JUDGMENT
S.P. Talukdar, J.
1. The present case arises out of an application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973.
2. It is directed against the orders dated 05.09.2005 and 20.09.2005 passed by the learned Sessions Judge, Hooghly in Criminal Misc. Case No. 1491 of 2005. The said case arose out of Chinsurah P. S. Case No. 232 of 2005 dated 24.08.2005 under Sections 147/148/149/354/447/427/379/506/376/511 of the Indian Penal Code and Section 3(1)(i)(iii)(iv)(v)(x)(xi) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
3. The grievances of the petitioner may briefly be stated as follows :
The petitioner, by occupation a rickshaw puller, resides at Haragouri Tola, P.S. Chinsurah, with his family, which includes his wife and minor son. They are residing in the said place for the last 25/26 years. The land had been vested to the State long before. One Daya Chand Shaw of Kankinara, North 24-Parganas, filed an eviction suit against the present petitioner and his family thereby giving rise to Title Suit No. 167 of 2000. The said suit was disposed of by the learned Civil Judge (Junior Division), Chinsurah, Hooghly on 30.04.2005 in favour of the present petitioner and his family members.
4. On 14.07.2005 when the petitioner and his family members were taking their meals, some antisocial elements and land brokers started to threaten him and tried to construct a kancha building on the said portion of land adjacent to the main road to which the present petitioner and his family members protested. The petitioner lodged a diary, being G.D. Entry No. 945 dated 14.07.2005 over this. They also moved an application under Section 144 of the Code of Criminal Procedure and obtained an order of injunction in Madhya Pradesh Case No. 546 of 2005. On 31.07.2005 the opposite parties being accompanied by some antisocial elements broke down the boundary wall and started assaulting the family members of the petitioner in order to evict the petitioner and his family members from the land in question. They also outraged the modesty of the female members and ransacked the dwelling rooms of the petitioner and took away two wrist watches and cash money, which was kept for medical treatment of the petitioner’s old ailing father, who was also a rickshaw puller by occupation. They also abused in filthy language by saying that the petitioner and his family members, being members of the scheduled Castes or lower castes should not be allowed to remain in the locality.
5. The petitioner went to the Chinsurah Police Station and wanted to lodge a complaint against the miscreants, but was not entertained by the duty officer. Having been left with no choice, the petitioner on 16.08.2005 filed a petition of complaint before the learned Court of Chief Judicial Magistrate, Hooghly, praying for a direction under Section 156(3) of the Criminal Procedure Code. The learned Court directed the Officer-in-Charge of Chinsurah Police Station to investigate into the matter after treating the said complaint as First Information Report. Initially for six days, the police authority did not take any action. Lastly, at the request of the petitioner the case, being Chinsurah P.S. Case No. 232 of 2005 was started on 24.08.2005. The police authority did not bother to take any action whatsoever. On 05.09.2005 an application under Section 438 of the Criminal Procedure Code, 1973 was filed before the learned Court of Sessions Judge, Hooghly. The said application was admitted and the learned Judge fixed the matter on 20.09.2005 for hearing. On the said date the petitioner filed an application challenging maintainability of the said application under Section 438 of the Cr. PC. The learned Judge, however, after hearing the learned Counsel for the parties allowed the application for anticipatory bail. It was submitted before the learned Court that no application under Section 438 of the Cr. PC is maintainable if the case is under Section 3(1)(i)(iii)(iv)(v)(x)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as it is barred under Section 18 of the said Act. The learned Judge, however, did not take such application into consideration, but simply allowed the application for anticipatory bail. Being aggrieved by, and dissatisfied with, the orders dated 05.09.2005 and 20.09.2005 passed in Criminal Misc. Case No. 1491 of 2005, the petitioner approached this Court by filing the instant revisional application.
6. Mr. Sekhar Bose, learned Counsel for the petitioner, at the very outset submitted that the learned Sessions Judge was not at all justified in entertaining an application for anticipatory bail under Section 438 of the Criminal Procedure Code and, thereafter, in granting bail to the opposite parties. Mr. Bose contended that an application challenging maintainability of the case was filed before the learned Sessions Judge, but curiously enough, the order granting anticipatory bail does not find any mention of such objection whatsoever. Mr. Bose further submitted that the learned Sessions Judge failed to appreciate the nature and gravity of the alleged crime and did not also take into consideration the historical background, which led to framing of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. It was also submitted that Section 18 of the said Act clearly stands in the way of entertaining an application under Section 438 of the Criminal Procedure Code.
7. It seemed to be the further-contention of the petitioner that cases under the aforesaid Act cannot be investigated by an officer below the rank of Deputy Superintendent of Police.
8. In order to appreciate the matter in its proper perspective it is perhaps necessary to reproduce the observation of the Apex Court in the case of State of Madhya Pradesh and Anr. v. Ram Krishna Balothia , which is as follows:
Looking to the historical background relating to the practice of ‘Untouch-ability’ and the social attitudes which lead to the commission of such offences against Scheduled Castes and Scheduled Tribes, there is justification for an apprehension that if the benefit of anticipatory bail is made available to the persons who are alleged to have committed such offences, there is every likelihood of their misusing their liberty while on anticipatory bail to terrorise their victims and to prevent a proper investigation. It is in this context that Section 18 has been incorporated in the said Act. It cannot be considered as in any manner violative of Article 21.
