Mangaram Jha vs The State Of Madhya Pradesh on 5 December, 2018

[Cites 22, Cited by 15]

Madhya Pradesh High Court

Mangaram Jha vs The State Of Madhya Pradesh on 5 December, 2018

1. The instant appeal u/S. 14-A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act, 1989 (for brevity the 1989 Act) seeks to set aside the order dated 10/10/2018 of the Sessions Judge/Special Judge (Atrocities), Gwalior (M.P.) by which the application seeking anticipatory bail stands rejected on merits.

2 Cra.8795/18

2. The allegations reveal that the complainant Jitendra who happens to be a member of the SC & ST community orally reported to the police station that on complainant criticizing the functioning of appellant No.1-Mangaram Jha as a teacher, the appellant No.1 got annoyed and alongwith his nephew Rahul (appellant No.2) accosted the complainant and uttered abusive words and caused lathi blow to the complainant who sustained minor injuries. The name of the caste of the complainant was taken by the appellants in a derisive manner while abusing him.

3. Learned counsel for the appellants has submitted that no offence u/S. 3(r)(s) of the SC & ST Act as alleged is made out since abusive words uttered and intimidation made were not with an intent to humiliate a member of the SC & ST community but due to the annoyance nursed by the appellants arising out of complaint made by the victim against the appellant No.1 criticizing his teaching ability.

4. Bare perusal of the allegations contained prima facie reveals that the appellants abused the victim who happens to be a member of the SC & ST community by taking the name of his caste in a derisive manner within public view. 4.1 The incident occurred on 28/9/2018 which is subsequent to the widespread amendment carried out in the 1989 Act w.e.f. 26/1/2016. Prior to the said amendment, the nature of allegation made against the appellants was falling within the trapping of sec. 3(1)(x) of the Act, 1989 which provides thus:-

''Sec. 3 Punishments for offences of atrocities:-

(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe

(i) xxxx xxxx xxxx xxxx

(ii) xxxx xxxx xxxx xxxx

(iii) xxxx xxxx xxxx xxxx

(iv) xxxx xxxx xxxx xxxx 3 Cra.8795/18

(v) xxxx xxxx xxxx xxxx

(vi) xxxx xxxx xxxx xxxx

(vii) xxxx xxxx xxxx xxxx

(viii) xxxx xxxx xxxx xxxx

(ix) xxxx xxxx xxxx xxxx

(x) "Intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view."

4.2 The said penal provision in Sec. 3(1)(x) could be attracted when the allegations reveal that insult and intimidation was extended against a member of SC & SC community by a member of non-SC & ST community with an intent to humiliate a member of SC & ST within public view. However, cases come to light where the rigors of Sec. 3(1)(x) could be avoided if the allegations revealed that the insult and intimidation extended to an SC & ST member in public view was based not on the fact that the victim was SC & ST but was based in the heat of the moment or impulse due to past animosity, altercations or arguments. This lacuna in law drew attention of the law makers which led to the amendment in the 1989 Act which was brought into effect from 26/1/2018 by widening the scope and sweep of the penal provision of Sec. 3(1)(x) by inter alia enacting Sec. 3(1)(r) & (s) which are reproduced below:-

"Sec. 3. Punishments for offences atrocities-(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,--

       (a) xxxx          xxxx         xxxx       xxxx
       (b) xxxx          xxxx         xxxx       xxxx
       (c)   xxxx        xxxx         xxxx       xxxx
       (d) xxxx          xxxx         xxxx       xxxx
       (e) xxxx          xxxx         xxxx       xxxx
       (f)   xxxx        xxxx         xxxx       xxxx
       (g) xxxx          xxxx         xxxx       xxxx
       (h) xxxx          xxxx         xxxx       xxxx
       (i)   xxxx        xxxx         xxxx       xxxx
       (j)   xxxx        xxxx         xxxx       xxxx
                                   4                   Cra.8795/18

       (k)   xxxx          xxxx        xxxx       xxxx
       (l)   xxxx          xxxx        xxxx       xxxx
       (m)   xxxx          xxxx        xxxx       xxxx
       (n)   xxxx          xxxx        xxxx       xxxx
       (o)   xxxx          xxxx        xxxx       xxxx
       (p)   xxxx          xxxx        xxxx       xxxx
       (q)   xxxx          xxxx        xxxx       xxxx

(r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;

(s) abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view;

4.3 From the above it is evident that the unamended provision of Sec. 3(1)(x) is now split into two separate offences. The first being Sec. 3(1)(r) where it was necessary that the allegation to reflect that insult and intimidation extended was with an intent to humiliate a member of SC & ST community within the public view, whereas Sec. 3(1)(s) could be attracted even if the non-SC & ST member abuses an SC & ST member by taking the name of his caste in public view, notwithstanding that the abuse is made with an intent to humiliate member of SC/ST member, or not. 4.4 Thus, for constituting offence punishable u/S. 3(1)(s) it was not necessary for the allegations to reflect presence of the all important intent to humiliate an SC/ST member which earlier formed an essential ingredient of Sec. 3(1)(x) of the 1989 Act.

5. In the instant case, the allegations prima facie reveal that the abusive words were uttered by the appellants and the name of the caste of the victim was taken in a derisive manner in public view. Thus, on prima facie assessment the essential ingredients of offence punishable u/S. 3(1) (s) appear to be made out especially when offence occurred during post amendment era. 5.1 Once having found that the offence alleged u/S. 3(1)(s) to 5 Cra.8795/18 be made out on prima facie assessment, the bar contained in Sec. 18 of the 1989 Act comes in way of this court. The provision of Sec. 438 Cr.P.C. has been excluded in it's application to all offence punishable under the 1989 Act.

