Rajasthan High Court - Jodhpur
Raghuveer Singh vs State on 3 August, 2017
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 827 / 2017
Dr. Pratap Middha S/o Late Shri Bhojraj Middha, Aged About 67
Years, By Caste Panjabi, Director, Global Hospital, Mount Abu,
District Sirohi.
----Appellant
Versus
The State of Rajasthan
----Respondent
Connected with
S.B. Criminal Appeal No. 828 / 2017
Geeta Venugopal D/o Venu Gopal, By Caste Vanniakula (Most
Backward Class), Resident of Bramhakumari Sansthan, Abu Road
(Taleti), Police Station Abu Raod, District Sirohi.
----Appellant
Versus
The State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. B.L. Maheshwari, Senior Advocate with
Mr. R.K. Rathi.
Mr. J.S. Choudhary, Senior Advocate with Mr.
Pradeep Choudhary and Tarun Dhaka.
For Respondent(s) : Mr. K.V. Vyas, Public Prosecutor
For Complainant(s): Mr. Pradeep Shah for the complainant.
_____________________________________________________
HON'BLE MR. JUSTICE P.K. LOHRA
Order Reportable 03/08/2017 Appellants in these two appeals under Section 14-A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, 'Act of 1989') are assailing impugned order (2 of 14) [ CRLA-827/2017] dated 30th of May 2017, passed by Special Court, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Cases, Sirohi (for short, 'learned trial Court'), rejecting their pre-arrest bail applications under Section 438 Cr.P.C.
2. Succinctly stated, facts of the case are that complainant Mukna Ram Meghwal submitted a written report before SHO, Police Station Abu Road Sadar, District Sirohi, against both the appellants castigating them for offence punishable under Section 306 IPC and Section 3(2)(v) of the Act of 1989, inter-alia, on the ground that both of them hurled abuses to his son Ravindra, who was pursuing his nursing course at Global Nursing College, Taleti Abu Road, to insult and demean him by naming his caste. The report further unfurls intentional atrocious behaviour and intimidation by the appellants with intent to take Ravindra beneath notice solely on the basis of his caste. Complainant's son Ravindra divulged this information telephonically to his elder brother Vikram, also finds mention in the report. A specific allegation is made in the report by the complainant that omissions and commissions of both the appellants and their atrocious behavior forced/abeted his son Ravindra to commit suicide out of disgust. Upon receipt of report, SHO concerned registered CR Case No.107/17 for aforesaid offences. Police carried out investigation in the matter, recorded statements of some of the prosecution witnesses and collected requisite records including the suicide note of deceased.
(3 of 14) [ CRLA-827/2017]
3. Apprehending arrest pursuant to the aforementioned CR, appellants submitted two separate anticipatory bail applications before learned trial Court. The learned trial Court, by the order impugned, has rejected the applications of both the appellants.
4. Learned Senior Counsels, appearing for the appellants, submit that in the factual backdrop of the case, prima facie, aforesaid offences are not made out against the appellants. Learned Senior Counsels would contend that all the allegations made in the FIR against appellants are vague, false and fabricated just to malign them and jeopardize their reputation. Learned Senior Counsels have urged that if the recitals contained in alleged suicide note are properly construed, then no case is made out against the appellants for aforesaid offences. While referring to Section 18 of the Act of 1989, learned Senior Counsels have contended that embargo envisaged therein for grant of pre-arrest bail is not absolute and when prima facie offence under Section 3 of the Act is not made out, Court can very well exercise powers under Section 438 Cr.P.C.
