Gauhati High Court
Ruchira Dutta vs The State Of Assam on 23 June, 2021
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/9
GAHC010093872021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/1690/2021
RUCHIRA DUTTA
W/O. DEEPAK DUTTA, R/O. FLAT 1 D, SURANJANA APARTMENT, NA ALI,
JORHAT, P.O. AND P.S. JORHAT, DIST. JORHAT, ASSAM.
VERSUS
THE STATE OF ASSAM
REP. BY PP, ASSAM.
Advocate for the Petitioner : MR. T J MAHANTA
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
23.06.2021 The Court proceedings have been conducted through remote video conferencing mode due to the prevailing situation in the State due to Covid-19 pandemic.
2. Heard Mr. T.J. Mahanta, learned Senior Counsel assisted by Mr. P.P. Dutta, learned counsel for the petitioner and Mr. T.K. Misra, learned Additional Public Page No.# 2/9 Prosecutor for the respondent State of Assam.
3. By this application under Section 438, Code of Criminal Procedure, 1973 (CrPC), the petitioner viz. Smti. Ruchira Dutta has approached this Court seeking the benefit of pre-arrest bail, apprehending her arrest, in connection with Jorhat Police Station Case no. 1839/2020.
4. The case, Jorhat Police Station Case no. 1839/2020 has been registered on the basis of a First Information Report (FIR) lodged by the informant, Sri Dilip Hazarika on 03.09.2020 before the Officer In-Charge, Jorhat Police Station. On receipt of the FIR, the case was initially registered for the offences punishable under Sections 294/153A of the Indian Penal Code (IPC). Thereafter, on the basis of an application submitted by the Officer In-Charge, Jorhat Police Station on 18.09.2020 before the Court of learned Chief Judicial Magistrate, Jorhat, Section 3(1)(r) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ('the SC/ST Act', for short) was added by an order dated 18.09.2020 of the said Court.
5. The learned Senior Counsel for the petitioner after referring to the provisions of Section 18 and sub-section (2) of Section 18A of the SC/ST Act, has submitted that the accusations made in the FIR do not prima facie suggest that any offence either under Section 153A, IPC or under Section 3(1)(r) of the SC/ST Act has been made out. It is his submission that the said FIR is a counterblast to another FIR lodged by the daughter of the petitioner on 02.09.2020 which was lodged priorto the FIR lodged by the informant against the petitioner. He has submitted that when an application for pre-arrest bail was earlier preferred before the learned Sessions Judge, Jorhat by the petitioner the said Court initially by order dated 20.05.2021 (Annexure-5) granted interim Page No.# 3/9 protection to the petitioner but by order dated 24.05.2021 (Annexure-6), the application was rejected only on the ground thata prohibition is contained in Section 18 of the SC/ST Act. He has further referred to the decisions of the Hon'ble Supreme Court of India in (i) Dr. Subhash Kashinath Mahajan vs. State of Maharashtra, reported in (2018) 6 SCC 454; (ii) Prathvi Raj Chauhan vs. Union of India, reported in (2020) 4 SCC 727; and (iii) Union of India vs. State of Maharashtra, reported in (2020) 4 SCC 761, to buttress his submissions. Referring to the aforesaid decisions, he has submitted that the view taken in the order dated 24.05.2021 is not the correct position of law.
6. Before adverting to the contents of the FIR it would be apposite to quote Section 18 and sub-section (2) of Section 18A of the SC/ST Act :-
"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. 18A(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.
7. It would also be apposite to quote the provision contained in Section 3(1)
(r) of the SC/ST Act hereunder for ready reference :-
"3. Punishments for offences atrocities -(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, -
(r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public Page No.# 4/9 view, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine."
8. It can be gathered from the contents of the two FIRs that both the informant and the petitioner are residents of an apartment complex, Suranjana Apartments located at Na-Ali, Jorhat. The informant is presently the President of the Suranjana Management Society which looks after the affairs of Suranjana Apartments. It further transpires that the apartment complex was constructed on a plot of land which originally belonged to the husband of the petitioner, Deepka Dutta. The husband of the petitioner was the President of Suranjana Management Society earlier.
