Rajasthan High Court - Jaipur
Virendra Singh vs State Of Rajasthan on 5 April, 2000
Equivalent citations: 2000CRILJ2899, 2000(2)WLC608
Bench: P.P. Naolekar, Gyan Sudha Misra, A.K. Parihar
ORDER Misra, J.
1. While the validity of Section 18 of the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) act, 1989 (hereinafter referred to as 'the Act of 1989') which bars entertainment of application of anticipatory bail on behalf of any person who is accused of having committed an offence under the Act of 1989 has been upheld by the Supreme Court in no uncertain terms in the matter of State of Madhya Pradesh vs. Ramkrishna Balotia (1), the courts at the district level as also the High Courts are often enough confronted with a variety of situations in cases where even a plain reading of the First Information Report (FIR) does not disclose commission of any offence under the Act of 1989 and still it rejects applications for grant of anticipatory bail on the ground of its maintainability merely because the case has been registered under the Act of 1989. Such situations are not isolated ones and have been encountered by various High Courts in India which is evident from the cases reported in several legal journals which disclose that anticipatory bail could not be rejected in absence of prima facie ingredients constituting an offence under the Act of 1989 since it could be rejected on the ground of maintainability only if the courts found that in fact there were materials for such accusation. A learned Single Judge of this Court was confronted with a situation in the case of Virender and Another vs. Stale of Rajasthan (2), wherein the counsel for the applicant cited several authorities to be discussed hereinafter wherein anticipatory bail had been granted on the ground of absence of prima facie case under the Act of 1989, but an objection was raised in the aforesaid matter by the Govt. Advocate in regard to even maintainability of the application under Section 438 of the Code of Criminal Procedure, 1973 in view of Section 18 of the Act of 1989 which lays down 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."
(2). The courts while hearing anticipatory bail applications thus are often confronted with the consequential, legal and ethical dilemma as to whether it is at all competent to scrutinise and examine the matter to see whether any prima facie material is existing in the FIR to rope in a person in a case under the Act of 1989 so as to reject his application for grant of anticipatory bail on the ground of its maintainability or the courts would be justified in examining whether there is at all any accusation of commission of any offence under the Act of 1989.
(3). The question, therefore, which has been referred for consideration by this Full Bench is whether this Court while dealing with an application for anticipatory bail can scrutinize and examine the material to see if a prima facie case is made out constituting an offence under the Act of 1989 or whether it would be justified in rejecting the application merely because the case has been registered under the said Act or it is registered alongwith some other Sections of the IPC. Before it is elaborated further, we wish to make it clear at the outset before we proceed to answer this reference even at the risk of repetition that we are acutely conscious of Section 18 of the Act of 1989 which explicitly bars grant of anticipatory bail to any person who is even accused of an offence under the Act of 1989 and there would be no difficulty in rejecting their application once it is disclosed that the person can be said to be an accused of having committed an offence under the Act of 1989, since the clear bar of Section 18 would instantly operate against him, but the difficulty arises where the ingredients constituting an offence under the Act of 1989 is totally missing and the Court is confronted with the question as to whether the same would merit rejection merely due to the fact that the case has been registered under the S.C.S.T. Act of 1989 even though there is complete absence of the accusation regarding commission of any offence under the said Act, which is a condition precedent of Section 18 of the Act of 1989 itself.
(4). A general notice was circulated to the members of the bar to address this court on this question in order to determine whether an application for anticipatory bail should be rejected merely because a case was registered under Section 3 of the Act of 1989 or the Court would be justified in examining as to whether a person is at all fit to be treated as an accused of the offence under the aforesaid Act. The consequential fall out of the aforesaid question therefore which also requires consideration before us is that if at all the Court is held competent to enter into examination of the allegations to determine whether a person can be treated as an accused of commission of offence under the Act of 1989, to what extent the courts would be justified in examining the material in order to determine whether a person is fit to be treated as an accused under Section 3 of the Act of 1989.