5. Learned Senior Counsel submits that a bare perusal of alleged suicide note clearly and unequivocally reveals that it nowhere finds mention the name of appellant Dr. Pradeep Middha so as to castigate him for the aforesaid offences. Learned Senior Counsel has strenuously urged that on the crucial day when (4 of 14) [ CRLA-827/2017] deceased committed suicide, appellant Dr. Pradeep Middha was out of country inasmuch as he went abroad on 27 th of April 2017 and returned back on 18th of May 2017 whereas deceased Ravindra committed suicide on 14 th May 2017. Learned Senior Counsel, therefore, submits that involvement of appellant Dr. Pradeep Middha for the aforesaid offences at the behest of complainant is a glaring example of the abuse of the process of the Court. In support of his arguments, learned Senior Counsel has placed reliance on following legal precedents:
▪ Satya Narain Vs. State of Rajasthan [1991 (1) RLW 573] ▪ Rakesh & Ors. Vs. State of Rajasthan [1995 RCC 329] ▪ Virendra Singh Vs. State of Rajasthan [RLW 2001(1) Raj. 452] [FB] ▪ Girdharilal s/o Shri Balkishan & 6 Ors. Vs. State of Rajasthan [1996 Cr.L.R. (Raj.) 25] ▪ Vilas Pandurang Pawar & Anr. Vs. State of Maharashtra & Ors. (AIR 2012 SC 3316) ▪ Vinod Pratap Singh Vs. State of Rajasthan [2000 (1) RLR 44]
6. Per contra, learned Public Prosecutor, Mr. K.V. Vyas, has urged that allegations in the FIR to constitute offence under Section 3 of the Act are specific and therefore bar to grant anticipatory bail under Section 18 is clearly attracted. Learned Public Prosecutor has further submitted that the learned trial Court has examined the matter threadbare while declining pre- arrest bail to both the appellants and the said discretionary order merits no interference in exercise of appellate jurisdiction.
(5 of 14) [ CRLA-827/2017]
7. Mr. Pradeep Shah, learned counsel for the complainant, while reiterating the submissions made by learned Public Prosecutor, would urge that in the backdrop of facts and circumstances of the instant case, bar envisaged under Section 18 of the Act is clearly attracted and therefore, learned trial Court has rightly declined pre-arrest bail to both the appellants. Mr. Shah further submits that if the FIR discloses an offence under Section 3 of the Act, legislative intent enshrined under Section 18 of the Act cannot be allowed to be marred or sacrificed on mere ambitious plea.
8. I have given my thoughtful consideration to the arguments advanced at Bar and perused the materials available on record including the case diary.
[
9. The crucial question which requires judicial scrutiny in both these appeals is nature and extent of bar enshrined under Section 18 of the Act for invoking Section 438 Cr.P.C. involving arrest of any person on an accusation of having committed an offence under this Act. The legal position is no more res integra that Section 18 of the Act is not violative of Article 14 & 21 of the Constitution. Reliance in this behalf can be profitably made to a decision of Supreme Court in case of State of M.P. & Anr. Vs. Ram Kishna Balothia & Anr. [(1995) 3 SCC 221. The Court, while dilating on laudable aims and objects of the Act and the circumstances surrounding the enactment of the legislation, turned down argument that Section 18 is violative of Article 14 & 21 of the Constitution. The Court held:
(6 of 14) [ CRLA-827/2017] "It is undoubtedly true that Section 438 of the Code of Criminal Procedure, which is available to an accused in respect of offences under the Penal Code, is not available in respect of offences under the said Act. But can this be considered as violative of Article 14? The offences enumerated under the said Act fall into a separate and special class. Article 17 of the Constitution expressly deals with abolition of 'untouchability' and forbids its practice in any form. It also provides that enforcement of any disability arising out of 'untouchability' shall be an offence punishable in accordance with law. The offences, therefore, which are enumerated under Section 3(1) arise out of the practice of 'untouchability'. It is in this context that certain special provisions have been made in the said Act, including the impugned provision Under Section 18 which is before us. The exclusion of Section 438 of the Code of Criminal Procedure in connection with offences under the said Act has to be viewed in the context of the prevailing social conditions which give rise to such offences, and the apprehension that perpetrators of such atrocities are likely to threaten and intimidate their victims and prevent or obstruct them in the prosecution of these offenders, if the offenders are allowed to avail of anticipatory bail. In this connection we may refer to the Statement of Objects and Reasons accompanying the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Bill, 1989, when it was introduced in Parliament. It sets out the circumstances surrounding the enactment of the said Act and points to the evil which the statute sought to remedy. In the Statement of Objects and Reasons it is stated:
"Despite various measures to improve the socioeconomic conditions of the Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to various offences, indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons."
