Jharkhand High Court
Shashi Kant Kuswaha @ Shashi Kant ... vs The State Of Jharkhand on 5 September, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 162 of 2023
1. Shashi Kant Kuswaha @ Shashi Kant Kushwaha
2. Ashok Kumar ... ... Appellants
Versus
1.The State of Jharkhand
2. Pinki Kumari ... ... Respondents
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CORAM : HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellants : Mr. Mukesh Kumar Mehta, Advocate
For the State : Mr. Shree Prakash Jha, APP
For the complainant : Mr. Nityanand Pd. Choudhary, Advocate
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07 /05.09.2023
Heard the learned counsel for the appellants, the learned
counsel for the complainant and the learned counsel for the State, learned
APP.
2. This criminal appeal has been preferred against the impugned
judgment/ order dated 04.03.2023 passed by the learned Special Judge,
Jamtara whereby the anticipatory bail petition has been rejected in
connection with SC/ST Case No. 30 of 2018 under sections 354/
354A/504/509 of the Indian Penal Code and section 3 (1), (w) of SC/ST
(Prevention of Atrocities) Act.
3. The learned counsel for the appellants has submitted that the
complaint was initially made against eight accused persons and all the eight
accused persons were superior officers or superior to the complainant in the
same department. The complainant herself is a constable. However, the
cognizance was only taken against these two appellants i.e. Shashi Kant
Kuswaha @ Shashi Kant Kushwaha and Ashok Kumar. The learned counsel
for the appellants further submits that the main allegations are sexual in
nature that has occurred at the workplace in the confines of the office. It is
further submitted that cognizance under sections 354/ 354A/504/ 509 of the
Indian Penal Code and under section 3(1)(w) of SC/ST Act against the
appellants has been taken on 08.11.2019. It is further submitted that two
witnesses were examined, one is the husband of the complainant and another
is the tuition teacher of the son of the complainant. It is further submitted
that both the witnesses are not reliable because they are not the independent
witnesses nor they are eye witnesses and therefore they are definitely biased
witnesses.
4. The learned counsel for the appellants has further argued that
the date of occurrence is of May, 2017 but the complaint has been lodged as
late as on 28.08.2018 after one year and three months which creates
suspicion in the case. It is further submitted that the current case which is
complaint case 30 of 2018 is actually a counter blast to Narayanpur P.S.
Case No. 250 of 2017 and this case has only been lodged to pressurize or to
influence the outcome of the former case.
5. The learned counsel for the appellants has further submitted
that the foulness or untruthfulness of this case is fully apparent in that event
earlier a complaint case was filed with similar allegations dated 11.07.2018.
It is further submitted that this complaint was jointly made with this Pinki
Kumari and one Rajkumari. However, this complaint after examination by
the internal committee of the department which was constituted was found
not true in that sense the allegations made against the persons concerned
they were exonerated by the internal committee. It is further submitted that
this exoneration has been made not only by the internal committee but also
by the State woman Commission ( Annexure-B, page 12) of the consolidated
supplementary affidavit and by the DGP ( Annexure-E Page 26) of the
consolidated supplementary affidavit. So the counsel says that at all level
the earlier complaint case was done away and thereafter this case has been
filed which also shows the motivated and foul nature of the complaint.
Further he has said that another case was even lodged by the co-complainant
Rajkumari for similar sexual nature or sexual harassment which was
numbered as Complaint Case No. 31 of 2018 which is after the number of
the complaint case No. 30 of 2018 which was also found not true and the
complaint case by Rajkumari was also dismissed. Therefore, the counsel for
the appellants has prayed that from the aforesaid facts and reasonings, , this
criminal appeal may be allowed.
6. The learned counsel for the appellants with reference to section
sections 18 and 18A of the SC/ST ( Prevention of Atrocities) Act has stated
that though grant of anticipatory bail under section 438 Cr.P.C. is barred in
respect of offences under the 1989 Act- However, where prima facie case
not made out, anticipatory bail can be granted in appropriate circumstances,
with a cautious exercise of power. Counsel has cited the judgments of
Hon'ble Supreme Court in Prathvi Raj Chauhan v. Union of India and
others (2020)4 SCC 727. Counsel for the appellants has also cited the
judgment of Hon'ble Supreme Court in Swaran Singh v. State of
Maharashtra (2008) 8 SCC 435 wherein in it is observed that abuses on
caste should be uttered in the presence of independent witnesses, the
independent witnesses may not be those persons who are relatives or friends
of the complainant.
7. The learned counsel for the opposite party no. 2 has pointed out
from the solemn affirmation which is a part of Annexure-2, page 33 in the
appeal and pointed out that it is clear that there is direct allegation of
harassment also of sexual nature against these appellants. Moreover, foul
words used would bring it within the ambit of abusive caste or tribe
characteristic. Thereafter, he has pointed out to the cognizance order dated
08.11.2019 of the learned court below and pointed out that the learned court
has concluded that on careful perusal of the complaint petition, SA and
statement of inquiry witnesses, it appears that the complaint and inquiry
witnesses have supported the allegation against the accused no. 2 and 3, the
current appellants by harassing by sexual assault and by using criminal force
to outrage her modesty and also by committing physical contact and
advances involving unwelcome and explicit sexual overtures. Thereafter
counsel also pointed out from order dated 04.03.2023 of the Special Judge,
Jamtara which is the impugned order in ABP No. 66 of 2023 wherein the
learned court below has said that on perusal of record it appears that
cogniazance of the offence u/ss. 354, 354A, 504 and 509 IPC and Section
3(1)(w) of SC/ST ( Prevention of Atrocities) Act has been taken against the
accused/petitioner nos. 1 and 2 vide order dated 08.11.2019. Though section
18 of the SC/ST Act creates bar for invoking Section 438 of the Cr.P.C.,
therefore, this anticipatory bail application is not maintainable.
8. The learned counsel for the State has supported the submissions
made by the learned counsel for the opposite party no. 2.
9. Having heard counsels for both the side; having gone through
the records of the case and in the facts and circumstances of the case, I am
inclined to grant anticipatory bail to the appellants and accordingly, the
appellants, above named, are directed to surrender in the court below within
three weeks from today and in the event of their arrest or surrender the court
below shall enlarge the, above named appellants, on bail on furnishing bail
bond of Rs. 25,000/-(Rs. Twenty Five Thousand only)each, with two
sureties of the like amount each to the satisfaction of learned Special Judge,
Jamtara in connection with SC/ST Case No. 30 of 2018, subject to the
condition that the appellants shall remain present on each and every date of
trial before the Court below unless dispensed with by the learned Court
below with further condition that the appellants will submit self-attested
photocopy of their mobile numbers before the learned Court below which
they will always keep active and will not change it during pendency of this
case without prior permission of the Court.
10. Accordingly, Cr. Appeal (SJ) No. 162 of 2023 is allowed and
disposed of.
(Ratnaker Bhengra, J.)
Sharda/
