Yogesh Trivedi vs State of Rajasthan

M.C. Sharma, J.—This bail application has been filed by the petitioners u/s 438 Cr.P.C. against the order dated 14.5.2013 passed by Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Sikar whereby the anticipatory bail application of the petitioners has been dismissed. Briefly, stated the facts of the case are that the complainant Sohan Kumar Meena on 13th January, 2013 has lodged the F.I.R. at the Police Station, Khatushyamji against the accused persons including the present accused petitioners alleging therein that on 31st January. 2013, he was passing through the road in front of the house of the accused (sic)ons then Yogesh Trivedi, Chetan Trivedi and their relative Abhishek Mishra abused him on the caste and thereafter at 4.00 PM the accused persons further came and after abusing him on the caste gave beating by lathi and fists. On the basis of the information of the complainant, the police registered F.I.R. No. 14/2013 at Police Station Khatushyamji for offence under Sections 341, 323/34 IPC and u/s 3(1)(x) of the SC & ST (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ''the Act''). Apprehending their arrest, the accused petitioners filed bail application u/s 438 Cr.P.C. for grant of pre-arrest bail before the learned Special Judge, SC/ST (Prevention of Atrocities) Act Cases, Sikar but the bail application was dismissed by the Special Judge vide order dated 14th May, 2013. Hence, this bail application.

Mr. Ashok Mishra and Mr. Suresh Sharma, learned counsel for the petitioners have contended that the accused petitioners have not committed any offence which is punishable either with death sentence or with life imprisonment and they have been falsely implicated in the matter with some ulterior motive by making false allegations. Counsel next contended that from a bare perusal of the F.I.R. and the evidence available on recorded shows that prima facie no offence u/s 3(1)(x) of the Act can be said to be made out against the accused petitioners. Counsel further submitted that although Section 18 of the Act creates a bar for invoking Section 438 Cr.P.C. however, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence u/s 3(1) of the Act has been prima facie made out or not. In support of their submissions, counsel for the petitioners placed reliance on paragraphs Nos. 9, 10 and 13 of the recent judgment of the Supreme Court in the case of Vilas Pandurang Pawar and Another Vs. State of Maharashtra and Others, and on paragraphs Nos. 5, 10 and 15 of the Full Bench judgment of this Court in the case of Virendra Singh Vs. State of Rajasthan,

On the other hand, learned PP has opposed the bail application and has contended that the facts of the present case and the facts of the case of Vilas Pandurang Pawar (supra), the judgment of the Supreme Court cited by the counsel for the petitioners are the same as in para. No. 2 of the aforesaid judgment it has been mentioned that "Balu Bhanudas Pawar came there and abused them on caste on account of the rainwater flowing from the agricultural land of the complainant to his land." On the basis of the aforesaid averments, learned PP has contended that the allegations in the present case are of similar nature and after considering the facts and circumstances of the case as well as the allegations levelled in the complaint in the case of Vilas Panduranga (supra), their Lordships of the Supreme Court have dismissed the bail application filed by the petitioner under Sec. 438 Cr.P.C. Pointing out the allegations in the F.I.R. in the instant case, learned PP has contended that the accused persons first abused the complainant on the caste and then started beating him by lathi and firsts. There is a bar u/s 18 of the Act for grant of anticipatory bail. Lastly, he contended that when the offence has been registered under the provisions of the Act then no court shall entertain application for grant of anticipatory bail. Hence, the bail application filed by the accused petitioners deserves to be dismissed and the same be dismissed.

Before proceeding further, it will be appropriate to reproduce the relevant paragraphs of the aforesaid judgments cited by the counsel for the petitioners which are as follow:-

Paragraph Nos. 9, 10 and 13 of Vilas Pandurang Pawar Case:

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 u/s 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, insult or 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 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. 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 u/s 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence.

In view of the above discussion and in the light of the specific averments in the complaint made by the complainant-respondent No. 3 herein, we are of the view that Section 18 of the SC/ST Act is applicable to the case on hand and in view of the same, the petitioners are not entitled to anticipatory bail u/s 438 of the Code. Accordingly, the SLP is dismissed. However, it is made clear that the present conclusion is confined only to the disposal of this petition and the trial Court is free to decide the case on merits."

