HIGH COURT OF CHATTISGARH AT BILASPUR
Misc.Cr. C. A No. 439 of 2008
1. Jagmohan son
2. Suban
3. Nan Babu
...Petitioners
VERSUS
1. State of Chhattisgarh
2. Dilrakhan
...Respondents
! Mrs. Meena Shashtri counsel for the applicants.
Mr. D.K. Gwalare GA for the respondent/State.
^ Mr. A.K. Prasad counsel for respondent No.2
Honble Mr.T.P.Sharma,J.
Dated:21/11/2008
: Judgment
APPLICATION UNDER SECTION 438 OF THE CODE OF CRIMINAL
PROCEDURE.
(O R D E R)
(21.11.2008)
This application has been filed for anticipatory bail as
the applicants are apprehending their arrest in connection
with Complaint Case No. 104/2007 pending before the Chief
Judicial Magistrate, Ambikapur for the offences punishable
under sections 294, 506 and 447 of the Indian Penal Code and
section 3 (1) (v) of the Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Act (for short the Act).
2. Learned counsel for the applicant submits that except
the offence punishable under section 3(1)(v) of the Act all
other offences are bailable in nature. He further submits
that the complaint and the material available on record do
not disclose the commission of the offence punishable under
section 3 (1) (v) of the Act. He placed reliance on the
decision of this Court in the matter of Somesh Das v. State
of Chhattisgarh 1 in which it has been held that if the
allegation made in the complaint raises doubt about
genuineness of complaint, on the basis of previous dispute
between the parties it cannot be said that there is prima
facie case in terms of Section 3 (1) (10) of the Act. Further
reliance is placed on the decision of this Court in the
matter of Satyaprakash v. State of C.G. 2 in which it has
been held that in the absence of allegation for the offence
punishable under section 3(1)(10) of the Act in the FIR or
complainant, application under section 438 of the Code is
maintainable. It is further submitted by the counsel for the
applicants that even if the allegations made against the
applicants are taken to be true, the offence under Section
3(1) (v) of the Act is not made out against them.
3. On the other hand counsel for the respondent/State
opposes the application for anticipatory bail and submits
that the offence punishable under section 3(1) (v) of the Act
is a non bailable offence. Moreover, the application for
anticipatory bail under section 438 of the Code for the
offence punishable under section 3(1)(v) of the Act is not
tenable in view of the bar of Section 18 of the Act.
4. The application is also opposed by Shri A.K. Prasad
counsel for the respondent No.2 and it is submitted that the
complainant has collected the material to prima facie show
the commission of offence punishable under section 3(1)(x) of
the Act against the applicants that they insulted the
respondent No.2 by using the word “Chamar, and therefore, the
applicants are not entitled for anticipatory bail.
5. In the instant case, the offences punishable under
sections 294, 506 and 447 of the Indian Penal Code and
section 3 (1) (10) of the Act have been registered against
the applicants. In this case there was a dispute regarding
possession of the land and the applicants tried to take
possession of the said land. It has not been mentioned in the
complaint that the applicants tried to take possession of the
land forcibly on the very basis that the respondent No.2 is a
member of Scheduled Caste but he tried to take possession of
the land with a view to cultivate the land.
6. Application for grant of anticipatory bail in terms of
Section 438 of the Code is sustainable for the offences
punishable under the Indian Penal Code. The only bar is
created under Section 18 of the Act for the offence
punishable under Section 3 (1) (10) of the Act. While dealing
with the applicability of section 438 of the Code for the
offence punishable under section 3 (1) (10) of the Act, in
the matter of State of M.P. and another v. Ram Krishna
Balothia and another 3 it has been held by the Apex Court
that Section 438 of the Code does not form an integral part
of Article 21 of the Constitution of India. Section 18 of the
Act denying the application of provisions for anticipatory
bail to those accused under the Act, cannot be said as
violative of Articles 14 and 21 of the Constitution of India.
