Rahul Jain vs State Of Madhya Pradesh & Another

Present appeal has been filed under Section 14 (A) (1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, (for brevity 'the Atrocities Act') against the order dated 16-01-2019 passed by Special Judge (Atrocities), Vidisha, whereby the application of the appellant under Section 438 of Cr.P.C. seeking anticipatory bail has been rejected in connection with Crime No.686/2017 registered at Police Station Kotwali District Vidisha for the offences under Sections 341, 294, 324, 506, 307/34 IPC and Section 3 (1) (r), 3 (1) (s), 3 (2) (v-a) and 3 (2) (v) of the SC/ST Act.

Learned counsel for the appellant submits that on 24.09.2017 complainant Dinesh @ Vinesh Jatav lodged a report at Police Station Kotwali, Vidisha under the aforesaid sections against the present appellant and three other pertaining to the incident dated 19.09.2017 alleging that all the accused stopped the complainant and asked him not to drive the car of Smt. Yogita Tiwari. It is alleged that applicant Rahun Jain and co-accused Puneet Tiwari took out knife from their pockets and caused injuries to him and lastly it is alleged that Deepak and Virendra caused injuries by kicks and fists. The appellant is apprehending his arrest which may bring social disrepute to him. Along with appeal, appellant has also filed copy of affidavit sworn by the complainant stating therein that the matter has been compromise between the appellant and complainant and he does not proceed the further matter against the appellant and this fact has not disputed by the complainant. On these premises, counsel for the appellant prays for grant of benefit of anticipatory bail.

Learned Public Prosecutor for the State opposed the prayer and prayed for rejection of anticipatory bail application.

Heard the learned counsel for the parties and perused the case diary.

The Amendment Act, 2018 brought for incorporation of Section 18-A in the Atrocities Act is in fact to nullify the effect of consequences likely to flow from the judgment of Hon'ble Apex Court in the matter of Dr. Subhash Kashinath Mahajan Vs. State of Maharashtra and another, (2018) 6 SCC 454 wherein certain conclusions have been recorded in para 79 which reads as under:

"79. Our conclusions are as follows:

79.1. Proceedings in the present case are clear abuse of process of court and are quashed.

79.2. There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in Pankaj D Suthar (supra) and Dr. N.T. Desai (supra) and clarify the judgments of this Court in Balothia (supra) and Manju Devi (supra);

79.3. In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention.

79.4. To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.

79.5. Any violation of direction (iii) and (iv) will be actionable by way of disciplinary action as well as contempt.

79.6. The above directions are prospective."

Therefore, preliminary enquiry has been dispensed with and power of investigating officer to arrest has been reiterated. Similarly Section 18 of the Atrocities Act has been reframed under Section 18 A (2) of the Amendment Act, 2018 whereby the provisions of Section 438 of Cr.P.C. and its applicability has been taken out from the purview of the Atrocities Act, notwithstanding any order or direction of any Court. Still the power of judicial review and power to grant bail under Section 438 of Cr.P.C. if any offence is not made out prima facie, has not been curtailed and cannot be curtailed by any Act. Even otherwise, Article 21 of the Constitution of India wherein right to life and personal liberty are secured, no person can be debarred of such liberty at the instance of false complaint.

In the case of Gurubaksh Singh Sibbia etc. Vs. The State of Punjab, AIR 1980 SC 1632, Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others, AIR 2011 SC 312 and the judgment rendered in the matter of Arnesh Kumar Vs. State of Bihar and another, (2014) 8 SCC 273 it has been held that that the scope of Section 438 of Cr.P.C. is not limited and Court can take care of personal liberty of individuals. The orders of Coordinate Bench of Principal Seat at Jabalpur dated 27-08-2018 passed in Cr.A.No.5233/2018 (Surendra Raghuvanshi Vs. State of M.P. & Anr.) and the Coordinate Bench of this Court dated 24-09-2018 in Cr.A.No.6880/2018 were also referred where the Court has allowed the appeal filed by the appellant seeking anticipatory bail.

In view of the aforesaid facts and law laid down by the Hon'ble Apex Court, this Court is of the considered opinion that prima facie appeal deserves consideration for grant of anticipatory bail without expressing any opinion on merits of the case.

So far as the bar of Section 438 of Cr.P.C. vis a vis Atrocities Act is concerned, it appears that the recent Amendment Act, 2018 brought Section 18A of the Act into statute in following words:

"18A. (1) For the purposes of this Act-

(a) preliminary enquiry shall not be required for registration of a First Information Report against any person;or

(b) the investigating officer shall not require approval for the arrest, if necessary, of any person. against whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply.

(2) The provisions of Section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court."

Perusal of the said Amendment Act reveals that the conclusions drawn by the Hon'ble Apex Court in para 79 of the case of Dr. Subhash Kashinath Mahajan (supra) have been taken care of, however the Amendment Act, 2018 nowhere restricts the procedure provided under Cr.P.C. Meaning thereby, Section 41 of Cr.P.C. is intact which gives powers to the police officer to arrest any person without any order from the Magistrate and without warrant against whom the 'reasonable complaint' has been made or 'credible information' has been received or 'reasonable suspicion' exists that he has committed cognizable offence punishable with imprisonment for a term which may be less than 7 years or which may extend to 7 years, if certain conditions as referred in Section 41 of the Code are satisfied. The said section contemplates that "police officer must have reason to believe".

