Sanjay Patel vs State Of Chhattisgarh
2023 Latest Caselaw 341 Chatt

                                                    Order Reserved on 05.12.2022
                                                  Order Pronounced on 17.01.2023
                                                                            AFR

               HIGH COURT OF CHHATTISGARH, BILASPUR

                        Criminal Appeal No.1454 of 2022

     1.     Sanjay Patel, S/o Chandrahas Patel, aged about 25 years,

     2.     Pritam Patel S/o Chandrakar Patel, aged about 20 years,

     3.     Jitendra Beldar S/o Gaursingh Beldar, aged about 23 years,

     4.     Raman Beldar S/o Tulsiram Beldar, aged about 23 years,

     5.     Kanshi Yadav S/o Pilalu Yadav, aged about 37 years,

     6.     Ishwar Patel S/o Sukhi Patel, aged about 36 years,

     7.     Raju Patel S/o Late Manohar Patel, aged about 32 years,

            All above are R/o. Village Narra, PS Komakhan, Tehsil Baghbahra,
            District Mahasamund (C.G.).

                                                                         ---- Appellants
                                        Versus

     State of Chhattisgarh, through Police Station Komakhan, District Mahasamund
     (CG)

                                                            ----Respondent

___________________________________________________________________ For Applicant: Mr. Shubhank Tiwari, Advocate For Respondent/State: Mr. Kashif Shakeel, Deputy Advocate General ____________________________________________________________________

CAV Order

Hon'ble Shri Justice Sachin Singh Rajput

1. This appeal under section 14A of the Scheduled Caste and the Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short, 'Special Act') is arising out of an order dated 18.08.2022 passed by Special Judge (S.C.S.T. Act), District

- Mahasamund (C.G.) (for short, 'Special Judge') in Bail Petition No. 698/22 by which the learned Special Judge has dismissed the application of the appellants under section 438 of the Code of Criminal Procedure, 1973. Appellants are apprehending their arrest in connection with Crime No.185/2020, registered at Police Station - Komakhan, District - Mahasamund (C.G.) for an alleged offence punishable under section 452, 435, 323, 427, 147, 148, 149, 188, 269, 270, 458 of Indian Penal Code, 1860 (for short. 'IPC'), under Sections 3, 4 of Epidemic Diseases, Act 1897 under Sections 3 (2) (iii), 3 (2) (v) of the Special Act.

2. Case of the prosecution, in brief, is that on 30.09.2020 the present appellants entered the house of complainant alleging that there is liquor in the house and ransacked the house and burnt 4 motorcycles thereby committed the aforesaid offences.

3. Mr. Shubhank Tiwari learned counsel for the appellants submits that the appellants are innocent and they have not committed the aforesaid crime and have been falsely implicated. He further submits that the appellants have already been enraged on regular bail vide orders dated 09.02.2021 and 17.02.2021 under Sections 452, 435, 323, 427, 147, 149, 188, 269, 270 of Indian Penal Code, 1860, under section 3, 4 of Epidemic Diseases, Act 1897. Thereafter Section 458 and Section 3 (2) (iii), 3 (2) (v) of the Special Act was added hence the appellants had filed an application under Section 438 of the Cr.P.C. before the learned Special Judge which was rejected by the learned Special Judge. He goes on to submit that from reading of the FIR no case under Section 458 of IPC and 3 (2) (iii), 3 (2) (v) of the Special Act. Further submission of the learned counsel for the appellants that once the regular bail was granted by the learned Special Judge, it ought to have allowed the anticipatory bail application as no case under Special Act is made out. He then submits that the alleged crime was not committed on the ground that the complainant belongs to Scheduled caste. He further submits that the appellants are permanent resident of given address and they are ready and willing to comply any of the conditions which may be imposed by the court while granting bail. In view of the above submissions he prays that the appeal may be allowed and the impugned order may be set aside ant the appellants may be extended benefit of section 438 of Cr.P.C.. He placed reliance on the judgment of the Hon'ble Supreme Court in case of Pradeep Ram Vs. State of Jharkhand and another (2019) 17 SCC 326, Manoj Suresh Jadhav and others Vs. State of Maharashtra (2019) 17 SCC 362 , order dated 04.02.2021 passed by coordinate bench of this court in CRA No. 844 of 2020 Umendra Sahu Vs. State of Chhattisgarh.

