Chattisgarh High Court
Gurpreet Singh Saini vs State Of Chhattisgarh on 1 November, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 21-10-2022
Delivered on 01-11-2022
CRA No. 1460 of 2022
Gurpreet Singh Saini S/o Shri Gurmel Singh, Aged About 31
Years Residing At Farmers House, Opposite Bank Of Baroda,
Shyam Nagar, Raipur, CG
---- Appellant
Versus
1. State Of Chhattisgarh Through Station House Officer, Police
Station Amleshwar, Tehsil Patan, District : Durg, CG
2. Raghavendra Sai Painkra, S/o Ishwar Prasad Painkra, Aged
About 23 Years Residing At F- 1, Gate Number 1 Officers
Colony Jail Road Devendra Nagar, Raipur, CG
---- Respondents
CRA No. 1536 of 2022
Jaspal Singh Saini S/o Shri Gurmel Singh Aged About 34
Years Residing At Farmers House, Opposite Bank Of Baroda,
Shyam Nagar,, District : Raipur, CG
---- Appellant
Versus
State Of Chhattisgarh Through Station House Officer, Police
Station Amleshwar, Tehsil Patan, District : Durg, CG
---- Respondent
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For Appellants : Shri Abhishek Sinha, Sr. Adv.
with Shri Arijit Tiwari, Adv.
For State : Shri Gurudev I. Sharan, GA and Shri
Ashish Gupta, Panel Lawyer.
For complainant : Shri Yogesh Chandra Pandey, Adv.
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Hon'ble Shri Justice N.K. Chandravanshi
CAV Order
1. Since both these criminal appeals arise out of same order
dated 3-9-2022 and same crime number of same police station,
hence they are heard together and are being disposed of by this
common order.
2. Both the appeals have been preferred under Section 14-
A(2) of the Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989 (in short 'the SCST Act') against the order
dated 3-9-2022 passed by the Special Judge, SCST, Durg in
respect of Crime No. 77/2022 registered at PS Amleshwar, District
Durg for commission of offence punishable under Section 294,
506, 323, 34 of the Indian Penal Code and Section 3(1)(r) and
3(1)(s) of the SCST Act.
3. Case of the prosecution, in brief, is that on 27-5-2022
complainant- Raghvendra Sai Paikra lodged FIR bearing
registration No. 77/2022 at Police Station Amleshwar, Durg (C.G.)
alleging therein that his deal was fixed with Janki Kalia to
purchase his land, tokan amount was already given by him. After
making demarcation of aforesaid land on 26-5-2022, on 27-5-
2022, he was digging pits as per demarcation made by the
Patwari over his aforesaid land to make boundary wall, at that
time, appellant Jashpal Singh Saini came there and asked him as
to why he was digging pits and after sometime, appellant Gurpreet
Singh Saini also came there along with others and, thereafter,
both appellants abused the complainant in filthy language;
assaulted him and attempted to assault by means of cement poll.
It is further alleged that appellants and their colleagues took the
complainant and his friends to 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 appellants.
Statements of complainant and other witnesses were recorded on
31-5-2022, wherein they have stated that during altercation,
appellants 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 appellants 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 SCST Act
along with other offences under IPC and then the case diary was
transferred to Police Station Ajak, District Durg which is being
investigated by the Dy. Superintendent of Police, AJAK, Distt.
Durg.
4. Earlier vide order dated 5-8-2022 passed by this Court, the
application filed by the appellants under Section 438 of the
Criminal Procedure Code, 1973 (in short 'Cr.P.C.') was dismissed
on the ground of maintainability, as the application under Section
438 of the Cr.P.C. was not maintainable. Thereafter, appellants
preferred application under Section 438 of the Cr.P.C. before
learned Special Judge, SCST Act, Durg which was dismissed vide
order dated 3-9-2022 holding that anticipatory bail is barred under
Section 18 of the SCST Act. Hence, these appeals.
5. Learned counsel for the appellants would submit that
altercation took place between the parties as complainant was
digging pits to make boundary wall over the land of appellants,
which was objected by appellant Jaspal Singh Saini, thereafter
fighting and abusing happened between both the sides and both
the parties lodged FIR bearing Crime No. 77/2022 (Annexure A-4)
and 78/2022 (Annexure A-9) in PS Amaleshwar, Distt. Durg. It is
further submitted that when quarrel took place, appellants did not
know anything about caste of the complainant, who is said to be
belonged to Scheduled Tribe category. The offence under the
SCST Act had been added later, that too, as the complainant
belongs to influential family. It is further submitted that, the dispute
taken place between both the parties was common. The
appellants neither abused the complainant naming his caste nor
insulted nor intimidated him with intention to humiliate him on the
basis of his caste. The respondent/ complainant had not stated to
the police when he lodged FIR that the appellants had abused
him naming his caste or insulted or intimidated him with intention
to humiliate him, as he belongs to Scheduled Caste category.
Complainant is a well educated person and student of MA final
year. Had the appellants abused him and insulted him naming his
caste, then certainly he would have narrated this fact while lodging
FIR. Therefore, police registered FIR bearing Crime No. 77/2022
only for the offence under Section 294, 323, 506, 34 of IPC. As
has been stated earlier, the appellants were not knowing about
caste of respondent/complainant, because he was not owner of
adjoining land of appellants, therefore, offence under the SCST
Act is not attracted in the instant case. It is further submitted that
in various case, Hon'ble Apex Court and various High Courts
including this High Court have held that bar under Section 18 of
the SCST Act for grant of anticipatory bail is not absolute and in
appropriate cases wherein prima facie offence under the SCST
Act is not made out or where on judicial scrutiny, the complaint is
found to be malafide or false or vexatious, benefit of anticipatory
bail can be extended. In this regard, he relied on the judgment
passed by Hon'ble Apex Court in (i) Dr. Subhash Kashinath
Mahajan -v- State of Maharashtra and anr [(2018) 6 SCC 454;
(ii) Prithvi Raj Chauhan -v- Union of India and ors. [(2020) 4
SCC 727; (iii) Hitesh Verma -v- State of Uttarakhand and anr.
