Ramkumar vs State Of Madhya Pradesh

This appeal has been filed under Section 14-A (1 & 2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short

“SC/ST Actâ€) on 19.06.2018 on behalf of Ram Kumar against the order dated 15.06.2018 passed by Special Judge, Harda. By the order

impugned, the learned lower Court dismissed the application filed by the appellant under Section 438 of Cr.P.C for anticipatory bail in connection with

Crime No. 03/2018, registered at Police Station AJAKS, District Harda (M.P.) under Sections 376(2) (N), 342, 506, 190 of IPC and Sections 3(1)(W)

(ii), 3(2)(V) of SC/ST Act.

As per lower court, the offences under section 3(1)(W) (ii) and 3(2) (V) of SC/ST Act have been registered, therefore Section 18 of the aforesaid

Act is attracted, and as per aforesaid provision, anticipatory bail could not be granted.

It is submitted by the learned counsel for the appellant that the lower Court committed mistake by rejecting the application filed by the appellant for

anticipatory bail. In this case no medical evidence is available in support of the contention. Provision of aforesaid Special Act are not attracted,

therefore, anticipatory bail ought to be granted. Therefore, it is submitted that the order impugned is liable to be set aside and appellant is entitled to get

anticipatory bail.

On the other side, State strongly opposed the application/ Appeal and submitted that FIR was also registered under Sections 3(1)(W) (ii) & 3(2)(V)

of SC/ST Act and Provision of aforesaid Special Act are also attracted, therefore, anticipatory bail could not be granted.

The complainant was also noticed in this case but she did not turn up to contest the appeal.

It will be useful to quote Section 18 of the Act, which reads as under:-

“18. Section 438 of the Code not to apply to persons committing an offence under the Act. â€" 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.â€​

A bare reading of above provision makes it clear that Section 438 of Cr.P.C is not applicable to a person who committed the offence(s) under the

Act. In this section word “acquisitionâ€​ has been used. In Ram Dayal Vs. State of M.P. reported in 1991 JLJ, 498, it has been said that :-

“Accusation against the accused should be real in essence and spirit. Where there is no material to reasonably raise a suspicion of commission of

an offence under the Act, it cannot be said there is an accusation within the meaning of S. 18 of the Act and maintainability of application u/s 18

cannot be challengedâ€​.

Further in the case of Dule Singh Vs. State of M.P. reported in 1993 (1) MPJR, 223, it has been said that :-

“Strict construction should be put on the word ‘accusation’ within the meaning of S. 18 of the Act. As such, ‘intention’ or

‘intent’ which is material ingredient of the offence under S. 3 (1) (x) of the Act not being clearly stated by the witnesses and there being no

statement that the offence was committed because the complainant belonged to Scheduled Caste, it cannot amount to an ‘accusation’ of an

offence within the meaning of S. 18 of the Act so as to bar an application for anticipatory bail u/s 18 of the Actâ€​.

Again in the case of Mohar Singh Vs. State of M.P., reported in 1995 JLJ 584, High Court has observed as under:-

“The word accusation used in S. 18 has not been defined anywhere, but it can be safely inferred that when there is an allegation either in the F.I.R.

or in the statement of witnesses constituting offence punishable u/s of the Act, the bar u/s 18 is attracted.â€​

In the case of Pankaj D. Suthar Vs. State of Gujarat (1992) 1 GLR 405, while considering the scope of Section 18 of Prevention of Atrocities Act,

Gujarat High Court observed as under:-

“Section 18 of the Atrocities Act gives a vision, direction and mandate to the Court as to the cases where the anticipatory bail must be refused, but

it does not and it certainly cannot whisk away the right of any Court to have a prima facie judicial scrutiny of the allegations made in the complaint.

