Jaspal Singh Saini vs State Of Chhattisgarh
2022 Latest Caselaw 5030 Chatt

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                                                             NAFR

        HIGH COURT OF CHHATTISGARH, BILASPUR

                    M.Cr.C. (A) No. 907 of 2022

                 Order reserved on 25.07.2022
                 Order delivered on 05.08.2022

      1.

Jaspal Singh Saini, son of Shri Gurmel Singh, aged about 34 years,

2. Gurpreet Singh Saini, son of Shri Gurmel Singh, aged about 31 years.

Both residents of Farmer House, Opposite Bank of Broda, Shyam Nagar, Raipur, District Raipur (C.G.)

---- Applicants Versus

State of Chhattisgarh, through the Station House Officer, Police Station Amleshwar, Tahsil Patan, District Durg (C.G.)

----Non-applicant

For Applicants : Mr. B.P. Sharma, Adv. & Mr. Raza Ali, Advocate.

For Non-applicant          :   Mr. Priyanshu Gupta, PL
For complainant/Objector :     Mr. Yogendra Pandey, Advocate.


           Hon'ble Shri Justice N.K. Chandravanshi

                        ORDER [C.A.V.]

1. The applicants have filed this application under Section 438 of the Code of Criminal Procedure, 1973 (for brevity "the Cr.P.C.") for grant of anticipatory bail as they are apprehending their arrest in connection with Crime No. 77/2022 registered at police station Amleshwar/Ajak, District Durg (C.G.) for commission of offence punishable under Sections 294, 506, 323/34 of the Indian Penal Code and Sections 3(1)(r) & 3(1)(s) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Act of 1989").

2. Case of the prosecution, in brief, is that on 27.05.2022 complainant- Raghvendra Sai Paikra lodged FIR bearing registration No. 0077/2022 at Police Station Amleshwar, Durg (C.G.) alleging therein that his deal has been fixed with Janki Kalia to purchase his land, tokan amount has already been given by him. After making demarcation of aforesaid land on 26.05.2022, on 27.05.2022, he was digging pits as per demarcation made by the Patwari over his aforesaid land to make boundary wall, at that time, applicant No. 1 came there and asked him as to why he was digging pits and after sometime, applicant No. 2 also came there along with others and, thereafter, both applicants abused the complainant in filthy language; assaulted him and attempted to assault by means of cement poll. It is further alleged that applicants and their colleagues took the complainant and his friends at police station and near the police station, they threatened them not to disclose any thing about the incident at police station, otherwise, they will kill them. Based on above facts, present crime under Sections 294, 323, 506 read with Section 34 of the IPC was registered against the applicants. Statements of complainant and other witnesses were recorded on 31.05.2022, wherein they have stated that during altercation, applicants have stated that 'the tribal have become so much dareist that they are purchasing the general's land, how did the lowly thieves get so much courage'. Thus, the applicants insulted and intimidated the complainant, who belongs to Scheduled Tribe category, thereafter, police seized caste certificate of complainant. During investigation, police of police station Amleshwar subsequently added Section 3(1)(r) & 3(1)(s) of the Act of 1989 along with other offences under IPC and then the case diary was transferred to Police Station Ajak, District Durg.

3. Applicants, apprehending their arrest under the Act of 1989 including offence under IPC, moved an application for grant of anticipatory bail before the learned First Upper Sessions Judge,

Durg, which was rejected vide order dated 2.6.2022 holding that on perusal of FIR, it is apparent that investigation for the offence under the Act of 1989 is not found proved, and the offences under which the investigation is being done are Sections 294, 323 & 506/34 of the IPC, which are bailable offence. Although, in the report given by Station House Officer, it has been mentioned that complainant has stated in his statement that applicant No. 1 abused him stating therein that 'the tribal have become so much dariest that they are purchasing the general's land, how did the lowly thieves get so much courage'. Thus, on both the counts, anticipatory bail application filed by the applicants under Section 438 of the Cr.P.C. is not maintainable.

4. It is pertinent to mention here that at the time of passing of order dated 2.6.2022 passed by learned first Upper Sessions Judge, Durg, offence under the Act of 1989 was not added. After rejection of anticipatory bail application by learned First Upper Sessions Judge, Durg, applicants filed anticipatory bail application before this Court, invoking concurrent original jurisdiction of this Court under Section 438 of the Cr.P.C. praying for grant of anticipatory bail.

