Madhya Pradesh High Court
Preem Chand vs The State Of Madhya Pradesh on 28 May, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE PRAMOD KUMAR AGRAWAL
ON THE 28 th OF MAY, 2024
CRIMINAL APPEAL No. 4991 of 2024
BETWEEN:-
1. PREEM CHAND S/O SHRI KEDARNATH
CHATURVEDI, AGED ABOUT 65 YEARS,
OCCUPATION: AGRICULTURIST R/O VILLAGE
RITHOULI P.S. KALINJER DISTRICT BAND
(UTTAR PRADESH)
2. SMT. MUNNI DEVI W/O SHRI PREEM CHAND,
AGED ABOUT 55 YEARS, OCCUPATION: HOUSE
WIFE R/O VILLAGE RITHOULI, P.S. KALINJER
DISTRICT BANDA (UTTAR PRADESH)
3. PRADEEP KUMAR S/O SHRI PREEM CHAND,
AGED ABOUT 32 YEARS, OCCUPATION: PRIVATE
JOB R/O VILLAGE RITHOULI, P.S. KALINJER
DISTRICT BANDA (UTTAR PRADESH)
4. RAKESH KUMAR S/O SHRI PREEM CHAND, AGED
ABOUT 34 YEARS, OCCUPATION: AGRICULTURIST
R/O VILLAGE RITHOULI, P.S. KALINJER DISTRICT
BANDA (UTTAR PRADESH)
.....APPELLANTS
(BY SHRI AAKARSH SHARMA - ADVOCATE )
AND
THE STATE OF MADHYA PRADESH THROUGH POLICE
STATION GOHALPUR DISTRICT JABALPUR (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI C.K. MISHRA - GOVERNMENT ADVCAOTE )
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This is the first criminal appeal filed on behalf of the appellants under
Section 14-A of Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 for grant of anticipatory bail against order dated
12.04.2024 passed by Special Judge, SC & ST (Prevention of Atrocities) Act,
Jabalpur (M.P.) passed in B.A. No. 969/2024.
2. Appellants are apprehending their arrest in connection with FIR
No.179/2024, registered at Police Station - Gohalpur, District Jabalpur (M.P.)
for the offences punishable under Sections 342, 346(d), 316, 323, 504, 506 of
IPC and under Section 3(2)(v-a) of Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989.
3. As per prosecution story, earlier prosecutrix lodged the report alleging
that accused Amit @ Angad Chaturvedi committed rape on the false pretext of
marriage. Crime No.127/2022 was registered against Amit and his parents (who
are father-in-law, mother-in-law and brothers-in-law in the present case). In the
aforesaid crime number, statements of prosecutrix was recorded wherein she
told that accused Amit has married her. On the basis of which, High Court of
Allahabad by order dated 09.09.2022 passed in W.P. No.12756 of 2022 has
quashed the FIR and consequential proceedings. Thereafter, prosecutrix, her
husband and her husband's friend were living at Jabalpur. One day, when her
husband went outside the home then in his absence, co-accused Sourabh
Tiwari committed rape upon the prosecutrix. When her husband Amit came
back home, prosecutrix narrated the incident to him. Thereafter, her husband
and his friend told her that we both will commit rape and then they forcibly
committed rape upon her many times. Thereafter, prosecutrix made a telephonic
call to her father-in-law, mother-in-law and brothers-in-law, who live in village
Ritholi, District Banda (U.P.) and complained them about the incident.
Thereafter, her father-in-law, mother-in-law and brothers-in-law abused her
using caste remark on phone. Thereafter she lodged written complaint at
Kalinzer, District Banda for the offence punishable under Sections 342, 346(d),
316, 323, 504, 506 of IPC and 3(2)(v-a) of SC/ST Act, thereafter matter was
transferred to police station Gohalpur, District Jabalpur.
4. It is submitted by learned counsel for the appellants that even before
this incident, prosecutrix lodged one more report against her husband and her
father-in-law and mother-in-law vide Crime No.127/2022 at police station
Kalinzer, District Banda for the offence punishable u/S.452, 376, 504,506 of
IPC and 3(2)(v) of SC/ST Act, which is almost similar to the present FIR, and
the said FIR registered at Crime No.127/2022 has been quashed by High Court
of Allahabad by order dated 09.09.2022 in W.P. No.12756 of 2022. Thereafter,
prosecutrix lodged this second FIR against the present appellants. It is further
submitted that present appellants do not reside at Jabalpur. They reside at
village Ritholi, District Banda. There is no allegation against the present
appellants regarding sexual assault. They have been falsely implicated in the
present case. They have not abused her using caste remark on mobile phone. It
is further submitted if conversation has been made on telephone then it will not
be within public view and office under the SC/ST Act is not made out. Now,
police want to arrest the appellants. It is further submitted that his case under
extraordinary situation and in these matter application for anticipatory bail is
maintainable.