2. ... When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages (7 of 14) [ CRLA-827/2017] or refuse to do any bonded and forced labour, the vested interests try to cow them down and terrorise them. When the Scheduled Castes and the Scheduled Tribes try to preserve their self-respect or honour of their women, they become irritants for the dominant and the mighty. Occupation and cultivation of even the Government allotted land by the Scheduled Castes and Scheduled Tribes is resented and more often these people become victims of attacks by the vested interests. Of late, there has been an increase in the disturbing trend of commission of certain atrocities like making the Scheduled Castes persons eat inedible substances like human excreta and attacks on and mass killings of helpless Scheduled Castes and Scheduled Tribes and rape of women belonging to the Scheduled Castes and the Scheduled Tribes ... A special legislation to check and deter crimes against them committed by non-Scheduled Castes and non-Scheduled Tribes has, therefore, become necessary.
The above statement graphically describes the social conditions which motivated the said legislation. It is pointed out in the above Statement of Objects and Reasons that when members of the Scheduled Castes and Scheduled Tribes assert their rights and demand statutory protection, vested interests try to cow them down and terrorise them. In these circumstances, if anticipatory bail is not made available to persons who commit such offences, such a denial cannot be considered as unreasonable or violative of Article 14, as these offences form distinct class by themselves and cannot be compared with other offences.
We have next to examine whether Section 18 of the said Act violates, in any manner, Article 21 of the Constitution which protects the life and personal liberty of every person in this country. Article 21 enshrines the right to live with human dignity, a precious right to which every human- being is entitled; those who have been, for centuries, denied this right, more so. We find it difficult to accept the contention that Section 438 of the Code of Criminal Procedure is an integral (8 of 14) [ CRLA-827/2017] part of Article 21. In the first place, there was no provision similar to Section 438 in the old Criminal Procedure Code. The Law Commission in its 41st Report recommended introduction of a provision for grant of anticipatory bail. It observed:
"We agree that this would be a useful advantage. Though we must add that it is in very exceptional cases that such power should be exercised."
In the light of this recommendation, Section 438 was incorporated, for the first time, in the Code of Criminal Procedure of 1973. Looking to the cautious recommendation of the Law Commission, the power to grant anticipatory bail is conferred only on a Court of Session or the High Court. Also, anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article 21 of the Constitution. And its non-application to a certain special category of offences cannot be considered as violative of Article 21.
Emphasizing that the offences envisaged under the Act constitute a separate class and cannot be compared with the offences under the Penal Code, Court further held:
"It was submitted before us that while Section 438 is available for graver offences under the Penal Code, it is not available for even "minor offences" under the said Act. This grievance also cannot be justified. The offences which are enumerated Under Section 3 are offences which, to say the least, denigrate members of Scheduled Castes and Scheduled Tribes in the eyes of society, and prevent them from leading a life of dignity and self-respect. Such offences are committed to humiliate and subjugate members of Scheduled Castes and Scheduled Tribes with a view to keeping them in a state of servitude.
(9 of 14) [ CRLA-827/2017] These offences constitute a separate class and cannot be compared with offences under the Penal Code."
10. Adverting to the instant matter, the legal precedents on which the learned counsel for the appellant has placed reliance, require due consideration in the backdrop of peculiar facts and circumstances of the instant case.
The ratio decidendi of the legal precedents relied upon by learned Senior Counsel is clear and unequivocal inasmuch as bar to grant anticipatory bail is applicable when complaint contains specific averments to constitute prima facie offence under the Act. Therefore, while construing the bar in a given case, duty is casted on the Court to verify the averments contained in complaint/FIR for ascertaining prima facie disclosure of offence under the Act.
11. In Vilas Pandurang Pawar (supra), Supreme Court, while dilating on scope for appreciation of evidence and other materials on record, observed that the scope is limited. A word of caution is also issued to the Court not to indulge in critical analysis of the evidence on record. The Court held:
"The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no Court shall entertain an application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for (10 of 14) [ CRLA-827/2017] bail, scope for appreciation of evidence and other material on record is limited. The court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence.
