Chattisgarh High Court
Rustam Ansari vs The State Of Chhattisgarh on 8 September, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.1141 of 2022
(Arising out of order impugned dated 08.07.2022 passed by Special Judge
under Atrocities Act, Balrampur Place at Ramanujganj (C.G.) in B.A.
No.308/2022)
1. Rustam Ansari, S/o late Gaffur Ansari, aged about 67 years,
2. Smt. Sogra Bibi, W/o Rustam Ansari, aged about 48 years,
Both R/o Ward No.14, Balrampur, P.S. and Tahsil - Balrampur,
District - Balrampur - Ramanujganj (C.G.)
3. Samim Siddique, S/o Sabir Siddique, aged about 40 years, R/o
Ward No. 09, Balrampur, P.S. and Tahsil - Balrampur, District -
Balrampur - Ramnujganj (C.G.)
- --- Appellants
Versus
The State of Chhattisgarh, Through Adivasi Kalyan Thana (Ajak)
Police Station - Balrampur - Ramanujganj, (C.G.)
---- Respondent
For Appellant : Shri A.K.Prasad, Advocate.
ForRespondent/State : Shri Sameer Oraon, Government
Advocate
For the Objector : Shri A.K.Yadav, Advocate.
Objector appeared along with his counsel Shri A.K.Yadav on 26.08.2022 and has raised his objection regarding grant of bail to the appellants Hon'ble Shri Justice Sanjay S. Agrawal Order / Judgment on Board 08.09.2022
1. This appeal has been preferred by the appellants/accused persons under Section 14A (2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the "Act of 1989"), questioning the legality and propriety of the Order dated 08.07.2022 passed by the learned Special Judge (Atrocities), Balrampur Place at Ramanujganj in B.A. No.308/2022 (Crime No.16/2022), whereby the application filed by the appellants under Section 438 of the Code of 2 Criminal Procedure, 1973 (hereinafter referred to as the "Cr.P.C.") has been rejected.
2. Case of the prosecution is that on 19.05.2022, the complainant Sunil Kumar Ekka lodged a written report before the concerned Police Station to the effect that the appellants have forcefully encroached and retained the possession of his land i.e. Khasra No.1123 admeasuring 1.28 hectares. It is alleged therein that a spot inspection was made on 19.05.2022 by the concerned Patwari and the Revenue Inspector in pursuance of the direction issued by the Tahsildar, Balrampur vide its memo bearing No. 157/Reader/Tahsildar/2022, dated 01.05.2022 and after completion of the said inspection and when they left the place, at that particular time, the appellants threatened to kill him while using filthy words relating to his caste and one of the appellants, namely, Rustam Ansari was holding the sword at the relevant time. Based upon the alleged report, offence punishable under Sections 294, 506, read with Section 34 of the Indian Penal Code (for short, the IPC) and, Sections 25 & 27 of the Arms Act, as well as, under Section 3 (2) (va) of the Act of 1989 has been registered in connection with the said crime.
3. Apprehending their arrest with regard to the aforesaid offence, the appellants moved an application seeking grant of anticipatory bail under Section 438 of the Cr.P.C. by submitting, inter alia, that the alleged report has been lodged with a mala fide intention just to harass and implicate them, however, no offence as such has ever been committed on the said date. The application so made was, however, rejected by the learned Court below vide its order impugned while taking note of the bar provided under Sections 18 and 18A of the Act of 1989 for the consideration of the said application for grant of bail under Section 438 of the Cr.P.C. 3
