Pooja Jha and Another vs State

Sunita Gupta, J.—This is a petition u/s. 438 Cr.P.C. moved by the petitioners Pooja Jha and Aarti Jha for grant of anticipatory bail in case FIR No. 217/13 u/s.341/342/354/323/506/34 IPC and u/s. 3(x) SC/ST (Prevention of Atrocities) Act, P.S. Sangam Vihar, New Delhi. It is alleged in the petition that the facts leading to the registration of the present FIR are that the mother of the petitioners, Mamta Jha lodged a complaint with P.S. Sangam Vihar, pursuant to which FIR No. 23/13 dated 20.01.2013 u/s. 323/354/452/392/34 IPC was registered against Smt. Baby and Dheeraj amongst others. The present FIR is nothing but a counter blast of the FIR lodged by Mamta Jha against the wife and son of Mahesh Kumar, complainant of this case. There is no specific averment against the petitioner. The only averment against the petitioner is that the petitioners used to reside with Mamta and Mahesh. No specific role has been attributed against them so as to attract SC/ST Act.

The alleged offence was allegedly committed on 22.01.2013 and the complaint was made for the first time only on 04.03.2013. The FIR was ultimately registered on 22.05.2013. There is no plausible explanation for the delay on the part of the complainant in lodging the complaint which cast a serious doubt regarding the veracity of the complaint. Initially the case was registered only under the provisions of the Indian Penal Code and offence u/s. 3(x) of SCT/ST Act was later on added. Reliance was placed on Dr. R.K. Sangwan and Another Vs. State ; Daya Bhatnagar and Others Vs. State, ; Kanhaiya Paswan Vs. State and Others, ; Manjeet Singh and Others Vs. State of Delhi, S.

The application, on the other hand, is opposed by learned Additional Public Prosecutor for the State on the ground that there are serious allegations against the petitioners along with the other accused persons. Reference was made to the supplementary statement of the witnesses wherein there are specific allegations attracting the provisions of SC/ST Act against Pooja Jha. However as regards Aarti Jha, it was fairly conceded that there are no allegations qua her regarding SC/ST Act but she assaulted the complainant party on 19.01.2013.

The FIR, in the instant case, was registered on the complaint of Mahesh Kumar wherein it was alleged that he is resident of K-I, Gali No. 18, 457/A Sangam Vihar, New Delhi. Mamta Jha and Mohan Jha along with their family members reside in his neighbourhood. Pooja, Aarti Jha, Pankaj Jha etc. also lived with them. They had good relations with Municipal Councillor Kalpana Jha and local police. On 19.01.2013 at about 10.15 a.m., Mamta and her associates caught hold of her son Dheeraj and took him to a deserted street and beat him mercilessly. Somebody informed his wife who reached there and saved her son and informed the police. Mamta Jha, Pooja, Aarti and others caused grievous injuries to his wife Baby. She was taken to Trauma Centre, AIIMS in unconscious stage where she was given treatment. She got six stitches on her head. The aforesaid persons in connivance with Corporation Councillor Kalpana Jha bribed the police and lodged a false complaint against his son Dheeraj and others for commission of robbery, molestation and other false allegations and got the case registered. When he reached police station, the police did not listen to him or his wife and abused them and demanded Rs. 1 lakh in case they wanted to save themselves. Thereupon, he took his wife and came to his house and got her treated at Safdarjung hospital. Since he did not bribe the police officials, as such on 22.01.2013, police from P.S. Sangam Vihar comprising Suresh, Sanjay, Lalit Kumar and two other police personnel entered their house and abused them in filthy language. He was dragged outside the house and given beatings mercilessly. After the police left, Mamta and Mohan Jha were standing outside his house and used racist words. Kalpana Jha also came outside his house along with these people and she also used racist words like saale, bhangi, chamar, khatikde etc. and on the basis of these allegations, the FIR was registered. In the supplementary statement recorded u/s. 161 Cr.P.C., Smt. Baby and Dheeraj also levelled allegations against the petitioner Pooja who also used racist words.

After careful consideration of the rival contentions and the material placed before me, I am afraid the petitioner Pooja Jha cannot be granted anticipatory bail. Section 18 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities Act), 1989 (hereinafter referred as SC/ST Act) reads as under:-

Section 438 of the Code not to apply to persons committing an offence under the Act. 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.

A bare reading of the Section shows that it is an absolute bar on the applicability of Section 438 of the Cr.P.C. to any case involving the arrest of any person on an allegation that he has committed an offence under the SC/ST Act. In Vilas Pandurang Pawar and Another Vs. State of Maharashtra and Others, , it was held that the bar of Section 18 of the SC/ST Act is absolute unless it can be shown that there is no specific averment in the complaint about the uttering of the caste name or remark. It was also observed that the provisions of Section 18 of the SC/ST Act cannot be "easily brushed aside by elaborate discussion on the evidence". In paragraph 12 of the judgment, it has been made clear that everything depends upon the nature of the averments made in the complaint.

In Dr. R.K. Sangwan and Another Vs. State , reference was made by a single Judge of this Court to a larger Bench on the question whether this section operates as a complete bar to the maintainability of the petition u/s. 438 of the Code. After considering the view taken by a Full Bench of Rajasthan High Court reported as Virendra Singh Vs. State of Rajasthan, , it was observed that the bar created by Section 18 of the Act would not apply merely because an FIR has been registered under the Act. It would always remain within the domain and jurisdiction of the Court to judicially consider whether the allegations in the FIR prima facie makes out an offence under the Act and if it is found so, only then can it be said that there is an accusation of having committed the offence under the Act. In Virender Singh''s case itself, it was observed that 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 its face value, discloses the existence of the ingredients constituting the alleged offence. The Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR. In Daya Bhatnagar (supra), the basic question was regarding the interpretation of expression "public view in Section 3(1)(x) of the SC/ST Act. Kanhaiya Paswan (supra) was a case where there was non-disclosure of necessary ingredients of SC/ST Act in the complaint and as such, the charge was not framed. The petition against the order of the learned Additional Sessions Judge was accordingly dismissed. Manjeet Singh (supra) was a case where there was prima facie evidence to show that the words about the caste of the complainant were uttered in public view and as such, since there was specific averment in the complaint, the bail application moved by one of the accused was dismissed. However since qua two other petitioners, there were no allegations under SC/ST Act, therefore, they were granted anticipatory bail.

This authority applies with full force to the facts of the case in hand in as much as, so far as accused Pooja is concerned, there are clear allegations that she along with others addressed Dheeraj as saale, bhangi, chamar, khatikde etc and as such, in view of the clear allegations against her, she is not entitled to be released on anticipatory bail. However, as regards, Aarti Jha is concerned, it was fairly conceded by learned Additional Public Prosecutor that there are no allegations under SC/ST Act qua her. The allegations are confined to assault. Under the above circumstances, I reject the application filed by Pooja Jha for anticipatory bail. However, petitioner Aarti Jha is ordered to be released on bail in the event of her arrest on her furnishing a personal bond in the sum of Rs. 15,000/- with one surety in the like amount to the satisfaction of the I.O/S.H.O. is concerned. She is, however, directed to join investigation as and when required. She is further directed not to contact any of the prosecution witnesses or tamper with evidence.

The bail application is accordingly disposed of.