The principles enshrined in Vilas Pandurang Pawar (supra), are further reiterated by Supreme Court in Bachu Das Vs. State of Bihar & Ors. [(2014) 3 SCC 471].
12. In light of law laid down by Supreme Court, it would be vouchsafe to examine the FIR, the suicide note of deceased and the evidence collected during investigation. Indisputably, the complaint/FIR at the behest of Mukna Ram Meghwal (complainant) clearly and unequivocally reveals that the same is founded on an information telephonically divulged by the deceased to his elder brother Vikram i.e. elder son of the complainant, and the alleged suicide note of deceased Ravindra. Therefore, the complainant had no direct access with his son, the victim (deceased), for having been abreast about sequence of events more pertinently in what manner appellants intimidated and insulted his younger son Ravindra by naming his caste, which prompted him to commit suicide out of disgust. Relevant excerpt of the FIR, in vernacular, reads as under:
^^fizalhiy eSMe xhrk os.kq xksiky }kjk mls izrkfMr dj dgkW fd iSls ugha ns ldks rks vkRegR;k dj yks rqe fup tkfr ds yksx <sM tc (11 of 14) [ CRLA-827/2017] rqEgkjh vkSdkr ugha rks rqeus ,Mfe'ku D;ks fy;k rqe yksxksa dks bruk i<us dh D;k t:jr gS ;fn rqeus iSls ugha fn;s rks rq>s fdlh Hkh gkyr esa iMus ugha nqxh dkWyst ds funs'kd izrki feBk ls feyus ij mlus Hkh esjs iq= dks cgqr izrkfMr fd;k rFkk mls viekfur dj vius vkWfQl ls fudky fn;k esjs iq= jfoUnz us mlds cM+s HkkbZ foØe dks mlds eksckbZy ij Qksu ij vki fcfr crkdj fizUlhiy eSMe xhrk os.kq xksiky o Mk;jsDVj izrki feBk us mls cgqr viekfur dj xkyh xykSp dj izrkfMr djus dh ckr crkbZ rFkk dgkW fd vc ugha th ikmxk vki ekrk firk dk [k;ky j[kuk rFkk vkt lqcg djhcu 8 cts esjh iq= dh vkRe gR;k djus dk lekpkj feyus ij eSa vk;k gwWA^^
13. In the peculiar facts and circumstances of the instant case, it would be unsafe to place undue reliance on the averments of FIR in isolation to the recitals of the alleged suicide note and statement of Vikram (elder brother of deceased). Recitals contained in alleged suicide note of deceased Ravindra are reproduced as infra:
^^es cgqr ijs'kku gwa vius dkyst ls Principal Mam ki otg ls tc esjk Result aya 2nd Year ka tab principle ne bola ki es Bhi dekhti Hu tum kese pass hote Hai or me fail ho gaya fQj tc esa okil 2nd year ka exam dene gaya usse ek din pehle principle ne bola ki Me tumhe barbad kar dungi dhlh dkWyst esa nqckjk fQl ysus dk Rules nahi hai But cksyk dh rqEgsa cckZn dj nwaxhA eSaus cksyk Mam vki eq>s cgqr ijs'kku dj jgs gks rks mUgksaus cksyk fd esus es ej tkÅxk rks cksyk dh ej tkvks eq>s dqN Qjd ugha i<rk gS es vc ijs'kku gks xk;k gw es ejuk pkgrk gS gwa cl esjs ikik cgqr vPNs gS mUgksus es fail Huwa rc Hkh dqN ugha cksyk] cksyk dh vcdh ckj esgur djuk esjs HkkbZ vikram or rohit eEeh ikik dk [;ky j[kuk cl esjk Roomm Mate jktq cgqr vPNk gS mlus cgqr [;ky j[kk tk jgk gwa (12 of 14) [ CRLA-827/2017] Good bye meri ftUnxh es dksbZ Hkh problem aye me dHkh gkj ugh ekuw ij Principal mam esjs dks ijs'kku dj jgh gS u oks es lgu ugh dj ldrk gw cl I Love you papaji I Love you mumy I Love you Rohit mere chote Bhai I Love you Roju I Love you mohit or sanjay"
Likewise, relevant portion of the statement of Vikram recorded under Section 161 Cr.P.C. is as follows:
