Punjab-Haryana High Court
Harjit Kaur vs State Of Punjab on 7 October, 2022
CRA-S 1983 of 2022 1 114
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-S 1983 of 2022
Date of Decision:- 07/10/2022
Harjit Kaur
......Appellant
Versus
State of Punjab
CORAM:- HON'BLE MS. JUSTICE NIDHI GUPTA
Present:- Mr. Gulzar Mohammed, Advocate for the appellant.
Mr.Mohit Kapoor, Addl. AG Punjab for the respondent
State.
Mr. KK Sehjal, Advocate for the complainant.
******
NIDHI GUPTA, J(Oral).
This appeal under Section 14A(2) of The Scheduled Castes and
the Scheduled Tribes (Prevention of Atrocities) Act,1989 (for short 'the SCST
Act') is directed against the order dated 30.09.2022 passed by Additional
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Sessions Judge, Jalandhar vide which anticipatory bail application moved by
the appellant under Section 438 Cr.PC was dismissed. Appellant had sought
anticipatory bail in criminal case arisen out of FIR No. 75 dated 22.9.2022
registered under Sections 354-A, 506 IPC; and subsequently offence under
Section 3 of the SCST Act was added later on, on 25.9.2022 vide Rapat No.
20, PS Patara, District Jalandhar (Rural).
The impugned order dated 30.9.2022 reads as under:-
"Through this application prayer has been made
to admit the applicant on anticipatory bail in FIR
registered u/ss 354-A, 506 IPC and u/s 3 of the SC &
ST (Prevention of Atrocities Act,1989). However, in
view of the notification dated 1st January 2016 and
notification dated 20th August, 2018 issued by
Ministry of Law and Justice, anticipatory bail under
SC & ST (Prevention of Atrocities Act 1989) is barred.
Therefore, for this short ground, this application being
not maintainable is dismissed. File be consigned to
Record Room."
Relevant parts of the above-referred Notifications are as follows:-
Relevant extract of Notification dated 1st January, 2016
"In section 3 of the principal Act -
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(i) for sub-section (1), the following sub-section shall be substituted
namely:-
'(1) Whoever, not being a member of a Scheduled Caste or a
Scheduled Tribe,-
.........(a).......... to (q)..........xxxxxxxxxxxxxxxxxxx
(r ) intentionally insults or intimidates with intent to humiliate a
member of a Scheduled Caste or a Scheduled Tribe in any place
within public view;
(w) (i) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(ii) uses words, acts or gestures of a sexual nature towards a
woman belonging to a Scheduled Caste or a Scheduled Tribe,
knowing that she belongs to a Scheduled Caste or a Scheduled
Tribe."
Relevant extract of Notification dated 17th August,2018,
(inadvertently mentioned in the impugned order as 20.8.2018)
"2. After section 18 of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989, the
following section shall be inserted, namely: --
"18A. (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
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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.".
A perusal of the above Notification dated 17.8.2018 shows under
Section 18A(2) of the SCST Act, a bar has been imposed whereby provisions
of Section 438 Cr.PC will not apply to cases under the SCST Act
notwithstanding any judgment, order or direction of any court.
Counsel for the appellant has assailed the impugned order
primarily on the ground that there are several judgments of this Court, as well
as of the Hon'ble Supreme Court, whereby it is held that bar under Section 18
and 18A will not apply in cases where no prima facie case is made out against
the accused. In support counsel refers to Prathvi Raj Chauhan v Union of
India and others (2020) 4 SCC 727/ 2020 AIR (SC) 1036; and Lokesh and
others v The State of Karnataka and another, Law Finder Doc Id #
1997522; and submits that the case of the appellant falls within the exceptions
carved out vide these judgments and record bears out that no prima facie case
is made out against the appellant. It is accordingly submitted that, learned
Court below was an error in holding that the appellant's application under
Section 438 Cr.PC was not maintainable.