(5). In response to the notice, one set of arguments were advanced by the learned advocates Shri Jagdeep Dhankar & Shri S.R. Bajwa, who submitted that although the courts would not be justified in entering into a roving enquiry of the allegations levelled against a person accused of an offence under Section 3 of the Act of 1989 in the sence that it would not be justified to look into the police case diary, charge sheet or other material, yet the court ought to peruse atleast the FIR or the complaint in order to determine whether the accused person can at all be said to have committed the offence under the Act of 1989 before rejecting his application outright merely on the ground of its maintainability. Thus they have submitted that the provision should not be construed in a manner so as to create a complete bar even to entertain an application under Section 438 of the Cr. P.C. without application of mind on facts as to whether accusation made against any person constitute any offence under the Act or not. It was also interalia contended that when a Statute provides stringent provisions as compared to the punishment prescribed for other offence under the ordinary penal laws a duty is cast on the courts and the Judge to be sure that there exists a prima facie case involving a person in the commission of the offence under the Act.
(6). However another learned counsel Mr. S.K. Gupta, while pressing the case regarding maintainability of the application for anticipatory bait, went a step further and submitted that the courts should not only examine the FIR but should be duty bound to call for the case diary, charge sheet and all other available materials collected at the lime of investigation in order to determine whether a person can at all be treated as an accused of committing an offence under the Act of 1989. It was submitted by him that negation of such right would be a complete denial of personal liberty to a citizen as the situations are not wanting where false accusations are levelled and in that situation, the courts should not abdicate itself from examining the materials alleged against an accused. According to his submission such perusal is not barred even as per Section 18 of the Act of 1989. It was also contended by him that the intention of the legislature cannot be gathered in a manner so as to deny the benefit of pre-arrest bail to those persons who did not commit any offence under the Act of 1989 yet the case has been registered or got registered under the Act simply to deny him the benefit of pre-arrest bail and to humiliate him by gelling arrested. It is submitted that it would be violative of Article 21 of the Constitution of India if a person is allowed to be arrested in a case which if put to judicial scrutiny, does not involve him in the commission of an offence under the Act yet in a given situation false and vexations charges may be attributed against any person to injure his reputation and exposing him to social ridicule. In this connection he has placed reliance on State of Haryana vs. Bhajan Lal & ors. (3).
(7). Written submissions were also forwarded by Shri M.S. Raghav, who interalia has contended that the police is not always a good and fair investigator and for various reasons it extends a helping hand in fabricating the record in a manner which causes undue harassment and torture to a citizen and hence the judiciary ought to step in where Executive exceeds its jurisdiction and the judiciary should not be a mere spectator to injustice, cruelty, torture and violation of fundamental rights or rule of law. He has clearly submitted that Section 18 does not bar judicial scrutiny of the accusations made in the FIR and also the material available in case diary or challan. The courts, according to him, ought to examine all these facts before rejecting an application of anticipatory bail of an accused alleged to have committed an offence under the Act of 1989. The other counsels who also advanced arguments in support of the aforesaid views ultimately attempted to drive home the same contentions but in other words, which are referred to hereinbefore.
(8). The counter arguments have been advanced by the Government Advocate Shri Ajay Purohit on behalf of the State supported by other advocates Shri Bhanwar Bagri, Shri Ganesh Meena and others, while emphasizing on the object of the enactment to ensure justice to the weaker sections of the society particularly the Scheduled Castes and Scheduled Tribes, have basically contended that Section 18 of the Act of 1989 creates a complete bar and the court cannot even entertain an application for grant of pre- arrest bail under Section 438 of the Cr. P.C. once the case is registered by the police under the Act of 1989, the courts should have no occasion to peruse even the FIR to find out whether the offence under the Act has been committed or not. They have also in turn relied on a catena of cases in order to emphasize that though a variety of measures have been taken in order to stop atrocities which are committed against the SC and ST in order to oust them from their land and to humiliate them in public, it is insufficient and hence it is necessary that a strict interpretation of Section 18 should be made so that the purpose and object of the Act is not frustrated. One of the authorities relied upon is that case of State of Karnataka vs. Appa Balu Ingale (4), wherein the learned judges had observed that the court should keep in mind the constitutional goals and purpose of the Act and interpret provisions of the Act in the light thus shed to annihilate untouchability; to accord to the Dalits and the Tribes right to equality, social integration. They have further relied on the case of Bapu Gauda & Anr. vs. State of Karnataka (5), G.S. Thake vs. State of Gujarat (6), in support of their submissions.