6. At this juncture, learned counsel for the appellants has brought to the attention of this court the order dated 11/10/2018 passed in Cr. Appeal No. 7295/18 (Atendra Singh Rawat Vs. State of Madhya Pradesh) while granting anticipatory bail to the petitioner therein qua offences punishable u/Ss. 354-A IPC r/w Sec. 3(1)(w)(i) of the SC & ST Act where Coordinate bench of this court took assistance of Sec. 41 Cr.P.C., after finding the exculpatory circumstance of the FIR in the matter being lodged after ten months of the incident and thus the story of the prosecution being improbable.

7. It would be appropriate at this juncture to refer to the more recent amendment in the 1989 Act by which Sec. 18-A was incorporated to the following extent:-

"Section 18A (1) For the purpose 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 provision 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."

7.1 The aforesaid sec. 18-A was incorporated to overreach and 6 Cra.8795/18 nullify the law laid down by the Apex Court in the case of Dr. Subhash Kashinath Mahajan v. State of Maharashtra reported in 2018(6) SCC 454 on somewhat misplaced assumption of the legislation that the aforesaid view of the Apex Court in the case of Dr. Subhash Kashinath Mahajan (supra) offended the object behind 1989 Act.

7.2 Be that as it may, since this court is not to deal with the legality and validity of the said provision of Sec. 18-A of the 1989 Act, same is to be interpreted in a manner which reveals it's true intention.

7.3 Sec. 18-A (1)(a) and (b) are incorporated to overcome the verdict of the Apex Court in the case of Dr. Subhash Kashinath Mahajan (supra) by foreclosing the requirement of any preliminary enquiry or approval of any higher police officer or appointing authority as was directed by the Apex Court in Dr. Subhash Kashinath Mahajan (supra) before registration of an offence under the 1989 Act.

7.4 As regards Sec. 18-A (2), the same completely prohibits anticipatory bail in an offence punishable under the 1989 Act. The prohibition imposed is intended to be made airtight by employing the expression "Code shall not apply" and also the non-obstinate clause "notwithstanding". Any judgment or order or direction of any court of law cannot thus be passed granting anticipatory bail. Meaning thereby that provision of anticipatory bail u/S. 438 Cr.P.C.stands completely excluded qua an offence under 1989 Act.

7.5 However, the power of judicial review u/Art. 226 of the Constitution which forms part of the basic structure of the Constitution is always available.

7.6 It is further pertinent to see from microscopic reading of clause (b) to Sec. 18-A(1) that in respect of arrest of a person 7 Cra.8795/18 against whom offence under the 1989 Act is alleged, no procedure except provided under the 1989 Act or the Cr.P.C., shall apply. Thus, the procedure provided under the Cr.P.C. which relates to the subject of arrest, is very much applicable which binds the Investigating Officer or any other police officer while taking the extreme step of arresting a person accused of offence punishable under the 1989 Act.

7.7 Once it is clear from the very language employed by amended section 18-A(1)(a) that all provisions relating to arrest under the Cr.P.C.are applicable then the provision of Chapter V of Cr.P.C.which relates to arrest of person shall apply with full vigor to regulate the process of arrest adopted by police officer while deciding the question as to whether a person accused of offence punishable under the 1989 Act is required to be arrested or not. In this regard this court need not go into the prolixity of interpreting the provision of Chapter V of Cr.P.C., especially the provision of Sec. 41-A, 41-B, 41-C and 41-D, as this court may take assistance of the law laid down by the Apex Court in the case of Arnesh Kumar Vs. State of Bihar (2014) 8 SCC 273 where it was held thus:-

"7.1. From a plain reading of the provision u/S.41 Cr.P.C., it is evident that a person accused of anAbhinav Vs. State of MP M.Cr.C.No. 6260/2016 offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to 8 Cra.8795/18 disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts.

7.2. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. The law further requires the police officers to record the reasons in writing for not making the arrest. 7.3. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required ? What purpose it will serve ? What object it will achieve ? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. Before arrest Abhinav Vs. State of MP M.Cr.C.No. 6260/2016 first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses

(a) to (e) of clause (1) of Section 41 Cr.P.C."

8. From the aforesaid analysis and the discussions, the accusation made against the appellants reveals a prima facie case of offence punishable u/S. 3(1)(r) and therefore statutory bar contained in Sec. 18 of the 1989 Act comes in way of this court to grant anticipatory bail but the mandatory procedure prescribed in Sec.41-A, 41-B, 41-C and 41-D Cr.P.C. would apply with full vigor and the pre-conditions contained in Chapter V Cr.P.C. shall have to be satisfied before the extreme step of arrest can be taken.

9 Cra.8795/18

9. In view of above and considering the principles laid down by the Apex Court in the case of Arnesh Kumar (supra) this court without interfering in the impugned order dated 10/10/2018 passed by the court below is inclined to direct thus: -

(i) that, the police may resort to the extreme step of arrest only when the same is necessary and the appellants fail to cooperate in the investigation.

(ii) that, the appellants should first be summoned to cooperate in the investigation. If the appellants cooperate in the investigation then the occasion of their arrest should not arise.

10. Subject to above modification in the order of the trial court dated 10/10/2018, the appeal stands disposed of.

11. A copy of this order be sent to the trial court for necessary compliance.

(Sheel Nagu) Judge 05/12/2018 (Bu) DHANANJAYA BUCHAKE 2018.12.06 10:23:14 +05'30'

Unlock Advanced Research with PRISMAI

Madhya Pradesh High Court