Chattisgarh High Court
Dinesh Jain vs State Of Chhattisgarh on 8 July, 2021
1
NAFR
HIGH COURT of CHHATTISGARH, BILASPUR
CRA No. 215 of 2021
• Dinesh Jain S/o Late Kailash Chandra Jain, aged about 43 years, R/o
Kunkuri, Thasil and P.S. Kunkuri, District Jaspur, Chhattisgarh
------Appellant
VERSUS
• State of Chhattisgarh through: Police Station: Kunkuri, District- Jashpur,
Chhattisgarh
-------Respondent
For Appellant : Mr. Akath Kumar Yadav, Advocate
For Respondent- State : Mr. B.P. Banjare, Dy. Govt. Adv.
For Victim : Mr. Vikas A. Shrivastava, Advocate
( through Video Conferencing)
Hon'ble Shri Parth Prateem Sahu, Judge
ORDER
08/07/2021
1. This appeal arises out of rejection of an application filed under Section 438
of CrPC in connection with crime bearing no. 65/2020, registered at Police
Station- Kunkuri, District Jashpur, Chhattisgarh, for offences defined under
Sections 376(D), 342 of IPC and Section 3(2-5), 3(2)(va) of Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short
"Act of 1989").
2. Appellant apprehending his arrest in crime no. 65/2020, had filed an
application under Section 438 of CrPC before the Additional Sessions
Judge and Special Judge, SC/ST (Prevention of Atrocities) Act,
Jashpurnagar, District Jashpur, Chhattisgarh, which was dismissed by
impugned order dated 02.02.2021.
3. Case of the prosecution is, that on 17.08.2020 at about 02:00 pm, present
applicant called the prosecutrix on mobile phone to which she did not
respond, thereafter, present applicant came to her, asked to accompany
him and due to fear of infamy she accompanied him. Appellant took her to
his house at village Tangarpani, where co-accused Deepak Heda was
present prior to them. Present applicant and prosecutrix went inside the
house and Deepak Heda closed the door and remained outside the house.
Present applicant committed rape upon prosecutrix. At that time, some
villagers came there and shouted, upon which, present applicant opened
the door. Villagers forcefully uncovered the face of prosecutrix which she
was covered with her scarf (dupatta) to whom the prosecutrix intimated the
incident. Thereafter, report has been lodged to the concerned police
station, based upon which, aforementioned crime was registered.
4. Mr. A.K. Yadav, learned counsel for the appellant would argue that the
prosecutrix in the F.I.R. has made absolutely false and baseless allegation
against them. No such incident has taken place. He further submits that
the F.I.R. has been lodged under the pressure of villagers. He further
submits that the prosecutrix herself stated that while returning from the
shop of the present appellant, after taking money, three persons by name
Pankaj Minj, Hemant Minj, and Akshat Minj, under the influence of liquour,
were flirting with her. She called for help, upon which, Deepak Heda and
present appellant intervened. After which, prosecutrix again lodged the
report against the three person bearing crime no. 66/2020 at police station
Kunkuri and those three persons were arrested. He referred to Annexure
A-3 in this regard. He further submits that the charge-sheet in the present
case has been filed showing the present applicant absconding. In the Trial
started against Deepak Heda, prosecutrix was examined on 22.01.2021 as
PW-1. She denied the entire incident in her evidence. He submits that in
view of the evidence of prosecutirx recorded before the trial Court where
she denied the entire incident itself would show that the allegation levelled
against the appellant and co-accused in the F.I.R. are absolutely false and
baseless.
5. Mr. B.P. Banjare, learned Deputy Government Advocate for the State
however opposes the bail application, read over the contents of F.I.R. and
submits that as there are specific allegation against the appellant under the
aforementioned sections which also includes the offence under the Act of
1989, hence, the anticipatory Bail application itself would not maintainable
in view of bar under the provisions of Section 18 of the Act of 1989.
6. Mr. Vikas A. Shrivastava, learned counsel for victim submits that he is not
having any objection if appellant is enlarged on bail. He does not refute the
submission made by learned counsel for the appellant with regard to
evidence of prosecutrix as well as the contents of evidence of prosecutrix
recorded before the Trial Court vide Ext. A-2.