4. Being aggrieved with the order impugned, the instant appeal has been preferred by the appellants.
5. Shri A.K.Prasad, learned counsel appearing for the appellants submits that the allegation as made by the complainant is a false one as prior to the said report, a proceeding was initiated by the appellants on 21.03.2022 against the said complainant and others before the Tahsildar, Balrampur, District Balrampur-Ramanujganj under Section 250 of the Chhattisgarh Land Revenue Code, 1959 (for short, the Code) for removal of the encroachment over their lands, i.e., bearing Kh.No.295/1 admeasuring 0.070 hectares and Kh.No.1122 admeasuring 0.040 hectares with an allegation that they are trying to raise a boundary wall over it unauthorisedly. It is contended further that in the said proceeding, the concerned Tahsildar has passed the stay order on the same date, i.e., on 21.03.2022 restraining the complainant and others from raising such a boundary wall and since they were violating the same, a complaint was made before the said authority, who in turn, vide its memo dated 01.05.2022, has directed the Station House Officer, Balrampur to hold an enquiry and initiate a proceeding accordingly. In so far as the order dated 18.04.2022 passed by the Sub-Divisional Officer (Revenue), Balrampur, District Balrampur-Ramanujganj is concerned, which has been placed during the course of the argument by the counsel appearing for the State, for which, it is submitted that the said Revenue Authority has directed for the removal of encroachment of the appellants with regard to the land in question, i.e., bearing Kh.No.1123 admeasuring 1.28 hectares in a proceeding initiated under Section 170 of the Code instead of taking recourse to Section 250 of the Code. According to Mr. Prasad, the validity of it has been questioned before the Appellate Authority, i.e., Collector and 4 the same is still pending before the said authority, though no document in this regard has been produced by him on record, but he stated that his statement in this aspect may be recorded. While referring to those materials, it is contended by him that the alleged report made on 19.05.2022 is a false one, however, without taking note of all these material facts, the application seeking grant of anticipatory bail has been rejected in a cursory manner merely on the ground that there is a bar for entertaining such an application under Section 18 of the Act of 1989. It is, therefore, contended that the order impugned as passed by the Court below is apparently contrary to law and, therefore, deserves to be set aside. In support, he placed his reliance upon the decision rendered by the Supreme Court in the matter of Prithvi Raj Chauhan vs. Union of India and others reported in (2020) 4 SCC 727 and prayed for releasing the appellants on bail by reversing the finding of the trial Court as made vide order impugned dated 08.07.2022.
6. On the other hand, Shri Sameer Oraon, learned counsel appearing for the State, assisted by Shri Akath Kumar Yadav, learned counsel for the Objector, submits that since there is a bar for entertaining the said application in view of the provision prescribed under Section 18 of the Act, 1989, the order impugned, therefore, does not suffer from infirmity so as to call for interference in this appeal.
7. I have heard learned counsel appearing for the parties and perused the entire case diary carefully, vis-a-vis, the documentary evidence placed on record.
8. From perusal of the materials placed on record, it appears that a proceeding for removal of encroachment over the land bearing Kh.No. 5 295/1 admeasuring 0.070 hectares and Kh.No.1122 admeasuring 0.040 hectares was initiated by the appellants on 21.03.2022 under Section 250 of the Code as according to them, the complainant and others have started raising a boundary wall over the said land, wherein a stay order was passed by the Tahsildar, Balrampur, on the same date while restraining the complainant Sunil Kumar Ekka and others from raising a boundary wall over the said lands owned by the appellants. It appears further that a complaint was made by the appellants before the said authority regarding violation of the said order, therefore, the said Revenue Authority, in turn, has directed the concerned Station House Officer vide its memo dated 01.05.2022 to hold an enquiry in this aspect. It appears further that vide order dated 18.04.2022, the Sub-Divisional Officer (Revenue), Balrampur, after considering the application moved by the said complainant under Section 170 of the Code, has directed for removal of encroachment made by the appellants in relation to the land in question, i.e., Kh.No.1123 admeasuring 1.28 hectares. According to the counsel appearing for the appellants, the propriety of the said order has been questioned by the appellants in appeal before the Appellate Authority, i.e., Collector and, the same is still pending for consideration, though no document to this effect has been brought to my knowledge. Be that as it may, it appears that after completion of said proceedings, the alleged report has been made by the complainant on 19.05.2022 alleging therein that after completion of the said spot inspection and when the concerned Patwari and Revenue Inspector have left the said place, the the appellants have threatened to kill him while using filthy words relating to his caste. The application, so made by the appellants for grant of anticipatory bail was, however, rejected by the Court below vide its order impugned even without taking note of those facts by observing that since there is a bar embodied under Section 18 of 6 the Act of 1989 for entertaining such an application, therefore, the appellants are not entitled to be enlarged on anticipatory bail under Section 438 of the Cr.P.C.
