Shambhu Sah vs The State Of Bihar
2021 Latest Caselaw 4800 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                      CRIMINAL APPEAL (SJ) No.1005 of 2021
              Arising Out of PS. Case No.-77 Year-2019 Thana- SC/ST District- Saran
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1. Shambhu Sah, aged about 55 years, Male, son of late Moti Sah @ Motilal Sah.

2. Bigan Sah @ Shiv Sah, aged about 63 years, Male, son of late Parma Sah,

3. Satyanarayan Singh, aged about 65 years, Male, son of late Tipan Singh.

All resident of village- Purushottampur Suvrna, P.S.- Avatarnagar, District- Saran at Chapra ... ... Appellant/s

Versus

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

For the Appellant/s : Mr. Radha Mohan Singh, Advocate For the State : Ms. Usha Kumari No. 1, Special PP ====================================================== CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT Date : 27-09-2021

Heard Mr. Radha Mohan Singh, learned counsel for

the appellants and Ms. Usha Kumari No. 1, learned Special

Public Prosecutor (hereinafter referred to as the 'Special PP')

for the State.

2. The present appeal is directed against the order

dated 23.09.2020 passed by the learned 1st Additional Sessions

Judge-cum-Special Judge, SC/ST (Prevention of Atrocities) Act,

Saran at Chapra, in Saran SC/ST PS Case No. 77 of 2019 by

which prayer of pre-arrest bail of the appellants has been

rejected.

3. The appellants apprehend arrest in connection with Patna High Court CR. APP (SJ) No.1005 of 2021 dt.27-09-2021

Saran SC/ST PS Case No. 77 of 2019 dated 24.11.2019,

instituted under Sections 341, 323, 504, 506, 427, 436/34 of the

Indian Penal Code and 3(1)(r)(s), 3(2)(va) of the Scheduled

Castes and Schedules Tribes (Prevention of Atrocities) Act,

1989 (hereinafter referred to as the 'SC/ST Act').

4. The allegation against the appellants and two other

persons is that they had burnt the house of the informant, who

belonged to a Scheduled Caste community.

5. Learned counsel for the appellants submitted that

the informant has alleged that at night when her house was

burnt, she saw five persons, including the appellants, who ran

away and she could identify four persons, including the

appellants. However, it was submitted that later on in the FIR

itself it is stated that co-accused, Bali Ray, had caught hold of

the son-in-law of the informant and had told him that he had

burnt the house and then he is said to have taken caste name in

derogatory terms. Thus, learned counsel submitted that in view

of there being no specific ingredient either alleged or made out

from the plain reading of the FIR, the bar of Section 18 of the

Act would not apply. Learned counsel further submitted that the

appellants have no criminal antecedent and besides the

identification at night, no other allegation has been levelled Patna High Court CR. APP (SJ) No.1005 of 2021 dt.27-09-2021

against them. It was submitted that the police had submitted

final form after investigation in which the appellants were not

sent up for trial and only co-accused Bali Rai has been

chargesheeted.

6. Learned Special PP submitted that from the

circumstances it can be presumed that the appellants were also

involved in the act of burning of the house of the informant.

7. Having considered the facts and circumstances of

the case and submissions of learned counsel for the parties, in

view of the allegation in the FIR itself being limited to

identification of the appellants in night by the informant, and

specific allegation of having burnt the house of the informant

being levelled against co-accused Bali Rai, not the appellant

herein, coupled with the fact that the appellants have no

criminal antecedent, the Court is inclined to allow the prayer for

pre-arrest bail.

8. Accordingly, in the event of arrest or surrender

before the Court below within six weeks from today, the

appellants be released on bail upon furnishing bail bonds of Rs.

25,000/- (twenty five thousand) each with two sureties of the

like amount each to the satisfaction of the learned 1 st Additional

District & Sessions Judge-cum-Special Judge, SC/ST Patna High Court CR. APP (SJ) No.1005 of 2021 dt.27-09-2021

(Prevention of Atrocities) Act, Saran at Chapra, in Saran SC/ST

PS Case No. 77 of 2019, subject to the conditions laid down in

Section 438(2) of the Code of Criminal Procedure, 1973 and

further (i) that one of the bailors shall be a close relative of the

appellants, (ii) that the appellants and the bailors shall execute

bond and give undertaking with regard to good behaviour of the

appellants, and (iii) that the appellants shall cooperate with the

Court and the police/prosecution. Any violation of the terms and

conditions of the bonds or the undertaking or failure to

cooperate shall lead to cancellation of their bail bonds.

9. It shall also be open for the prosecution to bring

any violation of the foregoing conditions by the appellants, to

the notice of the Court concerned, which shall take immediate

action on the same after giving opportunity of hearing to the

appellants.

10. Accordingly, the order impugned dated

23.09.2020 is set aside and the appeal stands allowed.

(Ahsanuddin Amanullah, J)

J. Alam/-

AFR/NAFR U T