HIGH COURT OF JUDICATURE AT BILASPUR (CHHATTISGARH)
M.Cr.C. No.496 of 2004
Satyaprakash, S/o
late Krishnachandra Verma,
aged about 40 years,
Occupation:
Service presently working
as
Assistant Labour
Commissioner
at Raipur, R/o B/371,
Central
Avenue, Smriti Nagar,
Bhilai
District: Durg.
...Petitioners
Versus
Versus
State of Chhattisgarh,
through
Station House Officer,
Special
SC/ST Police Station-Durg (C.G.)
...Respondents
! Shri Rajeev Shrivastava, counsel for the applicant.
^ Shri A. K. Tiwari, Panel Lawyer for the State.
Single Bench*: Hon'ble Shri L.C. Bhadoo J.
Press any key to continue ...l
Dated: 16/03/2004
: Judgement
O R D E R
(Passed on 16th March 2004)
The accused/applicant has preferred this bail
application under Section 438 of the Cr.P.C. apprehending
arrest in Crime No.88/2002, Police Station: Special SC/ST
Police Station, Durg, for commission of the offence
punishable under Section 3(1)(x) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989, for
releasing him on anticipatory bail before arrest.
(2) Brief facts relevant for the disposal of this bail
application are that one Mangaldas Barle lodged a report on 6-
10-2002 with the Police Station Anusuchit Jati Kanyan, Durg,
with the allegations that on 26-8-2002 at about 5:30 pm in
the evening he went to meet Mr. Jangde, Assistant
Commissioner, in his office situated near Ravishankar
Stadium, Manas Bhawan, Durg. When he reached at the gate of
the office, he saw that one person wearing dark red shirt
coming out of the gate. He enquired from him whether Mr.
Jangde, Assistant Labour Commissioner, is in office or not,
then that person asked for his name and in reply he
introduced himself to that person. He again enquired about
the presence of Mr. Jangde then that person said that “Woh
Chammar Sale Beech ke kamre mein Baitha Hai Mil Lo” (that
Chammar is sitting in the middle room, you meet him). Then
he asked him as to why he is abusing him in the name of the
caste, as he is also from the same caste, then he said that
`you are also chammar’, if I would not address Chammar to
Chammar then I should address you as `Brahmin’ and while
abusing, he started beating him. On hearing the noise Jangde
Saheb along with three persons came out, saw that incident,
and intervened. Thereafter that person went away abusing in
the filthy language. Then he enquired from Jangde that who
was this person? Then he said that he was Satyaprakash Verma,
Assistant Labour Commissioner. On this report the Police
registered the case under Section 3(1)(x) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989 (hereinafter referred to as `the Act, 1989) and the
matter is under investigation.
(3) Mr. Tiwari, learned Panel Lawyer opposed the bail
application by raising preliminary objections that the
offence is alleged to have been committed under Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989 under Section 3(1)(x) of the Act and Section 18 of the
Act put a bar against the consideration of the application
for anticipatory bail. It would be relevant here to refer
Section 18 of the Act which reads as under:-
Section 18. Section 438 of the Code do not apply to the
person committed offence under the Act:
“Nothing in Section 438 of the Code
shall apply in relation to the nature of case
involving the arrest of the person on
accusation of having committed the offence
under this Act.”(4) On the other hand, learned counsel for the
accused/applicant argued that as per the settled law the High
Court is not prevented from entertaining the application
under Section 438 of the Cr.P.C. if the contents of the
F.I.R. do not disclose the commission of the offence under
the Act, 1989. He further argued that on the facts and in
the circumstances if prima facie it appears to the Court that
the allegations in the F.I.R. are so exaggerated, improbable
and unbelievable and the applicant is able to establish that
the allegations in the said F.I.R. appear to blackmail or to
wreck some personal vengeance for settling and scoring
personal vendetta or by way of some counter-blasts against
opponents some public servants, then the Court is entitled to
entertain the application.(5) Learned counsel for the accused/applicant further
argued that if we take this F.I.R. in the background in which
the case was registered that when the applicant was a
successor Assistant Labour Commissioner to Mr.
Jangde, he made a complaint about the embezzlement committed
by Mr. Jangde to the Chief Secretary, Arun Kumar
on 19-8-2002 in which he said that “presently I am faced with
such a situation where I have no way except to report to the
guardian of all officers of the State. Sir I had surfaced a
very big financial misappropriation involving lacs of rupees
and as a result of my endeavour Challan was filed in the
Court and the Court of Additional Chief Judicial Magistrate,
Durg while taking the cognizance of the crime ordered the
registration of Criminal Case under Section 409, 120-B, 34 of
I.P.C. against PN Ratrey Labour Inspector and SL Jangde and
Shri P.N. Ratrey in conspiracy with S.L. Jangde had taken
Rs.30/- per labour from the Thekedars and thereby huge loss
has been caused to the State Government.” Copy of the
complaint is Annexure-A/5. Therefore, in this background
Shri S.L. Jangde and another conspired to implicate the
applicant in a false case and that is why Mangaldas Barle has
been used as a tool to falsely implicate the applicant.
