Brahma Shankar Yadav vs The State Of Bihar
2021 Latest Caselaw 67 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (SJ) No.1880 of 2020
        Arising Out of PS. Case No.-47 Year-2019 Thana- SC/ST District- Bhojpur
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Brahma Shankar Yadav S/o Late Benga Yadav R/o Village- Kajra, P.S.- Bahoranpur O.P., District- Bhojpur.

... ... Appellant Versus

The State of Bihar ... ... Respondent ====================================================== Appearance :

For the Appellant/s : Mr. Harsh Singh, Adv. For the Respondent/s : Mr. Binay Krishna, Spl. P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT Date : 07-01-2021

Heard learned counsel for the appellant and learned

Spl. P.P. for the State via video conferencing.

2. This appeal under Section 14A(2) of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act,

1989, (for short "the Act") has been preferred by the appellant

challenging the order dated 01.06.2020 passed in A.B.P. No. 546

of 2020 in connection with SC/ST P.S. Case No. 47 of 2019

registered for the offences punishable under Sections 323, 341,

337, 338, 504 and 506 read with 34 of the Indian Penal Code

and Sections 3(1)(r)(s) and 3(2)(va) of the SC/ST Act by the

learned 1st Addl. Sessions Judge-cum-Special Judge-SC/ST Act,

Bhojpur, Ara whereby he has rejected the appellant's prayer for

grant of pre-arrest bail.

Patna High Court CR. APP (SJ) No.1880 of 2020 dt.07-01-2021

3. The FIR has been instituted on 02.11.2019 on the

basis of written report of one Khaderan Gond. In the written

report, he has alleged that on 01.11.2019 at about 12:30 p.m.,

while he was getting centring of his house being constructed

under Indira Awas Yojna, the appellant along with co-accused

Arbind Yadav, Sanjeev Yadav and Lalmuni Devi came and got

the construction work stopped on the pretext that the same was

blocking thoroughfare to their house. Upon this, he told the

aforesaid persons that the way to their house was from the other

side which they should use as they had constructed their house

on their land and now he would not demolish his house to give

them way. The answer given by him caused annoyance to the

accused persons. They became angry and started abusing taking

his caste name Gond and when he asked them not to abuse, they

started assaulting him. On hearing altercation, his brother Rapati

Gond and nephew Sonu Gond and son Bhim Gond came to his

defence, they were also also assaulted by them with sticks and

bricks.

4. Learned counsel appearing for the appellant

submitted that the instant case is false and malicious and has

been lodged after due deliberation and concoction which shall

be manifest from the record. He contended that for an Patna High Court CR. APP (SJ) No.1880 of 2020 dt.07-01-2021

occurrence of 01.11.2019 at 12:30 p.m., the FIR was lodged

after 21 hours on 02.11.2019 at 09:30 a.m. He pleaded that the

FIR is counter blast of Bihiya P.S. Case No. 386 of 2019

instituted on 02.11.2019 under Sections 341, 323, 307, 379, 504,

506 and 188 read with 34 of the Indian Penal Code, wherein the

appellant is the informant and has alleged as to how the

informant's side came and assaulted him and his family

members and threatened him to implicate in a false case under

the Act. He further contended that the informant's side were

carrying on construction work notwithstanding prohibitory order

passed by the Sub Divisional Magistrate, Jagdishpur in Case

No. 227 of 2019. He next contended that the allegation of

hurling abuse by taking caste name Gond is also not specific in

the first information report against the appellant. In respect of

maintainability of the application, he has relied upon a judgment

of the Supreme Court passed in Cr. Appeal No. 416 of 2018

dated 20.03.2018 (Dr. Subhash Kashinath Mahajan Vs. The

State of Maharashtra and Anr.)

5. On the other hand, learned Spl. P.P. for the State

submitted that merely because there is land dispute between the

parties, it would not mean that an offence under the Act is not

made out. He contended that it is true that there is an omnibus Patna High Court CR. APP (SJ) No.1880 of 2020 dt.07-01-2021

allegation that the accused persons abused the informant by

taking his caste name, but the same would certainly attract the

ingredients of the offences under the Act for which the FIR has

been instituted.

6. I have heard the parties and perused the materials

on record. In Dr. Subhash Kashinath Mahajan (supra) the

Supreme Court held as under:

"68. Accordingly, we have no hesitation in holding that exclusion of provision for anticipatory bail will not apply when no prima facie case is made out or the case is patently false or mala fide. This may have to be determined by the Court concerned in facts and circumstances of each case in exercise of its judicial discretion. In doing so, we are reiterating a well established principle of law that protection of innocent against abuse of law is part of inherent jurisdiction of the Court being part of access to justice and protection of liberty against any oppressive action such as mala fide arrest. In doing so, we are not diluting the efficacy of Section 18 in deserving cases where Court finds a case to be prima facie genuine warranting custodial interrogation and pre-trial arrest and detention."

Patna High Court CR. APP (SJ) No.1880 of 2020 dt.07-01-2021

7. Regard being had to the facts and circumstances of

the case, I am of the opinion that the court below ought to have

granted pre-arrest bail to the appellant as primarily there appears

to be an ongoing land dispute between the parties and prior to

the institution of the case, prohibitory orders in a proceeding

under Section 144 of the Cr.P.C. had been passed by the

Sub-Divisional Magistrate. Moreover, a counter case has also

been instituted by the appellant against the informant and others.

There is also no clarity in the FIR as to who abused the

informant by taking his caste name.

8. In that view of the matter, the impugned order

dated 01.06.2020 passed in A.B.P. No. 546 of 2020 by the

learned 1st Addl. Sessions Judge-cum-Special Judge-SC/ST Act,

Bhojpur, Ara is, hereby, set aside.

9. The appellant is directed to be released on bail, in

the event of their arrest or surrender, on furnishing bail bond of

Rs.10,000/- (Rupees ten thousand) with two sureties of the like

amount each to the satisfaction of learned 1st Addl. Sessions

Judge-cum-Special Judge-SC/ST Act, Bhojpur, Ara in

connection with SC/ST P.S. Case No. 47 of 2019, subject to the

conditions as laid down under Section 438(2) of the Code of

Criminal Procedure.

Patna High Court CR. APP (SJ) No.1880 of 2020 dt.07-01-2021

10. The appeal stands allowed.

(Ashwani Kumar Singh, J) rohit/-

AFR/NAFR                NAFR
CAV DATE                N.A.
Uploading Date          08-01-2021
Transmission Date       08-01-2021