9. There is no doubt with regard to the provisions prescribed under Section 18 of the Act of 1989 that it bars specifically for entertaining the application under Section 438 of the Cr.P.C. It is, however, to be noted at this juncture that the bar so provided therein was considered by the Supreme Court in the matter of Dr. Subhash Kashinath Mahajan vs. State of Maharashtra and another reported in (2018) 6 SCC 454 and arrived at a conclusion that if a person is able to show prima facie case that he has not committed any atrocity and the allegations have been made mala fidely, then the bar provided therein would not be attracted. Paragraphs 50, 51, 53 & 55 are relevant for the purpose, which read as under :-
"50. We have no quarrel with the proposition laid down in the said judgment that persons committing offences under the Atrocities Act ought not to be granted anticipatory bail in the same manner in which the anticipatory bail is granted in other cases punishable with similar sentence. Still, the question remains whether in cases where there is no prima facie case under the Act, bar under Section 18 operates can be considered. We are unable to read the said judgment as laying down that exclusion is applicable to such situations. If a person is able to show that, prima facie, he has not committed any atrocity against a member of SC and ST and that the allegation was mala fide and prima facie false and that prima facie no case was made out, we do not see any justification for applying Section 18 in such cases. Consideration in the mind of this Court in Balothia (1995 3 SCC 221) is that the perpetrators of atrocities should not be granted anticipatory bail so that they may not terrorise the victims. Consistent with this view, it can certainly be said that innocent persons against whom there was no prima facie case or patently false case cannot be subjected to the same treatment as the persons who are prima facie perpetrators of the crime.
51. In view of the decisions in Vilas Pandurang Pawar (2012 8 SCC 795) and Shakuntla Devi (2014 15 SCC 521), the learned ASG has rightly stated that there is no absolute bar to 7 grant anticipatory bail if no prima facie case is made out inspite of validity of Section 18 of the Atrocities Act being upheld.
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53. It is well settled that a statute is to be read in the context of the background and its object. Instead of literal interpretation, the court may, in the present context, prefer purposive interpretation to achieve the object of law. Doctrine of proportionality is well known for advancing the object of Articles 14 and 21. A procedural penal provision affecting liberty of citizen must be read consistent with the concept of fairness and reasonableness.
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55. In the present context, wisdom of legislature in creating an offence cannot be questioned but individual justice is a judicial function depending on facts. As a policy, anticipatory bail may be excluded but exclusion cannot be intended to apply where a patently mala fide version is put forward. Courts have inherent jurisdiction to do justice and this jurisdiction cannot be intended to be excluded. Thus, exclusion of Court's jurisdiction is not to be read as absolute."
10. While considering the aforesaid principles contained in the said judgment, it has been held further by the Supreme Court in the matter of Prithvi Raj Chauhan vs. Union of India and others (supra) at paragraph 32, which reads as under :-
"32. As far as the provision of Section 18-A and anticipatory bal 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."
11. It is, thus, settled principles of law that the bar embodied under Section 18 of the Act of 1989 does not create an absolute bar for consideration of an application seeking grant of anticipatory bail under Section 438 of Cr.P.C.
12. Considering the facts and circumstances of the case, as observed herein above and that by applying the principles laid down by the Supreme Court in the above referred matters, without commenting anything on the 8 merits of the case, I am of the view that it is a fit case where,the appellants are entitled to be enlarged on bail.
13. Accordingly, the appeal is allowed and the order impugned dated 08.07.2022 passed by the learned Special Judge (Atrocities), Balrampur, place at Ramanujganj in Bail Application No. 308/2022 (Crime No.16/2022) is hereby set aside and, it is directed that in the event of arrest, the appellants shall be released on bail on each of them furnishing a personal bond in sum of Rs.25,000/- with one local surety each for the like sum to the satisfaction of the concerned arresting officer, with the following conditions :-
a) the appellants shall make themselves available for interrogation by the police officer as and when required;
b) the appellants shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to any police officer;
Certified copy as per rules.
Sd/-
(Sanjay S. Agrawal) Judge Anjani