Jagmeer Singh Garcha vs State Of Chhattisgarh
2022 Latest Caselaw 5882 Chatt

                                     1

                                                                      AFR

            HIGH COURT OF CHHATTISGARH, BILASPUR
                           CRA No.861 of 2022

                         Reserved on 15.09.2022
                        Pronounced on 20.09.2022

      Jagmeer Singh Garcha S/o Late Shri Jivan Singh Garcha Aged
       About 86 Years R/o Civil Lines Raipur, District Raipur, Chhattisgarh

                                                              ---- Appellant

                                  Versus

      State Of Chhattisgarh Through The Station House Officer, Police
       Station Mana Camp, District Raipur, Chhattisgarh

                                                           ---- Respondent

For Appellant : Dr. N. K. Shukla, learned Senior counsel along with Shri Arijit Tiwari and Ms. Rashika Soni, Advocate.

ForRespondent/State: Shri Adil Minhaz, Govt. Advocate For the Objector: Shri B. P. Sharma, counsel appears along with Shri M. L. Saket, Raza Ali, Ms. Anuja Sharma, Ms. Sameeksha Gupta and Shri Nitesh Jain, Advocates for Objector

Single Bench : Hon'ble Shri Justice Sanjay S. Agrawal CAV Order

1. This appeal has been preferred by the appellant under Section 14A

(2) of the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989 (hereinafter referred to as the "Act of 1989"),

questioning the legality and propriety of the Order dated 17.05.2022

passed by the learned Special Judge (Atrocities), Raipur, Chhattisgarh in

Bail Application No.1067 of 2022 (Crime No.98/2022), whereby the

application filed by the appellant under Section 438 of the Code of Criminal

Procedure, 1973 (hereinafter referred to as the "Cr.P.C.") has been

rejected.

2. Case of the prosecution is that on 27.04.2022, one Ganga Prasad

Markandey has committed suicide by hanging himself at his house and

was declared to be brought dead, when he was admitted into the hospital.

During the course of investigation, wife and sons of the deceased namely

Smt. Rajkumari Markandey, Rakesh Markandey and Ravindra Markandey

have alleged that the appellant and others, in order to grab the government

land situated in front of the house, started humiliating him by using filthy

words relating to the caste and thereafter, pressurized and threatened him

to sale his property adjoining to it in a throwaway price, else he has to face

dire consequences for it. Son of the deceased, namely, Rakesh

Markandey has produced a suicidal note dated 09.04.2022 written by his

father and, based upon the said information, the offence punishable under

Section 306 read with Section 34 of IPC as well as under Section 3(2)(va)

of the Act of 1989 has been registered by the concerned police against the

appellant-Jagmeer Singh Garcha, Akashdeep Gill, Ganga Ram Sahu and

other relatives and servants of the appellant in connection with the said

crime.

3. Apprehending his arrest in connection with the aforesaid crime, the

appellant and others have moved an application seeking grant of

anticipatory bail under Section 438 of the Cr.P.C. by submitting, inter alia,

that the alleged report has been lodged with a malafide intention just to

harass and implicate them, however, the deceased has not ended his life

owing to any kind of instigation made by them. The application so made

has been rejected by the learned Court below vide its order impugned

dated 17-05-2022 by taking into consideration the bar as embodied under

Section 18 of the Act of 1989 for entertaining such an application for grant

of anticipatory bail.

4. Being aggrieved with the aforesaid order, the appellant-Jagmeer

Singh Garcha has preferred this appeal.

