Jharkhand High Court
Ganesh Sao @ Ganesh Kumar Sao @ Ganesh Sao vs The State Of Jharkhand on 26 September, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 194 of 2024
1. Ganesh Sao @ Ganesh Kumar Sao @ Ganesh Sao, aged about 48
years, son of Late Gudan Sao
2. Dharmendra Sao @ Dharmendra Saw @ Dharmendra Kumar, aged
about 22 years, Son of Ganesh Sao @ Ganesh Kumar Sao
3. Bhola Sao @ Santosh Kumar @ Santosh Kumar Gupta, aged about 42
years, son of Late Kishun Sao
All resident of village Kutumsukri, P.O. & P.S. Ichak, District-
Hazaribag, Jharkhand ... Appellants
-Versus-
1. The State of Jharkhand
2. Hema Devi, wife of Late Vinod Rajjak, resident of village Kutumsukri,
P.O. & P.S. Ichak, District- Hazaribag, Jharkhand ... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Appellants : Mr. Lalan Kumar Singh, Advocate
For the State : Mr. Arup Kumar Dey, A.P.P.
For Respondent No.2 : Ms. Malsi Pathak, Advocate
Mr. Rohit Ranjan Singh, Advocate
Mr. Amritansh Vats, Amicus Curiae
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07/26.09.2024 Heard Mr. Lalan Kumar Singh, learned counsel appearing for the
appellants, Mr. Arup Kumar Dey, learned counsel appearing for the State
and Ms. Malsi Pathak, learned counsel appearing for respondent no.2 and
Mr. Amritansh Vats, learned Amicus Curiae appearing for respondent no.2,
who was appointed by the Coordinate Bench vide order dated 22.07.2024.
2. This appeal is directed against the order dated 06.03.2024 passed in
A.B.P. No.351/2024 by the learned Additional Sessions Judge-VI, Hazaribag
in connection with Ichak P.S. Case No.154/2023, registered under Sections
323, 354, 379, 452, 506 of the Indian Penal Code read with Section 3(i)(c),
3(1)(v), 3(1)(x) of SC/ST Act, pending in the Court of the learned Special
Judge, SC/ST Act, Hazaribag.
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3. Mr. Lalan Kumar Singh, learned counsel appearing for the appellant
submits that there is land dispute for that Title Suit No.115/2021 is pending
before the Civil Judge, Junior Division-I, Hazaribag with regard to Khata
No.3, Plot No.640, total area 9 decimals and Plot No.714, total area 61
decimals in which the appellant nos. 1 and 3 are the defendant Nos. 4 and
5 and since 2021, there is a land dispute between the parties and,
therefore, the present case has been filed only to take revenge and harass
the appellants. He further submits that once proceeding under Section 144
Cr.P.C. was also initiated being Misc. Case No.183/2021 against appellant
nos. 1 and 3 with regard to the same Khata, which was also the subject
matter in the said title suit. He submits that in view of that, prima facie case
not not made out under SC/ST Act and, therefore, this appeal is
maintainable.
4. Mr. Arup Kumar Dey, learned counsel appearing for the State opposed
the prayer on the ground that the allegations are there.
5. Ms. Malsi Pathak, learned counsel appearing for respondent no.2 by
way of drawing attention of the Court to the contents of the complaint and
submits that the allegations are there of using filthy language and in view of
that, this appeal may kindly be dismissed.
6. Mr. Amritansh Vats, learned Amicus Curiae submits that under the
SC/ST Act, if prima facie case is made out, anticipatory bail is not
maintainable, however, if the case is lodged maliciously, anticipatory bail can
be granted. He relied upon the judgment passed by the Hon'ble Supreme
Court in the case of Shajan Skaria v. State of Kerala and another ,
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reported in 2024 SCC OnLine SC 2249. He refers paragraph 38 of the
said judgment, which reads as under:
"38. It was observed by this Court that although Section
18 of the Act, 1989 creates a bar for invoking Section 438
of the CrPC yet the courts are entrusted with a duty to
verify the averments in the complaint and to find out
whether an offence under the Act, 1989 is prima facie
made out or not. It was further observed that while
considering the application for anticipatory bail, the scope
for appreciation of evidence and other material is limited
and the courts are not expected to undertake an intricate
evidentiary inquiry of the materials on record. The relevant
observations are reproduced hereinbelow:
"9. Section 18 of the SC/ST Act creates a bar for
invoking Section 438 of the Code. However, a duty is
cast on the court to verify the averments in the
complaint and to find out whether an offence under
Section 3(1) of the SC/ST Act has been prima facie
made out. In other words, if there is a specific
averment in the complaint, namely, insult or
intimidation with intent to humiliate by calling with
caste name, the accused persons are not entitled to
anticipatory bail.