^^fnukad 11-05-2017 dks esjs HkkbZ jfoUnz us eq>s Qksu dj crk;k fd ^^fizalhiy eSMe xhrk os.kq xksiky }kjk eq>s Qhl ds uke ij ckj ckj izrkfMr fd;k tk jgk gS] eq>s nks fnu ls cgqr tyhy fd;k tk jgk gS eq>s cckZn djus dh /kedh nh tk jgh gS vc eSa fizalhiy eSMe xhrk os.kq xksiky ls cgqr ijs'kku gks x;k gqW vkSj eSa vc th ugha ldrk gqWA vki ekrk firk dk [;ky j[kukA^^ ml oDr jfoUnz dkQh ijs'kku lk yx jgk Fkk ftl ij eSaus jfoUnz dks le>kus dh dksf'k'k dh rks mlus Qksu dkV fn;k Fkk mlds ckn eSaus lkspk fd jfoUnz oSls gh cksy jgk gksxkA nqljs fnu lqcg gedks irk pyk fd jfoUnz us Qklh [kkdj vkRe gR;k dj yh gSA jfoUnz dks fizalhiy eSMe xhrk os.kq xksiky }kjk ekufld :i ls yxkrkj izrkfM+r fd;k tkus ls mlus vkRe gR;k dh gSA^^
14. Thus, even appreciation of evidence with desired circumspection and a myopic vision, prima facie, does not make out a case against appellant Dr. Pradeep Middha for offence under Section 3 of the Act. Even if other evidence collected during investigation is examined in a cursory manner, then too factum of his being abroad, from 27th of April 2017 to 18th of May 2017 with crucial date of suicide as 14th May 2017, it is rather difficult to connect him with the aforesaid offence. It is also noteworthy that (13 of 14) [ CRLA-827/2017] suicide note of the deceased nowhere find mention the name of appellant Dr. Pradeep Middha. Therefore, in the backdrop of peculiar facts and circumstances of the case, I am afraid, the limited scope of appreciation of evidence too would be suffice not to invoke bar under Section 18 of the Act for facilitating grant of anticipatory bail to the appellant Dr. Pradeep Middha.
15. Now switching on to other appellant Geeta Venugopal, there is umpteen material collected during investigation coupled with complaint/FIR and the suicide note vis-a-vis her, it is not possible and desirable to brush aside bar for grant of anticipatory bail envisaged under Section 18 of the Act. The evidence collected during investigation has prima facie nailed her for the commission of offence under the Act and as such has conveniently dissuaded me to take a view different from learned trial Court.
16. The upshot of the above discussion is that Appeal No. 827/2017 filed by Dr. Pradeep Middha is allowed which entails upsetting of impugned order qua him and Appeal No. 828/2017 filed by Geeta Venugopal is hereby dismissed.
17. As a consequence of acceptance of appeal of Dr. Pradeep Middha, it is hereby ordered that in the event of his surrender/arrest in connection with CR No.107/17, PS Abu Road, Sadar, Sirohi, he shall be released on bail subject to following conditions:
(14 of 14) [ CRLA-827/2017] (1) He shall furnish personal bond of Rs.50,000/-
(Rupees fifty thousand) with two sureties of like amount to the satisfaction of learned trial Court. (2) He shall cooperate during investigation and appear for interrogation before investigating officer as and when called upon to do so.
(3) He shall neither leave the Country, nor change residential address without prior permission of the learned trial Court.
(4) He shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of case so as to dissuade him from disclosing such facts to the Court or any police officer.
(5) If any necessity is felt by learned trial Court for imposing any other condition, depending on attending facts and circumstances, it shall be at liberty to prescribe the same.
(P.K. LOHRA)J. arora/