Harish Garg @ Harish Kumar Garg vs The State Of Jharkhand
2024 Latest Caselaw 9976 Jhar

Jharkhand High Court

Harish Garg @ Harish Kumar Garg vs The State Of Jharkhand on 16 October, 2024

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                     Cr. Appeal (SJ) No. 67 of 2024
           1. Harish Garg @ Harish Kumar Garg, aged about 46 years, son of
           Gajanand Agarwal, resident of Mithu Road, Bank More, P.O. Bank
           More, P.S. Bank More, District-Dhanbad, Jharkhand
           2. Dipti Garg @ Deepti Garg, aged about 48 years, daughter of
           Harish Garg, resident of Mithu Road, Bank More, P.O. Bank More,
           P.S. Bank More, District-Dhanbad, Jharkhand
           3. Binay Mukherjee aged about 39 years, son of Ajit Mukherjee,
           resident of village Sindurpur, P.O. Baliapur, P.S. Baliapur, District-
           Dhanbad, Jharkhand
           4. Subhasish Pandey @ Subhashish Pandey, aged about 52 years,
           son of Sudhanshu Pandey, resident of village Sindurpur, P.O.
           Baliapur, P.S. Baliapur, District-Dhanbad, Jharkhand
           5. Mukesh Kumar Pandey, aged about 34 years, son of Gora
           Chand Pandey, resident of village Sindurpur, P.O. Baliapur, P.S.
           Baliapur, District-Dhanbad, Jharkhand
                                                          ..... Appellants
                           Versus
      1.The State of Jharkhand
      2. Budhani Manjhiain, wife of Sarveshwar Hembrom, resident of
      Shaharpura, K-1 Basti, Sindri, P.O. Shharpura, P.S. Sindri, District-
      Dhanbad, Jharkhand
                                                 ...... Respondents

                                     ----

CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Appellant(s) :- Mr. Indrajit Sinha, Advocate For the State :- Mrs. Priya Shrestha, Spl. P.P. For the Resp. No.2 : Mr. Niranjan Singh, Adovocate ...............

10/16.10.2024 Heard learned counsel for the appellants, learned counsel for the State and learned counsel for the respondent no.2.

2. The present appeal has been preferred against the order dated 23.12.2023 passed in M.C.A. No. 4312 of 2023 by the learned Additional Sessions Judge-I, Dhanbad in connection with SC/ST Case No. 70 of 2020 arising out of Baliapur P.S. Case No. 156 of 2020 registered under sections 420, 467, 468, 471/120-B/34 of I.P.C. and under section 3 (1) (ii), 3 (1) (iii), 3 (1) (iv) SC/ST (Prevention of Atrocities) Act whereby the prayer for grant of anticipatory bail, has been rejected pending in that Court.

3. Learned counsel for the appellants submits that earlier

the appellants have moved in Cr.M.P. No. 2376 of 2021 and Cr.M.P. No. 2384 of 2021 and by order dated 29.11.2021 so far F.I.R. under sections 420, 467, 468, 471 of I.P.C. is concerned that has already been quashed by the Coordinate Bench however F.I.R under SC/ST (Prevention of Atrocities) Act was directed to be maintained. He submits that now chargesheet has been submitted and cognizance has been taken under sections 3 (1) (f), 3 (1) (g) SC/ST Act against the appellants. He further submits that during course of investigation the appellants were not arrested by the police and now the Court is calling upon the appellants. He draws the attention of the Court to the contents of the F.I.R and submits that there is land dispute between the parties for that maliciously the present case has been filed against the appellants. He further submits that the case of the appellant is coming in the light of para 41 and 61 of the judgment of the Hon'ble Supreme Court in the case of Shajan Skaria V. State of Kerala" 2024 SCC Online SC 2249. He further submits that no word has been uttered in public view.

4. Learned counsel for the State drawing the attention of the Court to the impugned order submits that learned court has rightly rejected the petition relying on judgment of this Court passed in Cr.M.P. No. 2376 of 2021 and Cr.M.P. No. 2384 of 2021.