5. Learned counsel for the State has opposed the prayer for grant of
anticipatory bail to the appellant.
6. A preliminary objection is raised by the State Counsel to the
effect that one of the offences alleged being Section 3 of the SC &
ST (PA) Act, the anticipatory bail application is not maintainable in view
of the bar under Section 18 and 18-A of the said Act.
7. On the point of maintainability, learned counsel for the
appellants, has relied upon the decisions of the Supreme Court in the
case Ramesh Chandra Vaishya vs. State of Uttar Pradesh and Another,
reported in 2023 SCC OnLine SC 668; Prathvi Raj Chauhan vs. Union of
India and others, reported in (2020) 4 SCC 727; and the decision of this
Court in the case of Dharani Pradhan v. State of Orissa, reported in
2014(II) OLR 720. Mr. Jaggi has also relied upon a decision of the
Madras High Court in the case of S. Ariharan and Ors. vs. The Inspector of
Police, Thirumangalam, reported in 2020 CriLJ1580, Dr. Satyendra Kumar
Verma Vs. State of Odisha and another, ABLAPL No. 50/2024 and Mahesh
Vs. State of M.P. passed in Cr.A. No. 2391/2022.
8. As regards the maintainability of the application under Section
438 of Cr.P.C., there is no dispute that Section 18 & 18-A of SC &
ST (PA) Act place bar for entertaining application under Section 438 of
Cr.P.C. The provisions are quoted hereinbelow for immediate reference.
"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 provisions 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."
9. Thus, ordinarily, an application under Section 438 of Cr.P.C.
would not be maintainable where the offence under Section 3 of the SC & ST
Act is involved. However, the provision has been interpreted by the
Supreme Court to imply that the bar operates only when the offence
under Section 3 of the SC & ST (PA) Act is, prima facie, made out but where
opposite is the situation i.e., the offence under SC & ST (PA) Act is not,
prima facie, made out, the bar in the provision under Section 18 and 18-A of
the SC & ST (PA) Act would not operate. In the case of Prathvi Raj
Chauhan (supra) it was held as follows:
" 3 2 . As far as the provision of Section 18-A and anticipatory bail is
concerned, the judgment of Mishra, J. has stated that in cases where no prima
facie materials exist warranting arrest in a complaint, the court has the inherent
power to direct a pre-arrest bail.
33. ............. while considering any application seeking pre-arrest bail,
the High Court has to balance the two interests : i.e. that the power is not so
used as to convert the jurisdiction into that under Section 438 of the Criminal
Procedure Code, but that it is used sparingly and such orders made in very
exceptional cases where no prima facie offence is made out as shown in the FIR, and
further also that if such orders are not made in those classes of cases, the result
would inevitably be a miscarriage of justice or abuse of process of law. I consider
such stringent terms, otherwise contrary to the philosophy of bail, absolutely
essential, because a liberal use of the power to grant pre-arrest bail would defeat
the intention of Parliament."
10. Having regard to the principles laid down in the case laws
discussed hereinbefore this Court is also of the same view that there is
no absolute bar against grant of anticipatory bail in cases under the SC
& ST (PA) Act particularly when, the offences alleged to have been
committed under the said Act are, prima facie, not made out.
11. In the present case, at the time of incident, present appellants were
not residing at Jabalpur, they were residing at village Ritholi, District Banda
(U.P.). As per the prosecution case, conversation with the prosecutrix has been
made on telephone, therefore, in the facts and circumstance of the present case
and in the light of G.P. Hemakoti Reddy, Ananthapur Dist. Vs. P.P. HYD,
offence under Section 3(2)(v-a) of Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 is prima facie not made out against the
present appellants.
12. Considering the aforesaid circumstances, criminal appeal filed by
appellants is allowed. It is directed that in the event of arrest of appellants, they
shall be released o n bail on furnishing a personal bond in the sum of
Rs.50,000/- (Rupees Fifty Thousand only) each with one surety in the like
amount to the satisfaction of the Arresting officer (Investigating Officer) for
their regular appearance before the Police during the investigation or before the
Court during trial.
13. The appellants are directed to join the investigation immediately and
co-operate with the investigating agency. They will further abide by the
conditions enumerated in sub-section (2) of Section 438 of the Cr.P.C.
14. It is made clear that any opinion expressed by this Court in aforesaid
order, will not affect the merits of the case.
15. Certified copy as per rules.
(PRAMOD KUMAR AGRAWAL)
JUDGE
Sateesh
