Chattisgarh High Court

Pankaj Singh vs State Of Chhattisgarh on 6 May, 2022

                                           1


                                                                                 AFR

              HIGH COURT OF CHHATTISGARH, BILASPUR

                                 CRA No. 450 of 2022

     • Pankaj Singh S/o Late Shri Sudheesh Singh Aged About 45 Years R/o
       Pooja Green Flat Number 101, Minocha Colony, Mangla, Ps Civil Lines,
       Bilaspur, District- Bilaspur, Chhattisgarh

                                                                        ---- Appellant

                                        Versus

     1. State Of Chhattisgarh Through Police Station Ajak, Bilaspur, District-
        Bilaspur, Chhattisgarh

     2. Station House Officer, Police Station City Kotwali, Bilaspur, Chhattisgarh

     3. Tulachand Tande, Aged About 39 Years Radiographer, CIMS, Bilaspur,
        Chhattisgarh

                                                                    ---- Respondents

MCRCA No. 1292 of 2021

• Pankaj Singh S/o Lt. Mr. Sudeesh Singh, Aged About 45 Years R/o Pooja Green, Flat No. 101, Minocha Colony, P.S. Civil Lines, District Bilaspur Chhattisgarh

---- Applicant

Versus

• State Of Chhattisgarh Through The Station House Officer, Police Station City Kotwali, District Bilaspur Chhattisgarh

---- Respondent

For Applicant : Shri Abhishek Sinha, Sr. Advocate with Shri Samarth Singh Marhas, Advocate For Respondent - State : Shri Sunil Otwani, Additional A.G. For Objector : Shri Hemant Kesharwani, Advocate

Hon'ble Shri Justice Deepak Kumar Tiwari

Order On Board

06.05.2022

1. The aforesaid Appeal and bail application are being disposed of by this

common order as they arise out of Crime No. 290/2021, registered at Police

Station - City Kotwali, District - Bilaspur, C.G. for offence punishable under

Sections 353 and 186 of the IPC and Section 3 of the Chhattisgarh Medicare

Service Persons and Medicare Service Institutions (Prevention of Violence

and Damage or Loss to Property) Act, 2010.

2. As per the prosecution case, a written complaint was made by complainant

Tulachand Tande, Radiographer of CIMS Hospital, Bilaspur on 19 th

September, 2021 at Police Station - City Kotwali, alleging that on 18 th

September, 2021 while he was on duty on call of Dr. Vivek Sharma, at about

9.30 p.m., as the MRI machine was not working due to some technical

problem, so there was delay in conducting MRI of Ravishankar Awasthi and

owing to the said delay, the relative of Ravishankar Awasthi called the

applicant through phone. The applicant is a public figure in the town. It is

alleged that the applicant assaulted and abused the complainant while he

was discharging his duties, so initially FIR was registered on 21 st September,

2021 under Section 186, 353 and Section 3 of the Chhattisgarh Medicare

Service Persons and Medicare Service Institutions (Prevention of Violence

and Damage or Loss to Property) Act, 2010. Thereafter, the applicant was

granted an interim anticipatory bail by this Court on 05.10.2021 till disposal of

the trial. Even the complainant moved a fresh application on 28 th September,

2021 so the offence under Section 31(r)(s) of the SC/ST (Prevention of

Atrocities) Act, 1989 has been added on 2nd December, 2021.

3. Counsel for the applicant submits that he had no intention to humiliate or

insult the complainant in any manner. It is further submitted that to attend the

call of the doctor the present complainant was demanding illegal money and

delaying the requisite test. So, the applicant has reached the hospital. It is

next submitted that even the complainant was found guilty in the disciplinary

enquiry of the team of the doctors that he has misused his position on

different occasions. Learned counsel for the applicant also submits that after

the incident he inquired about the misconduct of the complainant and

obtained certain papers under the RTI Act and it is revealed that the

complainant was even imposed penalty under disciplinary enquiry for

stopping one increment in the year 2021 in which doctors of the team found

that the complainant provoked others radiographers to avoid the duty and

caused also indiscipline and not obeyed the instructions of the professors and

head of the Radiology department. Counsel for the applicant further argued

that after granting of ad-interim anticipatory bail as an afterthought a fresh

application was obtained. It is next submitted that in the premises of the CIMS

Hospital a police chowki has been established by the State and present

complainant did not go to the police chowki for necessary help. Initially FIR

has been registered after three days. He further submits that the applicant is

a Public figure and social worker. When the complainant demanded a bribe of

Rs.2,000/- for conducting MRI test, some altercation took place, but no

offence of atrocities has been committed by him, therefore the learned

Special Judge has wrongly rejected his application for grant of anticipatory

bail, hence the same may be allowed. The applicant is ready to abide by all

the terms and conditions imposed on him by this Court.