(9). Before we proceed to deliberate on the rival contentions advanced by the counsels for the respective sides, it would be worthwhile to examine some of the authorities which are often enough citied to press the application for anticipatory bail on the ground of its maintainability urging that while an application would not be maintainable if there is intact an accusation of commission of an offence under the Act of 1989, yet the courts would be justified in examining the material in order to determine whether there is infact accusation within the meaning of Section 3 of the Act of 1989 so as to deny him the benefit of pre-arrest bail u/Sec. 438 of the Cr. P.C. (10). In the matter of Pankaj D. Sudhir vs. State of Gujarat (7), the same question came up for consideration wherein the accusation in the complaint levelled against a Forest Officer was to the effect that he has committed an offence punishable under Section 3 of the Act of 1989 but prima facie on judicial scrutiny it was found not to be free from doubt. Hence it was considered whether in such cases, the accused person be blindly and mechanically denied the benefit of anticipatory bail under Section 438 of the Cr. P.C. This was the fundamental question touching upon the applicability and interpretation of Section 18 of the Act of 1989 which came up for consideration before the said court.
(11). In this case absolute emphasis was laid by the learned APR on the phrase 'on accusation of having committed an offence under the Act' and thus he submitted that since a case against the accused has been registered under Section 3(i) of the Act of 1989, his application for anticipatory bail under Section 438 of the Cr. P.C. could not be entertained at all and if despite express exclusion of anticipatory bail under Section 18 of the Act of 1989 an application is entertained, Section 18 of the Act of 1989 will not only lose its rigour and sanctity but would stand virtually defused and written off. On this basis it was urged that anticipatory bail application should be rejected. The learned Single Judge of the Gujarat High Court while considering this question was pleased to observe therein that whether the provision of the particular Act and for that purpose the rule made thereunder are applicable to the facts of a particular case or not, is always unquestionably a matter which lies strictly and exclusively within the domain of judicial consideration- discretion and, therefore, neither mere allegation made in the complaint by themselves nor mere denials by the accused can automatically vest or divest the court from discharging its ultimate judicial function-duty to closely scrutinise and test the prima facie dependability of the allegations made in the complaint in order to reach to its own conclusion. Thus in this matter the Court examined as to whether any prima facie case was available to clearly demonstrate and reveal that the allegations levelled against the accused was free from doubt and since it was held that the very applicability of the Atrocities Act was rendered doubtful, refusal of anticipatory bail would be unjust, illegal, injudicious and ultimately a travesty of justice. It held that no court can ever embark upon such hazard of refusing anticipatory bail on mere doubtful accusations and assumptions so as to gulp down the motivated and malafide accusations.
(12). Another relevant case on the question involved is the judgment delivered in the matter of Ram Dayal and Anr. vs. State of Madhya Pradesh (8), where the learned Single Judge of the M.P. High Court was pleased to observe that the Court would not, without examining the merits of the accusation, dismiss an application for anticipatory bait where there is no material to reasonably raise a suspicion of the commission of an offence and if there is no accusation within the meaning of Section 18 of the Act of 1989, the maintainability of the application for anticipatory bail under Section 438 Cr.P.C. cannot be challenged. In yet another case of Orissa in the case of Ramesh Prasad Bhanja & Ors vs. Stale of Orissa (9), it was observed that merely because a case is mechanically registered under Section 3 of the Act of 1989, the provision of Section 438 cannot be said to be inapplicable in each and every case and the jurisdiction would be ousted only if a prima facie case under the S.C. and S.T. Act of 1989 is made out.
