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Madhya Pradesh High Court

Ashraf Khan vs The State Of Madhya Pradesh on 22 June, 2018

            THE HIGH COURT OF MADHYA PRADESH
                       CRA-4200-2018
                  (ASHRAF KHAN Vs THE STATE OF MADHYA PRADESH)


  Jabalpur, Dated : 22-06-2018
        Shri Amit Dubey, Advocate for the appellant.
        Shri Santosh Yadav, P.L. for the respondent no.1/State.

None for the respondent No.2/complainant despite compliance of provision of Section 15(A)(III) of SC/ST (Prevention of Atrocities) sh Act by the respondent No.1 State.

This criminal appeal has been filed under Section 14 (A) of e ad SC/ST (Prevention of Atrocities) Act against the order dated 28/5/2018 passed by Special Judge, SC/ST (Prevention of Atrocities) Pr Act, Katni in B.A. No.266/2018; whereby learned Special Judge a rejected the bail application filed by appellant, under Section 438 of hy the Cr.P.C. to get anticipatory bail in Crime No. 4/2018 registered at ad P.S. Adim Jati Kalyan, District Katni (M.P.) for the offences punishable under Section 190, 294, 323, 506 of the IPC and Sections M 3(1)(r) and 3(2)(v)(a) of SC/ST(Prevention of Atrocities) Act, 1989, of who apprehends his arrest in the crime.

[2] As per prosecution case, on 26/1/2018 when the appellant rt was coming toward his house, on the way near Sihadi Mod, appellant ou assaulted him by kicks and fists and threatened to kill him. On that, C police registered the Crime No. 4/2018 registered at P.S. Adim Jati Kalyan, District Katni (M.P.) for the offences punishable under h ig Section 190, 294, 323, 506 of the IPC and Sections 3(1)(r) and H 3(2)(v)(a) of SC/ST(Prevention of Atrocities) Act, 1989. The appellant filed an application before the trial Court for grant of anticipatory bail, which was rejected. Being aggrieved by the impugned order, appellant filed this Criminal Appeal.

[3] Learned counsel for the appellant submitted that he is innocent and falsely been implicated in the case. So, he be released on anticipatory bail. In this regard, he placed reliance on the apex Court judgement passed in the case of Dr. Subhash Kashinath Mahajan vs The State Of Maharashtra reported in 2018 SCC Online SC 243.

[4] In the case of Dr. Subhash Kashinath Mahajan (supra) apex Court held that the bar under Section 18 of the SC/ST Act would apply only, where there is prima facie case of an offence having been committed by the accused against a member of the SC/ST community. However, in the event, the accused/applicant is able to show to the Court the existence of malice and ill-will in the registration of the FIR, then the bar of Section 18 of SC/ST Act would not apply. In paragraph-83 of the said judgment, the Supreme Court laid down “Accordingly, we direct that in absence of any other independent offence calling for arrest, in respect of offences under the Atrocities Act, no arrest may be affected, if an accused person is a sh public servant, without written permission of the appointing authority e and if such a person is not a public servant, without written permission ad of the Senior Superintendent of Police of the District. Such Pr permissions must be granted for recorded reasons which must be served on the person to be arrested and to the concerned court. As and a when, a person arrested is produced before the Magistrate, the hy Magistrate must apply his mind to the reasons recorded and further ad detention should be allowed only if the reasons recorded are found to M be valid. To avoid false implication, before FIR is registered, preliminary enquiry may be made whether the case falls in the of parameters of the Atrocities Act and is not frivolous or motivated”. (emphasis supplied) The direction in the said rt paragraph is categorical and unambiguous. ou [5] It also empowers the police to carry out a preliminary C enquiry to find out whether the allegations levelled in the complaint by h the affected person falls within the parameters of the atrocities Act or ig whether the same is frivolous or motivated. It is also the specific H direction that the arrest may not be effected in a case, where the person is not a public servant without the written permission of the Senior Superintendent of Police and that such permission must be granted after recording the reasons which must be served on the person sought to be arrested and to the court concerned.

[6] In this case, the learned counsel for the State after going through the case diary has submitted that there is no report of the Superintendent of Police of District Katni in line with the judgment of the Supreme Court warranting the arrest of the appellant herein.

[7] Under these circumstances, this appeal is disposed of with the liberty given to the State to place the case before the Superintendent of Police, District Katni who, if he feels necessary that the appellant's€™ arrest is warranted in this case, shall give his brief report stating the reasons to justify such an arrest, which shall be given to the appellant herein. Thereafter, the police shall not arrest the appellant for a period of one week in order to enable him to approach the special judge for bail.

With the above directions, the appeal stands disposed of. C.C. as per rules.

                                                    e    sh
                                              (RAJEEV KUMAR DUBEY)




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  Digitally signed by MONIKA
  CHOURASIA

Date: 2018.06.22 17:24:33 +05'30' M of rt ou C h ig H