Patna High Court - Orders
Munna Shaw @ Munna Saw vs The State Of Bihar on 27 June, 2016
Author: Sharan Singh
Bench: Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.24836 of 2016
Arising Out of PS.Case No. -291 Year- 2015 Thana -HISUA District- NAWADA
======================================================
1. Munna Shaw @ Munna Saw Son of Kishori Saw Resident of Village-
Pakaria, PS Hisua, District Nawada.
.... .... Petitioner/s
Versus
1. The State of Bihar
.... .... Opposite Party/s
======================================================
with
Criminal Miscellaneous No.24851 of 2016
Arising Out of PS.Case No. -19 Year- 2013 Thana -SC/ST District- SITAMARHI
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1. Saroj Mahto Son of Murari Mahto Resident of Village Maudah gola,
Police Station Sahiyara, District sitamarhi.
.... .... Petitioner/s
Versus
1. The State of Bihar
.... .... Opposite Party/s
======================================================
with
Criminal Miscellaneous No.24951 of 2016
Arising Out of PS.Case No. -9 Year- 2016 Thana -ARA HARIJAN District- BHOJPUR
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1. Jai Prakash Singh Son of Hridya Nand Singh
2. Munna Singh Son of Sri Jai Prakash Singh
3. Nanhak Singh Son of Late Ram Narayan Singh
All residents of village Chain Chapra, P.S. Krishnagarh (Barhara) District -
Bhojpur.
4. Bablu Singh Son of Late Dinanath Singh Resident of village Naujampur,
P.S. Barhara, District Bhojpur.
.... .... Petitioner/s
Versus
1. The State of Bihar.
.... .... Opposite Party/s
======================================================
with
Criminal Miscellaneous No.24142 of 2016
Arising Out of PS.Case No. -10 Year- 2016 Thana -HARIZAN District- MUNGER
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1. Dilip Kumar Thakur, son of Late Ram Narayan Thakur, resident of
Shastri Nagar, P.S. Kasim Bazar,District Munger.
.... .... Petitioner/s
Versus
1. The State of Bihar.
.... .... Opposite Party/s
======================================================
Patna High Court Cr.Misc. No.24836 of 2016 (4) dt.27-06-2016
2/19
with
Criminal Miscellaneous No.5237 of 2016
Arising Out of PS.Case No. -724 Year- 2015 Thana -TURKAULIYA District-
EASTCHAMPARAN(MOTIHARI)
======================================================
1. Lal Babu Sahani son of Late Bikhari sahani, resident of Village-
Kawalpur, P.S.- Turkauliya, District- East Champaran.
.... .... Petitioner/s
Versus
1. The State of Bihar
.... .... Opposite Party/s
======================================================
Appearance :
(In Cr.Misc. No.24836 of 2016)
For the Petitioner/s : Mr. Sanjay Kumar Pandey No-5
For the Opposite Party/s : Mr. R.N. Jha (App)
(In Cr.Misc. No.24851 of 2016)
For the Petitioner/s : Mr. Anil Kumar
For the Opposite Party/s : Mr. Sadanand Paswan (Spl.P.P)
(In Cr.Misc. No.24951 of 2016)
For the Petitioner/s : Mr. Ravindra Kumar
For the Opposite Party/s : Mr. Sadanand Paswan (Spl. Pp)
(In Cr.Misc. No.24142 of 2016)
For the Petitioner/s : Mr. Kamal Kishore Jha
For the Opposite Party/s : Mr. Ram Shankar Das (Spl.Pp)
(In Cr.Misc. No.5237 of 2016)
For the Petitioner/s : Mr. Abhishek Kumar
For the Opposite Party/s : Mr. Ram Shankar Das(Spl.App)
======================================================
CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI
SHARAN SINGH
ORAL ORDER
4 27-06-2016The petitioners, in all these cases, seek anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973, as they apprehend their arrest in connection with respective criminal cases, registered for various offences including offence under the provisions of the of the Schedule Castes and Schedule Tribes (Prevention Patna High Court Cr.Misc. No.24836 of 2016 (4) dt.27-06-2016 3/19 of Atrocities) Act, 1989 (hereinafter referred to as "the Act").