9. It was observed that the offences, which are enumerated under Section 3 of the said Act, are offences, which denigrate members of Scheduled Castes and Scheduled Tribes in the eyes of society and prevent them from leading a life of dignity and self-respect. It was further held that such offences are committed to humiliate and subjugate members of the Schedules Castes and Scheduled Tribes with a view to keep them in a state of servitude. The Apex Court further observed, “These offences constitute a separate class and cannot be compared with offences under the Penal Code. Therefore, Section 18 of the said Act cannot be considered as violative of Articles 14 and 21 of the Constitution”.
10. learned Counsel for the opposite party relying upon the decision in the case of Bapu Gouda v. State of Karnataka reported in 1996 Cr. LJ 1117, submitted that the exclusion of Section 438 of the Code need to be viewed in the context of the prevailing social conditions, which give rise to such offences and the apprehension that perpetrators of such atrocities are likely to threaten and intimidate the victims and prevent and obstruct them in the prosecution of these offenders, if the offenders are allowed to avail of anticipatory bail. It was added by the learned Counsel for the opposite party that Section 18 of the 1989 Act is not absolute bar for granting anticipatory bail. It is the duty of the High Court to see that the stringent provisions of Section 18 are not misused. Belying upon the decision in the case of Girdhari Lai v. State of Rajasthan reported in 1996 Cr. LJ 1613, it was submitted that there is need for judicial scrutiny to find out whether an offence under the aforesaid Act has been committed by a person or a group of persons before refusing the benefit of pre-arrest bail.
11. Reference was made to the decision in the case of Mekala Raji Reddy v. State of Andhra Pradesh reported in Cr. LJ 3407, while submitting that mere knowledge that the victim belongs to Scheduled Castes or Scheduled Tribes community is not sufficient to constitute an offence under Section 3(2)(v) of the Act..
12. Attention of the Court was also drawn to the decision in the case of Rabindra Nath Pradhan v. State of Orissa reported in 2005 Cr. LJ 2989, wherein the learned Court granted anticipatory bail with the direction “in respect of Section 3 of the S.C. and S.T. Act the accused shall not be arrested unless on the basis of Year not in the copy. investigation a credible evidence comes against him by which the offence under Section 3 of the S.C. and S.T. Act is made out against him.
13. learned Counsel Mr. Bose, appearing for the petitioner, was perfectly justified in pointing out that an offence committed under the said Act need be investigated by a police officer not below the rank of a Deputy Superintendent of Police. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 require that the Investigating Officer shall be appointed by the State Government, Director General of Police, Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time, (vide Rule 7).
14. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is an Act to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto.
15. The word “atrocity” means an offence punishable under Section 3 of the said Act. Section 3 of the said Act relates to punishment for offences of atrocities. After careful consideration of the allegations made in the First Information Report, it is found that such allegations attempt to constitute offence under Section 3(3)(5)(10) and (11) of the said Act.
16. Section 18 of the said Act reads as follows:
18. Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.
17. From the available materials-on-record it appears that there had been other litigations between the parties. There is specific allegation that the petitioners were subjected to maltreatment in various forms. There are concrete allegations constituting offence under the said Act, being the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. In such backdrop, the learned Sessions Judge was certainly not justified in ignoring the objection filed on 20″1 September, 2005 in connection with Criminal Misc. Case No. 1491 of 2005. By filing such objection the present petitioner brought it to the notice of the learned Court that in view of Section 18 of the said Act, there could no scope for attracting Section 438 of the Code of Criminal Procedure.
18. The order under challenge does not reflect anything so as to suggest that the learned Court took into consideration those vital aspects of far-reaching consequences. It is worth mentioning that the legislature consciously took away the power to grant anticipatory bail under Section 438 of the Criminal Procedure Code in a case with alleged offence under the said Act. Such express ouster cannot be viewed lightly nor can it be ignored. This aspect was agitated in connection with various cases and its constitutionality was also challenged but in the social background of our society and the historical context, it has been found to be necessary to provide the hapless victims of such crimes with an added protection.
19. After due consideration of all relevant facts and materials, there is no option but to hold that the order granting anticipatory bail passed by the learned Sessions Judge in Criminal Misc. Case No. 1491 of 2005 suffers from inherent impropriety as well as jurisdictional error. As such, the said order dated 20.09.2005 stands set aside and the learned Sessions Judge, Hooghly, is directed to take necessary steps in view of setting aside of the said order. The opposite parties, in whose favour prayer for anticipatory bail was allowed, if already out on bail, must be directed to appear before the learned Court and take steps in accordance with law.
20. This disposes of C.R.R. No. 2884 of 2005.
21. Let a copy of this order along with LCR, if any, be sent to the learned Trial Court for information and necessary action.
22. Department is directed to supply xerox certified copy of this order, if applied for, to the learned Counsel of the parties as expeditiously as possible.