Madhya Pradesh High Court
Santoshbai vs The State Of Madhya Pradesh on 2 August, 2024
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
1 CRA-7748-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
ON THE 2 nd OF AUGUST, 2024
CRIMINAL APPEAL No. 7748 of 2024
SANTOSHBAI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Manu Maheshwari and Ms.Agreema Sanghai, learned counsel for
the appellant.
Shri Anand Bhatt, learned GA for State.
Shri Vinay Joshi, learned counsel for the Respondent [R-2].
ORDER
The present appeal filed by the appellant under section 14-A(2) of the
SC/ST (Prevention of Atrocities) Act, 1989 for grant of anticipatory bail in
connection with Crime No.215/2023, registered at Police Station-Nalkheda,
District-Agar Malwa (MP) for the offence under Sections 420, 467, 468,
471,120-B,406,294,506,419 of IPC, 1860 and Section 3(1)(r), 3(1)(f), 3(1)
(s), 3(2)(v),3(2)(va) of Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities Act) Act 1989 (hereinafter referred as " of the
Act").
2. This appeal has been filed against the order dated 8.6.2024, passed
by Special Judge SC/ST(PA), Agar Malwa, whereby learned Special Judge
rejected the bail application of appellant with finding that there is prima facie
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case against the appellant punishable under the offences.
3. Learned counsel for the appellant submitted that the appellant is
innocent and has falsely been implicated in the case. As per prosecution, the
Complainant has filed civil suit against the appellant and others. The said
civil Suit was dismissed by the learned Trail Court. Thereafter, the
complainant has filed an appeal which was also dismissed by the learned
Appellate Court. Thereafter, the present FIR is filed as a counter blast. It is
alleged that the said land has been purchased by the appellant through
registered sale deed from a person whose name is Harlal. As per
prosecution case, Harlal is the person from whom the land has been
purchased but he has already expired before this registered deed. It is
alleged that registered deed was executed by another person and the cheating
and forgery by impersonation was committed by present appellant.
However, such allegations were not proved by the complainant before the
learned Civil Court and Civil Suit was dismissed. It is submitted that in this
case co-accused Kaluram has been granted bail by this Court in CRA No.
5699/2020. Hence, counsel for appellant requested for anticipatory bail.
4. Learned counsel for the State as well as complainant opposed the
appeal and submitted that since this is an anticipatory bail under Section
SC/ST (POA) Act, hence, it is not maintainable under the provisions of
Sections 18 and 18-A of the SC/ST (POA) Act and therefore, the appeal
should be rejected on the basis of maintainability.
5. In reply, counsel for the appellant relied upon the judgment passed
by Hon'ble Supreme Court in the case of Dr. Subhash Kashinath Mahajan vs.
3 CRA-7748-2024
State of Maharashtra, reported in (2018)6 SCC 454 and the case of Prathvi
Raj Chauhan vs. Union of India, reported in 2020 2 SCC Online SC 159 in
support of his submissions. It is submitted that there is nothing on record by
which it can be assumed that the offence was committed and only because
the complainant is belonging to scheduled castes and scheduled tribes, the
prima facie case cannot be made out.
6. Before considering rival submissions of both the parties, the
provision of Section 18 and 18-A of the Act is worth to refer here.
" 18. Section 438 of the Code not to apply to persons committing an
offence under the Act.--Nothing in section 438 of the Code shall apply in
relation to any case involving the arrest of any person on an accusation of
having committed an offence under this Act.
18-A No enquiry or approval required (1) For the purposes of this Act,
--(a)preliminary enquiry shall not be required for registration of a First
Information Report against any person; or
(b)the investigating officer shall not require approval for the arrest, if
necessary, of any person, against whom an accusation of having committed
an offence under this Act has been made and no procedure other than that
provided under this Act or the Code shall apply.
.(2). The provision of Section 438 of the Code shall not apply to a case
under this Act, notwithstanding any judgment or order or direction of any
Court. "
7. The learned counsel for appellant has emphatically placed his
reliance on Subhash Kashinath Mahajan (supra). However, it emerged that
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actually Section 18-A of the Act has been enacted only to nullify the
judgment of Dr. Subhash Kashinath Mahajan (supra) . On this aspect the
initial lines of para No. 2 of Prithviraj Chauhan (supra) is worth referring
here:-
"2. It is submitted that Section 18-A has been enacted
to nullify the judgment of this Court in Subhash (supra)
in which the following directions were issued.."
8. On this aspect, in Prithviraj Chauhan (supra), the Hon'ble Apex
Court after considering the law laid down in the case of Shakuntala Devi Vs.
Baljinder Singh (2014) 15 SCC 521, Dr. Subhash Kashinath Mahajan
(supra) viewed as under:-
" 9. The section 18A(i) was
inserted owing to the decision of
this Court in Dr. Subhash
Kashinath (supra), which made it
necessary to obtain the approval of
the appointing authority
concerning a public servant and the
SSP in the case of arrest of
accused persons. This Court has
also recalled that direction on
Review Petition (Crl.) No.228 of
2018 decided on 1.10.2019. Thus,
the provisions which have been
made in section 18A are rendered
of academic use as they were
enacted to take care of mandate
issued in Dr. Subhash Kashinath
(supra) which no more prevails.
The provisions were already in
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section 18 of the Act with respect
to anticipatory bail.
10. Concerning the applicability of
provisions of section 438 Cr.PC, it
shall not apply to the cases under
Act of 1989. However, if the
complaint does not make out a
prima facie case for applicability
of the provisions of the Act of
1989, the bar created by section 18
and 18A (i) shall not apply. We
have clarified this aspect while
deciding the review petitions.
11. The court can, in exceptional
cases, exercise power under
section 482 Cr.PC for quashing the
cases to prevent misuse of
provisions on settled parameters,
as already observed while deciding
the review petitions. The legal
position is clear, and no argument
to the contrary has been raised.
12. The challenge to the provisions
has been rendered academic. In
view of the aforesaid clarifications,
we dispose of the petitions."
9. In view of the aforesaid law laid down by the Hon'ble Apex Court
in Prathviraj Chohan( Supra), it is clearly evinced that only in those cases
where the prima facie case is not made out, the rigour of Section 18 and 18-
A of the Act can be eschewed. In view of that, the matter has been
pondered. As per the FIR and the statements of complainant party, at this
stage, this Court is of the considered opinion that there is no reasonable
ground to reach at the conclusion that there is no prima facie case against
6 CRA-7748-2024
the appellant. As per the available documents in case diary, sale deed was
executed in favour of the appellant herself by a dead person, therefore, it
cannot be gainsaid that there is a prima facie case made out against the
appellant. So far as bail granted by this Court to co-accused Kaluram is
concerned, it was a regular bail filed under Section 439 of CrPC and in that
case also it was not held that no prima facie case is made out against the co-
accused Kaluram.
10. In view of the aforesaid deliberations, since, there is a prima facie
case under Sections 420, 467, 468, 471,120-B,406,294,506,419 of IPC, 1860
and Section 3(1)(r), 3(1)(f), 3(1)(s), 3(2)(v),3(2)(va) of SC/ST (POA) Act
1989. against the appellant is available, then the anticipatory bail cannot be
granted in favour of the appellant. Hence, the finding of learned Trial Court
is affirmed and the appeal is hereby dismissed.
11. It is directed that the learned Trial Court should not be influenced
by the observation of this Court passed in this appeal.
(PREM NARAYAN SINGH)
JUDGE
VD