5. When this bail application came up for consideration before this Court, learned Government Advocate appearing for the State raised preliminary objection with regard to maintainability of anticipatory bail application stating therein that applicants have wrongly invoked concurrent original jurisdiction of this Court under Section 438 of the Cr.P.C., as during investigation, offence under Sections 3(1)(r) & 3(1)

(s) of the Act of 1989 has been added and Section 438 of Cr.P.C has been barred by provisions contained in Section 18 of the Act, 1989. It is further submitted that leaned first Upper Sessions Judge has also observed that applicants while abusing the complainant, who belongs to Scheduled Tribune category, have also intentionally insulted and intimidated him knowingly well that he belongs to Tribal Community, also asked him lowly and thief according to the report

sent by Station House Officer. Hence, considering the provisions contained in Sub-Section (2) of Section 14-A of the Act, 1989 and also considering the fact that now the offence under Sections 3(1)(r) & 3(1)(s) of the Act of 1989 has been added, the applicants ought to have filed application for grant of anticipatory bail before Special Judge constituted under the Act of 1989 and when their application was rejected, then they should have filed an appeal before this Court against such order, but in the present case, applicants have wrongly invoked concurrent original jurisdiction of this Court under Section 438 of the Cr.P.C., therefore, application filed by the applicant is not maintainable. In support of above submissions, learned counsel for the State placed reliance upon the order dated 11.6.2021 passed by this Court in M.Cr.C. (A) No. 668 of 2020 and other connected matters.

6. Replying to the objection with regard to maintainability of this bail application, learned counsel for the applicants would submit that although FIR registered against the applicants for the offence punishable under Sections 294, 323, 506 read with Section 34 of IPC are bailable offences but, since complainant belongs to Scheduled Tribe community and some police officials of Police Station Ajak, District Durg have come to the premises of applicants at Raipur and where enquiry was conducted about them from persons residing in the said premises, applicants also came to know that some influence is being made with the police authorities to transfer the matter to the Police Station Ajak, Durg, therefore, apprehending their arrest for the offence under the Act on 1989, applicants moved an application under Section 438 of the Cr.P.C. for grant of anticipatory bail before learned Upper Sessions Judge, Durg, which was rejected. Thus, the applicants have all the right to invoke concurrent original jurisdiction of this Court under Section 438 of Cr.P.C. praying for grant of anticipatory bail.

7. It is further submitted by learned counsel for the applicants that if the anticipatory bail would have been rejected by the Special Court, then applicants were required to file appeal under Section 14-A of the Act of 1989 but since their anticipatory bail application has been dismissed by the First Upper Sessions Judge, Durg, therefore, application under Section 438 of the Cr.P.C. filed by applicants is very much maintainable before this Court, particularly, considering the concurrent original jurisdiction of this Court under Section 438 of the Cr.P.C. In this regard, he placed reliance upon the order dated 03/02.02.2021 passed by High Court of Jharkhand at Ranchi in the case of Sarfaraz Ahmad @ Sarfaraz Alam @ Sarfaraz Ansari v. The State of Jharkhand in B.A. No. 7931 of 2020.

8. It is further submitted that FIR No. 77/2022 has been registered against the applicants only for the commission of offences under Sections 294, 323, 506, 34 of the IPC, which are bailable offences, but since the complainant belongs to Scheduled Tribe community and influence was being made over the police authority to transfer the case to Police Station Ajak, District Durg. Although while passing order dated 2.6.2022, alleged offences under the Act of 1989 were not added but on the very next day, after rejection of anticipatory bail application of applicants, offences containing ingredients of the Act of 1989 have allegedly been added on the basis of statement of complainant, which have not been stated by complainant while lodging FIR No. 0077/2022, with intention to somehow arrest the applicants and send them behind the bar, which amounts to clear-cut abuse of process of law. Since there was free fight between both the parties, hence applicant No. 2 has also lodged FIR bearing Crime No. 78/2022 at police Station Amleshwar against the complainant. But only to send applicants behind the bar, later on offence under the Act of 1989 has been added against them, which they have also challenged by filing W.P. (Cr.) No. 482 of 2022 wherein notices have been issued.

9. It is further submitted by learned counsel for the applicants , that in various cases, it has been held by the Courts that when no prima facie case under the Act of 1989 is made out from perusal of FIR etc, then application under Section 438 of the Cr.P.C. is maintainable and benefit of anticipatory bail has been afforded to the applicants. In this case also, complainant has not stated anything while lodging FIR to attract any of the offence under the Act of 1989, therefore, in this case also, prima facie no case is made against the applicants under Section 3(1)(r) & 3(1)(s) of the Act of 1989, hence, applicants may be granted benefit of Section 438 of the Cr.P.C. invoking the concurrent original juriscition of this Court under Section 438 of the Cr.P.C.

10. I have heard learned counsel for both the parties and perused the case diary as well as material available on record.

11. Perusal of order dated 2.6.2017 passed by First Upper Sessions Judge, Durg and case diary would go to show that till passing of the aforesaid order, offences under the Act of 1989 were not added against the applicants and investigation was being done for the offence punishable under Sections 294, 323 & 506 read with Section 34 of the IPC, which are bailable offence. Aforesaid order also discloses that concerned Station House Officer, in his bail objection report, has submitted, that as per statement of complainant, applicants while abusing the complainant have also stated that the 'tribals have become so much dareist that they are buying the general's land, how did the lowly thieves get so much courage'. Thus, necessary ingredients for attracting the offences under the Act of 1989 were present in the case diary, hence, first Upper Sessions Judge considering both the counts i.e. offences, for which the investigation was being done and considering the statements of witnesses, which seems attracted offences under the Act of 1989, dismissed the anticipatory bail application filed by the applicants.