[(2020) 10 SCC 710; (iv) Pavas Sharma -v- State of
Chhattisgarh [(2021) 2 CGLJ 228] and (v) Rahul Kumar Verma
-v- State of CG dated 7-9-2022 passed in CR.A. No. 1083/2022.
6. Per contra, learned counsel for the respondent /
complainant would submit that the appellants were very well
known about caste of the complainant, as he was not only present
at the spot on the date of incident, but he was also present there
before the date of incident when the demarcation was done by the
revenue officer. It is next submitted that appellants not only
abused and intentionally insulted and intimidated the respondent/
complainant as he belongs to ST category, but also assaulted him
and caused injury and threatened to shoot him. Hence, offence
under the SCST Act is very well attracted in this case and,
therefore, considering the bar created under Section 18 of the
SCST Act for grant of anticipatory bail, the appeals filed by the
appellants are liable to be dismissed.
7. Learned counsel for the State extended his support to the
submissions made by learned counsel for the respondent/
complainant.
8. I have heard learned counsel for the parties and perused
the case diary as well as material available on record with utmost
circumspections.
9. It is apparent from the contents of the FIR that the dispute
arose while digging of pit over the land and fighting and abusing
happened from both the sides, and therefore, both the parties
lodged counter FIRs against each other (Crime No. 77/2022
Annexure A-4 and Crime No. 78/2022, Annexure A-9). It is also
evident that while lodging FIR No. 77/2022, it was not stated by
the respondent/ complainant that he belongs to ST category and
appellants abused, insulted or intimidated him to humiliate,
because he belongs to aforesaid category. Therefore, FIR
Annexure A-4 was not registered for the offence under SCST Act,
whereas the respondent/ complainant is said to be an educated
person. He was studying in MA Final year and it has also been
mentioned in bottom of the contents of FIR that he read over the
report, which is found to be as he stated. Case diary shows that
statement of complainant and other witnesses were recorded
under Section 161 of the Cr.P.C. on 31-5-2022 wherein they told
police that the appellants had abused respondent / complainant
naming his caste and insulted him as he belongs to ST category,
thereafter police also added offence under Section 3(1)(r) and
3(1)(s) of the SCST Act.
10. In the matter of Dr. Subhash Kashinath Mahajan (supra),
Hon'ble Supreme Court has held in para 53 and 55 as below :-
"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.
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 mala fide 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."
11. Aforesaid principles have been reiterated by Hon'ble Apex
Court in the matter of Prithvi Raj Chauhan (supra). While
considering Section 18 of the SCST Act, Hon'ble Apex Court has
held in para 32 and 33 as under :-
"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.
33. I would only add a caveat with the
observation and emphasise 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.
12. Thus, it is well settled proposition of law that the bar
embodied under the SCST Act does not create an absolute bar
for consideration of an application seeking grant of anticipatory
bail under Section 438 of the Cr.P.C. and in appropriate cases, it
can be extended to a person against whom accusation is
leveled of offence under the provisions of the SCST Act.
13. Having considered the facts and circumstances of the case,
it is evident from contents of FIR bearing Crime No. 77/2022 that
respondent/complainant is a well educated person and he had
attested that he had read over the FIR and the same is written as
per his statement. While lodging aforesaid FIR, he had not stated
that he was abused by the appellants naming his caste and they
insulted and intimated him with intention to humiliate him, as he
belongs to scheduled tribe category.
14. It is pertinent to mention here that although FIR is not an
encyclopedia of incident or the surrounding facts of the case, but
there are certain basic requirements while lodging FIR, on the
perusal of which, one must be able to find out about the substance
of the offence, the caste of the complainant is something which
cannot be missed by him while lodging the same, particularly
when the caste itself was an important aspect of the matter. In
such as case, caste of the complainant is of paramount
importance and is a sine qua non in a case under the SCST Act
and it cannot be assumed that the complainant would forget to
mention in the FIR that the assailants also made aspersions
against his caste, particularly when complainant himself is well
educated person, but these facts were not stated while lodging
FIR Annexure A-4. Considering aforesaid facts, it is debatable
issue and may be considered by the trial Court at the time of
framing of charge as to whether the offence under SCST Act
would be made out or not. In view of above discussion and law
laid down by Hon'ble Apex Court, it is found that it is a fit case to
enlarge the appellants on anticipatory bail.
15. Accordingly, the appeals are allowed. The impugned order
dated 3-9-2022 passed by the Special Judge (SCST Act), Durg in
Bail Application. SCST No. 7/2022 is set aside. It is directed that
in the event of arrest, the appellants shall be released on
anticipatory bail on each of them furnishing a personal bond in
sum of Rs. 1 lakh and one surety of the like amount, to the
satisfaction of the arresting officer, with the following conditions :-
(i) that they shall make themselves available for interrogation
before the investigating officer as and when required;
(ii) that they 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 any police officer.
(iii) that they shall not act in any manner which will be
prejudicial to fair and expeditious trial; and
(iv) that they shall appear before the trial Court on each and
every date given to them by the said Court till disposal of the
trial.
Certified copy as per rules.
Sd/-
( N.K. Chandravanshi)
JUDGE
Pathak
