Punjab-Haryana High Court
Ravi Kumar vs State Of Haryana And Another on 30 November, 2012
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM-M No. 21676 of 2012 (O&M)
Date of Decision: November 30, 2012
Ravi Kumar
...Petitioner
Versus
State of Haryana and another
...Respondents
CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr. Brijender Kaushik, Advocate,
for the petitioner.
Mr. Shekhar Mudgal, AAG, Haryana,
for respondent No. 1.
Mr. Yogesh Gupta, Advocate,
for respondent No. 2.
NARESH KUMAR SANGHI, J.
1. Prayer in this petition is for grant of anticipatory bail to the petitioner, Ravi Kumar, son of Hans Raj, resident of H. No. 12, Kuldeep Nagar, Ambala Cantt., District Ambala, who has been summoned to face the trial for commission of the offence punishable under Section 3 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for brevity, 'the Act'), by the learned Judicial Magistrate Ist Class, Ambala, vide his order dated 30.7.2011 (Annexure P-2).
2. The brief facts of the case are that respondent No. 2- complainant, Love Kumar, presented a complaint (Annexure P-1), under Section 3(1)(x) of the Act before the learned Area Judicial Magistrate, Ambala, alleging that he (complainant) belonged to a CRM-M No. 21676 of 2012 (O&M) 2 Scheduled Caste and was resident of village Babyal, District Ambala. He was a Member and Cashier of the Light Transport Vehicle Owners' Union, Ambala Cantt. The petitioner-accused, Ravi Kumar, belonged to an upper caste named 'Khatri' and was Member and Secretary of the said transport union. It was further alleged that the petitioner-accused also worked in the Electricity Board, therefore, his position in the union was of an influential person. The petitioner-accused was plying the vehicles in the name of his son and other relatives. Many members of the said transport union belonged to Scheduled Caste and Backward Class.
3. On 2.9.2009, at about 9.00 a.m., a vehicle of Kaushal Kumar (Bakshi) was sent for loading at the transport union. In the meantime, the petitioner-accused, Ravi Kumar, reached there and intimidated that his vehicle should be loaded instead of the vehicle of Bakshi. The latter informed the complainant and requested him (complainant) to talk to the petitioner-accused and settle the matter. Respondent No. 2-complainant reached the spot and found that Sarwan Kumar, Vice-President, and Jasbir Singh, resident of village Tundil, and many other persons were already present there. When respondent No. 2-complainant tried to talk to the petitioner- accused, he insulted him (complainant) by saying that "yeh chura hamara faisala kaise karayega, iski to hamare barabar baithne ki bhi aukat nahin hai". Respondent No. 2-complainant felt insulted and returned from there.
4. Afterwards, the petitioner-accused and the persons called by him gave beatings to Kaushal Kumar (Bakshi) and his nephew. They were shifted to a hospital. When respondent No. 2- CRM-M No. 21676 of 2012 (O&M) 3 complainant went to the hospital to see Kaushal Kumar and his nephew, the petitioner-accused was also present there and as soon as he (petitioner) saw respondent No. 2-complainant, the petitioner- accused became furious and again used filthy and abusive language against his caste and called him "Chura" and said "Sarkar ne in Churhon ko loan or reservation de kar hamare sir per bitha diya hai, inki aukat to kura uthane ki hi hai". At that time, Sarwan Kumar and Jasbir Singh and many other persons were present there. Respondent No. 2-complainant alleged to have reported the matter to the police, but no action was taken, therefore, the people of his community protested and thereafter FIR No. 369, dated 14.9.2008, under Sections 3 and 4 of the Act was registered at Police Station, Sadar, Ambala Cantt. However, the police did not file the report under Section 173, Cr.P.C. and when respondent No. 2-complainant came to know about the said fact, then he filed the complaint on 13.6.2009 (Annexure P-1). After recording preliminary evidence, the summoning order dated 30.7.2011 (Annexure P-2), for commission of the offence punishable under Section 3 of the Act was passed by the learned Judicial Magistrate Ist Class, Ambala.
5. When the petitioner-accused came to know about passing of the order dated 30.7.2011 (Annexure P-2), then he filed an application for grant of anticipatory bail before the Court of Session at Ambala, but the same was dismissed by the learned Additional Sessions Judge, Ambala, vide order dated 9.7.2012 (Annexure P-4). Therefore, the present petition for grant of anticipatory bail to the petitioner-accused was filed before this Court.
