Rajiv Kumar alias Kala vs State of Punjab

K.S. Kumaran, J.

PetitionerRajiv Kumar @ Kala who had approached the Special Judge, Kapurthala with an application under Section 438 Cr.P.C. for anticipatory bail and failed, has come to this Court with this application under Section 438 Cr.P.C. for the same relief. FIR No. 103 Police Station City, Phagwara District Kapurthala was registered on the statement of Sarabjit Kaur recorded on 10.10.1998 by ASI/SHO, Police Station, Satnampura, Phagwara.

The case of the prosecution as seen from this statement is that said Sarabjit Kaur who was studying in the Senior Secondary School, Phagwara, used to make telephone calls from the STD shop of petitionerRajiv Kumar @ Kala, and in this process came into contact with him. According to her, the petitioner pressurised her to marry him and in spite of her refusal, forcibly took her in his scooter on 10.3.1996 to Gurdwara Chak Hakim, threatened her that she will be killed if she did not marry him, and put the garland around her neck. She has averred that he told her that she had become his wife, took her to his house by force and had sexual intercourse with her against her wishes. She has further averred that the petitionr used to threaten her that if she gave information to anybody, he would kill her. According to the prosecutrix, she escaped on one day but again in December, 1997, the petitioner took her in scooter to his house and had sexual intercourse with her against her wishes. She has also stated that he threatened her not to talk about this to anybody, and that he will marry her legally when she will attain 18 years, but, when she became pregnant, her family members came to know of it. According to her, when her parents and other respectables approached the petitioner and his parents, the petitioner stated that the prosecutrix is from a low caste and, therefore, he cannot marry her.

On this basis, the FIR has been registered under Sections 376, 366 and 363 IPC as also under Sections 11 and 12 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Act). That is why the petitioner approached the Special Judge for anticipatory bail, but the learned Special Judge dismissed the application on the ground that in respect of the offences committed under the Act, no application for anticipatory bail lies.

This Court, on this application, issued notice to the Advocate General, Punjab and the counsel for both the sides were heard. Before me also, the same objection has been taken that in view of the provisions contained in Section 18 of the Act, the application for grant of anticipatory bail is not maintainable. But the learned counsel for the petitioner contended that while the prosecutrix was allegedly taken away on 10.3.1996 for the first time and to have been subjected to sexual intercourse after the alleged marriage, complaint had been lodged only on 10.10.1998 after a long delay and, therefore, it is clear that the case of the prosecution is not true. He also contended that even if all the allegations are assumed to be true for the sake of argument, no case is made out under Sections 376 or 366, 363, IPC. Learned counsel for the petitioner also contended that Sections 11 and 12 of the Act have no application to the facts of the case since section 11 of the Act deals with the removal of a person from any area on refusal to comply with the directions as issued under Section 10. The order under Section 10 is made for directing removal of a person from any area to prevent the commission of an offence under the Act. So far as Section 12 is concerned, learned counsel for the petitioner contended that it only provides that a person against whom an order under Section 10 is made, should allow his measurements and photographs to be taken and resistance or refusal to allow the same shall be deemed to be an offence under Section 186 IPC. Learned counsel for the petitioner contended that the petitioner has not been alleged to have committed any such offence and, therefore, Sections 11 and 12 of the Act have no application to the facts of this case and thus it will have to be taken that a case under the Indian Penal Code only has been registered against him and, therefore, he should be granted the relief of anticipatory bail.

I do not agree with the learned counsel for the petitioner in this respect. Without meaning to express any opinion on the merits of the case, I am of the view though Sections 11 and 12 of the Act have been mentioned in the FIR, the petitioner can also be stated to have committed offences punishable under Section 3 of the Act. Clause (xi) of subsection (1) of Section 3 of the Act provides for punishing a person who does not belong to a Scheduled Caste or a Scheduled Tribe if he assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty. Similarly, clause (xii) of the said subsection provides for the punishment of a person who being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe, uses that position to exploit her sexually.

As pointed out already, the case is that she was threatened, garlanded and subjected to sexual intercourse, and was also informed by the petitioner that he cannot her marry as she belongs to a low caste.

Learned counsel for the petitioner relied upon a Single Bench decision of this Court in Phulla Dass v. State of Punjab, 1997(3) RCR 212 wherein the scope of Section 438 Cr.P.C. with reference to the provisions of Section 18 of the Act was considered and it was held that it is obvious that a person has no right to claim anticipatory bail where a case has been registered under the Act in view of the specific embargo contained in Section 18 of the Act. Yet the Court considered the question whether the Court has the inherent power to grant anticipatory bail and held that if the Court comes to the conclusion that the process of law is being misused and that the complaint is totally mala fide and vexatious, then the Court would certainly exercise its inherent power and even the power under Article 226 of the Constitution of India. But in spite of holding so, the learned Single Judge held that such a power would not be exercised to defeat the specific provisions of Section 18 of the Act. In the present case also, it cannot be said that the petitioner has succeeded in showing that there has been an abuse of the process of law when the complainant lodged this report. Therefore, this decision will not be of any help to the petitioner.

In these circumstances, I am of the view that the allegations in the FIR disclose the commission of an offence under Section 3 of the Act. Once that is so, in view of the bar contained in Section 18 of the Act, the petitioner cannot be granted anticipatory bail. Therefore, this petition will have to fail. But, once again it is reiterated that the dismissal of this application and the opinion expressed herein shall not be taken as the expression of any opinion on the merits of this case.

Resultantly, this application is dismissed.