Section 18 of the Act prohibits application of Section 438 of the Code of Criminal Procedure, 1973, in relation to any case involving arrest of any person on an accusation of having committed an offence under the Act.
There had been controversy as to whether the criminal cases which are registered leveling offence under various provisions of the Act, an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973, can be entertained or not.
In the case of Sajjo vs. The State of Bihar, reported in 2010 (2) PLJR 690, this Court had an occasion to deal with this aspect of the matter and after elaborately referring to judicial pronouncements, this Court held, in paragraph 14, as follows:
"14. After having deliberated rival contentions of the parties, and after having considered the judgments of various High Courts, referred to above including are own High Court, this court comes to following conclusive conclusions:
(a) That an application under section 438 Cr.P.C. with respect to offences under the provisions of SC & ST Act is not maintainable as of matter Patna High Court Cr.Misc. No.24836 of 2016 (4) dt.27-06-2016 4/19 of right either before High Court or before the court of Session. However, if in the circumstances set forth below, the court is of the opinion that offences alleged are inapplicable under the Provisions of SC & ST Act then certainly an application under section 438 Cr.P.C.
is maintainable and relief can be granted.
(b) Merely mentioning the provisions either in the FIR or the complaint petition regarding commission of the offences under SC & ST Act would not itself denude the court to exercise its power under section 438 Cr.P.C.
(c) The court is required to lift the veil in each case and is required to come to a finding as to whether an offence under the provisions of SC & ST Act is made out or not.
(d) For the purpose of
coming to the conclusion about
applicability of the provisions of SC & ST Act in a particular case, the court is not required to make an in-depth inquiry or to examine the materials on record meticulously. At this stage for the purpose of consideration of prayer for anticipatory bail, court is required to see only as to whether a prima-facie case is made out or not.
(e) For the purpose of coming to a conclusion as to whether Patna High Court Cr.Misc. No.24836 of 2016 (4) dt.27-06-2016 5/19 offence under the provisions of SC & ST Act is made out or not, it would be suffice to scrutinize the FIR or the complaint petition, as the case may be.
Calling for the case diary, charge sheet, statement of witnesses and other materials on record and considering the defence of accused at this stage would be contrary to the Legislative intent of section 18 of the SC & ST Act and as such for the purpose of consideration of application under section 438 Cr.P.C. same are to be avoided.
(f) In a case of barbaric nature of atrocities punishable under the Provisions of SC & ST Act or in a case of attack with casteist angle, bar u/s 18 of SC & ST Act shall be applicable, and petition under section 438 Cr.P.C.
cannot be entertained.
(g) Merely calling some one by caste name does not ipso facto attract the Provisions of SC & ST Act." This Court specifically ruled that merely mentioning of the provisions, either in the First Information Report or the complaint petition, of the section(s) under the Act would not itself denude the Court to exercise its power under Section 438 of the Code of Criminal Procedure, 1973, and the Court is required to lift the veil in each case in order to come to a finding as to whether an offence under Patna High Court Cr.Misc. No.24836 of 2016 (4) dt.27-06-2016 6/19 the provisions of the Act is made out or not.
The Supreme Court had also occasion to deal with this aspect in the case of Vilas Pandurang Pawar and Another v. State of Maharashtra and Others, reported in AIR 2012 SC 3316, wherein the Supreme Court held, in paragraph 8, as follows:
8. Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence Under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail.
(Emphasis is supplied) The Supreme Court clearly held that it is the Court‟s duty to verify the averments made in the complaint or in the First Information Report to find out as to whether an offence under the provisions of the Act has been prima facie made out or not. The Supreme Court held that if there was any such specific averment, the accused persons will not be entitled to benefit of Section 438 of the Code of Patna High Court Cr.Misc. No.24836 of 2016 (4) dt.27-06-2016 7/19 Criminal Procedure, 1973.
Upon reading of this Court‟s decision in the case of Sajjo (supra) and the Supreme Court‟s decision in the case of Vilas Pandurang Pawar (supra), I have no hesitation to conclude and hold that by mere mentioning of the penal provisions under the Act in the First Information Report or in the complaint petition, bar under Section 18 of the Act cannot come into operation. Section 18 of the Act shall come into operation only if the allegations made in the First Information Report or a complaint petition make out an offence under the various provisions of the Act, against the person seeking pre-arrest bail under Section 438 of the Code of Criminal Procedure, 1973.
The question may arise, in a case where the allegations made in the First Information Report or a complaint petition though constitute an offence under the provisions of the Act, but no such offence is made out against the person seeking protection under Section 438 of the Code of Criminal Procedure, 1973; as to whether such person can maintain his application for anticipatory bail or not.
To say it differently, if the allegations, made in the First Information Report or a complaint petition, constitute commission of offence under the Act, against one Patna High Court Cr.Misc. No.24836 of 2016 (4) dt.27-06-2016 8/19 person and not against the others, whether the person(s) against whom there is no allegation of commission of offence under the Act, can claim the benefit of Section 438 of the Code of Criminal Procedure, 1973 or not? This would require a close and careful reading of Section 18 of the Act, which reads thus,
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.
Upon careful reading of Section 18 of the Act, it is easily evincible that it prohibits application of Section 438 of the Code of Criminal Procedure, 1973, in relation „to any case' involving „arrest of any person on an accusation of having committed an offence under this Act". Evidently, thus, Section 18 of the Act prohibits application of Section 438 of the Code of Criminal Procedure, 1973, in a case where the arrest of any person is required because of an accusation against him is there of having committed an offence under the Act.
As a natural corollary, it cannot be said that if there is no accusation of having committed an offence Patna High Court Cr.Misc. No.24836 of 2016 (4) dt.27-06-2016 9/19 under the Act against a person, the bar under Section 18 of the Act shall still apply, on a plea that a case under the provisions of the Act is made out against others.
In order to apply Section 18 of the Act, it must appear from the records that offence under the Act is constituted on the basis of allegation made in the First Information Report or the complaint petition and secondly, such offence is made out against the person who is seeking anticipatory bail. If there is no accusation of commission of offence under the Act against a person, he can very well maintain an application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973, though the First Information Report may constitute offence under the provisions of the Act.
This interpretation of Section 18 of the Act is based on mere reading of the language of the said provisions. In my view, it could not be the intent of the Legislature to debar a person against whom there is no accusation of having committed an offence under the Act from availing the benefits of the provision of Section 438 of the Code of Criminal Procedure, 1973.
Certain confusion has arisen consequent upon amendment introduced in the Act through The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Patna High Court Cr.Misc. No.24836 of 2016 (4) dt.27-06-2016 10/19 Amendment Act, 2015 (Act No. 1 of 2016), whereby, inter alia, a new provision, namely, Section 14A, making a provision for appeal against certain orders has been introduced. Section 14 A of the Act reads thus, "14A. (1) Notwithstanding anything contained in the Code of Criminal Procedure,1973, an appeal shall lie, from any judgment, sentence or order, not being an interlocutory order, of a Special Court or an Exclusive Special Court, to the High Court both on facts and on law.
(2) Notwithstanding anything contained in sub-section (3) of section 378 of the Code of Criminal Procedure, 1973, an appeal shall lie to the High Court against an order of the Special Court or the Exclusive Special Court granting or refusing bail.
(3) Notwithstanding anything contained in any other law for the time being in force, every appeal under this section shall be preferred within a period of ninety days from the date of the judgment, sentence or order appealed from:
Provided that the High Court may entertain an appeal after the expiry of the said period of ninety days if it is satisfied that the appellant had sufficient cause for not preferring the Patna High Court Cr.Misc. No.24836 of 2016 (4) dt.27-06-2016 11/19 appeal within the period of ninety days:
Provided further that no appeal shall be entertained after the expiry of the period of one hundred and eighty days.
(4) Every appeal preferred under sub-section (1) shall, as far as possible, be disposed of within a period of three months from the date of admission of the appeal."
What would be the remedy against the order passed by the Sessions Judge in a proceeding under Section 438 of the Code of Criminal Procedure, 1973, granting or refusing an application for anticipatory bail, is a question, which has arisen in course of submissions advanced on behalf of the parties, consequent upon addition of Section 14A by way of amendment in the Act? Whether an appeal would lie against such order, under Section 14A of the Act? The answers to these questions are straight and simple. The word "bail", under Section 14A (2) of the Act cannot include pre-arrest/surrender bail for the simple reason that the Act does not allow the provision of anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 to operate with respect to the offences committed under the Act. The word "bail", therefore, as occurring in Section 14A (2) of the Act connotes post- Patna High Court Cr.Misc. No.24836 of 2016 (4) dt.27-06-2016 12/19 arrest/surrender bail and not pre-arrest bail.An application for anticipatory bail can be maintained only if the provisions of the Act do not apply against a person, who is sought to be arrested. A person, accused in a case registered for the offence punishable under the provisions of the Act, though, can maintain his anticipatory bail application only if he is in a position to demonstrate that the offence under the provisions of the Act are not made out at all.
In my view, therefore, there would be no question of maintaining an appeal under the provisions of Section 14A of the Act against an order passed by Sessions Judge, granting or refusing anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973.
I reiterate that application of Section 438 of the Code of Criminal Procedure, 1973, would not be ousted by virtue of the bar under Section 18 of the Act with respect to a person who is an accused in a case registered for the offence punishable under the various provisions of the Act, if such a person is in a position to satisfy the Court that even on the basis of allegations contained in the First Information Report or complaint petition, no case of commission of offence under the provisions of the Act is made out against him.
Now, coming to the cases, which have been Patna High Court Cr.Misc. No.24836 of 2016 (4) dt.27-06-2016 13/19 heard together for the purpose of considering the short and common issues as discussed above, I will deal with the merits of the individual cases.
(a) CRIMINAL MISC. NO. 24836 OF 2016:-
This application, for grant of anticipatory bail, arises out of Hisua Police Station Case No. 291 of 2015, disclosing offences under Section 147, 149, 323, 341, 504, 506 and 302 of the Indian Penal Code and Section 3 (2) (v) of the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989.
Learned Counsel for the petitioner has submitted that there is no allegation against the petitioner that he had started assaulting the victim; rather, such allegation is against four other accused persons, whereafter the petitioner also arrived there. From the First Information Report, it transpires that the petitioner is also alleged to have participated in assaulting the victim, who died.
Considering the gravity of the offence, I am not inclined to grant the petitioner privilege of anticipatory bail.
This application for anticipatory bail is, hereby, rejected.
The petitioner, Munna Shaw @ Munna Saw, is directed to surrender before the Court below within a period of four weeks from today and seek regular bail, if so Patna High Court Cr.Misc. No.24836 of 2016 (4) dt.27-06-2016 14/19 advised. If he does so, his application for regular bail shall be considered by the learned Court below on its own merit without being prejudiced by rejection of present application for grant of anticipatory bail.
(b) CRIMINAL MISC. NO. 24851 OF 2016 :-
This application, for grant of anticipatory bail, arises out of Sitamarhi SC/ST Police Station Case No. 19 of 2013, disclosing offences punishable under Sections 341, 323, 379, 307/34 of the Indian Penal Code and Section 3 (1) (x) of the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989.
I find substance in the submission made on behalf of the petitioner that there is no allegation that the occurrence had taken place within public view. He has been able to make out a case that no offence under the provisions of the Act is made out against the petitioner.
Upon perusal of the First Information Report, I find that, strictly speaking, no case under Section 307 of the Indian Penal Code is made out.
Considering the submission, as above, this application is allowed.
Let the petitioner, Saroj Mahto, in the event of his arrest or surrender before the Court below within six weeks, be released on bail on furnishing bail bond of Rs. Patna High Court Cr.Misc. No.24836 of 2016 (4) dt.27-06-2016 15/19 10,000/- (ten thousand) with two sureties of the like amount each to the satisfaction of learned Chief Judicial Magistrate, Sitamarhi, in connection with Sitamarhi SC/ST Police Station Case No. 19 of 2013, subject to the condition laid down under Section 438 (2) of the Code of Criminal Procedure.
This is subject to the condition that the petitioner shall present himself before the police/Court, as the case may be, as and when required and in the event of failure on his part to appear before the Court on two consecutive occasions, his bail bond shall be liable to be cancelled.
(c) CRIMINAL MISC. NO. 24951 OF 2016 :-
This application, for grant of anticipatory bail, arises out of Bhojpur SC/ST Police Station Case No. 09 of 2016, disclosing offences under Sections 147, 148, 149, 448, 323, 504, 506 of the Indian Penal Code and Sections 3 (1) (x) and 3 (1) (v) of the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989.
A complaint petition filed against the petitioners is the basis for registration of the present First Information Report.
It appears that before lodging of the complaint petition, the sister of the present informant had lodged Patna High Court Cr.Misc. No.24836 of 2016 (4) dt.27-06-2016 16/19 Bhojpur SC/ST Police Station Case No. 32 of 2016. The Police, upon investigation, had submitted final report, holding the accusation against the petitioner nos. 1 and 2 to be false. However, the learned Court below has taken cognizance on the basis of protest -cum- complaint petition filed in that case.
From the First Information Report, it appears that there is land dispute between the parties and I am, prima facie, of the view that no offence under Sections 3 (1) (x) and 3 (1) (v) of the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989, is made out.
Considering the above, this application is allowed.
Let the petitioners, namely, Jai Prakash Singh, Munna Singh and Nanhak Singh, in the event of their arrest or surrender before the Court below within six weeks, be released on bail on furnishing bail bonds of Rs. 10,000/- (ten thousand) each with two sureties of the like amount each to the satisfaction of learned Chief Judicial Magistrate, Ara, in connection with Bhojpur SC/ST Police Station Case No. 09 of 2016, subject to the condition laid down under Section 438 (2) of the Code of Criminal Procedure.
This is subject to the condition that the petitioners shall present themselves before the Patna High Court Cr.Misc. No.24836 of 2016 (4) dt.27-06-2016 17/19 police/Court, as the case may be, as and when required and in the event of failure on their part to appear before the Court on two consecutive occasions, their bail bonds shall be liable to be cancelled.
(d) CRIMINAL MISC. NO. 24142 OF 2016 :-
This application, for grant of anticipatory bail, arises out of Munger SC/ST Police Station Case No. 10 of 2016, disclosing offences under Sections 341, 323, 379 of the Indian Penal Code and Section 3 (1) (x) (xi) (xv) of the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989.
The petitioner is the Branch Manager of Munger Kshetriya Graming Bank, Munger. A complaint petition filed by the informant is the basis for registration of the present First Information Report.
Learned Counsel for the petitioner has submitted that it is evident from the allegation made in the complaint petition that the same is absurd and highly improbable. According to him, registration of the First Information Report is an abuse of the process of law. He has also submitted that the Officials of the Bank have been made accused. There is no allegation that the occurrence took place in the presence of others and in their gaze.
Considering the submission, as above, this Patna High Court Cr.Misc. No.24836 of 2016 (4) dt.27-06-2016 18/19 application is allowed.
Let the petitioner, Dilip Kumar Thakur, in the event of his arrest or surrender before the Court below within six weeks, be released on bail on furnishing bail bond of Rs. 10,000/- (ten thousand) with two sureties of the like amount each to the satisfaction of learned Additional Chief Judicial Magistrate I, Munger, in connection with Munger SC/ST Police Station Case No. 10 of 2016, subject to the condition laid down under Section 438 (2) of the Code of Criminal Procedure.
This is subject to the condition that the petitioner shall present himself before the police/Court, as the case may be, as and when required and in the event of failure on his part to appear before the Court on two consecutive occasions, his bail bond shall be liable to be cancelled.
(e) CRIMINAL MISC. NO. 5237 OF 2016 :-
This application, for grant of anticipatory bail, arises out of Turkauliya Police Station Case No. 724 of 2015, disclosing offences under Sections 302, 201, 120B of the Indian Penal Code and Section 3 (2) (v) of the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989.
Considering the fact that the petitioner is an Patna High Court Cr.Misc. No.24836 of 2016 (4) dt.27-06-2016 19/19 accused in a case under Section 302 of the Indian Penal Code, I am not inclined to grant the petitioner privilege of anticipatory bail.
This application for anticipatory bail is, hereby, rejected.
The petitioner, Lal Babu Sahani, is directed to surrender before the Court below within a period of four weeks from today and seek regular bail, if so advised. If he does so, his application for regular bail shall be considered by the learned Court below on its own merit without being prejudiced by rejection of present application for grant of anticipatory bail.
(Chakradhari Sharan Singh, J.) Prabhakar Anand/-
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