4. Per contra, learned State counsel opposes the prayer for grant of bail. He

would place reliance on Animireddy Venkata Ramana and Others Vs. Public

Prosecutor, High Court of Andhra Pradesh 1 and refer to para 13 - that a first

information report is not meant to be encyclopedic while considering the

effect of some omissions in the First Information Report on the part of the

informant, a Court cannot fail to take into consideration the probable physical

and mental condition of the first informant. The similar view has been

reiterated in State of Uttar Pradesh Vs. Krishna Master and others 2. Learned

counsel for the State also submits that there is bar under Section 18 and

1 (2008) 5 SCC 368 2 (2010) 12 SCC 324

18(A) of the SC/ST Act, and the same is attracted against the applicant.

Offence is prima facie established, so the applicant cannot be enlarged on

anticipatory bail.

5. Learned counsel for the objector strongly opposes the bail application and

also refers to the judgment of Vilas Pandurang Pawar and Another Vs. State

of Maharashtra and Others3 to submit that the

Court is not expected to indulge in critical analysis of the evidence on record.

When a provision has been enacted in a Special Act to protect the persons

who belong to the Scheduled Castes and the Scheduled Tribes and a bar has

been imposed in granting bail under Section 438 of the Code, the provision in

the Special Act cannot be easily brushed aside by elaborate discussion on

the evidence.

6. I have heard learned counsel for the parties at length and perused the record.

7. Learned counsel for the State fairly admits that in the matter of Arnesh Kumar

Vs. State of Bihar {(2014) 8 SCC 273}, it was emphasized about the exercise

of the powers of arrest and certain check list has also been provided. In the

case diary there is no mention about the notices issued to the accused for

answering his conduct. Hence this Court is of the view that before arrest, for

sending a person into jail, various safeguards and guidelines have been

propounded by the Hon'ble Supreme Court, considering the liberty of an

individual, in Siddharam Satlingappa Mhetre v. State of Maharashtra4

wherein it was observed thus :

"90. A great ignominy, humiliation and disgrace is attached to the arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage."

3 (2012) 8 SCC 795 4 (2011) 1 SCC 694

• In the matter of Siddharth v. State of U.P.5" it was held in para 9 that

on consideration of Section 170 CrPC that it does not impose an

obligation on the officer-in-charge to arrest each and every accused at

the time of filing of the charge-sheet."

• In the matter of Arnesh Kumar v. State of Bihar6 it was emphasized that no

arrest should be made only because the offence is non-bailable and

cognizable and therefore, lawful for the police officers to do so and following

were observed in para 11 & 12 about exercising the power of arrest and

remand :

"11.Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorize detention casually and mechanically. In order to ensure what we have observed above, we give the following directions:

11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 Cr.P.C;

11.2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1)

(b)(ii);

11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the

5 (2022) 1 SCC 676 6 (2014) 8 SCC 273

Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.6. Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.

11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

12. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine."

• Even in the Atrocities Act, the Court has a duty to strike a balance and

check the possibility of false accusations, if a person is able to show that,

prima facie, he has not committed any attrocity against a member of SC and

ST and that the allegation was malafide and prima facie false and that prima

facie no case was made out, the bar under Section 18 of the Act is not

attracted.

• In this regard, in the matter of Subhash Kashinath Mahajan v. State of

Maharashtra7, the following has been observed:

"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 7 (2018) 6 SCC 454

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 [State of M.P. v. Ram Kishna Balothia, (1995) 3 SCC 221 : 1995 SCC (Cri) 439] 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.

• 53. It is well settled that a statute is to be read in the context of the background and its object. Instead of literal interpretation, the court may, in the present context, prefer purposive interpretation to achieve the object of law. Doctrine of proportionality is well known for advancing the object of Articles 14 and 21. A procedural penal provision affecting liberty of citizen must be read consistent with the concept of fairness and reasonableness."

• Even in the matter of Prithvi Raj Chauhan Vs. Union of India8 a three Judge

Bench of the Supreme Court upheld the constitutionality of the SC/ ST Act

and further held that the application of the provisions of the SC/ST Act shall

only apply after the prima facie satisfaction that an offence under the SC/ST

Act has occurred, and consequently the absolute bar imposed on grant of

anticipatory bail by virtue of Sections 18 and 18A would not apply in case the

complainant fails to make a prima facie case for applicability of the provisions

of the SC/ST Act.