Apart from Annexure-A/5, the complaint was made by the
accused/applicant against Mr. Jangde and Labour Inspector
P.N. Ratrey.(6) Now, the point raised by the learned counsel for
the State and the learned counsel for the applicant is no
longer res integra. As per the settled law on this point the
High Court while deciding the bail application under Section
438 of the Cr.P.C. pertaining to commission of the offence
under the provisions of Act, 1989, if the contents of the
F.I.R. or the complaint disclose the commission of the
offence, the courts would not be justified in entering into a
further inquiry 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 of
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 entertainment of application of anticipatory bail
where prima facie the contents of the F.I.R. disclose the
ingredients of 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 FIR itself with a view to find out if the facts
emerging therefrom 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 inquiry as to the reliability or genuineness or
otherwise of the allegations made in the FIR or the complaint
by calling for the case diary, charge sheet or any other
material gathered at the time of investigation. But, if the
allegations in the F.I.R. or the complaint even if they are
taken at their face value are accepted in their entirety do
not constitute the offence alleged, it is only in those
miniscule number of cases, the courts would be justified in
entertaining the application, not because it is maintainable
but clearly because the Act would be inapplicable on the
facts and in the circumstances of that particular case. Thus
the application for anticipatory bail can be entertained only
on the ground of inapplicability of the Act of 1989 due to
the facts of the case which will have to be gathered only
from the FIR and not beyond that.(7) In the light of the above principle in respect of
entertaining the application for anticipatory bail in respect
of offences relating to the Act, 1989, if we look into the
ingredients of the offence alleged in the present case
against the applicant, Section 3(1)(x) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989 lays down that “(a) there must be an “intentional
insult” or “intimidation” with “intend” to humiliate SC/ST
member by a non-SC/ST member; (b) and that insult must have
been done in any place within the “Public view”.” The wording
of the section makes it crystal clear that the mens rea is an
essential ingredient of the offence and it must also be prima
facie established that the accused had the knowledge at the
time of commission of the offence that the victim belongs to
the SC/ST and that the offence was committed for that reason.
Merely calling a person by caste would not attract the
provisions of this Act. Merely alleging that the accused
uttered humiliating words may not be enough. This being a
penal provision has to be given a strict interpretation. If
any of the ingredients is found missing, it would not
constitute the offence.(8) In the light of the above, if we look into the
facts of the present case Mr. Mangaldas Barle met with the
person at the gate of the office and when he enquired from
that person about Mr. Jangde that whether he is in office or
not then said that “Woh Chammar Sale Beech ke kamre mein
Baitha Hai Mil Lo”, at that time apart from these two
persons, no other person was there as per the allegations in
the F.I.R.. Even Mr. Jangde was not present because with
reference to him these words were used. Therefore, it cannot
be considered that these words were uttered in the “Public
view”. “Public view” means that the words were uttered in
the presence of some other persons and that too with an
intention to `insult’ or `humiliate’ or `intimidate’ the
caste person. Even the word that “You are chammar”! If I
shall not call you Chammar then shall I call you as Brahmin”.
These words were also not uttered in the public view. It has
further been mentioned that after hearing the noise Mr.
Jangde and 3 persons came on the scene and then the accused
left the scene abusing him in the insulting language. But,
it has not been made clear that what was the actual word used
and merely omnibus statement that the accused abusing in the
insulting language is not sufficient to constitute the
offence. Therefore, if we take the F.I.R. on its face value
then the essential ingredients for constituting the offence
under Section 3(1)(x) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 are missing.(9) Learned Panel Lawyer placed reliance on the
judgments of the Hon’ble Apex Court in the matter of State of
M.P. V. Ram Kishna Balothia reported in AIR 1995 SC 1198 and
Virendra Singh versus State of Rajasthan reported in 2000 (3)
Crimes 473. Learned counsel for the accused/applicant also
placed reliance on the same case of Virendra Singh (supra)
and in the matter of Mukesh Kumar Saini and others v. State
(Delhi Administration) reported in 2001 CRI. L.J. 4587. In
the matter of Ram Kishna Balothia (supra) the Hon’ble Apex
Court has held that:-“The above statement graphically
describes the social conditions which
motivated the said legislation. It is pointed
out in the above Statement of Objects and
Reasons that when member of the Scheduled
Castes and Scheduled Tribes assert their
rights and demand statutory protection,
vested interests try to cow them down and
terrorise them. In these circumstances, if
anticipatory bail is not made available to
persons who commit such offences, such a
denial cannot be considered as unreasonable
or violative of Article 14, as these offences
form distinct class by themselves and cannot
be compared with other offences.”It was further held that:
“However, looking to the historical
background relating to the practice of
“Untouchability” 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.”
(Emphasis supplied)
(10) Therefore, in the light of the above discussion and
the law laid down by the Hon’ble 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/applicant. Accordingly, the application is allowed.
It is, therefore, directed that in the event of arrest of the
accused/applicant namely, Satyaprakash if he furnishes a
personal bond of Rs.10,000/- with a surety in the like sum to
the satisfaction of the Investigating Officer, he be released
on anticipatory bail. However, he shall abide the conditions
provided under Section 438 of the Cr.P.C. i.e. he shall make
himself available for interrogation by a police officer as
and when required; he shall not directly or indirectly, make
any inducement, threat or promise to any person acquainted
with the facts of the case so as to dissuade them from
disclosing such facts to the Court or to any police officer.
This order shall remain effective for a period of two months
from today. During this period the accused/applicant may
apply for regular bail.
(11) Before parting with this order, it is made clear
that the above discussion has been used to decide the
application for anticipatory bail and the trial Court shall
not be influenced by any of the observations made in the said
order at any stage of the matter because it became necessary
to make these observations to decide the bail application in
the light of the objections raised by the learned counsel for
the State.
L.C.Bhadoo
J u d g e