Nor can it under its hunch permit provisions of law being abused to suit the mala fide motivated ends of some unscrupulous complainant.â€​

In the case of In the case of Vilas Pandurang Pawar and another Vs. State of Maharashtra and others, AIR 2002 SC 3316 = (2012) 8 SCC 795,

the police registered a case against the accused persons under Section 3(1)(x) of the Act in addition to other offences punishable under the IPC on the

basis of the written complaint of the complainant. The Additional Sessions Judge rejected their application under Section 438 Cr.P.C., giving reasons

thereof. Aggrieved by the said order, the accused persons filed the bail application before the High Court of Bombay, which granted anticipatory bail

to some of the accused persons. The order of the High Court was challenged before the Supreme Court. The Supreme Court considered the

provisions and scope of Section 18 of the Act and made the following observations in paras 8 and 9 (of AIR) of the decision -:

“8. Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments

in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a

specific averment in the complaint, namely, in sultor intimidation with intent to humiliate by calling with caste name, the accused persons are not

entitled to anticipatory bail.

The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail.

When an offence is registered against a person under the provisions of the SC/ST Act, no court shall entertain an application for anticipatory bail,

unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of

evidence and other material on record is limited. The court is not expected to indulge in critical analysis of the evidence on record. When a provision

has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed

in granting bail under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the

evidenceâ€​.

Hon’ble Supreme Court in the case of Bachu Das Vs. State of Bihar (2014) 3 SCC 471 also referred the aforesaid observation.

Recently in the case of Dr. Subhash Kashinath Mahajan Vs. State of Maharastra, reported in AIR 2018 SC 1478, Hon’ble Supreme Court

considered the provision of Section 18 of SC/ST Act and observed as under:-

“Exclusion of anticipatory bail has been justified only to protect victims of perpetrators of crime. It cannot be read as being applicable to those who

are falsely implicated for extraneous reasons and have not committed offence on prima facie independent scrutiny. Access to justice being

fundamental right, grain has to be separated from chaff, by independent mechanism. Liberty of one citizen cannot be placed at whim of another. Law

has to protect innocent and punish guilty. Thus considered, exclusion has to be applied to genuine cases and not to false ones. This will help in

achieving object of law. Restriction in S. 18 is only at stage of consideration of matter for anticipatory bail and no such restriction is available while

matter is to be considered for grant of regular bail. Theoretically it is possible to say that application under S. 438 of Code may be rejected by Court

because of express restrictions in S. 18 of Act of 1898 but very same Court can grant bail under provisions of S. 437 of Code, immediately after

arrest. There seems to be no logical rationale behind this situation of putting fetter on grant of anticipatory bail whereas there is no such prohibition in

any way for grant of regular bail. It is, therefore, all the more necessary and important that express exclusion under S. 18 of Act of 1989 is limited to

genuine cases and inapplicable where no prima facie case is made out. There can be no dispute with proposition that mere unilateral allegation by any

individual belonging to any caste, when such allegation is clearly motivated and false, cannot be treated as enough to deprive person of his liberty

without independent scrutiny. Thus, exclusion of provision for anticipatory bail cannot possibly, by any reasonable interpretation, be treated as

applicable when no case is made out or allegations are patently false or motivated. If this interpretation is not taken, it may be difficult for public

servants to discharge their bona fide functions and, in given cases, they can be black-mailed with threat of false case being registered under Act of

1989, without any protection of law. This cannot be scenario in civilized society. Similarly, even non-public servant can be black-mailed to surrender

his civil rights. This is not intention of law. Such law cannot stand judicial scrutiny. It will fall foul of guaranteed fundamental rights of fair and

reasonable procedure being followed if person is deprived of life and liberty. Thus, literal interpretation cannot be preferred in present situation. Thus,

exclusion of S. 438 of Code applies when prima facie case of commission of offence under Act of 1989 is made. On the other hand, if it can be

shown that allegations are prima facie motivated and false, such exclusion will not apply. This may have to be determined by Court concerned in facts

and circumstances of each case in exercise of its judicial discretion. In doing so, well established principle of law that protection of innocent against

abuse of law is part of inherent jurisdiction of Court being part of access to justice and protection of liberty against any oppressive action such as mala

fide arrest is reiterated. Efficacy of S. 18 is not diluted in deserving cases where Court finds case to be prima facie genuine warranting custodial

interrogation and pre-trial arrest and detention.â€​

From the aforesaid observations, it is crystal clear that if the offence registered under SC/ST Act, anticipatory bail can be granted when the court

prima facie find that such an offence is not mate out. It is mandatory on the part of the Judge concerned, at the time of rejecting or granting bail under

Section 438 Cr.P.C. to give a definitive finding upon the basis of the materials available before him that there is prima facie evidence available to hold

that the accused has committed or not committed the offence(s) punishable under the Act. Meaning thereby the court cannot reject the bail outright by

writing simply in the order concerned that the police have registered the case for the offence(s) punishable under the Act, therefore, the bar under

Section 18 of the Act is applicable.

