Amir Khan And 2 Others vs State Of U.P. And Another
2023 Latest Caselaw 25304 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:183038
 
Court No. - 73
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 10524 of 2023
 

 
Applicant :- Amir Khan And 2 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Syed Mohammed Jafer Husain
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Nalin Kumar Srivastava,J.

1. Heard learned counsel for the applicants, learned A.G.A. for the State and perused the material available on record.

2. This application for anticipatory bail has been filed by applicants - Amir Khan, Munazir and Khursheed seeking anticipatory bail in Case Crime No.279 of 2020, under Sections 147, 506 IPC and 3 (2) (va) S.C./S.T. Act, Police Station Kundarki, District Moradabad.

3. The prosecution story, as unfolded in the F.I.R., is that the informant had solemnized love marriage with Fauzia d/o Mohd. Saleem wherefore the family members of Fauzia had lodged a case against the informant, but on the basis of compromise, no action was taken against him, but the named accused persons including the present applicants, who are the natives of the village of the informant, forming an unlawful assembly, are threatening the informant for life. F.I.R. was lodged on 28.5.2020 and after investigation, now charge-sheet has been submitted by the police.

4. It is submitted by the learned counsel for the applicants that the applicants are innocent and they have apprehension of their arrest in the above-mentioned case, whereas there is no credible evidence against them. They have been falsely implicated into this matter. Allegations levelled against the applicant are false. The investigation of the case has been completed and charge-sheet has been filed and cognizance has been taken into the matter. It is further submitted that the prosecution case is totally baseless and bogus. The applicants are having no concern with the lady Fauzia or her family members and there was no occasion for them to threaten the informant on the basis of his alleged love marriage. It is further submitted that although the charge-sheet in this case has been submitted under Section 3 (2) (va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, but there is no allegation at all in the F.I.R. that the informant of this case belongs to S.C./S.T. community and nor it was in the knowledge of the applicants that he belongs to S.C./S.T. community. Only on the basis of statement of the informant that he is Jatav by caste, charge-sheet has been submitted under the provisions of S.C./S.T. Act and, therefore, the applicants are entitled for the protection provided by the Hon'ble Apex Court in Prathvi Raj Chauhan vs. Union of India & Others, (2020) 4 SCC 727 and the present anticipatory bail application is maintainable in itself. It is further submitted that the applicants have no criminal antecedents to their credit. They have been cooperative during the course of investigation and now they are entitled for anticipatory bail till end of trial.

5. Per contra, learned A.G.A. opposed the prayer for anticipatory bail and it has been vehemently submitted that that the present anticipatory bail application moved under Sections 147, 506 IPC and 3 (2) (va) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is not maintainable as Sections 18 & 18A (2) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 specifically provide that :

"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".

"18 A. (2) The provisions of Section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court".

It is submitted that in view of the provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 above mentioned, the present anticipatory bail application is not maintainable.

6. Contending to that the learned counsel for the applicants has vehemently submitted that from perusal of the entire record no where even any whisper is found that the applicants at any stage of the case was known to the fact that the informant belongs to SC/ST community. It is further submitted that the alleged offence was not committed on account of the informant being a member of SC/ST community. Hence the barring provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 do not apply to this case.

7. In support of his contention learned counsel for the applicants has relied upon the judgement of the Hon'ble Apex Court passed in Prathvi Raj Chauhan (supra) case wherein the law propounded by the Hon'ble Apex Court is that if the complaint does not make out a prima facie case for applicability of the provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 the bar created by Sections 18 and 18 A of the said Act does not apply. Likewise, observations made in Subhash Kashinath Mahajan V. State of Maharashtra (2018) 6 SCC 454 in almost similar background also expound the same principle.

8. Section 3(2)(v) Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (as substituted by Act 1 of 2016) provides that:

"Section 3(2) whoever, not being a member of a Scheduled Caste and or a Scheduled Tribe",- "(va) commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and shall also be liable to fine."

9. In the present case although the charge sheet has been submitted by the I.O. before the Court under Sections 147, 506 IPC and 3 (2) (va) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, but prima facie there is no allegation to constitute any offence under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Even in the FIR there is no mentioning of the fact that the informant belongs to SC/ST community. The informant in his statement under section 161 Cr.P.C. has averred that he is Jatav by caste and also submitted a caste certificate to the I.O., but whether the alleged offence was committed by the applicants knowing this fact that the informant belongs to SC/ST community, was the key question to bring the case under the cover of the provisions of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 but not even an iota of evidence is available on record in this regard. In such a situation in my view so far as the present anticipatory bail application is concerned, there is no bar to move such an application before this Court in view of the law laid down in the cases of Prathvi Raj Chauhan (supra) and Subhash Kashinath Mahajan (supra).

10. So far as the merits of the anticipatory bail application is concerned, the applicants have been cooperative during the course of investigation. After submission of charge-sheet, no custodial interrogation is required. Applicants are having no criminal antecedents to their credit.

11. Although charge-sheet has been submitted in the present matter, but in Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1, the Hon'ble Apex Court has settled the law on the subject finally by holding that the anticipatory bail need not be of limited duration invariably. In appropriate case, it can continue upto conclusion of trial.

It has been further held therein that anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial.

It has been further held by the Hon'ble Apex Court that while considering an application for grant of anticipatory bail, the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence including intimidating witnesses, likelihood of fleeing justice, such as leaving the country, etc. It has further been held that Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion.

12. Hence, considering the settled principles of law regarding anticipatory bail, submissions of the learned counsel for the parties, nature of accusation, role of applicants and all attending facts and circumstances of the case, without expressing any opinion of the merits of the case, in my view, it is a fit case for anticipatory bail to the applicants till end of the trial in the matter.

13. The anticipatory bail application is allowed.

14. In the event of arrest of the applicants in the aforesaid case crime, they shall be released on anticipatory bail till end of the trial on their furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Court concerned with the following conditions :-

(i) The applicants shall make themselves available before the court concerned on the date fixed in the matter;

(ii) The applicants shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him / her from disclosing such facts to the Court or to any police officer;

(iii) The applicants shall not leave India without the previous permission of the Court and if they have passport, the same shall be deposited by them before the S.S.P./S.P. Concerned.

15. In case of default of any of the conditions, same may be a ground for cancellation of protection granted to the applicants.

Order Date :- 19.9.2023

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