Yashpal Kaushal vs State of Punjab

Rameshwar Singh Malik, J.—The petitioner, by way of instant petition u/s 438 read with Section 482 of Code of Criminal Procedure (''Cr. P.C.'' for short), has approached this Court seeking pre-arrest bail in FIR No. 53 dated 1.6.2012 under Sections 3 and 4 of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC & ST Act for short), registered at Police Station Nangal, District Ropar. Notice of motion was issued and interim protection was granted to the petitioner vide order dated 4.7.2012.

Learned counsel for the petitioner submits that in compliance of the order passed by this Court, petitioner has joined the investigation and also cooperated with the investigating agency. It is further submitted that, since no case, whatsoever, is made out against the petitioner, even after accepting the allegations levelled in the FIR to be true on their face value, the statutory bar u/s 18 of the SC & ST Act, would not come in the way of the petitioner. The allegations levelled against the petitioner being vexatious and frivolous on the face of it, amounts to the glaring abuse of the provisions of the SC & ST Act.

Learned counsel for the petitioner next contended that the case of the complainant is based on malafide, which is clearly established from Annexure P-2-the detailed telephonic conversation. Relying upon the Division Bench judgment of Karnataka High Court in N. B. Gungarakoppa & others. vs. State of Karnataka, 2002 (4) RCC (Crl.) 77, learned counsel for the petitioner concluded by submitting that the bar u/s 18 of the SC & ST Act is not an absolute bar in every given situation. In this view of the matter, the present petition deserves to be accepted, particularly when nothing is to be recovered from the petitioner and his custodial interrogation is not required.

Learned counsel for the State submits that in compliance of the order passed by this Court, petitioner has joined the investigation and he has also cooperated with the investigating agency. He further submits that a special investigating team has been constituted in the present case, which is seized of the matter. However, he submits that in view of the allegations against the petitioner, he is not entitled for the benefit of pre-arrest bail.

Learned counsel for the complainant vehemently contended that the statutory bar u/s 18 of the SC & ST Act, applies with full force in the present case. He prays for dismissal of the petition.

I have heard the learned counsel for the parties and with their able assistance, have gone through the record of the case.

Having given my thoughtful consideration to the rival contentions raised and keeping in view the peculiar fact situation of the present case, this Court is of the considered opinion that the present one is a fit case for extending the benefit of pre-arrest bail to the petitioner. I say so for more than one reasons, being recorded hereinafter.

Firstly, after careful perusal of the record of the case and hearing the learned counsel for the parties, this Court is of the view that since the allegations levelled by the complainant against the petitioner are malafide and vexatious, the embargo provided u/s 18 of the SC & ST Act, would not come in the way of the petitioner. It is clearly established from the perusal of the telephonic conversation of the complainant, recorded vide Annexure P-2. The telephonic conversation of the complainant is extracted, as under:

Nothing has been placed on record by the complainant to controvert the above-said factual aspect of the matter.

Secondly, while entertaining Criminal Misc. Petition bearing No. 14313 of 2012 filed by the petitioner for quashing of this very FIR, by invoking inherent jurisdiction of this Court u/s 482 Cr. P.C., this Court has prima facie found substance therein and notice of motion has been issued vide order dated 15.5.2012. However, the petition is pending decision. Further, in compliance of the orders passed by this Court, the petitioner has joined the investigation and has also cooperated with the investigating agency, which has not been denied even by the learned counsel for the State. It has also gone undisputed that since nothing is to be recovered from the petitioner, his custodial interrogation is not required.

Thirdly, the view taken by this Court also finds support from the Division Bench judgment in N.B. Gungarakoppa''s case (supra). The Division Bench, while referring to the judicial pronouncements of many High Courts of the country, based on the law laid down by Hon''ble the Supreme Court, made the following observations:-