5. Learned counsel appearing for the appellant, while inviting attention

to the allegations made in the FIR, submits that even if the entire story of

the prosecution is taken into consideration on its face value, the offence

under Section 306 of IPC would not be attracted, as essential ingredients

provided under Section 107 of IPC for commission of such an offence are

completely missing as nothing has been placed on record that the

appellant has abetted or instigated the deceased for commission of such

an offence. While placing the copy of the complaint made by the appellant

before the concerned Station House Officer on 14-02-2022, it is contended

that the entire dispute arose when the deceased while demolishing his wall

of "Pan Center" started throwing of its waste materials on the appellant's

land and when it was objected, he(deceased) and his family members

started abusing the appellant and his family members with filthy language

and threatened to implicate them in a false case under the Act of 1989. It is

contended further that for removal of alleged construction raised, a notice

dated 01.04.2022 (Annexure A-5) was issued by the appellant to

deceased's wife, who in turn, has submitted her reply (Annexure A-6) on

06.04.2022 through her counsel and when illegal advantage was being

provided to her, a notice was, therefore, issued by the appellant on

27.04.2022 to the Commissioner, Municipal Corporation, Raipur and while

bringing all these material facts, it is submitted by learned counsel for the

appellant that the remedies provided under the law was, in fact, being

invoked by the appellant and, therefore, it cannot be said that any kind of

instigation was given to the deceased which led to him for taking such an

extreme step on 27.04.2022. In so far as the alleged suicidal note written

by the deceased is concerned, for which, it is contended that the same

cannot be taken into consideration for attributing the appellant for

commission of alleged offence as it was written on 09-04-2022, i.e. much

prior to commission of such an act taken by the deceased.

5.1. While inviting attention to the Schedule framed under Section 3(2)

(va) of the Act of 1989, it is submitted further by learned counsel appearing

for the appellant that since the offence punishable under Section 306 of

IPC is not inserted therein, therefore, no offence under Section 3(2)(va) of

the Act of 1989 could have been registered against the appellant and the

Court below has, therefore, committed an illegality in rejecting his

application for grant of anticipatory bail merely by taking note of the bar

provided under Section 18 of the Act of 1989. In support, he placed his

reliance upon the decisions rendered by the Supreme Court in the matter

of Sanju alias Sanjay Singh Sengar vs. State of M.P., reported in (2002)

5 SCC 371, Amalendu Pal vs. State of W.B., reported in (2010)1 SCC

707, Ude Singh and others vs. State of Haryana, reported in (2019) 17

SCC 301, Dr. Subhash Kashinath Mahajan vs. State of Maharashtra

and another, reported in (2018) 6 SCC 454, Prathvi Raj Chauhan vs.

Union of Indian and others, reported in (2020) 4 SCC 727 and Khuman

Singh vs. State of Madhya Pradesh, reported in AIR 2019 SC 4030.

6. On the other hand, learned counsel appearing for the State,

assisted by learned counsel for the Objector, submits that since the

offence under Section 3(2)(va) of the Act of 1989 has been registered

against the appellant, the application filed under Section 438 of Cr.P.C.

has, therefore, rightly been held to be not maintainable by the Court below,

in view of the bar provided under Section 18 of the Act of 1989. It is

contended further that although the offence under Section 3(2)(va) of the

Act of 1989 has been registered, but, a bare perusal of the case diary

statements, it is evident that the appellant has committed the offence

knowing fully well that the deceased belongs to the Schedule Caste

community, therefore, it cannot be presumed that he has not committed

any offence under the Act of 1989.

7. I have heard learned counsel appearing for the parties and perused

the entire case diary vis-a-vis, the documents placed on record, carefully.

8. From perusal of the record, it appears that one Ganga Prasad

Markandey has committed suicide on 27.04.2022 at his house by hanging

himself and was declared to be brought dead, when he was admitted into

the hospital. According to the statement of wife and sons of the deceased

recorded under Section 161 of Cr.P.C., the deceased was harassed by the

appellant and others on the pretext of encroachment of government land

situated in front of his house and he was also threatened by them while

using filthy words relating to his caste when he refused to sale his land on

a throwaway price. Suicidal note dated 09.04.2022 written by the deceased

was produced by his son-Rakesh Markandey and based upon the said

materials, the offence punishable under Section 306 read with Section 34

of IPC and Section 3(2)(va) of the Act of 1989 has been registered against

the appellant and his relatives/servants.