6. Provision of Section 438 of the Code is a general rule
for granting anticipatory bail but bar of anticipatory bail
under Section 18 of the Act is an exception to the general
rule. In case of any exception the prosecution is required to
show prima facie the facts which attract the bar in the
general rule. Without there being any material to this effect
it cannot be said that the person concerned would not be
entitled for anticipatory bail as he has been merely
described as accused by the Police for committing an offence
punishable under the provisions of the Act. There must be
material available on record to show that the person is
involved in the offence punishable under the provision of the
said Act. While dealing with the application under section
438 of the Code, the Court is required to examine the
material collected by the prosecution or the complainant and
if the Court finds prima facie sufficient material for the
commission of the offence under the Act, then the bar created
under Section 18 of the Act comes into play and it is not
competent to grant bail under Section 438 of the Code. But if
it does not find any such material against the applicant
under the provisions of the Act, then it is competent to
consider the application filed under Section 438 of the Code.
Merely by mentioning section of the Act does not create a bar
for considering the application under Section 438 of the
Code.
7. As held in the case of Satya Prakash (supra) at the time
of examination of the material, the Court is required to see
whether the FIR or the complaint discloses the commission of
offence punishable under the provisions of the Act. The Court
is required to see the FIR or the complaint in its face value
and at this stage it is not necessary for it to closely
examine or scrutinize the material available on record in
order to ascertain the veracity of the allegations made in
the FIR or the complaint. In the case of Somesh Das (supra)
it has been held by this Court that if on the face of the
record it raises doubt about the genuineness of the FIR or
the complaint and that there was an earlier dispute between
the parties, it may be inferred for the purpose of
entertaining the application under Section 438 of the Code
that the complainant or the prosecution could not be able to
collect the prima facie material against the applicant. In
the case of Abdul Abbas (supra) it has been held that if the
intention of humiliation to the member of the Scheduled Tribe
is not discovered from the FIR, application under section 438
of the Code is maintainable.
8. While dealing with insult in respect of a member of
Scheduled Caste community, in the matter of Swarn Singh and
others v. State through Standing counsel and another 4 it has
been held by the Apex Court calling a member of Scheduled
Caste “chamar” with intent to insult or humiliate him in a
place within the public view is certainly an offence
punishable under Section 3 (1) (10) of the Act. Relevant
portion reads thus:
“Para 25: A perusal of the FIR clearly shows
that, prima facie, an offence is made out
against appellants 2 and 3. As already stated
above, at this stage we have not to see whether
the allegations in the FIR are correct or not.
We only have to see whether treating the FIR
allegations as correct an offence is made out or
not. In our opinion, treating the allegations in
the FIR to be correct an offence under Section
3(1)(x) of the Act is prima facie made out
against Appellants 2 and 3 because it prima
facie seems that the intent of the appellants
was to insult or humiliate the first informant,
and this was done within the public view.”
Thus from the above-cited decision it is clear that prima
facie commission of offence has to be seen from the FIR
treating the allegations contained in it to be correct.
9. Taking into consideration the rival contentions of the
parties and going through the material available on record,
I am of the view that at this stage, the prosecution has not
collected any material against the applicants to prima face
show that the applicants have committed the offence
punishable under section 3 (1)(x) of the Act.
10. Consideration for bail is different from that of
framing the charge or making out the case against the
applicant for trial even if strong suspicion is there.
Therefore, in the light of the above discussion and the law
laid down by the Apex Court in respect of entertaining the
application under Section 438 of the Cr.P.C. in the matter
of offences relating to the Act, 1989, I am of the opinion
that it is a fit case in which the benefit of Section 438 of
the Cr.P.C. should be extended to the accused/applicants.
Accordingly, the application is allowed. It is, therefore,
directed that in the event of arrest of the
accused/applicants namely Jagmohan, Suban and Nan Babu, if
on their production before the trial Court they furnish a
personal bond of Rs. 10,000/- each with a surety in the like
sum to the satisfaction of the said Court.
12. Trial Court shall not be influenced by any of the
observations made in this order and shall proceed in
accordance with law.
JUDGE