• Article 17 of the Constitution of India expressly deals with the abolition

of 'untouchability' and forbids its practice in any form. It also provides 8 (2020) 4 SCC 727

that the enforcement of any disability arising out of 'untouchability' shall

be an offence punishable in accordance with law. Therefore, the

offences enumerated under Section 3(1) arise out of the practice of

'untouchability'. It is in this context that certain special provisions have

been made in the SC/ST Act including Section 18 of the Act. The intent

behind the exclusion of the applicability of Section 438 of the Code of

Criminal Procedure (hereinafter referred to as "CrPC" for brevity) in

respect of the offences under the SC/ST Act is to be viewed in the

context of the prevailing social conditions, which gives rise to such

offences, and the apprehension that the perpetrators of such crimes

would likely threaten and intimidate their victims and prevent or obstruct

them in the prosecution of these offenders in case if the offenders are

allowed to avail the benefit of anticipatory bail. The Statement of

Objects and Reasons accompanying the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Bill, 1989, when it was

introduced in the Parliament, explained the circumstances surrounding

the enactment of the SC/ST Act and points to the evils in society which

the statute aims to remedy. It graphically describes the social conditions

which motivated the enactment of the SC/ST Act and it is further

pointed out in the Statement of Objects and Reasons that when the

members of the Scheduled Castes and Scheduled Tribes assert their

rights and demand statutory protection, the vested interests would

attempt to cow them down and terrorise them. It is under these

unfortunate circumstances that the bar has been placed on Section 438

of the CrPC."

• Again in Prathvi Raj Chauhan (supra), it was observed in para 31 thus:

"31. These facts, in my opinion ought to be kept in mind by courts which have to try and deal with offences under the Act. It is important to keep oneself reminded that while sometimes (perhaps mostly in urban areas) false accusations are made, those are not necessarily reflective of the prevailing and widespread social prejudices against members of these oppressed classes. Significantly, the amendment of 2016, in the expanded definition of "atrocity", also lists pernicious practices (under Section

3) including forcing the eating of inedible matter, dumping of excreta near the homes or in the neighbourhood of members of such communities and several other forms of humiliation, which members of such Scheduled Caste communities are subjected to. All these considerations far outweigh the petitioners' concern that innocent individuals would be subjected to what are described as arbitrary processes of investigation and legal proceedings, without adequate safeguards. The right to a trial with all attendant safeguards are available to those accused of committing offences under the Act; they remain unchanged by the enactment of the amendment."

• In Rahna Jalal v. State of Kerala 9 : the principles have been reiterated and

explained in para 23 and 25 :

"23. The provisions of Sections 18 and 18-A have been interpreted by a three-Judge Bench of this Court in Prathvi Raj Chauhan v. Union of India [Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727 :Arun Mishra, J. speaking for himself and Vineet Saran, J. while construing these provisions, observed that: (SCC p. 751, para 11) "11. Concerning the applicability of provisions of Section 438 CrPC, it shall not apply to the cases under the 1989 Act. However, if the complaint does not make out a prima facie case for applicability of the provisions of the 1989 Act, the bar created by Sections 18 and 18-A(i) shall not apply. We have clarified this aspect while deciding the review petitions."

25.Thus, even in the context of legislation, such as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, where a bar is interposed by the provisions of Section 18 and sub-section (2) of Section 18-A on the application of Section 438 CrPC, this Court has held that the bar will not apply where 9 (2021) 1 SCC 733

the complaint does not make out "a prima facie case" for the applicability of the provisions of the Act. A statutory exclusion of the right to access remedies for bail is construed strictly, for a purpose. Excluding access to bail as a remedy, impinges upon human liberty. Hence, the decision in Chauhan [Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727 : (2020) 2 SCC (Cri) 657] held that the exclusion will not be attracted where the complaint does not prima facie indicate a case attracting the applicability of the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989."

8. In the present case, the incident took place on 18 th September, 2021 in the

CIMS Hospital where a police chowki has been established for avoiding

such type of incident, however, no action has been taken by the concerned

police and no offence has been registered by the officer posted in the said

police chowki at CIMS Hospital, Bilaspur. The allegation raised by the

applicant is that an illegal demand has been made by the complainant,

therefore, some altercation took place. Initially this Court has granted ad-

interim bail, thereafter offence under the Atrocities Act has been added.

Even in the statement of Dr. Vivek Sharma, there is no whisper about

allegation of attrocity made by the complainant.

9. Taking into consideration that the FIR has not been lodged promptly even

though Police Chowki is situated in the same premises, further in the earlier

offence ad interim bail was granted by this Court, thereafter offence of

atrocities has been added, so considering all the aspects of the matter, this

Court is of the view that the bar under Section 18 & 18A of the Atrocities

Act is not attracted against the applicant and applicant has a strong case

for his defence.

10. For the foregoing, I am of the view that present is a fit case for grant of

anticipatory bail to the applicant. Accordingly, CRA No. 450 of 2022 is

allowed.

11. It is directed that in the event of arrest of the applicant, he shall be released

on anticipatory bail on his executing a personal bond for a sum of

Rs.25,000/- with two sureties in the like sum to the satisfaction of the

arresting officer with the following conditions:-

"(i) he shall make himself available for interrogation by a police officer as and when required;

(ii) he 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 from disclosing such facts to the Court or to any police officer.