Smt. Kamla Gupta vs The State Of Madhya Pradesh
2021 Latest Caselaw 8846 MP

                                                                        1                             CRA-6842-2021
                                             The High Court Of Madhya Pradesh
                                                      CRA No. 6842 of 2021
                                               (SMT. KAMLA GUPTA Vs THE STATE OF MADHYA PRADESH AND OTHERS)


                                     Jabalpur, Dated : 15-12-2021
                                           Shri Manoj Kumar Mishra, learned counsel for the appellant.

                                           Shri Amit Pandey, learned panel lawyer for the respondent/State.

Shri Arvind Singh, learned counsel for the respondent No.2. The present appeal has been filed under Section 14-A (1 & 2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

(for brevity 'the Act') against the order dated 29.10.2021 passed by Special Judge, (SC/ST) Act, Chhatarpur (MP), whereby the application of the appellant under Section 438 of Cr.P.C. seeking bail has been rejected.

Appellant is apprehending her arrest in connection with Crime No.366/2021 registered at Police Station- Lavkush Nagar, District Chhatarpur (MP) for the offence punishable under Sections 504 of Indian Penal Code and Sections 3(1) (D), 3 (1) (Za) & (d) of the SC/ST (Prevention of Atrocities) Act.

It is submitted that she is a lady aged about 51 years and is roped up in

the case on false allegations. No case under SC/ST (Prevention of Atrocities) Act is made out against the present applicant.

As per the prosecution story the only allegation against the applicant is that she has stopped the children of the complainant from entering into the temple premises as they belong to a lower community. No abusive language has been used by the present applicant. She is ready to abide by all the terms and conditions that may be imposed by this Court while considering the application for grant of anticipatory bail. It is submitted that she is a chronic heart patient and has undergone a by-pass surgery in 2017 and is under continuous treatment. He has placed reliance upon the judgment passed by the High Court of Gujarat at Ahmedabad in Criminal Appeal No.26/2019 [Dinesh Bhai Ambabhai Dabhi Vs. State of Gujarat and others]wherein in almost identical circumstances, the application under Section 438 was Signature Not Verified SAN

Digitally signed by ANINDYA SUNDAR MUKHOPADHYAY Date: 2021.12.17 17:35:16 IST 2 CRA-6842-2021 entertained and allowed. He has further placed reliance on the orders passed by this Court in the case of Surendra Singh Rajput Vs. The State of M.P. and others [Criminal Appeal No.5559/2021] decided on 29.10.2021 wherein considering the judgment passed by the Supreme Court in the case of Prithvi Raj Chauhan Vs. Union of India passed in Writ Petition No.1015/2018 as

well as in the case of Man Singh Dhaka Vs. The State of Madhya Pradesh [Criminal Appeal No.3920/2019] decided on 10.05.2019 wherein the benefit of the Supreme Court judgment in the case of Arnesh Kumar Vs. State of Bihar reported in (2014) 8 SCC 273 was extended to the applicant. She prays for similar relief being extended to her. The incident is said to have taken place on 07.10.2021 and the report of which was made on 14.10.2021 without their being any proper explanation for the same.

Counsel appearing for the State as well as counsel appearing for the respondent No.2 has vehemently opposed the application stating that there are specific allegations against the present applicant for commission of offence. It is contended by the respondent's counsel that the applicant has used the words attracting the provisions of SC/ST (Prevention of Atrocities) Act and has stopped the daughters of the complainant from entering into the temple premises. It is further pointed out by the State counsel that the looking to the words used by the applicant in the FIR the case clearly falls under the category of SC/ST Act. There is specific bar under Section 18 of the SC/ST Act for entertaining the application for grant of anticipatory bail.

Counsel appearing for the complainant has further objected for consideration of the application explaining the delay to the extend that the complainant was out of town as he was the driver on duty and as soon as he returned back, the story was narrated by his daughters and thereafter, the complaint was immediately lodged. In such circumstances, there is no delay in lodging the complaint against the applicant.

