R.K.Madaan vs State Of Nct Of Delhi
2012 Latest Caselaw 2411 Del

*                THE HIGH COURT OF DELHI AT NEW DELHI

+                           Bail Appln. 485/2012

                                                Date of Decision: 13.04.2012


R.K.MADAAN                                                    ..... Petitioner
                             Through      Mr. Lalit Gupta, Adv.
                       Versus

STATE OF NCT OF DELHI                                  ..... Respondent
                    Through               Ms Fizani Husain, APP

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J. (Oral)

Crl.M.A.No.4369/2012(Exemption) Exemption allowed, subject to all just exceptions. Application stands disposed of.

BAIL APPLN. 485/2012

1. Raj Kumar Chandra filed a complaint against the petitioner and

others in the Court of Additional Chief Metropolitan Magistrate

(ACMM) under section 420/448/506 and 120-B IPC on the allegations

of the accused persons having entered into an agreement and taken some

money from him for sale of a flat. The allegations were that all the

accused persons had cheated him and threatened to kill him. An

application under section 156(3) Cr.P.C. was also filed along with that

complaint. On this the Magistrate ordered for registration of FIR

against the accused persons including the petitioner. The petitioner was

granted bail by the ASJ on 9th June, 2011. In the mean, the complainant

had made a complaint to the Commission of S.C. & S.T. On the

direction of S.C. & S.T. Commission section 3 (1) of S.C. & S.T. Act

was added in the said FIR.

2. The present application is filed for seeking bail. The same was

outrightly opposed by the learned APP stating that there was bar under

section 18 of the S.C. & S.T. Act in entertaining an application for bail.

3. The submission of learned counsel for the petitioner is that the

allegations that were initially made by the complainant in the complaint

related to cheating, threatening etc and there was no allegation of

castiest remarks against the accused persons including the petitioner. It

was submitted that the story of castiest remarks has been added just to

put pressure upon the petitioner and that section 3(1) of S.C. & S.T. Act

was added only under the pressure of Commission S.C. & S.T. It was

submitted that in any case, no offence under S.C. & S.T. Act was made

out inasmuch as the allegation of castiest remarks did not come within

the ambit of section 3(1) of the Act. It was submitted that the allegations

which were leveled in the complaint were of civil nature relating to

agreement to sell a property. While denying the petitioner having made

any such remarks, it was submitted that the remarks, if any, were made

within the office of the petitioner and there was no public persons

present and so the provisions of section 3(1) of the S.C. & S.T. Act were

not attracted. It was also submitted that one Harpreet Singh, who was

none else, but a friend of the brother of the complainant, has in his

statement under section 164 Cr.P.C., recorded by the Magistrate,

categorically denied about any such remarks having been made by the

petitioner against the complainant. It was further submitted that though

the petitioner was already granted bail by the learned ASJ on 09.06.2011

in the said FIR, but, since there was no mention of the provisions of the

S.C. & S.T. Act in the said bail order, he filed a fresh bail application

which came to be dismissed by the ASJ on 24.03.2012. the said order of

the learned ASJ is alleged to be erroneous.

4. I have heard learned counsel for the petitioner and learned APP

and perused the record.

5. There is no dispute that section 18 created a clear bar on the

applicability of section 438 of Cr. P.C. in the case of offences under

S.C. & S.T. Act. In the case of Mukesh Kumar Saini & Ors. V. State

(Delhi Administration), 94 (20010) DLT 241, it was held that there

was no dispute with regard to the proposition that anticipatory bail

cannot be availed by the persons who have committed the offences

under the S.C. & S.T. Act. It was further held that merely because the

section of the Act was mentioned in the FIR, that by itself cannot be a

ground for declining pre-arrest bail. The judicial scrutiny of the

documents was permissible to evaluate whether the material relied upon

by the prosecution revealed the existence of basic ingredients of the

offence or not. The Court could sift the material for this limited

purpose. The basic ingredients of the offence under Clause (x) of sub

section (1) of Section 3 of the S.C. & S.T. Act are (i) there must be an

intentional insult or intimidation with intent to humiliate SC/ST member

by a non-SC/ST member and (ii) that insult must have been done in any

place within the 'public view'. The use of expression intentional insult

or intimidation wit intention to humiliate makes it abundantly clear that

the mens rea is an essential ingredient of the offence and it must also be

established that the accused had the knowledge that the victim is the

SC/ST and that the offence was committed for that reason. Merely

calling a person by caste would not attract the provisions of this Act.

There must be specific accusation alleged against each of the accused.

Further this being a penal provision has to be given a strict interpretation

and if any of the ingredients is found lacking, it would not constitute the

offence.

6. It has been noted above that there was no allegation of castiest

remarks, whatever in the complaint that was initially filed by the

complainant before the ACMM in March, 2011. There was not even a

whisper of castiest remarks in the FIR that was Registered on the

direction of the MM. Even during investigation there was nothing of

castiest remarks attracting SC/ST Act. Rather Harpreet Singh, who was

the witness of the complainant being a friend of his brother who was

examined under section 164 Cr. P.C., had in his statement made before

the MM, stated about his having visited the house of the complainant

when there was some dispute with the petitioner in his presence. He

stated that nothing related to caste of the complainant or his brother was

even addressed in his presence by anyone including the petitioner. He

categorically stated that the petitioner never used any un-parliamentary

language while addressing the complainant. He stated that he was made

to put his signature on already hand written statement which he did,

without reading, just to help his friend. It is also noted that that the

complaint that was made by the complainant before the Commission for

SC/ST, the allegations are entirely different than that what were

mentioned in the charge-sheet. It is also noted that in the letters written

by the complainant to the Commission, the words of castiest remarks

which have been attributed, are entirely different. In one of the letters it

was stated "tum chhoti jaat wale jhuggi jhopri me rehne wali tumhe koi

bhi apne paas nahi rehne dega" . In another letter he is using the words

"saale chure chamaar chhoti jaat walon yahan se chale jao koi makaan

nahi hai" . It is also noted that in the charge-sheet that was filed by the

police before the Court, it was categorically stated that there was no

mention of these remarks in the complaint as also in the application

under section 156(3) Cr. P.C. It was also stated that as per the said

complaint filed before the ACMM, the incident had happened inside the

office cum residence of the petitioner and there was no corroboration of

the allegation from anyone except the complainant and his brother and

also that Harpreet Singh, who is stated to be an eye witness, did not

corroborate the averment of the complainant in his statement under

section 161 Cr.P.C. and under section 164 Cr. P.C.

7. In view of the inconsistent evidence available on record, much

importance cannot be given to the statement of the complainant. The

plea of provisions of Section 3 of S.C. & S.T. Act cannot be raised

without proof of the ingredients. At this stage there is material on

record which entitles the petitioner to be released on bail despite the

provisions of section 18 of the Act.

8. For the above reasons, the petitioner is admitted on bail on his

furnishing personal bond in the sum of Rs.25,000/- with one surety in

the like amount to the satisfaction of the IO/SHO concerned subject to

the petitioner joining investigation.

9. It is clarified that nothing in this order shall amount to expression

on the merits of the case.

M.L.MEHTA, J APRIL 13, 2012 awanish