Laxmi Narayan Sahu vs State Of Chhattisgarh

The present appeal is arising out of order dated 26/11/2021 passed by the Special Judge (Atrocities), Kabirdham in Bail Application No. 289/2021.

The appellant has preferred this appeal under Section 14A(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act,

1989 (for short 'the Act, 1989') for grant of anticipatory bail under Section 438 of the Cr.P.C., as he apprehends his arrest in connection with Crime

No.318/2021, registered at Police Station Pandariya, Dist. Kabirdham (CG) for offence punishable under Sections 354, 294 and 506 of IPC & U/s

3(2) (ii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

As per the prosecution case, on 13.09.2021, a complaint was made by one Sitaraj that during the panchayat meeting, the appellant caught hold of his

hand and abused him in the name of caste. Therefore, the offence has been committed.

Learned counsel for the appellant would submit that the appellant is Up-Sarpanch and he made certain allegation against the Panch and Sarpanch

for passing certain amount on the basis of forged bill on which an enquiry was held and it was found that Rs. 1,42,000/- was forged. Subsequently, the

Panch and Sarpanch made an application to the competent authority for removal of the present appellant. Subsequently, on the same day, the order of

removal was also passed. The appellant challenged the same before the High court which is pending. He further submits that the complaint was made

as a counter blast to the allegation, which was found to be true after the enquiry about the financial irregularities against the Panch and Sarpanch,

therefore, the appellant may be enlarged on bail.

Per contra, learned State counsel opposes the prayer for grant of bail.

Victim appeared before this Court and submits no objection for grant of bail.

Heard learned counsel for the parties.

The issue arising for consideration is whether the anticipatory bail application would be maintainable in view of bar under Section 18 of the Act of

1989.

This legal issue is no longer res-integra in view of the authoritative pronouncement of the Supreme Court in case of Prathvi

Raj Chauhan v. Union of India and others (2020) 4 SCC 727 wherein the Supreme Court had an occasion to consider the maintainability of application

under Section 438 of Cr.P.C., in the matter of allegation of offence under the Act of 1989.

Concerning the applicability of provisions of section 438 CrPC, it shall not apply to the cases under the 1989 Act. However, if the complaint does

not make out a prima facie case for applicability of the provisions of the 1989 Act, the bar created by Section 18 and 18-A(i) shall not apply. We have

clarified this aspect while deciding the review petitions.

I would only add a caveat with the observation and emphasize that while considering any application seeking pre-arrest bail, the High Court has to

balance the two interests: i.e., that the power is not so used as to convert the jurisdiction into that under Section 438 of the Criminal Procedure Code,

but that it is used sparingly and such orders made in very exceptional cases where no prima facie offence is made out as shown in the FIR, and

further also that if such orders are not made in those classes of cases, the result would inevitably be a miscarriage of justice or abuse of process of

law. I consider such stringent terms, otherwise contrary to the philosophy of bail, absolutely essential, because a liberal use of the power to grant pre-

arrest bail would defeat the intention of Parliamentâ€​.

Therefore, even though there may be allegations of offence under the Act of 1989, if a case is met out to be exceptional in nature, in exceptional

cases, benefit of grant of anticipatory bail could be extended and in such cases the bar under section 18 of the Act of 1989 may not operate.

In the instant case, the facts would show that initially the issue erupted when the appellant made a complaint about certain financial irregularities in

the working of the Panch. The complaint having been made, it was found to be correct after the enquiry, therefore, the Panch and Sarpanch, hand in

gloves made the complaint for removal of the appellant from the post of Up-Sarpanch which was subsequently challenged in the High Court and is

pending. Having considered the background of this case, the object of Section 18 appears not to be defeated, as the issue of complaint on which the

criminal cases were registered was panchayat dispute. Prima facie, it shows that the appellant has a strong case to be contested in his defence.

Taking into such fact, I am inclined to extend the benefit of Section 438 of the Cr.P.C. to the appellant.

Accordingly, the appeal is allowed and the impugned order is set-aside.

The appellant is directed to be released on anticipatory bail on his furnishing a personal bond for a sum of Rs.25,000/- with one surety each in the

like sum to the satisfaction of the Arresting Officer with the following conditions:

(i) he shall make himself available for interrogation by a police officer as and when required;

(ii) 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 him

from disclosing such facts to the Court or to any police officer.

(iii) he shall not influence the witnesses during pendency of the trial.