Allahabad High Court
Sushil Kumar Singh vs State Of U.P. And Another on 1 November, 2022
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 72
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 7169 of 2022
Applicant :- Sushil Kumar Singh
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Pulak Ganguly,Dilendra Pratap Singh
Counsel for Opposite Party :- G.A.,Ashwani Kumar Pathak
Hon'ble Suresh Kumar Gupta,J.
Heard learned counsel for the applicant and learned A.G.A. for the opposite parties.
The present anticipatory bail application under Section 438 Cr.P.C. has been filed for grant of anticipatory bail as the accused-applicant- Sushil Kumar Singh is apprehending his arrest in connection with Case Crime No.45 of 2018, under Sections 419, 420, 467, 468, 471, 504, 506 IPC and Section 3 (1) (D), 3 (1) (Dha) of the S.C./S.T. Act Police Station- Khajani, District- Gorakhpur.
Learned counsel for applicant has submitted that the applicant has been falsely implicated in this case and he has not committed any offence as alleged by the prosecution. He further submitted that the applicant has never used the caste abusing words against the first informant, thus, no disclosed offence is made out against the applicant. To give the colour of criminality to the dispute between the parties present F.I.R. has been lodged against the applicant. One of the arguments of the learned counsel for the applicant is that allegation was against the Sureshwar Tiwari and the applicant for using caste abusing words but during course of investigation, the main accused- Sureshwar Tiwari has been exonerated in the present case and charge sheet against the co-accused- Sureshwar Tiwari has not been submitted by the I.O. but without collecting the cogent and credible evidence against the applicant the Investigating Officer filed charge sheet against the applicant.He further submitted that during investigation the applicant has never been arrested.
Further submission is that the applicant fully cooperated with the investigation. Hence, the applicant may be enlarged on anticipatory bail and he is ready to fully cooperate with the trial. If the applicant is granted anticipatory bail, he will never misuse the same. He further submitted that offence under The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is not made out against the applicant. In support of his submission, learned counsel for the applicant placed reliance upon the Judgment of the Hon'ble Apex Court in the case of Rahna Jalal vs The State Of Kerala and Another 2020 Law Suit (SC) 843. The relevant paragraph of the above judgment is quoted below:-
"For the above reasons, we have come to the conclusion that on a true and harmonious construction of Section 438 of CrPC and Section 7 (c) of the Act, there is no bar on granting anticipatory bail for an offence committed under the Act, provided that the competent court must hear the married Muslim woman who has made the complaint before granting the anticipatory bail. It would be at the discretion of the court to grant ad-interim relief to the accused during the pendency of the anticipatory bail application, having issued notice to the married Muslim woman."
Learned counsel for the first informant and learned A.G.A. opposed the present anticipatory bail application of the applicant. Learned counsel for the first informant further submitted that the applicant has used caste abusing language against the first informant. Thus, the prima facie offence is made out against the applicant under the The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
Since the present anticipatory bail application is relating to the offence under S.C./S.T. Act, therefore, the present application under Section 438 Cr.P.C. is not maintainable under the provision of Section 18 of the The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The provisions of Section 18 of the The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 read as under:-
"18. Section 438 of the Code not to apply to persons committing an offence under the Act.?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."
In view of above, the present application under Section 438 Cr.P.C. is dismissed on the ground of maintainability.
Order Date :- 1.11.2022
Anuj Singh