Heard the learned counsel for the parties and perused the record.

Signature Not Verified From the perusal of the record, it is seen that allegations against the SAN

Digitally signed by ANINDYA SUNDAR MUKHOPADHYAY Date: 2021.12.17 17:35:16 IST 3 CRA-6842-2021 present applicant is that she has used abusive language and has stopped the children of the complainant from entering into the temple premises for doing worship. The aforesaid aspect was considered by the Gujarat High Court and it was observed as under :-

"Having considered the facts of the case and submissions made by learned advocates for the respective parties as well as learned APP for the respondent -State and affidavit filed by the Investigating Officer before the Sessions Court as well as affidavit of the present appellant filed before the Sessions Court, it appears that on 28th October, 2018 the alleged offence was committed. That, the complainant visited temple along with his elder brother Kanjibhai Ambabhai Dabhi at Vihodar

village at 12.00 p.m . They entered into temple, at that time, respondent No2. inquired them whether they were Thakore community? On reply received from the complainant that they were from the Scheduled Caste and Scheduled Tribes. Respondent No.2 was annoyed and informed that why they are entered into temple and they should leave the temple.

On request being made by respondent No.2, they visited the temple for prayer. Respondent No.2 was annoyed and certain abusive language was used by him as the complainant insisted for prayer, he was prevented to offer prasad. He was prevented to make prayer into the temple. It was said by respondent No.2- accused that you would not permit for prayer as they were R/CR.A/26/2019 ORDER from SC & ST community and therefore, complainant and his brother made prayer out of the temple. That, Investigating Officer before the Sessions Court has stated that while complainant visited for prayer in the temple, respondent No.2 inquired their caste and made some abusive language and insulted by threatening him to commit murder. That, present appellant in his affidavit before the Sessions Court has raised his grievance. However, the complaint was given on 28th October, 2018, accused was not arrested by police nor any action was taken against him Signature Not Verified SAN

Digitally signed by ANINDYA SUNDAR MUKHOPADHYAY Date: 2021.12.17 17:35:16 IST 4 CRA-6842-2021 as well as any investigation was carried out . Now, so far as other allegations made in the complaint, they are general allegations that accused used filthy language against the complainant . It is nowhere alleged in the complaint that respondent No.2 -accused was aware that by using such words can be said to be filthy language against complainant or his community."

The Supreme Court in the case of Arnesh Kumar (supra) has held as under :-

"7.1. From a plain reading of the provision u/S.41 Cr.P.C., it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts.

7.2. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, Signature Not Verified SAN while making such arrest. The law further requires the police Digitally signed by ANINDYA SUNDAR MUKHOPADHYAY Date: 2021.12.17 17:35:16 IST 5 CRA-6842-2021 officers to record the reasons in writing for not making the arrest.

7.3. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required ? What purpose it will serve ? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. Before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by subclauses (a) to (e) of clause (1) of Section 41 Cr.P.C.

9 . Another provision i.e. Section 41-A Cr.P.C. Aimed to avoid unnecessary arrest or threat of arrest looming large on the accused requires to be vitalized. This provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1)Cr.P.C., the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further

mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.P.C. has to be complied and shall be subject to the same scrutiny by he Magistrate as aforesaid."

Signature Not Verified SAN It is seen that the maximum punishment is less than seven years in the Digitally signed by ANINDYA SUNDAR MUKHOPADHYAY Date: 2021.12.17 17:35:16 IST 6 CRA-6842-2021 aforesaid offence, therefore, without commenting upon the merits of the case, this Court deems it appropriate to dispose of this appeal in the light of Arnesh Kumar (supra).

(VISHAL MISHRA) JUDGE

AM

Signature Not Verified SAN

Digitally signed by ANINDYA SUNDAR MUKHOPADHYAY Date: 2021.12.17 17:35:16 IST