Pooja Jha And Anr. vs State
2013 Latest Caselaw 4057 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            BAIL APPLN. 1616/2013

                               Date of Decision: 10th September, 2013


        POOJA JHA AND ANR.                                 ..... Petitioners
                     Through:               Mr. Sanjay Kumar and Mr.
                                            Krishan Kumar, Advocates.

                                   versus

        STATE                                              ..... Respondent
                             Through:       Ms. Fizani Husain, APP for the
                                            State with ASP Jasvir Singh
                                            Malik, PS Ambedkar Nagar
                                            and Insp. K.L. Meena.
        CORAM:
        HON'BLE MS. JUSTICE SUNITA GUPTA

                                     ORDER

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1. This is a petition u/s 438 Cr.P.C moved by the

petitioners Pooja Jha and Aarti Jha for grant of anticipatory bail

in case FIR No.217/13 u/s 341/342/354/323 /506/34 IPC and u/s

3(x) SC/ST (Prevention of Atrocities) Act, P.S. Sangam Vihar,

New Delhi.

2. It is alleged in the petition that the facts leading to the

registration of the present FIR are that the mother of the

petitioners, Mamta Jha lodged a complaint with P.S. Sangam

Vihar, pursuant to which FIR No.23/13 dated 20.01.2013 u/s

323/354/452/392/34 IPC was registered against Smt. Baby and

Dheeraj amongst others. The present FIR is nothing but a

counter blast of the FIR lodged by Mamta Jha against the wife

and son of Mahesh Kumar, complainant of this case. There is

no specific averment against the petitioner. The only averment

against the petitioner is that the petitioners used to reside with

Mamta and Mahesh. No specific role has been attributed against

them so as to attract SC/ST Act.

3. The alleged offence was allegedly committed on

22.01.2013 and the complaint was made for the first time only

on 04.03.2013. The FIR was ultimately registered on

22.05.2013. There is no plausible explanation for the delay on

the part of the complainant in lodging the complaint which cast a

serious doubt regarding the veracity of the complaint. Initially

the case was registered only under the provisions of the Indian

Penal Code and offence u/s 3(x) of SCT/ST Act was later on

added. Reliance was placed on R.K.Sangwan vs. State, 2010(3)

AT(Delhi) 309; Daya Bhatnagar and Os. Vs. State, 109(2004)

DLT 905; Kanhaiya Lal Paswan vs. State, 2012(4)

ILR(Del)509; Manjeet Singh vs. State of Delhi, 2013(2) JCC

1290.

4. The application, on the other hand, is opposed by learned

Additional Public Prosecutor for the State on the ground that

there are serious allegations against the petitioners along with

the other accused persons. Reference was made to the

supplementary statement of the witnesses wherein there are

specific allegations attracting the provisions of SC/ST Act

against Pooja Jha. However as regards Aarti Jha, it was fairly

conceded that there are no allegations qua her regarding SC/ST

Act but she assaulted the complainant party on 19.01.2013.

5. The FIR, in the instant case, was registered on the

complaint of Mahesh Kumar wherein it was alleged that he is

resident of K-I, Gali No.18, 457/A Sangam Vihar, New Delhi.

Mamta Jha and Mohan Jha along with their family members

reside in his neighbourhood. Pooja, Aarti Jha, Pankaj Jha etc.

also lived with them. They had good relations with Municipal

Councillor Kalpana Jha and local police. On 19.01.2013 at

about 10.15 a.m, Mamta and her associates caught hold of her

son Dheeraj and took him to a deserted street and beat him

mercilessly. Somebody informed his wife who reached there

and saved her son and informed the police. Mamta Jha, Pooja,

Aarti and others caused grievous injuries to his wife Baby. She

was taken to Trauma Centre, AIIMS in unconscious stage where

she was given treatment. She got six stitches on her head. The

aforesaid persons in connivance with Corporation Councillor

Kalpana Jha bribed the police and lodged a false complaint

against his son Dheeraj and others for commission of robbery,

molestation and other false allegations and got the case

registered. When he reached police station, the police did not

listen to him or his wife and abused them and demanded Rs.1

lakh in case they wanted to save themselves. Thereupon, he

took his wife and came to his house and got her treated at

Safdarjung hospital. Since he did not bribe the police officials,

as such on 22.01.2013, police from P.S. Sangam Vihar

comprising Suresh, Sanjay, Lalit Kumar and two other police

personnel entered their house and abused them in filthy

language. He was dragged outside the house and given beatings

mercilessly. After the police left, Mamta and Mohan Jha were

standing outside his house and used racist words. Kalpana Jha

also came outside his house along with these people and she also

used racist words like saale, bhangi, chamar, khatikde etc. and

on the basis of these allegations, the FIR was registered. In the

supplementary statement recorded u/s 161 Cr.P.C, Smt. Baby

and Dheeraj also levelled allegations against the petitioner Pooja

who also used racist words.