7. I have heard learned counsel for the respective parties.
8. True it is that when the offence defined under the Act of 1989 is committed
by any person then in ordinary course, anticipatory bail application is
barred under the provisions of Section 18 of the Act of 1989, but the Court
can consider the case only in exceptional circumstances where the
appellant/ applicant satisfies the Court that the case lodged against the
appellant/ applicant is absolutely false and baseless. Hon'ble Supreme
Court in case of Dr. Subhash Kashinath Mahajan v. State of
Maharashtra and another reported in (2018) 6 SCC 454 and Prathvi Raj
Chauhan v. Union of India and others reported in (2020) 4 SCC 727 has
considered as to under which circumstances the anticipatory bail can be
considered, when the allegation of the offence defined under the
provisions of Act of 1989 are also registered. Hon'ble Supreme Court in
the case of Dr. Subhash Kashinath Mahajan (supra) has held thus:
"50. We have no quarrel with the proposition
laid down in the said judgment that persons
committing offences under the Atrocities Act
ought not to be granted anticipatory bail in the
same manner in which the anticipatory bail is
granted in other cases punishable with similar
sentence. Still, the question remains whether in
cases where there is no prima facie case under
the Act, bar under Section 18 operates can be
considered. We are unable to read the said
judgment as laying down that exclusion is
applicable to such situations. If a person is able
to show that, prima facie, he has not committed
any atrocity against a member of SC and ST
and that the allegation was mala fide and prima
facie false and that prima facie no case was
made out, we do not see any justification for
applying Section 18 in such cases.
Consideration in the mind of this Court in
Balothia (supra) is that the perpetrators of
atrocities should not be granted anticipatory bail
so that they may not terrorise the victims.
Consistent with this view, it can certainly be
said that innocent persons against whom there
was no prima facie case or patently false case
cannot be subjected to the same treatment as
the persons who are prima facie perpetrators of
the crime.
51. In view of decisions in Vilas Pandurang
Pawar (supra) and Shakuntla Devi (supra),
learned ASG has rightly stated that there is no
absolute bar to grant anticipatory bail if no
prima facie case is made out inspite of validity
of Section 18 of the Atrocities Act being upheld.
55. In the present context, wisdom of legislature
in creating an offence cannot be questioned but
individual justice is a judicial function depending
on facts. As a policy, anticipatory bail may be
excluded but exclusion cannot be intended to
apply where a patently malafide version is put
forward. Courts have inherent jurisdiction to do
justice and this jurisdiction cannot be intended
to be excluded. Thus, exclusion of Court's
jurisdiction is not to be read as absolute.
57. Applying the above well known principle, we
hold that the exclusion of Section 438 Cr.P.C.
applies when a prima facie case of commission
of offence under the Atrocities Act is made. On
the other hand, if it can be shown that the
allegations are prima facie motivated and false,
such exclusion will not apply."
9. In case of Prathvi Singh Chauhan (supra), Hon'ble Supreme Court has
held thus:
"32. As far as the provision of Section 18-A
and anticipatory bail is concerned, the
judgment of Mishra, J. has stated that in cases
where no prima facie materials exist warranting
arrest in a complaint, the court has the inherent
power to direct a pre-arrest bail."
10. In view of the above, taking into consideration the nature of allegation,
particularly, the statement of prosecutrix recorded before the trial Court in
ST No.27/2020 in a trial against co-accused where she denied the entire
incident; further learned counsel for the victim has not controverted the
submissions made by learned counsel for the appellant and case of
Prathvi Singh (supra), I am of the view that in the facts and
circumstances, anticipatory bail application can be considered.
11. Accordingly, appeal is allowed. It is directed that in the event of arrest of
applicant in connection with the crime in question (65/2020), he shall be
released on anticipatory bail by the Officer arresting him on his funnishing
a personal bond in the sum of Rs. 25,000/- with one surety in the like sum
to the satisfaction of the Arresting Officer. Applicant shall also abide by the
following conditions:
(i) that the applicant shall make himself available for interrogation
before the Investigation Officer as and when required;
(ii) that the applicant 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) that the applicant shall not act, in any manner, which will be
prejudicial to fair and expeditious trial; and
(iv) that the applicant shall appear before the trial Court on each and
every date given to him by the said Court till disposal of the trial.
Sd/- Sd/-
(Parth Prateem Sahu)
Judge
Pawan