5. Learned counsel for the respondent no.2 opposes the prayer on the ground that earlier Cr.M.P. No. 2376 of 2021 and Cr.M.P. No. 2384 of 2021 were allowed only to the extent of I.P.C. sections and SC/ST (Prevention of Atrocities ) Act was directed to be maintained. He further submits that in the light of section 18 of SC/ST (Prevention of Atrocities) Act anticipatory bail is not maintainable. He submits that allegations are there that is why the learned court has passed impugned order. He further submits that there is no civil suit pending between the parties.

6. It is an admitted position that that appellants have moved Cr.M.P. No. 2376 of 2021 and Cr.M.P. No. 2384 of 2021 and by order dated 29.11.2021 so far F.I.R. under sections 420, 467, 468, 471 of I.P.C. is concerned that has been quashed by the

Coordinate Bench however F.I.R under SC/ST (Prevention of Atrocities) Act was directed to be maintained. The police has submitted chargesheet and the learned court has taken cognizance. Thus, it is clear that police has not arrested the appellants under section 41-A of the Cr.P.C. and if such a situation is there , para 41 of Shajan Skaria (supra) is helping the appellants. Para 41 of the of the said judgement reads as under:-

"41. It is clear from the aforesaid discussion that Section 18 of the At 1989 does not impose an absolute fetter on the power of the courts to examine whether a prima facie case attracting the provisions of the Act, 1989 is made out or not. As discussed, Section 18 stipulates that in any case which involves the arrest of any person on the accusation of having committed an offence under the Act, 1989, the benefit of anticipatory bail under Section 438 of CrPC would not be available to the accused. We have deliberated on the significance of the expression "arrest of any person"

appearing in the text of Section 18 of the Act, 1989 and are of the view that Section 18 bars the remedy of anticipatory bail only in those cases where a valid arrest of the accused person can be made as per Section 41 read with Section-60A-of Cr.P.C."

7. In the complaint petition there is allegation with regard to land. Further khata number has been disclosed in the complaint petition itself which clearly suggests that there is dispute with regard to land between the parties and if such a situation is there the case of the appellants is covered with " Hitesh Verma Vs. State of Uttarakhand" reported in 2020 10 SCC 710,.

8. In para 61 of Shajan Skaria (supra) it has been held that not every intentional insult or intimidation of a member of a SC/ST community will result into a feeling of caste-based humiliation. Para 61 of the ShajanSkaria (supra) reads as under :

"61. The words "with intent to humiliate" as they appear in the text Section 3(1)(r) of the Act, 1989 are inextricably linked to the caste Identity of the person who is subjected to intentional insult or Intimidation. Not every Intentional insult or intimidation of a member of a SC/ST community will result into a feeling of caste-based humiliation. It is only in those cases where the intentional insult or intimidation takes place either due to the prevailing practice of

untouchability or to reinforce the historically entrenched ideas like the superiority of the "upper castes" over the "lower castes/untouchables", the notions of 'purity' and 'pollution', etc. that it could be said to be an insult or Intimidation of the type envisaged by the Act, 1989"

9. In view of above facts, reasons and analysis, I am inclined to grant anticipatory bail to the appellants.

10. Accordingly, the above named appellants are directed to surrender before the learned Court within three weeks from today and in the event of their surrender / arrest, the appellants shall be released on bail, on furnishing bail bonds of Rs. 25,000/- (twenty five thousand) each with two sureties of the like amount each, to the satisfaction of the learned Additional Sessions Judge-I, Dhanbad in connection with SC/ST Case No. 70 of 2020 arising out of Baliapur P.S. Case No. 156 of 2020, subject to conditions that the appellants shall not, directly or indirectly, make any inducement, threat undue influence to the prosecution witnesses and the appellants shall appear before the trial court on each and every date given to them by the said Court till disposal of the trial.

11. This appeal is allowed and disposed of and the impugned order dated 23.12.2023 passed in M.C.A. No. 4312 of 2023 by the learned Additional Sessions Judge-I, Dhanbad in connection with SC/ST Case No. 70 of 2020 arising out of Baliapur P.S. Case No. 156 of 2020, is hereby set aside.

( Sanjay Kumar Dwivedi, J) Satyarthi/A.F.R.