6. After careful consideration of the rival contentions and

the material placed before me, I am afraid the petitioner Pooja

Jha cannot be granted anticipatory bail. Section 18 of the

Scheduled Caste and Scheduled Tribes (Prevention of Atrocities

Act), 1989 (hereinafter referred as SC/ST Act) reads as under:-

"18. Section 438 of the Code not to apply to persons committing an offence under the Act. Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act."

7. A bare reading of the Section shows that it is an absolute

bar on the applicability of Section 438 of the Cr.P.C to any case

involving the arrest of any person on an allegation that he has

committed an offence under the SC/ST Act. In Villas

Panduranga Pawar and Anr. vs. State of Maharashtra & Ors.,

(2012) 8 SCC 795, it was held that the bar of Section 18 of the

SC/ST Act is absolute unless it can be shown that there is no

specific averment in the complaint about the uttering of the caste

name or remark. It was also observed that the provisions of

Section 18 of the SC/ST Act cannot be "easily brushed aside by

elaborate discussion on the evidence". In paragraph 12 of the

judgment, it has been made clear that everything depends upon

the nature of the averments made in the complaint.

8. In R.K.Sangwan vs. State, 2010(3)AT (Delhi)309,

reference was made by a single Judge of this Court to a larger

Bench on the question whether this section operates as a

complete bar to the maintainability of the petition u/s 438 of the

Code. After considering the view taken by a Full Bench of

Rajasthan High Court reported as Virender Singh vs. State of

Rajasthan, 2000 Crl.L.J.2899, it was observed that the bar

created by Section 18 of the Act would not apply merely because

an FIR has been registered under the Act. It would always

remain within the domain and jurisdiction of the Court to

judicially consider whether the allegations in the FIR prima facie

makes out an offence under the Act and if it is found so, only

then can it be said that there is an accusation of having

committed the offence under the Act. In Virender Singh's case

itself, it was observed that the Court, at the most, would be

required to evaluate the FIR itself with a view to find out if the

facts emerging therefrom, taken at its face value, discloses the

existence of the ingredients constituting the alleged offence.

The Court will not be justified in embarking upon an enquiry as

to the reliability or genuineness or otherwise of the allegations

made in the FIR. In Daya Bhatnagar (supra), the basic question

was regarding the interpretation of expression "public view in

Section 3(1)(x) of the SC/ST Act. Kanhaiya Paswan (supra)

was a case where there was non-disclosure of necessary

ingredients of SC/ST Act in the complaint and as such, the

charge was not framed. The petition against the order of the

learned Additional Sessions Judge was accordingly dismissed.

Manjeet Singh (supra) was a case where there was prima facie

evidence to show that the words about the caste of the

complainant were uttered in public view and as such, since there

was specific averment in the complaint, the bail application

moved by one of the accused was dismissed. However since qua

two other petitioners, there were no allegations under SC/ST

Act, therefore, they were granted anticipatory bail.

9. This authority applies with full force to the facts of the

case in hand in asmuchas, so far as accused Pooja is concerned,

there are clear allegations that she along with others addressed

Dheeraj as saale, bhangi, chamar, khatikde etc and as such, in

view of the clear allegations against her, she is not entitled to be

released on anticipatory bail. However, as regards, Aarti Jha is

concerned, it was fairly conceded by learned Additional Public

Prosecutor that there are no allegations under SC/ST Act qua

her. The allegations are confined to assault.

10. Under the above circumstances, I reject the application filed by

Pooja Jha for anticipatory bail. However, petitioner Aarti Jha is

ordered to be released on bail in the event of her arrest on her

furnishing a personal bond in the sum of Rs.15,000/- with one surety

in the like amount to the satisfaction of the I.O/S.H.O is concerned.

She is, however, directed to join investigation as and when required.

She is further directed not to contact any of the prosecution witnesses

or tamper with evidence.

The bail application is accordingly disposed of.

SUNITA GUPTA (JUDGE) SEPTEMBER 10, 2013 as