12. In view of observations made by First Upper Sessions Judge, particularly, attracting offences under the Act of 1989, applicants ought to have filed an application under Section 14 A (2) of the Act of 1989 before the Special Judge, because provisions contained in aforesaid Section 14 A (2) specifically provides that an appeal shall lie to the High Court against an order of the Special Court or the Exclusive Special Court granting or refusing bail, but they choose to invoke concurrent original jurisdiction of this Court under Section 438 of the Cr.P.C.

13. Similar type of matter had come-up for consideration before this Court in the case of Shiv Kumar Chaurasia v. State of Chhattisgarh [M.Cr.C. (A) No. 668 of 2020] and other connected matters, which were decided on 11.6.2021, wherein two applicants [in M.Cr.C. (A) Nos. 710/2020 & 792/2020] had filed their anticipatory bail applications under Section 438 of the Cr.P.C. before this Court after rejecting their anticipatory bail applications by Special Court constituted under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, wheres one applicant [in M.Cr.C. (A) No. 668/2020] had filed such application directly before this Court without moving any application for grant of anticipatory bail before the Court of Sessions.

14. Coordinate Bench of this Court in aforecited case vide common order dated 11.6.2021 while considering the dictum given by the Supreme Court in the cases of State of Gujarat v. Salimbhai Abdulgaffar Shaikh and others 1 and State of Andhra Pradesh through Inspector General, National Investigation Agency v. Mohd. Hussain alias Saleem 2, which pertains to the provisions of the POTA and NIA Act and which were pari materia to Section 14 A (1) (2) of the Act of 1989, has held as under :-

1 (2003) 8 SCC 50 2 (2014) 1 SCC 258

"19. In view of aforesaid two decisions of Hon'ble Supreme Court, dealing with similar contingency providing for appeal against an order granting or refusing to grant bail, it is quite clear that application for grant of anticipatory bail by a person apprehending his arrest in connection with offences punishable under the Act of 1989, with or without registration of offence under IPC, cannot directly move application for grant of anticipatory bail before this Court by invoking Section 438 Cr.P.C. as the general provision with regard to invocation of concurrent jurisdiction of the High Court under Section 438 Cr.P.C. stand impliedly excluded by the statutory scheme engrafted in Section 14A of the Act of 1989 as amended by Amendment Act of 2015. The remedy for such a person is to first invoke the jurisdiction of Special Court constituted under Special Act i.e. The Act of 1989 seeking anticipatory bail under Section 438 Cr.P.C. Secondly where such application is rejected by the Special Court, again it is not open for the aggrieved accused to invoke concurrent original jurisdiction of this Court under Section 438 Cr.PC. But his only remedy is to prefer an appeal as has been expressly provided to him under Section 14 A (2) of the Act of 1989 as amended by Amendment Act of 2015."

15. In the instant case, although order dated 2.6.2022 has not been passed by Special Court under the Act of 1989, instead thereof, it has been passed by First Upper Sessions Judge, Durg, despite that considering the bar created under Section 18 and provisions of Section 14 A (2) of the Act of 1989 and the finding given by the

Coordinate Bench of this Court vide order dated 11.6.2022, to which I also respectfully agree, application filed by the applicants under Section 438 of the Cr.P.C. is not maintainable.

16. The Judgment of Sarfaraz Ahmad @ Sarfaraz Alam @ Sarfaraz Ansari (supra) referred by learned counsel for the applicant does not come in support of the instant case, as in aforesaid case, it has been held that if a person is accused in connection with offence of POCSO Act and the Act of 1989, then the case will be tried by the Special Court constituted under the POCSO Act, not by Special Court constituted under the Act of 1989 and when order of granting or refusing bail to an accused is passed by the Special Court constituted under POCSO Act in connection with the case involving the offences under both the Acts i.e. POCSO Act and the Act of 1989, the same would not be appelable under Section 14-A (2) of the Act of 1989 and in such cases, application for grant of bail in terms of Section 439 of the Cr.P.C. would be maintainable before the High Court. Present is not such a case, as present case is only with regard to one Special Act i.e. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Hence, the applicants do not get any support from aforesaid case law cited by learned counsel for the applicants.

17. In the result, anticipatory bail application filed by the applicants is dismissed as not maintainable. However, the applicants would be at liberty to take appropriate recourse to get remedy as may be available to them under the relevant provisions of law.

Sd/-

(N.K. Chandravanshi) Judge

D/-