Jharkhand High Court
Tribhuwan Prasad vs The State Of Jharkhand on 12 September, 2022
-1-
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No.283 of 2021
1. Tribhuwan Prasad
2. Anil Prasad
3. Chatradhari Saw
4. Sanjay Prasad
5. Umesh Prasad
6. Prem Prasad @ Prem Kumar
7. Pankaj Saha @ Pankaj
8. Kameshwar Prasad
9. Arghu Saw
10. Rupchand Prasad
11. Bir Mohan Saw @ Birmohan Prasad
12. Raghunath Prasad
13. Sanjay Prasad
14. Ashok Prasad ...... Appellants
Versus
1. The State of Jharkhand
2. Basanti Devi ..... Respondents
---------
CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR
---------
For the Appellants : Mr. Indrajit Sinha, Advocate
For the State : None
For the Resp. No.02 : Mr. P. K. Mukhopadhyay, Advocate
Mr. D. K. Prasad, Advocate
---------
10/Dated: 12th September, 2022
1. Heard learned counsel for the appellants and learned
counsel for the victim/ respondent No.02. Nobody appears on
behalf of the State.
2. The present appeal has been filed, under Section 14(A)
(2) of the Scheduled Castes/Scheduled Tribes (Prevention of
Atrocities) Act (For short the SC/ ST Act), against the order
dated 30.06.2021, passed by the court of learned Additional
Sessions Judge - I -cum- Special Judge (SC/ ST), Ramgarh, in
A.B.P. No.184 of 2021, whereby the prayer for grant of
anticipatory bail to the appellants has been rejected in
connection with SC/ ST Complaint Case No.599 of 2017, for
the offence under Sections 147/ 323/ 504/ 506 of the Indian
Penal Code, and Sections 3(1)(r) & 3(1)(s) of the SC/ ST Act.
3. The order dated 13th December, 2021 reads as under :-
"1. Mr. Md. Imtiaz Khan, learned counsel, appears on
behalf of the respondent No.02 and prays for an
adjournment for getting himself prepared in the matter.
2. It appears that there is land dispute between the
parties and the disputed land in question has been settled
in favour of the respondent No.02. Objection has been
raised by the accused persons and further recommendation
has been made for cancellation of the settlement. It further
appears that the matter arises out of complaint case.
3. It has been submitted by the learned counsel for the
appellants that the court below has taken cognizance
without making any proper enquiry, and as such, the order
of cognizance is bad in law.
4. In view of the above submission, call for the scanned
copy of the lower court record from the court concerned.
5. Till further order, the appellants should not be
arrested in connection with SC/ ST Complaint Case No.599
of 2017, pending in the court of learned Additional Sessions
Judge - I -cum- Special Judge (SC/ST), Ramgarh."
It appears that the present criminal case has been
initiated on the basis of complaint case being SC/ ST
Complaint Case No.599 of 2017. The court below has taken
cognizance on 21.01.2020 and thereafter summon has been
issued. On receiving the summon, the anticipatory bail
application has been moved in the court below which has
been rejected vide order dated 30.06.2021 and the same has
been impugned in the present appeal.
4. It has been submitted by learned counsel for the
appellants that there is a land dispute between the parties. It
has been further submitted that on receiving a complaint it is
not desire/discretion of the court rather it is a requirement of
case to the effect that whether enquiry should be made or
matter should be referred for investigation. In the present
case, considering the nature of dispute between the parties, it
was desirable to refer the matter for investigation. Without
being sufficient material, cognizance has been taken which is
per se illegal and as such bar of Section 18 of the SC/ST Act
is not applicable in the present case. Referring to the
judgment of Hon'ble Apex Court in the case of Hitesh Verma
Vrs. State of Uttarakhand reported in 2020 (10) SCC
710, it has been submitted by learned counsel for the
appellants that if there is a land dispute between the parties,
the bar of Section 18 of SC/ST (POA) Act will not get
attracted.
5. Learned counsel for the victim has opposed the prayer
for grant of anticipatory bail and submitted that after doing
enquiry and considering the oral evidence brought on record,
cognizance has been taken and as such bar of Section 18 of
the SC/ ST Act will be applicable and the anticipatory bail is
barred.
6. Having heard learned counsel for the parties and on
perusal of the record, it appears that the complaint petition
has been filed but the subsequent incident has been
highlighted. This incident requires investigation but the court
below has taken cognizance only on the basis of the
statement of some witnesses including the complainant. The
requirement of the case is the deciding factor whether the
matter should be inquired into or should be referred for the
investigation.
It is further relevant that if the Special Court takes
cognizance under the SC/ ST Act, then it requires to issue
summons. If the accused appears in response of the summons
then it is not in the arena of Section 438 of the Cr.P.C and
accordingly Section 18 of the SC/ ST Act has no role to play.
Only if the alleged accused chooses not to appear in response
of the summons, issued by the Court, then only the arena of
Section 438 of the Cr.P.C is available.
7. In the present case, it appears that the appellants have
chosen not to appear in response of the summons rather they
have decided to approach the Court under Section 438 of the
Cr.P.C.
Considering the entire facts of the case, as discussed
above, the appellants are directed to appear before the court
below within six weeks from today. The court below is
directed to take decision regarding the bail of the appellants
on the same day on which they appear, keeping in mind the
mandate of the Hon'ble Apex Court in the case of Satender
Kumar Antil Vs. C.B.I. & Anr. reported in 2022 SCC
OnLine SC 825.
It is also made clear that under the SC/ ST Act, the
victim is required to be heard before taking any decision, but
in the present case, since the victim is the complainant and
she is pursuing the case, and as such no notice is required to
be issued upon her.
8. With the above discussions and observations, the
present appeal is, hereby, disposed of.
(Rajesh Kumar, J.)
Chandan/-
