Punjab-Haryana High Court
Vijay Sharma vs State Of Punjab on 29 July, 2022
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
104 + 213
Date of decision: 20.07.2022
CRM-M-27136-2022 (O&M)
VIJAY SHARMA .........Petitioner
VERSUS
STATE OF PUNJAB ......Respondent
AND
2. CRM-M-27852-2022 (O&M)
GURBAKSHISH SINGH SANDHU .........Petitioner
VERSUS
STATE OF PUNJAB AND ANOTHER ........Respondents
CORAM : HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
*****
Present:- Ms. Supriya Garg, Advocate and
Mr. Rohan Garg, Advocate
for the petitioner
(in CRM-M-27136-2022).
Mr. Rupinder S. Khosla, Senior Advocate assisted by
Mr. Aman Sharma, Advocate for the petitioner,
(In CRM-M-27852-2022).
Ms. Amarjit Kaur Khurana, DAG, Punjab.
Mr. Satnam Preet S. Chauhan, Advocate
for the complainant.
*****
VINOD S. BHARDWAJ, J. (Oral)
CRM-25141-2022 IN
CRM-M-27136-2022
The present application has been filed under Section 482 of
the Code of Criminal Procedure, 1973 (hereinafter referred to as
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CRM-M-27136-2022 (O&M) & -2-
CRM-M-27852-2022 (O&M)
"Cr.P.C") for placing on record the amended petition in pursuance of
the order dated 15.07.2022 passed by this Court in the aforesaid
petitions.
Application is allowed as prayed for.
CRM-25143-2022 IN
CRM-M-27136-2022
The present application has been filed under Section 482 of
the Code of Criminal Procedure, 1973 for grant of exemption from
filing typed/certified copy/legible copy/dim copy of Annexures P-1 to
P-11.
Application is allowed as prayed for.
CRM-M-27136-2022 (O&M) &
CRM-M-27852-2022 (O&M)
1. This order shall dispose of two petitions bearing
CRM-M-27136-2022 titled as "Vijay Sharma versus State of Punjab"
and CRM-M-27852-2022 titled as "Gurbakshish Singh Sandhu versus
State of Punjab and another".
2. The petitioners have filed the instant petitions under
Section 438 Cr.P.C. Read with Section 482 Cr.P.C. for grant of
anticipatory bail in case bearing FIR No.51 dated 11.06.2022 registered
under Section 3 (1) (za) (E) of the Scheduled Castes and Scheduled
Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as
"SC/ST (Prevention of Atrocities) Act" ) and Section 420 and 120-B of
the Indian Penal Code, 1860 at Police Station City Morinda, District
Rupnagar.
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CRM-M-27136-2022 (O&M) & -3-
CRM-M-27852-2022 (O&M)
3. For facility of reference, facts are noticed from CRM-M-
27136-2022. The matter had come up for preliminary hearing on
22.06.2022 when the following order was passed:-
"Learned counsel for the petitioner, at the very
outset, has contended that the petitioner had first
approached the Sessions Court at Rupnagar with a
prayer for grant of anticipatory bail. The said
application was disposed of vide order dated
17.06.2022 (Annexure P-12), declining to exercise
jurisdiction in view of Section 18 of the Scheduled
Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989. As such, the said order would
not be an appealable order under Section 14A (2) of
the Act. It is contended that the allegations, prima
facie, would not be covered under the Act and as
such, there would not be a bar to seek bail
apprehending arrest from this Court. Learned
counsel cites Prithvi Raj Chauhan vs. Union of
India, (2020) 4 SCC 727, in support of the
contention urged.
Notice of motion for 20.07.2022.
Mr. Tanvir Joshi, A.A.G. Punjab accepts
notice on behalf of the respondent-State and seeks
time to file reply. Mr. Satnam Singh Chauhan,
Advocate has put in appearance on behalf of the
complainant and filed memorandum of appearance.
In the meanwhile, the petitioner be not
arrested in FIR No.51 dated 11.06.2022 registered
at Police Station City Morinda, District Rupnagar,
till the next date of hearing. However, the petitioner
would join the investigation as and when required,
during the said period."
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CRM-M-27852-2022 (O&M)
4. On resumed hearing, learned counsel appearing on behalf
of the petitioners contend that the petitioners have already joined
investigation and custodial detention of the petitioners is not required
for further investigation.
5. Ms. A.K. Khurana, DAG, Punjab does not controvert the
said fact and affirms the same on instructions from SI Sudesh Kumar.