CRM-M No. 21676 of 2012 (O&M) 4
6. Learned counsel for the petitioner-accused submitted that it is nowhere mentioned in the complaint (Annexure P-1) that the petitioner knew that respondent No. 2-complainant belonged to a Scheduled Caste or Scheduled Tribe, therefore, there was no question for the petitioner to have insulted respondent No. 2- complainant in the name of his caste. He further submitted that the alleged occurrence had taken place on 2.9.2008 while the complaint before the learned Area Judicial Magistrate, Ambala, was presented on 13.6.2009, i.e. about more than nine months after the occurrence and there was no explanation for filing the delayed complaint. He further submitted that as per the allegations in the complaint, FIR No. 369, dated 14.9.2008, under Sections 3 and 4 of the Act was registered at Police Station, Sadar, Ambala Cantt., but no action was taken by the police since cancellation report was prepared. He further submitted that preparation of the cancellation report by the police clearly shows that the allegations levelled by respondent No. 2-complainant were not substantiated. He further submitted that according to the averments in the complaint, the quarrel had taken place between the petitioner-accused and one Bakshi. Regarding that incident, FIR No. 348, dated 2.9.2008, under Sections 323 and 503 read with Section 34, IPC, was registered at Police Station, Ambala Cantt., against one Surinder Mohan and the petitioner, Ravi Kumar. After trial, the learned Judicial Magistrate Ist Class, Ambala, vide order dated 2.4.2012 (Annexure P-3), acquitted the said Surinder Mohan and the petitioner, Ravi Kumar, since Kaushal Bakshi, who appeared as PW-2, did not support the prosecution case and even Navneet CRM-M No. 21676 of 2012 (O&M) 5 Singh, who appeared as PW-1, also deposed that many persons had gathered at the spot at the time of the incident and he did not know as to who caused the injuries to him. Navneet Singh also stated that the accused present in the Court neither caused any injury to him nor threatening call was given by them. Learned counsel further contended that the summoning order was passed without complying with the provisions contained in Section 210, Cr.P.C., since the learned summoning court failed to call for the report from the police, especially when the investigation in the FIR case was pending. On the basis of above, learned counsel for the petitioner- accused submitted that in spite of the bar created by Section 18 of the Act, the petitioner, Ravi Kumar, is entitled to grant of anticipatory bail since prima facie no case is made out against him. To buttress his submissions, learned counsel has placed reliance on the judgments rendered by this Court in the cases of Ajit Singh v. State of Haryana and another, 2012 (1) R.C.R. (Criminal) 507; Jagir Chand v. State of Punjab, 2002 (4) R.C.R. (Criminal) 445; Pishora Singh v. State of Punjab, 2002 (2) R.C.R. (Criminal) 215; Smt. Saroj Kumari v. State of Haryana, 2002 (1) R.C.R. (Criminal) 558; Om Parkash Sharma v. Union Territory, Chandigarh, 2001 (3) R.C.R. (Criminal) 840; and Savera Sidhu v. Harleen Sidhu and another, 2011 (2) R.C.R. (Criminal) 442.
7. Learned counsel for the petitioner-accused, further submitted that in compliance of the order dated 24.7.2012, passed by this Court, the petitioner-accused, Ravi Kumar, did appear before the summoning Court and furnished the bail bonds. He also contended that after appearance of the petitioner-accused, the CRM-M No. 21676 of 2012 (O&M) 6 learned Judicial Magistrate Ist Class, Ambala, committed the case to the Court of learned Special Judge, Ambala, since the offence punishable under Section 3 of the Act, was exclusively triable by the said Court. On the strength of the above submissions, he prayed that the order dated 24.7.2012 be made absolute.
8. On the other hand, learned counsel for respondent No. 2-complainant submitted that the petitioner-accused had committed serious offence attracting the mischief of Section 3 of the Act. He further submitted that Section 18 of the Act specifically creates a bar in granting anticipatory bail to the accused, therefore, the petitioner was not entitled to the relief prayed for. In support of his submissions, he has placed reliance on a judgment of Hon'ble the Supreme Court rendered in the case of Vilas Pandurang Pawar and another v. State of Maharashtra and others (Special Leave Petition (Criminal) No. 6432 of 2012, decided on 10.9.2012).
9. Heard.
10. Hon'ble the Supreme Court in the case of Vilas Pandurang Pawar (supra) has specifically held that the scope of Section 18 of the Act read with Section 438 of the Code of Criminal Procedure, 1973, 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 Act, no Court shall entertain application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. Court is not expected to indulge in critical analysis of the evidence on record. When a provision has been CRM-M No. 21676 of 2012 (O&M) 7 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 Criminal Procedure Code, the provision in the Special Act cannot be easily brushed aside without elaborate discussion on the evidence.
11. Keeping in view the above judgment, this Court has to analyze whether prima facie the alleged offence is made out against the petitioner-accused, Ravi Kumar. To appreciate the same, one has to go through the contents of the complaint (Annexure P-1). It is nowhere mentioned in the complaint that the petitioner-accused was aware of the caste of respondent No. 2- complainant. The alleged occurrence had taken place on 2.9.2008, while the complaint was presented before the learned Area Judicial Magistrate, Ambala, on 13.6.2009. It is apposite to mention here that the learned summoning Court failed to call for the report from the police when it was in its notice that the FIR with regard to the same incident was pending investigation with the police. Perusal of the complaint (Annexure P-1) clearly reveals that FIR No. 369, dated 14.9.2008, under Sections 3 and 4 of the Act was registered at Police Station, Sadar, Ambala Cantt. It was incumbent upon the Magistrate to have called the report from the police before passing the summoning order.
12. All the above said material creates a doubt about the veracity of the complainant's version. It is now well settled that if prima facie case is not made out, then the bar created by Section 18 of the Act would not be applicable while exercising the powers under Section 438, Cr.P.C. For the purpose of deciding the CRM-M No. 21676 of 2012 (O&M) 8 application for grant of anticipatory bail, this Court is of considered view that the allegations levelled by respondent No. 2-complainant, Love Kumar, are not above board. Even the summoning order was passed without complying with the provisions of Section 210, Cr.P.C. Therefore, this Court entertains the present petition for grant of anticipatory bail to the petitioner-accused, Ravi Kumar. It is also apposite to mention here that the petitioner-accused has already appeared before the learned Area Judicial Magistrate, Ambala, and furnished the bail bonds and thereafter the case has already been committed to the Court of learned Special Judge, Ambala, for trial.
13. For the reasons recorded above, the present petition is allowed. The order dated 24.7.2012, passed by this Court, whereby the petitioner-accused, Ravi Kumar, was directed to appear before the learned Summoning Court and furnish the bail bonds, is made absolute. The bail bonds already furnished by the petitioner- accused shall enure during the course of the trial.
14. The observations made herein above are for a limited purpose of deciding the present petition only. The learned Trial Court shall proceed and decide the case without being influenced by any of the observations made in this order.
(NARESH KUMAR SANGHI)
November 30, 2012 JUDGE
Pkapoor