HIGH COURT OF CHHATTISGARH, BILASPUR
M.Cr.C.No.139 of 2005
Abdul Abbas
...Petitioner
Versus
State of Chhattisgarh
....Respondent
! Shri Manoj Paranjpe, counsel for the applicant.
^ Shri Arun Sao, Deputy Govt. Advocate for the
State.
HON'BLE SHRI JUSTICE SUNIL KUMAR SINHA.
Dated: 13/04/2005
: O R D E R
The applicant has preferred this anticipatory
bail application apprehending his arrest in Crime
No.17 of 2004 of Police Station A.J.K., Ambikapur,
Distt. Sarguja for the offences punishable under
sections 294, 506 read with section 34 IPC and
Sections 3(1)(v) and 3(1)(x) of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act
1989.
(2) The case of the prosecution is that the
complainant, who belongs to Special Caste (Uraon) is
having a piece of land admeasuring 0.026 Ars. bearing
Khasra No.205/4 at Nawagarh near Kharsia Road,
Ambikapur. The applicant alongwith some other persons
started some construction over the said land and when
the same was resisted, the applicant and other persons
abused the complainant by using filthy language
relating to his caste. The First Information Report
is a written document.
(3) Learned counsel for the accused applicant argues
that there is no positive evidence on record which may
attract the provisions of Section 3(1)(v) and 3(1)(x)
of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989. He further
submits that except the offence under the Special Act,
other offences are bailable.
(4) On the other hand, learned Deputy Govt. Advocate
for the State opposed the bail application and argued
that in view of the bar under section 18 of the Act,
the bail application should be rejected.
(5) The law in relation to entertaining the
application under section 438 Cr.P.C. in such offences
is well settled. The point raised by the State and
learned counsel for the applicant is no longer res-
integra. It has been held that if the contents of the
F.I.R. or the complaint disclose the commission of
offence under the special Act, the Courts would not be
justified in entering into a further enquiry by
summoning the case diary or any other material as to
whether the allegations are true or false or whether
there is any preponderance of probability for
commission of such an offence. At this stage, the
Court cannot examine and scrutinize the record of the
case in order to ascertain the veracity of the
F.I.R/complaint. The provisions of section 18 of the
Act, 1989 put a complete bar against the entertainment
of an application for anticipatory bail where prima
facie the contents of the FIR disclose the ingredients
of the commission of the offence under the Act of 1989
which is apparent from the perusal of the section
itself and thus the Court at the most would be
required to evaluate the F.I.R itself with a view to
find out if the facts emerging there-from taken at
their face value disclose the existence of the
ingredients constituting the alleged offence, then the
Court would not be justified in entering into an
enquiry as to the reliability or a genuineness or
otherwise of the allegations made in the F.I.R. or the
complaint. (Please see 2004(1) C.G.L.J. 162 – Satya
Prakash -Vs- State of C.G).
(6) It has also been held by High Court of Madhya
Pradesh in the matter of Dule Singh -Vs- State of M.P.
through Police Rajgarh reported in 1993(1) MPJR 223
that a strict construction should be placed on the
word “accusation” within the meaning of Section 18 of
the Act. As such the `intention’ or `intent’ which is
material ingredient of the offence under section
3(1)(x) of the Act not being clearly stated by the
witnesses and there being no statement that the
offence was committed because the complainant belonged
to Scheduled Caste, it cannot amount to an
`accusation’ of an offence within the meaning of
Section 18 of the Act so as to bar an application u/s
438 Cr.P.C.
(7) The High Court of Orissa has also held in the
matter of Ramesh Prasad Bhanja -Vs- State of Orissa
reported in 1996 Cr.L.J. 2743 that if no prima facie
case under section 3 of the Act has been made out, it
cannot be said that there is an “accusation of
commission of an offence under the Act” and in that
case there can be no hesitation to say that the
applicability of the provision of Section 438 of the
Code is not excluded.
(8) If we analyze the FIR on the above principles of
law then we find that a written (typed) report has
been lodged by the complaint about erection of a well
on a piece of land which according to him is the land
of his ownership and possession. The ingredients of
the offence of `wrongful dispossession’ for enjoyment
over the land and `intentional insult’ or
`intimidation’ with an intention to humiliate the
members of the Scheduled Castes or the Scheduled
Tribes, by the applicant cannot be discovered from the
FIR. The offence is also not said to have been
committed on account of the complainant being the
member of Special Caste. The written complaint dated
19.1.2004 does not contain the name of the applicant
though the names of three other persons are mentioned
in it. It is in the form of an application which has
been received by the Police Station vide Rojnamcha
Sanha No.344 dt.19.1.2004. The allegations made in
the complaint are specific and referable to the said
three persons only.
(9) The case submitted by the applicant is that some
agreement has been entered into between the brother of
the applicant and the complainant for purchase of the
agricultural land belonging to the complainant. It is
stated that in pursuance of the said agreement, the
complainant received some amount and when the
applicant is insisting to perform the agreement, the
First Information Report has been lodged. A document
(Annexure A-1) is there to show that some amount is
received by the complainant from the owner/brother of
the applicant.
(10) In view of the above facts and circumstances of
the case, particularly in view of the First
Information Report and the nature of allegations made
in the FIR, I am of the opinion that the prima-facie
requirement in relation to attraction of the offences
alleged under the Special Act are not fulfilled and a
bar u/s 18 would not be attracted. Consequently, this
application is allowed. It is directed that in the
event of arrest, the applicant shall be released on
bail provided he furnishes a personal bond in sum of
Rs.10,000/- with two sureties in the like amount to
the satisfaction of the Investigating Officer. He
shall abide by all the conditions provided under
section 438 of Cr.P.C.
(11) This order shall remain in force for a period of
two months from today, during this period the accused
applicant may apply for regular bail.
(12) It is made clear that the above discussions are
limited to the decision of the present petition and
this Court has not expressed any view on the merits of
the matter which shall be decided in accordance with
law by the trial Court without being influenced by any
observations/remarks made in this order by this Court
for the purpose of analyzing the attraction and
application of section 18 of the Act in this Case.
The application is allowed.
C.C. as per rules.
JUDGE