6. Sh. Satnam Singh Chauhan, Advocate has put in
appearance on behalf of the complainant and has contended that the
petition under Section 438 read with Section 482 Cr.P.C. would not be
maintainable since the provisions of the SC/ST (Prevention of
Atrocities) Act, 1989 have been attracted in the present case.
7. The submission on behalf of the learned counsel was to the
effect that the petitioners who are Chairman and Executive Officer of
Municipal Council, Morinda have disregarded the roster point while
making appointments to the post of Teacher. A pointed query was
raised as to how a failure on the part of the officials in making an
appointment from a person/member of the Scheduled Castes and
Scheduled Tribe would amount to 'obstruction' or prevention of a
member belonging to such Castes or community being appointed as
contemplated under Section 3(1)(za)(E) of the SC/ST (Prevention of
Atrocities) Act. However, the learned counsel could not indicate to any
document or evidence to show that the petitioner had 'prevented' or
'obstructed' appointment of a member belonging to the Scheduled Caste
by some overt act or deliberate omission. A further specific query was
also posed to the learned counsel to refer to the Government
instructions/guidelines on the basis whereof he draws the strength to
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contend that the action undertaken by the petitioners was an act of
deliberate obstruction or prevention in assigning or offering
appointment to what might be due to a member belonging to Scheduled
Caste or Scheduled Tribe. Learned counsel has however failed to refer
to any such statutory instructions or guidelines. Hence, their arises a
serious debate as regards the basic ingredients justifying offences under
the SC/ST (Prevention of Atrocities), Act being attracted.
8. Furthermore, it has also not been disputed by the learned
counsel appearing on behalf of the complainant that he is neither a
candidate for appointment to the post of the Teacher nor had he ever
sought any appointment with the Municipal Council, Morinda. Learned
counsel submits that the proceedings had been initiated by him as he
felt aggrieved of the actions committed by the petitioners in not
extending what is due to the members of the Scheduled Castes and
Scheduled Tribes and had thus initiated the proceedings.
9. I have heard learned counsel appearing on behalf of the
respective parties. The Hon'ble Supreme Court has already held in the
judgment of "Prithvi Raj Chauhan versus Union of India" that
jurisdiction of Section 438 Cr.P.C. can be invoked where ex facie
ingredients for commission of offence punishable under the SC/ST
(Prevention of Atrocities) Act are not made out. Even otherwise, the
instant petitions also seek to invoke the jurisdiction of the High Court
with the aid of Section 482 Cr.P.C. and are not just a simplicitor
petitions under Section 438 Cr.P.C.
10. Even though the statute prescribes a remedy in the form of
filing of an appeal in terms of Section 14-A of the SC/ST (Prevention
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CRM-M-27852-2022 (O&M)
of Atrocities) Act, 1989, the same ipso facto does not prohibit the Court
from taking cognizance of a petition that has been filed with the aid of
Section 482 Cr.P.C.. Availability of alternative remedy is not a bar to
the jurisdiction of a Court to exercise its inherent powers.
11. Now adverting to the issue of custodial detention, the same
is the prerogative of the Investigating Agency. The petitioners having
already joined and not being required for further investigation by the
agency in the instant case, it would be contrary to the interest of justice
to still subject the petitioners to custodial detention. The power to arrest
has been distinctly segregated from the need to arrest. A justification
for seeking custodial detention has to be made out by the State by
establishing that there is a strong possibility of an accused likely to
abscond from process of law or to tamper with the prosecution case or
that the offence is shocking to the collective conscience of the society
looking at the nature of offence, its gravity and manner of its execution
alongwith the antecedents of an accused. Where no valid basis for such
apprehension against an accused is not available, merely because the
State would have the power to arrest would not be a cause sufficient to
mandate that an accused must necessarily be arrested.
12. Without commenting any further on the merits and
noticing the facts as aforesaid, the interims orders dated 22.06.2022 and
30.06.2022 respectively are made absolute.
13. However, if required, the petitioners shall continue to join
investigation as and when required to do so and shall abide by the terms
and conditions, as laid down under Section 438 (2) Cr.P.C.
14. Nothing stated herein should be construed as an expression
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on the merits of the case and the competent Court shall decide the case
on the strength and merits of the evidence adduced before it.
(VINOD S. BHARDWAJ)
JUDGE
JULY 20, 2022
Vishal sharma
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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