9. Perusal of the record would, however, reveal the fact that prior to

the occurrence of the alleged incident on 27.04.2022, a complaint

(Annexure A-3) was made by the appellant on 14.02.2022 before the

Station House Officer of Police Station Telibandha, Raipur with an

allegation that the deceased and his family members while using filthy

words have threatened him to implicate in a false case under the Act of

1989, when he (deceased) and his family members were objected to dump

his waste materials on his land. Further, perusal of the notice (Annexure A-

5) dated 01.04.2022 issued by the appellant to the deceased's wife-

Rajkumari Markandey for removal of encroachment raised by her and,

reply (Annexure A-6) to it issued by her on 06.04.2022 would show that

they are claiming their interest over the land in question and, therefore, it

appears that the appellant was, in fact, availing the remedy provided under

the law and, if he is acting as such, then his action cannot be termed to be

an act of instigation so as to hold at this stage that the act of the appellant

is that of instigating the deceased - Ganga Prasad Markandey for taking

such an extreme step of committing suicide.

10. Be that as it may, it is to be noted here that the alleged suicidal note

was written by the deceased on 09-04-2022, whereas he committed

suicide on 27-04-2022, that is, after passing of considerable period of

18 days. Enough time was, therefore, available with the deceased to think

over before taking such an harsh step of ending his life. That apart, a bare

perusal of the alleged suicidal note would, however, show that there was

no allegation levelled against the appellant or others that at the relevant

point of time, the deceased was harassed or instigated and was abetted by

them to commit suicide on 27-04-2022. An essential ingredient for

commission of offence under Section 306 of IPC, i.e. abetment and the

intention of the accused to add or instigate or abet him (deceased) to

commit such a harsh step, therefore, appears to be missing. At this

juncture, the principles laid down by the Supreme Court in the matter of

Sanju alias Sanjay Singh Sengar vs. State of M.P., reported in (2002) 5

SCC 371, are to be seen, where the deceased had committed suicide on

27.07.1998, when he was abused with filthy words two days prior to it i.e.

on 25.07.1998 and in view of the said factual scenario, it was held that the

act of the deceased committing suicide on 27.07.1998 was not the direct

result of the said incident occurred on 25.07.1998. The relevant

observation made at paragraph 12, reads as under:-

"12. ........... Secondly, the alleged abusive words, said to have been told to the deceased were on 25.07.1998 ensued by a quarrel. The deceased was found hanging on 27.07.1998. Assuming that the deceased had taken the abusive language seriously, he had enough time in between to think over and reflect and, therefore, it cannot be said that the abusive language, which had been used by the appellant on 25.07.1998 drove the deceased to commit suicide. Suicide by the deceased on 27.07.1998 is not proximate to the abusive language uttered by the appellant on 25.07.1998. The fact that the deceased

committed suicide on 27-7-1998 would itself clearly point out that it is not the direct result of the quarrel taken place on 25-7-1998 when it is alleged that the appellant had used the abusive language and also told the deceased to go and die. This fact had escaped notice of the courts below."

11. Yet, in the matter of Amalendu Pal versus State of W.B., reported

in (2010) 1 SCC 707, it has been observed by the Supreme Court to this

effect as under:-

"12. ........... Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable."

(emphasis supplied)

12. Likewise, it has been held further by the Supreme Court in this

regard in the matter of Ude Singh and others versus State of Haryana

(supra) at paragraph 16, which is also relevant for the purpose, reads as

under:-

16. ............."In the case of accusation for abetment of suicide, the Court would be looking for cogent and convincing proof of the act(s) of incitement to the commission of suicide. In the case of suicide, mere allegation of harassment of the deceased by another person would not suffice unless there be such action on the part of the accused which compels the person to commit suicide; and such an offending action ought to be proximate to the time of occurrence."...........

13. Considering the facts and circumstances of the case in the light of

the aforesaid principles laid down by the Supreme Court, vis-a-vis, the

contents of the suicidal note dated 09-04-2022 written by the deceased

much prior to ended his life on 27-04-2022, prima facie, essential

ingredients for commission of offence under Section 306 of IPC are found

to be missing and, it could be ascertained only at the time of trial.