Now, we see the fact of present case. It is argued by the learned counsel for the appellant that appellant is permanent resident of District Harda

and there is no likelihood of his absconding. Complainant was married in the year 2003 and given a birth to a male child. She left her husband and

came to Harda from Betul. After that She herself made contacts with other rich person named Deepak Meena in the year 2012. She developed

relationship with Deepak Meena and got married with him on oath in stamp paper on 05.01.2012 and got the marriage certificate from Chitragupt

Mandir, Hoshangabad. She contacted to another rich person named Rajesh Sharma in the year 2014 and lived with him till 2016. She also delivered a

baby child Divyani on 04.09.2015. She with a conspired mind to blackmail him, lodged a false complaint on 21.01.2016 against Rajesh Sharma, in

which Rajesh Sharma was acquitted. She also lodged another complaint under Section 498 of IPC against Rajesh Sharma. But Rajesh Sharma

acquitted in that case also. The prosecutrix was having intention for blackmailing. She is a habitual offender and used to blackmail rich persons and in

habit of collecting huge money from them, who are in her target. She is a married lady who developed relations with three other persons and also used

to blackmail them by lodging forged FIR.

FIR has been lodged by the prosecutrix on 30.05.2018 at 19:00 pm. As per this report first incident took place in November, 2013. It is stated in

the FIR that the prosecutrix had gone to Balagoan in November, 2013. In December 2013 she came in the contact of Ram Kumar Soni, who gave

assurance of service as well as marriage. He also provided a house on rent to the complainant. In that house he committed sexual intercourse with the

prosecutrix on 27.12.2013 at about 10:00 pm in the night. Thereafter he repeated aforesaid the act and prosecutrix became pregnant and delivered a

girl child named Divyani. On 29.05.2018 when the prosecutrix told the accused Ramkumar Soni that neither he arranged the service nor he married

with the prosecutrix, upon this, accused became annoyed and assaulted her and also given threatened to life.

Therefore, it appears from the First Information Report that as per prosecutrix she was in sexual relationship with Ramakumar Soni since

November, 2013 to 29.05.2018 and during this period she also delivered a girl child named Divyani.

On the other side, appellant submits various documents against the aforesaid version of the prosecutrix. Document Annexure A/2 at page No.17 is

a document related to the marriage. This document was executed before the Notary on 05.01.2012 between prosecutrix and Deepak Kumar. In this

document it is mentioned that the marriage has been solemnized between them by exchanging garlands. A certificate is also annexed at page No.21,

which has been issued by Chitragupt Mandir, Hoshangabad, in shape of registration of marriage. In this certificate, photographs of both parties

meaning Deepak and prosecutrix have been pasted and it is certified that the marriage has been solemnized on 14.01.2012. The aforesaid documents

shows that the prosecutrix has done first marriage with Deepak on 14.01.2012 and they lived as husband and wife.

Annexure A/4 is an FIR of Crime No.11/2016 registered at Mahilla Thana, Bhopal under Sections 376, 506 of IPC and Section 3(1)(xii) and

Section 3(2)(5) of SC/ST Act. This report was also lodged by the same prosecutrix. The offence was registered upon the written report submitted by

the prosecutrix. As per this FIR the report was lodged on 21.01.2016, while the date of incident is mentioned as 28.04.2014. In this FIR she stated that

she is living in Bhopal since 2 ½ years back and doing job in private company and also living in a rented house. She again stated that Rajesh Sharma

(accused of that case) given her false assurance of marriage and committed sexual intercourse with her for a period of 1 ½ year. After sometime

she came to know that Rajesh Sharma is a married person and also having two children. When the complainant asked him that he is married man then

how he will marry with her, than he said that he will give divorce to his wife and thereafter marry with the prosecutrix. Important fact is also

mentioned in this report that the prosecutrix became pregnant and asked for abortion but the accused Rajesh Sharma denied and assured that he will

give name of father to the aforesaid child. After sometime Rajesh Sharma did not contact to the prosecutrix and prosecutrix delivered a girl child.

