Calcutta High Court (Appellete Side)
Ganesh Chandra Singha & Ors vs Unknown on 6 August, 2021
06.08.2021 CRM 1720 of 2021
Court No.28
Item No. PB - 06 In Re:- An application for Anticipatory Bail under Section 438 of
nandy
the Code of Criminal Procedure filed on 10.02.2021 in connection
(ANTIBAIL - REJECTED)
with Ratua Police Station Case No. 663 of 2020 dated 31.12.2020
under Sections 447/325/354/307/373/34 of the Indian Penal Code
read with Section 3(1)(x)(xi) of The Scheduled Castes &
Scheduled Tribes (Prevention of Atrocities) Act, 1989. (BGR No.
3112 of 2020)
and
In the matter of: Ganesh Chandra Singha & Ors.
......Petitioners
Mr. Sabyasachi Banerjee, Advocate
Ms. Diksha Ghosh, Advocate
......for the Petitioners
Mr. Ranabir Roy Chowdhury, Advocate
Mr. Mainak Gupta, Advocate
......for the State
The petitioners have filed the instant application for bail in
connection with Ratua Police Station Case No. 663 of 2020 dated
31.12.2020 under Sections 447/325/354/307/373/34 of the Indian
Penal Code read with Section 3(1)(x)(xi) of The Scheduled Castes
& Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Before dealing with the instant application under Section 438
of the Code of Criminal Procedure, it is necessary to state the
background of this case in brief.
The petitioner no. 1 is a recorded raiyat in respect of a piece
of land. He purchased the said land from one Sonai Mondal, a
member of scheduled caste or schedule tribe, after obtaining
necessary permission from the competent authority. The record of
rights was prepared in the name of the petitioner no. 1 in 1980.
Subsequently, some members of scheduled caste and scheduled
tribe community tried to grab the said land forcibly. When the
petitioner no. 1 tried to resist them, they mercilessly assaulted him
tying him against a tree on the field. The petitioner no. 1 filed a
written complaint before the local police station against the
offenders including the de facto complainant under various penal
provisions including Section 307 of the Indian Penal Code. After
one month of institution of the said case, the de facto complainant
of this case filed a complaint under Section 156(3) of the Code of
Criminal Procedure under various penal provisions of the Indian
Penal Code read with Section 3(1)(x)(xi) of The Scheduled Castes
& Scheduled Tribes (Prevention of Atrocities) Act, 1989
(hereinafter referred to as the 'said Act').
It is submitted by Mr. Banerjee, learned Advocate for the
petitioners, that the complaint lodged by one of the offenders of the
previous case is the outcome of a retaliatory action with false and
frivolous allegation.
Learned Public Prosecution-in-charge on the other hand,
submits that there is specific ingredients of offence under Section
3(1)(x)(xi) of The Scheduled Castes & Scheduled Tribes
(Prevention of Atrocities) Act, 1989 and the materials in the case
diary suggests commission of such offence against the petitioners
and so he raised objection against the prayer for anticipatory bail.
Mr. Banerjee, learned Advocate relies upon a decision of the
Hon'ble Supreme Court in the case of Prathvi Raj Chauhan Vs.
Union of India reported in (2020) 4 SCC 727 in support of his
contention that the provisions of Section 438 of the Code of
Criminal Procedure may not apply to the cases under The
Scheduled Castes & Scheduled Tribes (Prevention of Atrocities)
Act, 1989. However, if the complaint does not make out a prima
facie case for applicability of the provisions of the said Act, the
power created by Sections 18 and 18(A)(I) shall not apply. It is
contended by Mr. Banerjee that prima facie there is no material of
offence under the said Act as alleged against the petitioners.
We had an occasion to peruse the enlightening observations
made by the Judge being a member of that Bench writing a
concurrent judgment wherein it has been held that balance has to
be strike between the power used under Section 438 of the Code
of Criminal Procedure and the gravity of the offence committed
under the said Act. It would be apposite and relevant to quote the
observations recorded in paragraph 33 of the said report which
runs thus:-
I would only add a caveat with the observation and emphasize that
while considering any application seeking pre-arrest bail, the High Court
has to balance the two interests: i.e. that the power is not so used as to
convert the jurisdiction into that under Section 438 of the Criminal
Procedure Code, but that it is used sparingly and such orders made in very
exceptional cases where no prima facie offence is made out as shown in
the FIR, and further also that if such orders are not made in those classes
of cases, the result would inevitably be a miscarriage of justice or abuse of
process of law. I consider such stringent terms, otherwise contrary to the
philosophy of bail, absolutely essential, because a liberal use of the power
to grant pre-arrest bail would defeat the intention of Parliament.
We have carefully perused the petition of complaint as well
as the case diary. In the petition of complaint, the de facto
complainant clearly stated that she and members of her
community are abused by the petitioners on the issue of they
being members of scheduled tribe community. The said fact was
corroborated by the witnesses in their statement recorded under
Section 161 of the Code of Criminal Procedure by the Investigating
Officer.
In view of such circumstances, we find prima facie materials
against the petitioners and we are of the opinion that Section 438
of the Code of Criminal Procedure is not maintainable in the
instant case.
For the reasons recorded above, the prayer for anticipatory
bail is rejected.
The application being CRM 1720 of 2021 is accordingly
dismissed.
However, this order shall not preclude the petitioners from
taking necessary steps under the law as may be available to them.
(Harish Tandon, J.)
(Bibek Chaudhuri, J.)