4. Refuting to the submissions made by learned counsel for the appellants, Mr. Kashif Shakeel, Deputy Advocate General for the respondent/state vehemently argued that that the on the basis of the statement of witnesses recorded during the course of investigation it is established that the appellants have committed the crime. He further submits that bar under section 18 of the Special Act would operate and the appeal may be dismissed. On 29.09.2022 the victim has objected in grant of anticipatory bail through concerned District Legal Service Authority.

5. I have heard learned counsel for the parties, considered their rival submissions and also perused the case diary.

6. Hon'ble Supreme Court in case of Prathvi Raj Chauhan Vs. Union of India (2020) 4 SCC 727, held as under:-

"32 As far as the provision of Section 18A 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 com- plaint, the court has the inherent power to direct a pre-arrest bail.

33. I would only add a caveat with the observation and emphasize 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."

Hon'ble Supreme Court in case of Pradeep Ram (Supra), held as under:-

31. In view of the foregoing discussions, we arrive at following conclusions in respect of a circumstance where after grant of bail to an accused, further cognizable and non-bailable offences are added:-

31.1 The accused can surrender and apply for bail for newly added cognizable and non-bailable offences. In event of refusal of bail, the accused can certainly be arrested.

31.2 The investigating agency can seek order from the court under Section 437(5) or 439(2) of CrPC for arrest of the accused and his custody.

31.3 The Court, in exercise of power under Section 437 (5) or 439(2) of CrPC, can direct for taking into custody the accused who has already been granted bail after cancellation of his bail. The Court in exercise of power under Section 437 (5) as well as Section 439(2) can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and non-cognizable offences which may not be necessary always with order of cancelling of earlier bail.

31.4 In a case where an accused has already been granted bail, the investigating authority on addition of an offence or offences may not proceed to arrest the accused, but for arresting the accused on such addition of offence or offences it need to obtain an order to arrest the accused from the Court which had granted the bail.

In case of Umendra Sahu (Supra) this court observed as under:-

"8. Therefore, even though there may be allegations of offence under the Act of 1989, if a case is met out to be exceptional in nature, in exceptional cases, benefit of grant of anticipatory bail could be extended and in such cases and bar under Section 18 of the Act of 1989 may not operate."

In the above case the benefit of anticipatory bail was extended to appellants relying upon judgment of Hon'ble Supreme Court in case of Khuman Singh Vs. State of Madhya Pradesh (AIR 2019 SC 4030) and Dinesh alias Buddha Vs. State of Rajasthan (2006) 3 SCC 771.

7. In light of the above legal principles and looking to facts circumstances of the case, considering the nature of allegation, perusal of FIR and submissions of the respective parties, the appellants have made out an exceptional case, the appellants are required to be protected from arrest on account of adding of offences under IPC and Special Act, hence this court is inclined to allow the appeal of the appellants Therefore, the impugned order dated 18.08.2022 passed by the learned Special Judge, is hereby set aside. The appeal is allowed and in the event of their arrest appellants shall be released on bail on his furnishing personal bond of Rs.50,000/- with one surety of the like sum to the satisfaction of the investigating officer/arresting officer on the following conditions:-

(i) 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 fact to the Court,

(ii) They shall not act in any manner which will be prejudicial to fair and expeditious trial,

(iii) The shall appear before the trial Court on each and every date given to him by the said Court till disposal of the trial.

(iv) They shall make themselves available for interrogation by a police officer as and when required.

8. It is made clear that the observation made herein above is only for the purpose of decision making of the bail applications of the applicant and to appreciate the arguments advanced by the learned counsel for the parties. It will not have any bearing on the merits of the case. The learned trial court will decide the case on it own merits without being influenced by any observation made herein above. If the appellants violates any of the conditions stated above, State/complainant would be free to move for cancellation of bail.

9. Certified copy as per rules.

Sd/-

Sachin Singh Rajput Judge Jyotishi