14. Now, in so far as the offence punishable under Section 3(2)(va) of

the Act of 1989 is concerned, the same is, however, appears to be added

as the appellant and others are found to be charged for commission of

offence of suicide under Section 306 of IPC, but, the alleged offence as

provided under Section 3(2)(va) of the Act of 1989 would be attracted only

when a person commits any offence, which is provided in the Schedule

framed therein.

15. Section 3(2)(va) of the Act of 1989 is relevant for the purpose, which

provides as under :-

Section 3 : Punishments for offences of atrocities-----

(1) ----- xxx ----xxx -----

(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, -

(i) to (v) ----- xxx ---- xxx -----

(va) commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and shall also be liable to fine.

16. The aforesaid offence would get attracted only, if a person, not

being a member of a Scheduled Caste or a Scheduled Tribe, commits any

offence specified in the Schedule against a person or property knowing

that such person is a member of the said community or with regard to the

property belongs to him. Schedule as framed under the above-mentioned

provision is, therefore, relevant for the purpose, which reads as under:-

[THE SCHEDULE } [See section 3(2)(va)]

Section under the Name of offence and punishment Indian Penal Code 120A Definition of criminal conspiracy.

                  120B           Punishment of criminal conspiracy.
                  141            Unlawful assembly
                  142            Being member of unlawful assembly.


               143          Punishment for unlawful assembly.
               144          Joining unlawful assembly armed with deadly
                            weapon.
               145          Joining or continuing in unlawful assembly,
                            knowing it has been commanded to disperse.
               146          Rioting.
               147          Punishment for rioting.
               148          Rioting, armed with deadly weapon.
               217          Public servant disobeying direction of law with
                            intent to save person from punishment or
                            property from forfeiture.
               319          Hurt.
               320          Grievous hurt.
               323          Punishment for voluntarily causing hurt.
               324          Voluntarily causing hurt by dangerous
                            weapons or means.
               325          Punishment for voluntarily causing grievous
                            hurt.
               326B         Voluntarily throwing or attempting to throw
                            acid.
               332          Voluntarily causing hurt to deter public servant
                            from his duty.
               341          Punishment for wrongful restraint.
               354          Assault or criminal force to woman with intent
                            to outrage her modesty.
               354A         Sexual harassment and punishment for
                            sexual harassment.
               354B         Assault or use of criminal force to woman with
                            intent to disrobe.
               354C         Voyeurism.
               354D         Stalking.
               359          Kidnapping.
               363          Punishment for kidnapping.
               365          Kidnapping or abducting with intent secretly
                            and wrongfully to confine person.
               376B         Sexual intercourse by husband upon his wife
                            during separation.
               376C         Sexual intercourse by a person in authority.
               447          Punishment for criminal trespass.
               506          Punishment for criminal intimidation.
               509          Word, gesture or act intended to insult the
                            modesty of a woman.".

17. A bare perusal of the aforesaid Schedule would, however, show that

no offence under Section 306 of IPC is found place therein. In absence

thereof, prima facie, the appellant and others cannot be charged under

Section 3(2)(va) of the Act of 1989.

18. According to learned counsel appearing for the Respondent/State,

while referring to the case diary statements, the appellant has committed

the offence under Section 3(2)(v) of the Act of 1989, instead of said

offence, i.e. Section 3(2)(va). But, the contention of him cannot be

appreciated at this stage, particularly, when no offence as such was

registered. Assuming the said contention is correct, nonetheless, the

appellant, in the said condition, could be held liable only when it is proved

that he has committed such an offence only on the ground that the

deceased belongs to the said community. However, a bare perusal of the

materials placed in the case diary, particularly, the allegations levelled

against the appellant, it is difficult to hold at this stage that he has

committed such an offence only on the ground that the deceased was a

member of the Scheduled Caste community. At this juncture, it is to be

seen the principles laid down by the Supreme Court in the matter of

Khuman Singh (supra), wherein it has been held at para 13, which is

relevant for the purpose, reads, as under:-

13. "In Dinesh alias Buddha v. State of Rajasthan (2006) 3 SCC 771, the Supreme Court held as under:-

"15. Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of Scheduled Castes and Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine.

