the bar created by Section 18 would not be allowed to operate against an accused and only in that event his application for anticipatory bail would be dealt with by the concerned Court to determine whether the Act of 1989 can be said to be rightly applicable against the accused and not to enter into further enquiry into the matter so as to determine whether the Act of 1989 can be said to be rightly applicable against the accused and not to enter into further enquiry into the matter so as to determine whether the allegations leveled against the accused are even prima facie correct or incorrect.
10. Therefore, from bare perusal of the aforesaid extract of the judgment of the Rajasthan High Court quoted above, it appears that, it has been held that if the facts stated in the FIR or in the complainant petition makes out an offence under Section 3 of the Act, then the bar of Section 18 instantly operate against the person who had been made an accused of the offence under the Act. It has further been held that once it is apparent from the FIR/complaint that an offence under the Act, is even alleged, the Courts would not be justified at all in weighing or scrutinizing the preponderance of the probability of commission of the offence by the accused but if from the FIR/ Complainant itself, the ingredient of the offence under Section 3 is found to be missing, the bar created by Section 18 would not be allowed to operate against the accused, therefore, it is held that in appropriate case or in the situation mentioned in the said judgment, anticipatory bail can be granted.
11. The next decision relied on by the petitioner is that the decision in the case of K. Mallesham v. The State of Andhra Pradesh, reported in 1999 (1) Cr LJ 325, of Andhra Pradesh High Court, wherein, it has been held that mere mention or non-mention of the provision of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 in the Complaint or in the FIR is of no consequence or assessment of a cumulative effect of allegations made against the accused is important to exclude operation of Section 438, Cr PC. What is required is pragmatic assessment of the contents of the Complaint in every given case. Even if there is a single averment attracting the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, it would be enough to exclude the operation of Section 438 of the Code.
12. The last decision relied on by the learned counsel for the petitioner is in the case of Pishora Singh v. State of Punjab and Anr. reported in 2002 Cr LJ 4130, of Punjab and Haryana High Court, wherein, it has been held that if from reading of a complaint or the statement of the witnesses it does not appear that in fact the accused was aware of the fact that the complainant belonged to a Scheduled Caste or Scheduled Tribe category, then the requirement of Section 3(ix) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is not justified.
13. The Supreme Court in the case of State of M.P. and Anr. v. Ram Krishna Balothia and Anr., has held that the offences, which are enumerated under Section 3(1) arise out of the practice of 'untouchability'. It is in this context that certain special provisions have been made in the said Act, including the impugned provision under Section 18. The exclusion of Section 438, Cr PC in connection with the offences under the said Act, has to be viewed in the context of the prevailing social conditions, which give rise to such offences and the apprehension that perpetrators of such atrocities are likely to threaten and intimidate their victims and prevent or obstruct them in the prosecution of these offenders, if the offenders are allowed to avail of anticipatory bail as pointed out in the statements of objects and reasons of the Act.
The Supreme Court further held that Section 438, Cr PC does not form an integral part of Article 21 and anticipatory bail provided for the first time under the new Code is concerned with the Sessions Court and High Court and cannot be claimed as a matter of right and, therefore, Section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 denying the provisions of Anticipatory Bail to those accused under the Act, cannot be considered as violative of Article 14 and 21 of the Constitution.
14. It is relevant to state at this juncture that against the order taking cognizance, this petitioner had moved this Court earlier in Cr. M.P. No. 591 of 2003 for quashing of the order taking cognizance and issuing processes against him but as it appears from Annexure-1 to this petition that by order dated 2.5.2004 Cr. M.P. No. 591 of 2003, which was heard alongwith Cr MP No. 652 of 2003 was disposed of without expressing any opinion either this way or that way on the merit of the case and on the allegations made in the complaint petition. However, liberty was given to the petitioner to raise all the points at the time of framing of charge. My discussion and findings in this order are only to find out as to whether it is a fit case for grant of anticipatory bail or not. Any of the findings has no bearing at all on the question of validity or otherwise of the order taking cognizance.
15. No doubt, the accused cannot claim grant of Anticipatory bail as a matter of right. In the same way, it can also be said that when in the complaint or in the FIR the allegations regarding the commission of any of the offence enumerated in Section 3 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is completely missing the claim of Anticipatory bail cannot be denied only because in the complaint petition, the offence under Section 3 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is mentioned without making any allegation or stating any facts constituting the offence under Section 3/4 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Therefore, relying on the decision of the Full Bench of Rajasthan High Court in the case of Virendra Singh, (supra) I hold that if from the averments made in the Complaint Petition or the statement of the complainant on solemn affirmation or from the evidence adduced during enquiry under Section 202, Cr PC or from the facts stated in the FIR or from the materials collected during investigation arising out of the FIR, it is found that there is absolutely no allegation or material available on the record to come to a prima facie opinion that any offence as enumerated in Section 3/4 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, has been committed, then in that case, the bar under Section 18 of Scheduled Castes and the Scheduled- Tribes (Prevention of Atrocities) Act, 1989 would not be attracted but if from the allegation made even from a single instance, it appears that the offence under Section 3/4 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 appears to have been committed by the accused persons, then the bar of Section 18 of the Act, would at once come into play and the application for Anticipatory bail would not be maintainable.
16. In the present case, without expressing any opinion on the question of cognizance taken by the learned Magistrate under Section 3 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, I find from the averments made in the complaint petition and the statement of complainant on solemn affirmation there is no allegation at all for commission of the offence under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. There is no averment in the complaint petition that the complainant was in any manner insulted or intimidated in public view, knowing her to be a member of the Scheduled Caste. The complainant, while making her statement on solemn affirmation, in reply to a Court question, specifically stated that she has lodged the complaint at the instance of one Madan Babu and she herself does not know as to what amount, she was entitled to receive. Therefore, considering the above facts, I am of the prima facie view that from the materials available on record, there is total absence of allegations in the complaint petition so as to infer the commission of the offence under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and as such and consequently Section 18 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 can not operate as a bar in grant of Anticipatory Bail to the petitioner. Therefore, this application for Anticipatory Bail is certainly maintainable and the petitioner is entitled to the relief as prayed for in this application and it is a fit case for grant of Anticipatory Bail to the petitioner.
17. Accordingly, this Anticipatory Bail application is allowed and the petitioner above named is directed to surrender before Sri Santosh Kumar, learned Judicial Magistrate. First Class, Giridih within two weeks from today and if the above named petitioner surrenders within the period specified, he will be enlarged on bail on furnishing bail bonds of Rs. 10,000/-(Rupees Ten Thousand) with two sureties of the like amount each to the satisfaction of Sri Santosh Kumar Judicial Magistrate, First Class, Giridih in connection with Complainant Case No. 630 of 1996 (T.R. No. 1050 of 2005) subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure.