Madhya Pradesh High Court
Atendra Singh Rawat vs The State Of Madhya Pradesh on 11 October, 2018
THE HIGH COURT OF MADHYA PRADESH
1
Cr.A.No.7295/2018
Atendra Singh Rawat
Vs.
State of Madhya Pradesh
Gwalior Bench Dated: 11.10.2018
Shri Atul Gupta, learned counsel for the appellant.
Shri Prakhar Dhengula and Shri G.S. Chauhan, learned
Public Prosecutor for respondent No.1/State.
Shri V.K. Sexena, learned senior counsel as amicus curiae assisted by Shri S.K. Shrivastava, Advocate.
With consent heard finally.
Present appeal has been filed under Section 14 (A)(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for brevity 'the Atrocities Act') against the order dated 19-09-2018 passed by Special Judge (Atrocities), Shivpuri whereby the application of the appellant under Section 438 of Cr.P.C. seeking anticipatory bail has been rejected in connection with Crime No.224/2018 registered at Police Station Karera District Shivpuri for the offence under Section 354 -A of IPC and under Section 3(1)(w)(i) of the Atrocities Act.
As per prosecution case, on 19-05-2018 complainant lodged the report at Police Station Karera District Shivpuri against the appellant with the allegations that she is working as Asha Worker in the Health Department where the appellant is working as Eyes Technician/Eyes Assistant and since complainant did not receive her incentive/remuneration for a considerable period of time, therefore, she went to appellant for release of payment, on which appellant sought sexual favour from her for release of payment. Police registered the complaint under Section 354 -A of IPC and under Section 3(1)(w)(i) of the THE HIGH COURT OF MADHYA PRADESH 2 Cr.A.No.7295/2018 Atrocities Act and matter was taken into investigation, therefore, the appellant is apprehending his arrest which may bring social disrepute to him, therefore, appeal has been preferred after rejection of the same before the Special Court.
As per the submission advanced by learned counsel for the appellant, the appellant is working as Eyes' Assistant in the Community Health Center, Karera and on 10-07-2017 vide Annexure P/4 was transferred from Shivpuri to the office of Chief Medical and Health Officer, Sagar and in pursuance thereof he got relieved on 17-07- 2017 for which counsel for the appellant referred the letter dated 21-12-2017 (through registered AD) addressed by his wife to the Superintendent of Police, Gwalior making complaint with certain allegations in respect of some senior officers of the department.
It is further submitted that Asha Workers under the scheme dated 17-04-2015 vide Annexure P/2 are given incentives on the work done by them and no regular monthly payment is made to them. Therefore, no question of release of monthly salary exists; that too at the instance of appellant who has no authority to release the amount specially in the circumstance when he himself transferred to a different place and relieved at the relevant point of time when complaint was made.
One more fact was specifically addressed by counsel for the appellant that FIR is dated 19-05-2018 and the date of incident is 01-08-2017 meaning thereby after ten months of alleged incident, complaint has been made.
THE HIGH COURT OF MADHYA PRADESH 3 Cr.A.No.7295/2018 Delay in filing of FIR establishes the fact that appellant has been ostracized through false implication. Appellant has been unnecessarily harassed for no substantive ground. He is a Government Servant and has no chance to flee from justice. His service conditions would be adversely affected and bring social disrepute to him, if he is arrested on such false pretext. He undertakes to cooperate in the investigation. Complainant has already received her incentives as per her entitlement (as per document attached with the appeal) and lodged the false complaint against him. Appellant prayed for release on bail.
Learned Public Prosecutor for respondent No.1/State opposed the prayer and submitted that the investigation is going on and any order as sought by the appellant would hamper the investigation. He referred Section 18 and amendment notified in the Gazette Notification dated 17- 08-2018 by way of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2018 and submitted that it specifically bars entertainment of such application under Section 438 of Cr.P.C. Therefore, according to the respondent/State appeal is not maintainable. It is further submitted that the case is to be tested on its merits as well as on the basis of the Amendment Act, 2018.
Shri V.K. Saxena, learned senior counsel appearing as amicus curiae at the request of this Court submits that the Amendment Act, 2018 brought for incorporation of Section 18-A in the Atrocities Act is in fact to nullify the THE HIGH COURT OF MADHYA PRADESH 4 Cr.A.No.7295/2018 effect of consequences likely to flow from the judgment of Hon'ble Apex Court in the matter of Dr. Subhash Kashinath Mahajan Vs. State of Maharashtra and another, (2018) 6 SCC 454 wherein certain conclusions have been recorded in para 79 which reads as under:
"79. Our conclusions are as follows:
79.1. Proceedings in the present case are clear abuse of process of court and are quashed.
79.2. There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in Pankaj D Suthar (supra) and Dr. N.T. Desai (supra) and clarify the judgments of this Court in Balothia (supra) and Manju Devi (supra); 79.3. In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention.
79.4. To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated. 79.5. Any violation of direction (iii) and (iv) will be actionable by way of disciplinary action as well as contempt.
79.6. The above directions are prospective."
THE HIGH COURT OF MADHYA PRADESH 5 Cr.A.No.7295/2018 Therefore, preliminary enquiry has been dispensed with and power of investigating officer to arrest has been reiterated. Similarly Section 18 of the Atrocities Act has been reframed under Section 18 A (2) of the Amendment Act, 2018 whereby the provisions of Section 438 of Cr.P.C. and its applicability has been taken out from the purview of the Atrocities Act, notwithstanding any order or direction of any Court. Still the power of judicial review and power to grant bail under Section 438 of Cr.P.C. if any offence is not made out prima facie, has not been curtailed and cannot be curtailed by any Act. Even otherwise, Article 21 of the Constitution of India wherein right to life and personal liberty are secured, no person can be debarred of such liberty at the instance of false complaint.
Learned senior counsel Shri Saxena assisted by Shri Shrivastava referred the judgment of Gurubaksh Singh Sibbia etc. Vs. The State of Punjab, AIR 1980 SC 1632, Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others, AIR 2011 SC 312 and the judgment rendered in the matter of Arnesh Kumar Vs. State of Bihar and another, (2014) 8 SCC 273 and submits that the scope of Section 438 of Cr.P.C. is not limited and Court can take care of personal liberty of individuals. The orders of Coordinate Bench of Principal Seat at Jabalpur dated 27-08-2018 passed in Cr.A.No.5233/2018 (Surendra Raghuvanshi Vs. State of M.P. & Anr.) and the Coordinate Bench of this Court dated 24-09-2018 in Cr.A.No.6880/2018 were also referred where the Court has allowed the appeal filed by the THE HIGH COURT OF MADHYA PRADESH 6 Cr.A.No.7295/2018 appellant seeking anticipatory bail.
Heard learned counsel for the parties as well as amicus curiae at length and perused the case diary.
So far as Factual Matrix of the present case is concerned, it appears that the appellant who is working as Eyes' Assistant in the office at Karera under CMHO, Shivpuri, was transferred from Karera to Sagar vide order dated 10-07-2017 (Annexure P/4) and as per the complaint made by the appellant's wife vide Annexure P/5 it appears that the appellant had been relieved on 14-07- 2017. It further appears from such letter dated 14-07-2017 written by the wife of appellant that appellant himself is suffering from financial distress at the instance of the department, therefore, she/he referred certain names also who are conspiring against them and may cause injury and damage to their family. Therefore, on facts it appears prima facie that the appellant relieved on 14-07-2017, therefore, on 01-08-2017 appellant was not at the helm of affairs at Government Hospital, Karera District Shivpuri. This fact, coupled with the fact that the date of incident referred is 01-08-2017, whereas FIR has been made on 19-05-2018 i.e. almost 10 months after the incident and delayed FIR is a material fact in this case. Therefore, prima facie it appears that accusation of having committed any offence of Atrocities Act, is not made out. Investigation shall unfold the truth. It is also true that the appellant is a Government servant and his arrest may bring adverse departmental proceedings prejudicial to the interest of appellant. Therefore, on given set of facts, prima facie THE HIGH COURT OF MADHYA PRADESH 7 Cr.A.No.7295/2018 appellant deserves consideration for grant of anticipatory bail without any expression on merits of the case.
So far as the bar of Section 438 of Cr.P.C. vis a vis Atrocities Act is concerned, it appears that the recent Amendment Act, 2018 brought Section 18A of the Act into statute in following words:
"18A. (1) For the purposes of this Act-
(a) preliminary enquiry shall not be
required for registration of a First
Information Report against any
person;or
(b) the investigating officer shall not require approval for the arrest, if necessary, of any person.
against whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply.
(2) The provisions of Section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court."
Perusal of the said Amendment Act reveals that the conclusions drawn by the Hon'ble Apex Court in para 79 of the case of Dr. Subhash Kashinath Mahajan (supra) have been taken care of, however the Amendment Act, 2018 nowhere restricts the procedure provided under Cr.P.C. Meaning thereby, Section 41 of Cr.P.C. is intact which gives powers to the police officer to arrest any person without any order from the Magistrate and without warrant against whom the 'reasonable complaint' has been made or 'credible information' has been received or 'reasonable suspicion' exists that he has committed THE HIGH COURT OF MADHYA PRADESH 8 Cr.A.No.7295/2018 cognizable offence punishable with imprisonment for a term which may be less than 7 years or which may extend to 7 years, if certain conditions as referred in Section 41 of the Code are satisfied. The said section contemplates that "police officer must have reason to believe". The said expression "Reason to Believe" has been defined under Section 26 of IPC in following words:
"26. "Reason to believe".--A person is said to have "reason to believe" a thing, if he has sufficient cause to believe that thing but not otherwise."
The said expression has been dealt with in catena of decisions including in the case of Joti Prasad Vs. state of Haryana, 1993 Suppl. 2 SCC 497 and in the case of Adri Dharam Das Vs. state of West Bengal, (2005) 4 SCC
303. Similarly "Credible Information" as appeared in Section 41 of the Code has also been explained by the Hon'ble Apex Court in the case of State of Haryana Vs. Bhajan Lal, (1992) Suppl. 1 SCC 335 and in the case of Lalita Kumari and others Vs. Government of U.P. and others, (2014) 2 SCC 1. Therefore, before arresting a person, officer must have "Credible Information" which is different from a mere complaint and must have reason to believe which is different from mere suspicion or knowledge that arrest is necessary for prevention of tampering the evidence, fleeing from justice, cooperation in investigation and to secure his attendance in the Court. These provisions are still intact and not taken away by the effect of Amendment Act, 2018.
Here, it appears that being a Government servant, THE HIGH COURT OF MADHYA PRADESH 9 Cr.A.No.7295/2018 petitioner neither can flee from justice nor tamper with the evidence and he shall have to cooperate in investigation and his attendance can be secured in the Court.
The Hon'ble Apex Court in the matter of Siddharam Satlingappa Mhetre (supra) discussed the historical perspective of Section 438 of the Code and scope of exemption. Discussion was on the anvil of Article 21 of the Constitution of India where right to life and right to personal liberty are sacrosanctly preserved for every individual. The reiteration of Section 18A of the Act vis a vis bar created under Section 438 of the Code is in effect repetition of Section 18 of the Act incorporated in the Act of 1989 by the Legislature but with certain qualified terms. In the wake of Section 18 of the Act, the judgments of Hon'ble Apex Court like in Siddharam Satlingappa Mhetre (supra), Dr. Subhash Kashinath Mahajan (supra) and in the matter of Hema Mishra Vs. State of Uttar Pradesh and others, (2014) 4 SCC 453 and in the matter of Arnesh Kumar (supra) were passed and guidance was given.
True it is, that the Amendment Act, 2018 bars application of any judgment or order of any court while considering Section 438 of the Cr.P.C. but procedure of the Cr.P.C. along with the Atrocities Act have been accepted and preserved intact. The judgments referred above take care of different provisions of the Code as well as Article 21 of the Constitution of India and thereafter extended the guidance.
THE HIGH COURT OF MADHYA PRADESH 10 Cr.A.No.7295/2018 Similarly, Section 18A(b) of the Amendment Act, 2018 contemplates discretion by the Investigating Officer regarding arrest of the accused by qualifying words; 'if necessary'. Therefore, one perspective of the Amendment Act, 2018 itself indicates that the authority has discretion and if found necessary then without approval from the higher authority, can arrest any person. Therefore, enough leverage exists for the Investigating Officer to exercise his own discretion on perusal of complaint whether from the ingredients of the complaint any offence is made out or not. Scope of Section 438 of Cr.P.C. vis a vis the Atrocities Act is to be seen in that perspective.
In the present case, perusal of FIR prima facie indicates that the matter can be investigated without causing arrest to the appellant and ingredients prima facie do not match with the facts. Section 3(1)(w)(i) of the Atrocities Act is reproduced for ready reference:
"3(1)(w)(i). intentionally touches a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe, when such act of touching is of a sexual nature and is without the recipient's consent."
As explained above ingredients of Section 3(1)(w)(i) of the Atrocities Act do not match the allegations while going through the contents of FIR.
Since the Section 18A of the Amendment Act, 2018 is repetition of Section 18 of the Atrocities Act couched in different language, therefore, earlier discussion of the Hon'ble Apex Court and different High Courts in different cases can be borrowed for discussion value. Coordinate THE HIGH COURT OF MADHYA PRADESH 11 Cr.A.No.7295/2018 Bench of this Court vide order dated 27-08-2018 in Cr.A.No.5233/2018 (Principal Seat at Jabalpur) and vide order dated 24-09-2018 in Cr.A.No.6880/2018 (Gwalior Bench) have allowed the appeal filed by the accused seeking anticipatory bail.
In the instant set of facts, no likelihood of the appellant/accused to terrorise the victim exists, nor the appellant can hinder the investigation process. Therefore, considering the overall fact situation of the instant case as well as application of the Code in the procedure adopted for investigation along with the provisions of the Atrocities Act, instant case appears to be a case for grant of anticipatory bail.
In the given set of facts, it appears that Justiciability and Justifiability are at loggerheads and only their reconciliation, would further the cause of justice. Reconciliation between different provisions of Cr.P.C. vide Section 41 vis a vis 438 would also strengthen the case of appellant.
Resultantly, without expressing any opinion on merits of the case, appeal is allowed while appreciating the assistance rendered by the senior counsel Shri V.K. Saxena ably assisted by Shri S.K. Shrivastava, Advocate. It is directed that in the event of arrest, the appellant shall be released on bail on furnishing a personal bond in the sum of Rs.70,000/-(Rupees Seventy Thousand only) with one solvent surety of the like amount to the satisfaction of Arresting Authority/ Investigating Authority.
This order will remain operative subject to THE HIGH COURT OF MADHYA PRADESH 12 Cr.A.No.7295/2018 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 cooperate 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 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 previouspermission of the trial Court/Investigating Officer, as the case may be.
7. Appellant shall not contact the complainant through any means and shall not move in her vicinity/proximity in any manner.
8. Appellant shall not make any inducement, threat or promise to the complainant or to any person acquainted with the facts of the case so as to dissuade him from disclosing such fact to the Court or police officer.
A copy of this order be sent to the Court concerned for compliance.
C.c. as per rules.
(Anand Pathak) Judge Anil* Digitally signed by ANIL KUMAR CHAURASIYA Date: 2018.10.24 17:52:02 +05'30'