Paragraph Nos. 5, 10 & 15 of Virendra Singh''s case:-

"In response to the notice, one set of arguments were advanced by the learned advocates Shri Jagdeep Dhankar & Shri S.R. Bajwa, who submitted that although the courts would not be justified in entering into a roving enquiry of the allegations levelled against a person accused of an offence u/s 3 of the Act of 1989 in the sense that it would not be justified to look into the police case diary, charge sheet or other material, yet the court ought to peruse atleast the F.I.R. or the complainant in order to determine whether the accused person can at all be said to have committed the offence under the Act of 1989 before rejecting his application outright merely on the ground of its maintainability. Thus they have submitted that the provision should not be construed in a manner so as to create a complete bar even to entertain an application u/s 438 Cr.P.C. without application of mind on facts as to whether accusation made against any person constitute any offence under the Act or not. It was also inter alia contended that when a Statute provides stringent provisions as compared to the punishment prescribed for other offence under the ordinary penal laws, a duty is cast on the court and the judge to be sure that there exists a prima facie case involving a person in the commission of the offence under the Act.

In the matter of Pankaj D. Sudhir vs. State of Gujrat reported in 1992 (1) Crimes, 1122 the same question came up for consideration wherein the accusation in the complaint levelled against a Forest Officer was to the effect that he has committed an offence punishable u/s 3 of the Act of 1989 but prima facie on judicial scrutiny it was found not to be free from doubt. Hence it was considered whether in such cases, a the accused person be blindly and mechanically denied the benefit of anticipatory bail u/s 438 of the Cr.P.C. This was the fundamental question touching upon the applicability and interpretation of Section 18 of the Act of 1989 which came up for consideration before the said court. 15. Once again the same question arose for consideration before the aforesaid learned Single Judge in the case of Rakesh and Ors. vs. State of Rajasthan reported in 1995 RCC, 329 and in this case while affirming his earlier view in Munir Khan''s case (supra) it was held therein that prima facie it does not appear that the applicants have committed the offence u/s 3(i) to (xi) of the Act of 1989 and thus was pleased to grant benefit of Section 438 Cr.P.C. But on this occasion an appeal was preferred by the State of Rajasthan against the order of the learned Single Judge in Rakesh''s case before the Apex Court which was disposed of by order dated 7.5.96 in Cr. Appeal No. 640/96 wherein the learned Judges of the Supreme Court held as under:-

"The only point that has been urged in support of the appeal is that in view of Section 18 of the Act, which expressly bars application of Section 438 Cr.P.C. in respect of prosecution under the Act, the High Court was not justified in entertaining the respondents application for anticipatory bail, much less, passing the impugned order. This contention has got to be accepted in view of the clear language of Section 18, more so, when challenge to its constitutionality was also rejected by this Court in State of M. P. and Another Vs. Ram Krishna Balothia and Another, Inspite of our above finding we do not feel inclined to set aside the impugned order as the record indicates that pursuant thereto respondents have been granted bail they have been enjoying the privilege thereto for long."

Having heard counsel for the parties, I have gone through the contents of the F.I.R. and also the judgments delivered by the Apex Court as well as by the Full Bench of this Court. As noted above, in the case of Vilas Pandurang Pawar (supra) the accused persons used abusive language on the "Caste" of the complainant on account of flowing water from his field to the filed of the accused persons.

In view of the judgment of the Apex Court and of this Court, it is necessary to have a look at the relevant portion of the F.I.R., which reads as under:

It is also necessary to have a look at the order passed by the Special Judge, SC/ST Cases, Sikar, rejecting the anticipatory bail filed by the accused petitioner, the operative portion reads as under:

Prima facie it is clear from the F.I.R. and the order of the Special Judge, SC/ST (Prevention of Atrocities) Act Cases Sikar that the accused petitioners insult or intimidation with intent to humiliate the complainant with caste name and gave beating by lathis and fists therefore, bar of Section 18 of the Act of 1989 clearly attracts in the present case and as such, bail application u/s 438 Cr.P.C. cannot be maintainable. In view of the above, I do not think it proper to accept this bail application u/s 438 Cr.P.C. for grant of anticipatory bail to the petitioners. The bail application stands dismissed. However, in the interest of justice, I direct the Investigating Officer of the case that he will investigate the matter fairly, properly and impartially.