Gauhati High Court
Hema Gogoi vs The State Of Assam on 26 September, 2019
Author: Hitesh Kumar Sarma
Bench: Hitesh Kumar Sarma
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GAHC010203152019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB 2809/2019
1:HEMA GOGOI
S/O LATE JIBESWAR GOGOI, R/O MORAN, PIOLINAGAR, P.O. AND P.S.-
MORAN, DIST-DIBRUAGRAH, ASSAM
VERSUS
1:THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : MR. B D KONWAR SR. ADV.
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE HITESH KUMAR SARMA
ORDER
Date : 26-09-2019 Heard Mr. BD Konwar, learned senior counsel for the petitioner as well as Mr. NJ Dutta, learned Additional Public Prosecutor, appearing for the State of Assam.
This is an application, filed under Section 438 of the Cr.PC. seeking pre-arrest bail of the petitioner, namely, Sri Hema Gogoi, in connection with Moran PS Case No. 190/2019 Page No.# 2/6 registered under Sections 325/153(A)/427/500/506 of the IPC read with Section 25(1A) of the Arms Act and Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Perused the case diary produced before this court.
The fact of the case, as appears from the FIR, is that the informant and his family members are fish sellers at Moran Lahori Bazar and the petitioner used to purchase fishes from him. But, for the last several days, the petitioner did not make payment to the informant against fishes purchased by him. On 29.07.2019, at about 10:00 am, the petitioner went to the fish shop of the informant and asked for fish. The informant then asked him to clear the outstanding amount due to him earlier. Then, the petitioner became very angry and violent. Pointing a pistol at the informant, he assaulted the informant with blows and fists in public. The informant was also forced to kneel down in public in the market. He also attempted to drag the informant to his vehicle although the informant could manage to save himself. The petitioner had also taken the name of his caste and community by uttering the word "Doom".
The learned senior counsel for the petitioner has referred to the decision of the Hon'ble Supreme Court in Dr. Subhash Kashinath Mahajan -vs- State of Maharashtra & Anr. , reported in (2018) 6 SCC 454, particularly para 79 thereof. He has also referred to paras 45 and 46 of the said judgment.
The decision referred to by the learned senior counsel for the petitioner was rendered by the Hon'ble Supreme Court on 20.03.2018. But, thereafter the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 (hereinafter referred to as the 'Act') was amended and Section 18A of the said Act was inserted to be effective from 20.08.2018. This amendment, inserting Section 18A, was brought in the Act after the said decision of the Hon'ble Supreme Court was rendered.
Section 18A of the Act reads as follows:-
"No enquiry or approval required.-(1) For the purposes 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 Page No.# 3/6 provided under this Act or the Code shall apply.
(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".
In Section 18 of the said Act, it has been provided that Section 438 of the Cr.PC shall not apply to person committing an offence under this Act. But, Section 18A(2) has very specifically provided that the provisions of Section 438 of the Cr.PC shall not apply to a case under this Act, notwithstanding, any judgment or order or direction of any Court. This newly inserted provision remains valid until struck down by the competent Court. Therefore, the law as of now, is that Section 438 of the Cr.PC is not applicable in respect of an offence committed under the Act. But, the petition before this court is for pre-arrest bail of the petitioner under Section 438 of the Cr.PC.
The learned Additional Public Prosecutor referred to an order dated 30.04.2019, passed by a co-ordinate Bench of this court in AB No. 1261/2019 and has submitted that it was held in that order that the benefit of Section 438 of the Cr.PC is not applicable in relation to any case involving the arrest of any person or an accusation of having committed an offence under the said Act. The learned senior counsel for the petitioner has submitted that this order is not applicable in the instant case in view of the fact that Section 18A of the Act has not been dealt with in the said order.
He has further submitted that pre-arrest bail of the petitioner is maintainable for the reason that there is no evidence/statement to indicate that the petitioner knew from before that the informant is a person belonging to Scheduled Caste. He has also submitted that Section 3(1)(r) of the said Act may be applicable in this case and not Section 3(1)(x) of the said Act.
On perusal of the materials in the case diary, it is found that the petitioner insulted the informant by calling the name of his community "Doom". It is a common knowledge of all of us that the person belonging to the fishermen community is called "Doom". Therefore, using the word "Doom" in public to the informant is found to be insulting to the informant. He also made the informant to kneel down in public as found from the materials in the case diary and compelling any person to kneel down in public is insulting as well as humiliating. That apart, with a pistol in his hand, the petitioner also intimidated the informant.
Therefore, the argument by the learned senior counsel for the petitioner that Section 3(1)(x) of the said Act is not applicable has failed to persuade this court.