(13). Authorities are not wanting even of this Court where after judicial scrutiny when it was found that no prima facie case against the accused under Section 3(i) to (xi) of the Act of 1989 is found, it was pleased to grant anticipatory bail in the matter of Amar Singh & Ors. vs. State of Rajasthan (10). In yet another case Satya Narain & Ors. vs. State of Rajasthan (11), a learned Single Judge of this Court while entertaining an application under Section 438 of the Cr. P.C for the offence under the Act of 1989 was pleased to observe that if a person is accused of having committed an offence under the Act of 1989, the embargo imposed under Section 18 of the Act of 1989 against the grant of anticipatory bail would come into play but before the provision of Section 18 of the Act of 1989 is made applicable, the Court would be justified in considering as to whether the applicant can be treated as an accused of having committed an offence under the Act of 1989. It was observed therein that since the provisions contained in Section 18 is an exception carved out from general provisions of anticipatory bail contained in Section 438 of the Cr. P.C., it has to be construed strictly but once it is gathered that an offence specified under the Act of 1989 is committed then irrespective of the gravity of the offence anticipatory bail has to be declined. But the Court has to apply its mind to the facts of the case and record a finding that the applicant has been an accused of having committed an offence under the Act of 1989.
(14). The occasion to consider this question regarding the scope and extent of entering into scrutiny of a case registered under the Act of 1989 came up for consideration also in the case of Munir Khan and Ors. vs. State of Rajasthan (12), and a learned Single Judge of this Court held that Section 18 of the Act of 1989 does not create a complete bar to maintainability of an application under Section 438 Cr. P.C. and whenever such application comes up for consideration before the competent court, then it should make a judicial scrutiny as to whether from the FIR, the statement of witnesses and other documents on record and the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting an offence under the Act or not. The court may for this limited purpose scrutinize the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or to broad probabilities of the case. However, the learned Judge was also pleased to observe that it does mean that it can appreciate the evidence at this stage and make a roving inquiry into the pros and cons into the matter and the evidence.
(15). Once again the same question arose for consideration before the aforesaid learned Single Judge in the case of Rakesh and Ors. vs. State of Rajasthan (13), and in this case while affirming his earlier view in Munir Khan's Case (supra), it was held therein that prima facie it does not appear that the applicants have committed the offence under Section 3(i) to (xi) of the Act of 1989 and thus was pleased to grant benefit of Section 438 Cr.P.C. But on this occasion an appeal was preferred by the State of Rajasthan against the order of the learned Single Judge in Rakesh's case before the Apex Court which was disposed of by order dated 7.5.96 in (13) Cr. Appeal No. 640/96 wherein the learned Judges of the Supreme Court held as under:-
"The only point that has been urged in support of the appeal is that in view of Section 18 of the Act, which expressly bars application of Section 438 Cr. P.C. in respect of prosecution under the Act, the High Court was not justified in entertaining the respondents' application for anticipatory bail, much less, passing the impugned order. This contention has got to be accepted in view of the clear language of Section 18, more so, when challenge to its constitutionality was also rejected by this Court in State of M.P. vs. Ram Kishan Balotia (1995 (3) SCC 221).
Inspite of our above finding, we do not feel inclined to set aside the impugned order as the record indicates that pursuant thereto respondents have been granted bail and they have been enjoying the previlege thereof for long."
(16). It is in the aforesaid background that the matter was referred to this Full Bench to consider in regard to the extent and scope in which the District & Sessions Judge as also the High Court would consider whether any scrutiny of a case registered under Section 3 of the Act of 1989 could at all be entered into and whether it is permissible even prima facie to examine any material while dealing with an application of anticipatory bail if it relates to commission of an offence registered under Section 3 of the Act of 1989.
