Jagmohan and Others vs State of Chhattisgarh and Another

T.P. Sharma, J.—This application has been filed for anticipatory bail as the applicants arc 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). Learned counsel for the applicant submits that except the offence punishable u/s 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 u/s 3 (1) (v) of the Act He placed reliance on the decision of this Court in the matter of Somesh Das Vs. State of Chhattisgarh, 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 Vs. State of C.G., , in which it has been held that in the absence of allegation for the offence punishable u/s 3 (1) (10) of the Act in the FIR or complaint, application u/s 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 u/s 3(1) (v) of the Act is not made out against them.

On the other hand counsel for the respondent/State opposes the application for anticipatory bail and submits that the offence punishable u/s 3(1) (v) of the Act is a non bailable offence. Moreover, the application for anticipatory bail u/s 438 of the Code for the offence punishable u/s 3 (1) (v) of the Act is not tenable in view of the bar of section 18 of the Act.

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 u/s 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.

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 lake 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.

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 u/s 18 of the Act for the offence punishable u/s 3 (1) (10) of the Act. While dealing with the applicability of section 438 of the Code for the offence punishable u/s 3 (1) (10) of the Act, in the matter of AIR 1995 1198 (SC) 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.

Provision of Section 438 of the Code is a general rule for granting anticipatory bail but bar of anticipatory bail u/s 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 u/s 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 u/s 18 of the Act come into play and it is not competent to grant bail u/s 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 u/s 438 of the Code. Merely by mentioning section of the Act does not create a bar for considering the application u/s 438 of the Code.

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 u/s 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 u/s 438 of the Code is maintainable.

While dealing with Insult in respect of a member of Scheduled Caste community, in the matter of Swaran Singh and Others Vs. State through Standing Counsel and Another, 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 u/s 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 arc 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 u/s 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.

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 facie show that the applicants have committed the offence punishable u/s 3 (1) (x) of the Act.

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 u/s 438 of the Cr. P.C. in the matter of offences relating to the Act, 1989, I am of the opinion that it is 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. Trial Court shall not be influenced by any of the observations made in this order and shall proceed in accordance with law.