9. The genesis of both the FIRs is one Annual General Meeting of Suranjana Management Society held on 23.08.2020.
10. As per the FIR lodged by the daughter of the petitioner, the informant and his family members had been inflicting mental torture to her family members in various ways including verbal abuse, passing snide remarks, throwing garbages at the petitioner family's premises, etc. and such tortures led to the resignation of the husband of the petitioner from the post of President of Suranjana Management Society. In the Annual General Meeting (supra) the husband of the petitioner attempted to raise the grievances but the Society members prevented him from speaking. Visibly upset by such behaviour of the Society members, more particularly, of the informant as the President of the Society the petitioner had spoken in the meeting about the ill-treatment meted out to the petitioner and her family members at the instance of the informant. After the petitioner had spoken in the said meeting, in an agitated manner, the Society under the Page No.# 5/9 presidentship of the informant had served a noticeon the petitioner and her family members stating that the Society had boycotted the family and the said notice was circulated also via the WhatsApp group of residents of Suranjana Apartments. The said FIR has been registered as Jorhat Police Station Case no. 1834/2020 under Sections 269/270/506/34, IPC r/w Section 51(b), Disaster Management Act, 2005 r/w Section 3, Epidemic Disease Act, 1897.
11. Pursuant to the lodgment of the FIR of Jorhat Police Station Case no. 1834/2020, the FIR of Jorhat Police Station Case no. 1839/2020 came to be lodged on 03.09.2020 by the informant. Referring to the Annual General Meeting (supra), the informant has alleged that in the said meeting the petitioner had started making her speech all on a sudden and in the said speech, she hurled abusive words to the President present on the chair i.e. the informant in front of all the members of the Society. The informant found the words spoken by the informant defamatory. The informant has specifically mentioned that the petitioner had addressed him as 'stupid' and also told the gathering that 'Deepak Dutta is the owner of the land and one day you have to touch his feet'. The informant has felt threatened from the family of the petitioner to be in Suranjana Management Society. As the informant has been suffering from high blood pressure and diabetes, the act of the petitioner amounted to serious mental torture. At last, the informant has mentioned that he belonging to the Scheduled Castes, has felt threatened by the act of pointing fingers at him and the use of abusive wordsby thepetitioner. According to him, such intentional abuse by the petitioner has hurt his status.
12. From the objects and reasons of enactment of the SC/ST Act, it is evident that the Act has been enacted to improve the social economic conditions of the Page No.# 6/9 vulnerable sections of the Scheduled Casts and the Scheduled Tribes as they have been subjected to various offences, indignities, humiliations and harassments. The object of the Act is primarily to punish the violators who inflict indignities, humiliations and harassments and commit the offences as defined under Section 3 of the SC/ST Act.
13. The Union of India had filed a review petition against the judgment rendered in Dr. Subhash Kashinath Mahajan (supra) as in Dr. Subhash Kashinath Mahajan (supra) the Supreme Court of India in para 79 of the judgment had issued a set of directions in respect of the provisions of the SC/ST Act. It was held in para 79.2 there is no absolute bar against grant of anticipatory bail in cases under the SC/ST Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie malafide. When the said judgment came to be considered by way of review by a larger bench in Union of India (supra) it has again been observed that if prima facie case has not been made out attracting the provisions of the SC/ST Act in the case, the bar created under Section 18 of the SC/ST Act on the grant of anticipatory bail is not attracted. In Prathvi Raj Chauhan (supra), the provisions of Section 18 as well as Section 18A of the SC/ST Act have been considered. In the majority judgment of two Judges, it has been observed that Section 18A came to be inserted owing to the decision in Dr. Subhash Kashinath Mahajan (supra). It has further held that concerning the applicability of the provisions of Section 438, CrPC it shall not apply to the cases under the SC/ST Actbut if the complaint does not made out a prima facie case for applicability of the provisions of the SC/ST Act, the bar created by Section 18 and Section 18A shall not apply, as has already been clarified in the review petitions in Union of India (supra). In the concurring judgment, it has been observed as under :-
Page No.# 7/9 "32. As far as the provision of Section 18-A and anticipatory bail is concerned, the judgment of Mishra, J. has stated that in cases where no prima facie materials exist warranting arrest in a complaint, the court has the inherent power to direct a pre-arrest bail.