(17). Having anxiously deliberated on the arguments and counter arguments advanced on the question under reference in the light of the embargo imposed by Section 18 of the Act of 1989 as also after meticulous perusal of the aforesaid citations, the most striking aspect of the matter which cannot be lost sight of, but appear to have been missed is the parameters already delineated in the matter of State of M.P. vs. R.K. Balotia (supra) and the observations of the Supreme Court in Cr. Appeal No. 610/96 disposed by order dated 7.5.96 referred to hereinabove. In this case the learned Judges of the Apex court have expressly observed that the High Court was not justified in entertaining the respondents' application for anticipatory bail and more so the passing of the impugned order for grant of anticipatory bail was not upheld in view of the clear language of Section 18 of the Act 1989 and it is difficult to ignore this observation of the Apex Court, which has material bearing on the issue under reference.
(18). In the matter of State of M.P. vs. R.K. Balotia (supra), although the consideration was only in regard to the challenge to the constitutional validity of the Act of 1989 and Section 18 of the said Act in particular while dealing with the same, the arguments which have been advanced by some of the counsels in this reference regarding extent of the scrutiny of material and maintainability of the application also were impliedly under consideration and although the Apex court expressly did not enter into the question as to what extent the courts would enter into scrutiny of material, the tone and tenor of the entire judgment is more than a pointer to the inference that once a person is accused of an offence under Section 3 of the Act of 1989, his remedy seeking, anticipatory bail is completely barred and as observed in the matter of Rakesh's case (supra) by the Apex Court in Cr. Appeal No. 640/96 dated 7.5.96, the courts would not be justified in entertaining the application for anticipatory bail once an offence under the Act of 1989 is disclosed in the FIR. In view of the ratio of these two judgments, there is no scope left for this Full Bench to enter into the question regarding the extent and scope of interpretation of Section 18 of the Act of 1989 on the ground of curtailment of personal liberty for once a person is accused of an offence and a case is registered against him under the Act of 1989, the Court of Session and the High Court in view of the clear bar of Section 18 of the Act of 1989 would clearly be precluded from entering into the enquiry of the allegations levelled against the accused and we find substance in the contention that if the courts are permitted to enter into a roving enquiry in regard to the allegations, the whole purpose and effect of the section would be totally defused and would make it totally otiose and redundant. This is also the ratio which is clearly reflected from the case of State of M.P. vs. R.K. Balotia referred to hereinbefore as in the said case, the same set of arguments were advanced that if the courts are precluded from entering into the enquiry into the allegations there would be complete negation of the right to liberty envisaged in the Constitution. We are afraid that if an interpretation of Section 18 is made in a manner so as to permit scrutiny of materials into the case diary, charge-sheet, statements of the witnesses and other materials on record, it would be difficult to make a distinction between usual application for anticipatory bail and the one filed in a case alleged against an accused under the Act of 1989. It has to be borne in mind that if a person is even alleged of accusation of committing an offence under the S.C. S.T. 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 inter 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 any prepondence of probability of commission of such an offence. Such an exercise in our view is intended to put to a complete bar against entertainment of application of anticipatory bail which is unambiguously laid down under Section 18 of the Act of 1989, 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. In our opinion, the court will not be justified in embarking upon an inquiry 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 or 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 1989 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 scrutinising the prepondence of the probability of commission of the offence by the accused, but if from the FIR itself the ingredients of offence as 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 allegations levelled against the accused in the FIR are true or false and there would be no justification to enter into the matter further in order to examine whether the allegations levelled against the accused are even prima facie correct or incorrect. Any other interpretation, in our opinion, would go against the letter and spirit of the clear provision of Section 18 of the Act of 1989 which has already stood the test of reasonableness and constitutional validity upto the level of the Apex Court.
(19). The reference is accordingly answered.