As held by the Supreme Court, the offence must be such so as to attract the offence under Section 3(2)(v) of the Act. The offence must have been committed against the person on the ground that such person is a member of Scheduled Caste and Scheduled Tribe. In the present case, the fact that the

deceased was belonging to "Khangar"-Scheduled Caste is not disputed. There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste and therefore, the conviction of the appellant-accused under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable."

19. Now, a bare perusal of the order impugned would, however, show

that the application for grant of anticipatory bail filed under Section 438 of

Cr.P.C. has been rejected by the learned Court below, mainly by taking

note of the bar provided under Section 18 of the Act of 1989. There is no

doubt with regard to the provisions prescribed under Section 18 of the Act

of 1989 that it bars specifically for entertaining the application under

Section 438 of Cr.P.C. It is, however, to be noted at this juncture that the

bar so provided therein was considered by the Supreme Court in the

matter of Dr. Subhash Kashinath Mahajan vs. State of Maharashtra

and another reported in (2018) 6 SCC 454 and arrived at a conclusion

that if a person is able to show prima facie case that he has not committed

any atrocity and the allegations have been made mala fidely, then the bar

provided therein would not be attracted. Paragraphs 50, 51, 53 & 55 are

relevant for the purpose, which read as under :-

"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 (1995 3 SCC 221) 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 the decisions in Vilas Pandurang Pawar (2012 8 SCC 795) and Shakuntla Devi (2014 15 SCC 521), the 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.

xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx

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.

xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx

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."

20. While reiterating the aforesaid principles contained in the said

judgment, it has been held further by the Supreme Court in the matter of

Prathvi Raj Chauhan vs. Union of India and others (supra) at paragraph

32, which reads 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."

21. In view of above decision, it is, thus, settled principles of law that the

bar embodied under Section 18 of the Act of 1989 does not create an

absolute bar for consideration of an application seeking grant of

anticipatory bail under Section 438 of Cr.P.C.

22. Since, as observed hereinabove, the offence punishable under

Section 3(2)(va) of the Act of 1989 is not prima facie going to be attracted,

the bar provided therein would, therefore, not be applicable.

23. In view of the aforesaid background, as observed herein above and

that by applying the principles laid down by the Supreme Court in the

above referred matters, without commenting anything on the merits of the

case, I am of the view that it is a fit case where,the appellant is entitled to

be enlarged on bail.

24. Accordingly, the appeal is allowed and the order impugned dated

17-05-2022 passed by the learned Special Judge (Atrocities), Raipur in

Bail Application No.1067/2022 (Crime No.98/2022) is hereby set aside

and, it is directed that in the event of arrest, the appellant shall be released

on bail on furnishing a personal bond in sum of Rs.25,000/- with one local

surety for the like sum to the satisfaction of the concerned arresting officer,

with the following conditions :-

a) the appellant shall make himself available for interrogation by the police officer as and when required;

b) the appellant 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;

Certified copy as per rules.

SD/-

(Sanjay S. Agrawal) Judge

Tumane

HEAD LINES

Criminal Appeal No.861 of 2022

 Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 18 and 3 (2) (va) -

Offence under Section 306 IPC is registered against the appellant, however, the said offence is not found place in the Schedule framed under Section 3 (2) (va) of the Act of 1989 - Therefore, the bar provided under Section 18 of the Act of 1989 for entertaining an application for grant of anticipatory bail under Section 438 of Cr.P.C. would not be attracted.

 Indian Penal Code, 1860 - Section 306 IPC - Abetment of suicide - Suicidal note written by the deceased on 09.04.2022, whereas, he committed suicide on 27.04.2022

- Deceased had sufficient time to think over before taking such harsh step - Essential ingredients are even not found to be reflected from his suicidal note - In absence of essential ingredients required under Section 107 IPC, the offence cannot be made out under Section 306 IPC.

Cases relied upon :-

1. Sanju alias Sanjay Singh Sengar vs. State of M.P. reported in (2002) 5 SCC 371.

2. Amalendu Pal vs. State of W.B. reported in (2010) 1 SCC

707.

3. Ude Singh and others vs. State of Haryana reported in (2019) 17 SCC 301