The learned senior counsel for the petitioner has further submitted that the FIR in the instant Page No.# 4/6 case was lodged after 3 (three) days from the date of occurrence and the FIR was directly addressed to the Superintendent of Police, Dibrugarh and was not filed before the nearest Police Station or before the Officer-In-Charge of the Moran Police Station. He has further submitted that there is no instance in the materials to show that the petitioner is not a member of a Scheduled Caste or a Scheduled Tribe as required by Section 3(1) of the Act.
Considered these submissions. This court is aware that in the instant application, we are dealing with a prayer for pre-arrest bail. Dealing on merit of this case on the aspects raised by the petitioner, like that in a trial of a case, is not called for while disposing of a bail application. The benefit of the omissions and commissions, as submitted by the learned senior counsel for the petitioner and referred to above, are relevant for the purpose of trial of the case only to the understanding of this court.
The learned senior counsel for the petitioner has referred to the decision of the Hon'ble Supreme Court in the case of Rahul Jain -vs- The State of M.P. & Ors . In the said decision, the learned Single Judge of Madhya Pradesh court held in para 6 as follows:-
"Therefore, preliminary enquiry has been dispensed with and power of investigating officer to arrest has been reiterated. Similarly Section 18 of the Atrocities Act has been reframed under Section 18 A (2) of the Amendment Act, 2018 whereby the provisions of Section 438 of Cr.P.C. and its applicability has been taken out from the purview of the Atrocities Act, notwithstanding any order or direction of any Court. Still the power of judicial review and power to grant bail under Section 438 of Cr.P.C. if any offence is not made out prima facie, has not been curtailed and cannot be curtailed by any Act. Even otherwise, Article 21 of the Constitution of India wherein right to life and personal liberty are secured, no person can be debarred of such liberty at the instance of false complaint."
This court is not in agreement with the said decision as in our foregoing discussion; we have found that there is insult, humiliation and intimidation to the informant by the petitioner. That apart, in the said decision, it is also held that no person can be debarred from the right to life and personal liberty provided in Article 21 of the Constitution of India at the instance of false complaint. But, this court has already observed in the foregoing discussions that the amended provisions of Section 18A of the Act has not been struck down by any Court of competent jurisdiction. It also deserves a mention here that we are dealing with the instant application under Section 438 of the Cr.PC on the basis of Page No.# 5/6 the existing provisions of the Act. We are not dealing with a challenge to the validity and legality of the provisions of Section 18A of the Act. Therefore, Section 18A of the Act being special statutory provision in the Act needs to be complied with while dealing with an application for bail for any offence under the Act.
This court is aware of the fact that in the decision rendered by the Hon'ble Supreme Court in Dr. Subhash Kashinath Mahajan (supra), Section 18 of the Act was discussed. But, Section 18A of the Act was inserted by way of amendment after the said judgment putting a statutory bar for exercising the powers under Section 438 of the Cr.PC. There is no impediment in dealing with an application under Section 438 of the Cr.PC under the said provision for an offence under the Act. Therefore, the clear mandate of Section 18A(2) providing that Section 438 of the Cr.PC shall not apply to a case under the Act, notwithstanding any judgment or order or decision of any court needs to be complied with and any deviation therefrom would amount to violation of the said provision of the Act.
The other decisions, cited by the learned senior counsel for the petitioner, are as follows:-
a. S.P. Gupta -vs- President of India, reported in 1981 Supp(1) SCC 87.
b. Amar Nath Om Prakash -vs- State of Punjab, reported in (1985) 1 SCC 345.
c. Privy Council in Baker -vs- The Queen, reported in (1975) 3 AII ER 55.
d. CIT -vs- Sun Engineering Works P. Ltd., reported in (1992) 4 SCC 363.
e. Madhav Rao Jivaji Rao Scindia Bahadur -vs- Union of India, reported in (1971) 1 SCC 85.
f. Commissioner of Income Tax -vs- Thana Electricity Supply Ltd., reported in 1994 206 ITR 727 Bom.
g. Dinesh alias Buddha -vs- State of Rajasthan, reported in (2006) 3 SCC 771.
All theses judgments are rendered by the respective learned courts before the amendment of the said Act by inserting Section 18A therein.
The law relating to bail under the Scheduled Castes and Scheduled Tribes Act has undergone a sea change with insertion of the new provision of Section 18A of the Act after the judgment in Dr. Subhash Kashinath Mahajan (supra), and therefore, taking into account the existing provision of Section 18A of the said Act, this court fails to persuade itself to accept the argument proffered by the learned senior counsel for the petitioner to the effect that an application under Section 438 of the Cr.PC is maintainable and that in the facts of the case, the petitioner is entitled to the benefit of pre-
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Accordingly, this court is of the view that this petition under Section 438 of the Cr.PC is not maintainable and therefore, in view of the provision of Section 18A(2) of the Act, the same is dismissed.
This petition stands disposed of accordingly.
Return the case diary.
JUDGE Comparing Assistant