The said expression "Reason to Believe" has been defined under Section 26 of IPC in following words:

"26. "Reason to believe".-A person is said to have "reason to believe" a thing, if he has sufficient cause to believe that thing but not otherwise."

The said expression has been dealt with in catena of decisions including in the case of Joti Prasad Vs. state of Haryana, 1993 Suppl. 2 SCC 497 and in the case of Adri Dharam Das Vs. State of West Bengal, (2005) 4 SCC 303. Similarly "Credible Information" as appeared in Section 41 of the Code has also been explained by the Hon'ble Apex Court in the case of State of Haryana Vs. Bhajan Lal, (1992) Suppl. 1 SCC 335 and in the case of Lalita Kumari and others Vs. Government of U.P. and others, (2014) 2 SCC 1. Therefore, before arresting a person, officer must have "Credible Information" which is different from a mere complaint and must have reason to believe which is different from mere suspicion or knowledge that arrest is necessary for prevention of tampering the evidence, fleeing from justice, cooperation in investigation and to secure his attendance in the Court. These provisions are still intact and not taken away by the effect of Amendment Act, 2018.

The Hon'ble Apex Court in the matter of Siddharam Satlingappa Mhetre (supra) discussed the historical perspective of Section 438 of the Code and scope of exemption. Discussion was on the anvil of Article 21 of the Constitution of India where right to life and right to personal liberty are sacrosanctly preserved for every individual. The reiteration of Section 18A of the Act vis a vis bar created under Section 438 of the Code is in effect repetition of Section 18 of the Act incorporated in the Act of 1989 by the Legislature but with certain qualified terms. In the wake of Section 18 of the Act, the judgments of Hon'ble Apex Court like in Siddharam Satlingappa Mhetre (supra), Dr. Subhash Kashinath Mahajan (supra) and in the matter of Hema Mishra Vs. State of Uttar Pradesh and others, (2014) 4 SCC 453 and in the matter of Arnesh Kumar (supra) were passed and guidance was given.

True it is, that the Amendment Act, 2018 bars application of any judgment or order of any court while considering Section 438 of the Cr.P.C. but procedure of the Cr.P.C. along with the Atrocities Act have been accepted and preserved intact. The judgments referred above take care of different provisions of the Code as well as Article 21 of the Constitution of India and thereafter extended the guidance.

Similarly, Section 18A(b) of the Amendment Act, 2018 contemplates discretion by the Investigating Officer regarding arrest of the accused by qualifying words; 'if necessary'. Therefore, one perspective of the Amendment Act, 2018 itself indicates that the authority has discretion and if found necessary then without approval from the higher authority, can arrest any person. Therefore, enough leverage exists for the Investigating Officer to exercise his own discretion on perusal of complaint whether from the ingredients of the complaint any offence is made out or not. Scope of Section 438 of Cr.P.C. vis a vis the Atrocities Act is to be seen in that perspective. In the present case, perusal of FIR prima facie indicates that the matter can be investigated without causing arrest to the appellants and ingredients prima facie do not match with the facts.

Since the Section 18A of the Amendment Act, 2018 is repetition of Section 18 of the Atrocities Act couched in different language, therefore, earlier discussion of the Hon'ble Apex Court and different High Courts in different cases can be borrowed for discussion value. Coordinate Bench of this Court vide order dated 27-08-2018 in Cr.A.No.5233/2018 (Principal Seat at Jabalpur) and vide order dated 24-09-2018 in Cr.A.No.6880/2018 (Gwalior Bench) have allowed the appeal filed by the accused seeking anticipatory bail.

In the instant set of facts, no likelihood of the appellant/accused to terrorise the victim exists, nor the appellant can hinder the investigation process. Therefore, considering the overall fact situation of the instant case as well as application of the Code in the procedure adopted for investigation along with the provisions of the Atrocities Act, instant case appears to be a case for grant of anticipatory bail.

In the given set of facts, it appears that Justiciability and Justifiability are at loggerheads and only their reconciliation, would further the cause of justice. Reconciliation between different provisions of Cr.P.C. vide Section 41 vis a vis 438 would also strengthen the case of appellant.

Resultantly, without expressing any opinion on merits of the case, appeal is allowed. It is directed that in the event of arrest, the appellant shall be released on bail on furnishing a personal bond in the sum of Rs.1,00,000/-(Rupees One Lac Only) with one solvent surety of the like amount to the satisfaction of Arresting Authority/ Investigating Authority.

This order will remain operative subject to compliance of the following conditions by the appellant:-

The appellant will comply with all the terms and conditions of the bond executed by him;

The appellant will cooperate in the investigation/trial, as the case may be;

The appellant will not indulge himself in extending 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 the Police Officer, as the case may be;

The appellant shall not commit an offence similar to the offence of which he is accused;

The appellant will not seek unnecessary adjournments during the trial; and

The appellant will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be.

The appellant shall not contact the complainant through any means and shall not move in vicinity/proximity in any manner.

The appellant shall not make any inducement, threat or promise to the complainant or to any person acquainted with the facts of the case so as to dissuade him from disclosing such fact to the Court or police officer.

A copy of this order be sent to the Court concerned for compliance.

Certified copy as per rules.