Jharkhand High Court
Bhola Verma @ Bhola Prasad Verma vs The State Of Jharkhand on 21 November, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (S.J.) No.128 of 2022
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1. Bhola Verma @ Bhola Prasad Verma
2. Paran Verma @ Paran Mahto
3. Tilak Verma @ Tilak Prasad Verma
4. Tejalal Yadav @ Tejalal Mahto @ Tejlal Yadav @ Tejlal Mahto
5. Arjun Mahto @ Arjun Prasad Verma @ Arjun Verma
.... .... Appellants
Versus
1. The State of Jharkhand
2. Mahendra Das .... .... Respondents
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CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellants : Mr. Shree Nivas Roy, Adv.
For the State : Mr. Sanat Kr. Jha, A.P.P.
For the Res. No.2 : Mr. Prabhash Ch. Sinha, Adv.
Mr. Kumar Saurav, Amicus Curiae
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st
08/Dated: 21 November, 2022
1. The present appeal has been filed under Section 14-A of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act.
2. Heard learned counsel for the appellants and learned counsel for the State
and learned counsel for the victim.
3. The appeal has been filed against the impugned order dated 18.01.2022 in
A.B.P. No.1791 of 2021 passed by the learned Additional Sessions Judge-I,
Giridih in connection with SC/ST (Complaint Case) No.90 of 2018, for the offence
under Sections 147, 341, 323, 354, 379 and 504 of the Indian Penal Code and
under Section 3/4 of the SC/ST (PoA) Act. Cognizance has been taken under
Sections 147, 341, 323 and 354 of the Indian Penal Code and under Section 3(r) of
the SC/ST (PoA) Act. The case is presently pending in the court of the learned
Additional Sessions Judge-I, Giridih.
4. It appears that a criminal case for the incident dated 02.09.2018 has been
lodged by filing SC/ST Complaint Case No.90 of 2018 dated 11.10.2018.
5. It has been submitted by the learned counsel for the appellants that both the
parties are on litigating terms and this is nothing but misuse of the protective
legislation. Although, the allegation of assault and abusement has been made but
no injury has been shown. The complaint petition has been filed after delay of 40
days. Further, it has been submitted that entertaining the enquiry and not sending
for investigation is not the discretion of the court rather is requirement of the case.
The nature of allegation requires proper investigation but instead of sending the
matter for investigation cognizance has been taken without any proper material.
Further, the complaint petition has not been supported by any affidavit. On the
above basis, the prayer for anticipatory bail has been made.
6. On the other hand, learned counsel for the State, victim and the learned
Amicus Curiae have opposed the prayer for bail and it has been submitted that the
allegation made in the complaint petition itself discloses the commission of the
atrocities under the SC/ST Act and as such Section 18 bars the jurisdiction of
Section 438 of the Cr.P.C.
7. Having heard the learned parties and from perusal of the record, it appears
that there is some dispute between the parties. It is also settled law that the nature
of dispute is deciding factor for keeping the matter under enquiry or sending it for
investigation. In the present case, the matter has been kept for enquiry but the
nature of dispute suggests investigation.
8. It is also settled principal of law that once cognizance has been taken and
process has been issued and if accused appears then it is jurisdiction of simple bail
and not the jurisdiction of Section 438 Cr.P.C. If the accused decides not to appear
in response of summon then only the arena of Section 438 Cr.P.C. comes into
play.
9. Be that as it may, once after considering the materials brought on record
and cognizance is taken then the court is under duty to issue summon and it has to
follow the mandate of Hon'ble Apex Court in the case of Satender Kumar Antil
Vs. C.B.I. & Anr. reported in 2022 SCC OnLine SC 825. The present case will
come under the category "A" as the punishment is below seven years and it is not
a Special Act. Special Act has been defined in category "C" containing stringent
provisions for bail.
10. In view of above discussion and the judgment of the Hon'ble Apex Court,
the appellants are directed to appear before the court below within four weeks and
the court below is directed to consider Bonding or Bail of the appellants as per the
mandate of the Hon'ble Apex Court. The court below should keep in mind the
Section 88 of the Cr.P.C.
11. Since it is a complaint case, no notice is required to be issued to the victim.
12. With above observation and direction, the present appeal stands disposed
of.
(Rajesh Kumar, J.)
Amar/-