Thereafter when girl was aged about 1 ½ months accused Rajesh Sharma created hurdle. Upon the instigation of Rajesh Sharma, landlord

pressurized the prosecutrix to evict the house. It means that the girl child delivered by the prosecutrix during the relationship with Rajesh Sharma.

When the report of Crime No.11/2016 was lodged ,the prosecutrix was also examined before the JMFC, Bhopal on 01.02.2016 under Section 164

of Cr.P.C. In her statement she also stated that Rajesh Sharma given a false assurance of marriage and committed sexual intercourse and due to this

relationship she became pregnant and gave birth to a girl child. Birth certificate of that girl child is also filed as Annexure A/3, in which father’s

name is mentioned as Rajesh Sharma and date of birth is mentioned as 04.09.2015.

Annexure A/6 is the copy of judgment dated 15.02.2018 passed by the Special Judge SC/ST, Bhopal in Special Case No.37/2016, which was

based on previous FIR lodged against Rajesh Sharma. The Court acquitted the accused Rajesh Sharma in the aforesaid case. In para-12, it is

mentioned by the Court that the prosecutrix examined as PW-8 and she deposed on oath that the accused Rajesh Sharma made sexual relationship

with her since 2014 and she became pregnant in the year 2015 and delivered a girl child on 04.09.2015. In para 22, it is also mentioned that the

prosecutrix and accused committed sexual intercourse with the consent of each other since January, 2014 to Jun, 2017. Therefore it appear that in the

previous First Information Report she alleged that Rajesh Sharma is the father of that girl child while in the present FIR she alleged that the present

appellant Ramkumar is the father of that girl child.

Another judgment Annexure A/5 is also filed in this case. The complaint was lodged by the prosecutrix and the offence under Section 498-A of

IPC was registered against Rajesh Sharma. By the judgment dated 20.10.2015 passed in Case No.8284/2015 by Shri Ashok Bhardwaj, JMFC, Bhopal

the accused Rajesh Sharma was acquitted. In para-6 of the aforesaid judgment, it is mentioned that the prosecutrix became hostile and she did not

support the FIR as well as her police statements. Therefore, it appears that the prosecutrix herself lodged the report and thereafter during trial she

became hostile and did not support her own version which was given in the FIR.

Some photographs are also filed for showing the conduct of prosecutrix. These are at page Nos.49 to 55. In four photographs the prosecutrix is

with Rajesh Sharma. Three photographs are with Deepak Meena. These photographs also indicate the intimate relationship as husband and wife.

Therefore, looking to the aforesaid entire documents and the case diary, it can be said that the prosecutrix is not a fair lady. She delivered a girl

child on 04.09.2015. At that time she was in relationship with Rajesh Sharma. She also admitted in the previous case that Rajesh Sharma is the father

of that girl child. But again in this case she made allegation against the present appellant by saying that he is father of that girl child. The period of

living with Rajesh Sharma is also overlapping with the period to be said with the present appellant. Any act related to the cast is not alleged in the

entire evidence. It is also proper to mention hear that in para 6(3) of the appeal memo, it is mentioned that initially complainant was married in her

caste in the year 2003 and a baby was born during her marital life. Thereafter she married with Deepak Meena in the year 2012. Any divorce from

any Court has not been obtained by the prosecutrix.

Therefore, it can be said that the bar created in Section 18 is not attracted in this case. Looking to all situations and the evidences, appeal is

allowed. The impugned order passed by the trial Court is set-aside and it is directed that in the event of arrest of the appellant Ramkumar shall be

released on bail on his furnishing a personal bond in the sum of Rs.20,000/- (Rupees Twenty Thousand only) with one solvent surety in the like amount

to the satisfaction of the Arresting Officer. It is also directed that the appellant shall abide by the conditions as enumerated under Section 438(3) of the

Cr.P.C. The appellant shall remain present before the Investigating Officer as and when he is directed so and cooperate in investigation and he shall

also appear before the trial Court.

Consequently, the present criminal appeal stands allowed and disposed of.

Certified copy as per rules.