Mr. Jadhav drew our attention to a few decisions to which we shall refer very briefly. In the case reported in Mukesh Kumar Saini and ors Vs. State (Delhi Administration), the Delhi High Court did have occasion in passing to point out that the High Court cannot overlook situations in which the provisions of the Atrocities Act have been misused. In the decision reported in (1999) 1 Crimes 636, the Madhya Pradesh High Court had occasion to observe that where there is no prima facie material to justify the invocation of these provisions that the entertainment of a petition would be justified. In the decision reported in Phulla Dass Vs. State of Punjab and Another, the Punjab and Haryana High Court had occasion to come down rather strongly and point out that where total mala fide and vexatious allegations are made and a misuse of the process of law is apparent that an anticipatory bail application cannot be barred. In another decision reported in (1997) 2 Cri 684, the Madras High Court held that where there is absolutely no material to justify the commission of an offence under the Act, it would not be permissible to debar the accused from applying for anticipatory bail. The Andhra Pradesh High Court in the decision reported in 1999 Crl. LJ 324 had occasion to do a deeper analysis of the issue and very rightly laid down that the mere mention of the provisions of the Atrocities Act is not sufficient unless it is supported by sufficient reliable material to establish charges under the Atrocities Act, obviously taking note of the situation referred to by us wherein even in petty disputes or non-existent disputes the provisions of the Act are virtually dragged in for purposes of securing an unfair advantage. The Orissa High Court reported in 1996 Crl. LJ 2743 has laid down that the mere registration of an offence under the Act is not the criteria but the real test would be as to whether on a prima facie evaluation the Court is satisfied that the case has been made out. Much reliance was placed on a very well considered decision of the Rajasthan High Court reported in 2000 Crl. LJ 2899, wherein the Full Bench of the Rajasthan High Court after doing an in depth analysis of the law has held that it would still be permissible to prefer an application for anticipatory bail u/s 438 Cr. P.C. within the parameters that we have had occasion to refer to. In this regard, we need to mention that the learned S.P.P. did submit, with perhaps considerable justification, that the real consideration in such situations would be as to whether on a responsible analysis of the material before the Court the invocation of the provisions of the Act can be prima facie justified and that it would not require or permit any deep probe or evaluation of evidence at that stage. The Supreme Court in the earlier decision reported in AIR 1993 SC 1028 (sic) had occasion to deal with the constitutional angles of these provisions which we have already referred to but we reiterate those principles once again for purposes of emphasising that there was very valid justification for the provisions in Section 18 of the Act which presupposes that it is dealing with cases of barbaric atrocities such as those which are defined in Section 3 of the Act but we are here, more concerned with the day-to-day problem that the Courts are facing in the large number of situations where the provisions are wrongly and unjustifiably invoked and where the accused are shut out from a remedy that Section 18 prescribes an absolute bar to the grant of anticipatory bail. Perhaps the ultimate test would be the one that the Supreme Court applied in the decision reported in (2000) 1 Supreme 584, wherein the Supreme Court summarised the position that the Atrocities Act would not be applicable unless it is demonstrated that it is a casteist attack. That in our considered view is the real essence of the distinction because the offence changes complexion and assumes grave seriousness when this particular ingredient is demonstrated to have coloured the incident. Again, we need to point out with a note of caution that is for very good reasons that the Andhra Pradesh High Court had reiterated the position that merely by mentioning something along these lines the Court would not be misled into believing that an ordinary incident had changed complexion into a casteist attack unless the fact and circumstances of the case justified this.

Respectfully following the law laid down by the Division Bench based on the judgments of Hon''ble the Supreme Court of India and keeping in view the peculiar fact situation of the present case, it is unhesitatingly held that since the case of the complainant is based on malafide, the blatant abuse of the process of law is writ large. In this view of the matter, this case clearly falls within the category of exceptional cases. Having said that, in case the powers u/s 438 read with Section 482 Cr. P.C. are not exercised in the present case, miscarriage of justice is bound to take place.

The petitioner is entitled to the protection of Article 21 of the Constitution of India. The principle of law laid down by Hon''ble the Supreme Court in this regard applies with greater force in the present case. The view taken by this Court also finds support from the recent judgment of Hon''ble the Supreme Court in Siddaram Setingappa Mhetre vs. State of Maharashtra 2011 (1) RCR (Crl.) 126.

Considering the totality of the facts and circumstances of the present case noted above, coupled with the reasons aforementioned, the order dated 4.7.2012 granting interim protection to the petitioner is hereby made absolute. However, lest this order is misunderstood, it is made clear that the observations made hereinabove, will have no bearing on the merits of the case, during the course of trial. Resultantly, the instant petition stands allowed.