33. I would only add a caveat with the observation and emphasise that while considering any application seeking pre-arrest bail, the High Court has to balance the two interests : i.e. that the power is not so used to convert the jurisdiction into that under Section 438 of the Criminal Procedure Code, but that it is used sparingly and such orders made in very exceptional cases where no prima facie offence is made out as shown in the FIR, and further also that if such orders are not made in those classes of cases, the result would inevitably be a miscarriage of justice or abuse of process of law. I consider such stringent terms, otherwise contrary to the philosophy of bail, absolutely essential, because a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament."
14. A reading of Section 3(1)(r) of the SC/ST Act goes to indicate that the ingredient of intentional insult and intimidation has to be with an intent to humiliate a member of a Scheduled Castes or a Scheduled Tribe. Thus, it cannot be readily held that all insults or intimidations to a member of aScheduled Castes or a Scheduled Tribe would be an offence under the said Section unless such insult or intimidation is on account of the fact that the victim belongs to the Scheduled Castes or the Scheduled Tribes. The member should belong to the vulnerable sections of the Scheduled Castes or the Scheduled Tribes and such insults or intimidations have been given on the premise that he belongs to Page No.# 8/9 such vulnerable sections and because of his socio economic conditions and status. If the insult or intimidation has been made to a person without specifically referring to such status of the person or without knowing about such status of the person the ingredient of Section 3(1)(r) of the SC/ST Act might be absent even if such insult or intimidation is in public view.
15. I have taken note of the fact that the FIR against the petitioner came to be filed after an FIR was filed by the daughter of the petitioner in respect of the same incident. The informant has himself stated in the FIR that he had retired as a General Manager of Indian Oil Corporation, a Public Sector Undertaking (PSU) under the Ministry of Petroleum and Natural Gas, Government of India. The said fact does not prima facie signify about the informant belonging to a vulnerable section of the society or him belonging to the lower echelons of the society in status, position, etc. He has also been holding the position of the President of Suranjana Apartments Society. In the FIR, the informant has mentioned that because of the aggressive behaviour of the petitioner and hurling of abusive words at him by the petitioner he felt threatened as he belongs to the Scheduled Caste but there is no mention that the petitioner had insulted and intimidated him for belonging to the Scheduled Casts. The incident in question had occurred in the Annual General Meeting where he was presiding as Chairman of the said Society and the matter of discussion in the said meeting was the affairs pertaining to the Society. Having considered the position of law from the afore-stated perspective and the decisions referred above, I have found that the petitioner has made out a prima facie case for interim protection pending further consideration of the case on the basis of the materials available in the case diary, collected during the course of investigation carried out in the Page No.# 9/9 meantime.
16. In view of the above discussion, it is provided, in the interim, that in the event of arrest of the petitioner viz. Smti. Ruchira Dutta in connection with Jorhat Police Station Case no. 1839/2020, she shall be released on bail on furnishing a bail bond of Rs. 10,000/- with one local surety of the like amount, to the satisfaction of the arresting authority, subject to the conditions that :
[i] the petitioner shall appear before the Investigating Officer (I.O.) of the case within 10 (ten) days from today and shall cooperate with the investigation;
[ii] the petitioner shall not, directly or indirectly, make any inducement, threat or promise to any witness acquainted with the facts of the case so as to dissuade her from disclosing such facts to the court or to any police officer; and [iii] the petitioner shall maintain law and order and she shall not commit an offence similar to the offence of which she is accused, or of the commission of which she is suspected.
17. List the case on 23.07.2021 to enable the learned Additional Public Prosecutor to produce the case diary of Jorhat Police Station Case no. 1839/2020.
JUDGE Comparing Assistant