10. The scope of Section 18 of the SC/ST Act read
with Section 438 of the Code is such that it creates
a specific bar in the grant of anticipatory bail. When
an offence is registered against a person under the
provisions of the SC/ST Act, no Court shall entertain
application for anticipatory bail, unless it prima facie
finds that such an offence is not made out.
Moreover, while considering the application for bail,
scope for appreciation of evidence and other
material on record is limited. Court is not expected
to indulge in critical analysis of the evidence on
record. When a provision has been enacted in the
Special Act to protect the persons who belong to the
Scheduled Castes and the Scheduled Tribes and a
bar has been imposed in granting bail under Section
438 of the Code, the provision in the Special Act
cannot be easily brushed aside by elaborate
discussion on the evidence."
(Emphasis supplied)"
Relying on the above judgment, he submits that it is open to the
Court to consider as to whether prima facie case under the SC/ST Act is
made out or not.
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7. In view of the above submissions of the learned counsel for the
parties, the Court has gone through the contents of the complaint and finds
that in paragraph 10 it is disclosed that there is dispute between the parties
with regard to the land. For the land in question, one title suit is also
pending and further, one proceeding under Section 144 Cr.P.C. was also
initiated. Thus, prima facie it appears that maliciously the case has been
lodged under the SC/ST Act and if such a situation is there in the case in
hand, the judgment passed by the Hon'ble Supreme Court in the case of
Hitesh Verma v. State of Uttrakhand, reported in (2020) 8 SCC 770
is attracted. Paragraphs 18 and 19 of the said judgment read as under:
"18. Therefore, offence under the Act is not established
merely on the fact that the informant is a member of
Scheduled Caste unless there is an intention to humiliate a
member of Scheduled Caste or Scheduled Tribe for the
reason that the victim belongs to such caste. In the
present case, the parties are litigating over possession of
the land. The allegation of hurling of abuses is against a
person who claims title over the property. If such person
happens to be a Scheduled Caste, the offence under
Section 3(1)(r) of the Act is not made out.
19. This Court in a judgment reported as Subhash
Kashinath Mahajan v. State of Maharashtra issued certain
directions in respect of investigations required to be
conducted under the Act. In a review filed by the Union
against the said judgment, this Court in a judgment
reported as Union of India v. State of Maharashtra
reviewed the directions issued by this Court and held that
if there is a false and unsubstantiated FIR, the proceedings
under Section 482 of the Code can be invoked. The Court
held as under: (Union of India case, SCC p. 797, para 52)
"52. There is no presumption that the members of
the Scheduled Castes and Scheduled Tribes may
misuse the provisions of law as a class and it is not
resorted to by the members of the upper castes or
the members of the elite class. For lodging a false
report, it cannot be said that the caste of a person is
the cause. It is due to the human failing and not
due to the caste factor. Caste is not attributable to
such an act. On the other hand, members of the
Scheduled Castes and Scheduled Tribes due to
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backwardness hardly muster the courage to lodge
even a first information report, much less, a false
one. In case it is found to be false/unsubstantiated,
it may be due to the faulty investigation or for other
various reasons including human failings irrespective
of caste factor. There may be certain cases which
may be false that can be a ground for interference
by the Court, but the law cannot be changed due to
such misuse. In such a situation, it can be taken
care of in proceeding under Section 482 CrPC."
8. On perusal of the complaint, it transpires that the case was filed
stating therein about some dispute with regard to land. It appears that no
ingredient under Section 3(s) of the Act has been disclosed in the complaint
and it has also not been disclosed that it was in 'public view' and in the
complaint, it is disclosed that there is dispute with regard to the land and,
as such, I am inclined to provide privilege of anticipatory bail to the
petitioners.
9. In view of the above facts, reasons and analysis, the order dated
06.03.2024 passed in A.B.P. No.351/2024 by the learned Additional Sessions
Judge-VI, Hazaribag in connection with Ichak P.S. Case No.154/2023,
pending in the Court of the learned Special Judge, SC/ST Act, Hazaribag is,
hereby, quashed. Accordingly, the appellants, above named, are hereby
directed to surrender before the learned Court within three weeks from
today, and in the event of their surrender/arrest, the appellants, above
named, shall be released on bail, on furnishing bail bond of Rs.25,000/-
(Rupees Twenty Five Thousand) each, with two sureties of the like amount
each, to the satisfaction of learned Special Judge, SC/ST Act, Hazaribagh in
connection with Ichak P.S. Case No.154/2023, subject to the following
conditions:
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(i) The appellants shall not, directly or indirectly, make any
inducement, threat undue influence to the prosecution witnesses;
and
(ii) 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.
10. This appeal is, therefore, allowed in above terms and disposed of.
(Sanjay Kumar Dwivedi, J.)
Ajay/ A.F.R.
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