Counsel for the appellant has referred to the facts of the case
stating that the incident is alleged to have taken place on 20.9.2022, against
which FIR no. 75 was registered on 22.9.2022, only under Sections 354-A and
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506 IPC. It is submitted by ld. counsel that in the first instance itself the
registration of FIR is delayed by two days. It is stated that offence under
Section 3 (1) (r ) (W) (ii) of the Act was added subsequently only on 25.9.2022,
as an afterthought by concocting a false story on the ground of political rivalry
in the village even though no such incident had happened. Even no tenable
reasons have been given as to why supplementary statement dated 25.9.2022
by complainant was delayed. It is further stated that the appellant had been
admitted to bail by the Investigating Officer for the offence under Section 354-
A and 506 IPC and later on offence under Section 3 of the Act was added to
make it a non-bailable offence. It is further stated that FIR bears no specific
allegation as required under law as to how the appellant is supposed to have
humiliated complainant or used ill words against the complainant and it has
nowhere been stated what specific caste name of the complainant was used by
Appellant to insult her.
Notice of motion.
On advance notice, counsel for the State appears and accepts
notice. At this stage, Mr. KK Sehjal, counsel for the complainant also puts in
appearance and files his Vakalatnama, which is taken on record.
Counsel for the respondent-complainant states that humiliation
was meted out by the appellant to the complainant on GT road in full public
view. It is further stated that son of the appellant Harminder Singh @ Happy
made obscene gestures to the complainant. As such, offence u/s 3(1)(r) (W)(ii)
of the SCST Act is made out. It is further stated by the counsel for the
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complainant that son of the complainant had earlier registered an FIR No. 96
of 2021 at PS Patara under Sections 323/341 IPC against the appellant and it
is with a view to settle the said FIR that the appellant has been pressurising the
complainant. It is alleged that the police is hand-in-glove with the appellant.
In rebuttal counsel for the appellant states that the incident is
alleged to have happened on 20.9.2022 at 8.15 a.m. in the morning, therefore,
it is highly unlikely that there would be any person let alone crowd or public
at the place of occurrence at that early hour. As regards FIR No.96 of 2021
referred to by counsel for the complainant, counsel for the appellant clarifies
that the said case is pending before the JMIC, Jalandhar, and the Investigating
Officer has made a statement therein before the JMIC, Jalandhar that injury
has been caused to the son of the complainant by unknown person and not by
the appellant or her son Harnek Singh.
Learned State counsel denies that the police is hand-in-glove with
the appellant and states that registration of the FIR and the subsequent
supplementary statement belies this allegation of the counsel for the
complainant.
Heard ld. counsel for the parties.
In Prathvi Raj Chauhan (supra), a three-Judge Bench of the
Hon'ble Supreme Court was pleased to read down S. 18, and hold as follows:
"Concerning the applicability of provisions of Section
438 CRPC, it shall not apply to the cases under Act of
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1989. However, if a 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 18
A (i) shall not apply." (Emphasis supplied)
In para 31 thereof, it is further held as follows:
"31. As far as the provision of Section 18A 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."
In my view a perusal of the facts, record, and submissions
aforementioned do not make out a prima facie case against the appellant for
the reasons recorded hereinbelow. It is not in dispute that the alleged incident
is of 20.9.2022; and the FIR u/SS 354A and 506 IPC was registered after a
delay of 2 days on 22.9.2022. A perusal of the record shows that no
explanation, much less a convincing explanation, has been given by the
complainant to show as to what caused this delay. It is a well-established
position in law that delay in registration of FIR prejudices the case, as it gives
rise to suspicion of subsequent deliberation.
Further, the offence u/s 3(r) (W) (ii) of the SCST Act was only
added after five days of the alleged incident, on 25.9.2022, by way of a
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supplementary statement made by the complainant. No tenable or convincing
reasons have been given explaining this delay. As regards allegations of
obscene gestures against Harminder Singh, son of the appellant, the fact is that
in these proceedings it is not Harminder Singh who is before this Court; and
these are facts which will be ascertained during the course of investigation and
trial. Additionally, record shows that the appellant is the Sarpanch of the
village. These facts lend credence to the contention of the counsel for the
appellant that offence under Section 3 of the SCST Act has been added as an
malintent afterthought due to political rivalry in the village.
In 'Dr. Subhash Kashinath Mahajan versus the State of
Maharashtra and another' (2018) 6 SCC 454, the Hon'ble Supreme Court
inter-alia, held as follows :
"83. Our conclusions are as follows:
(i) proceedings in the present case are clear abuse of
process of court under quashed.
(ii) There is no absolute bar against grant of
anticipatory bail in cases under the Atrocities Act if
no prima facie case is made out or where on judicial
scrutiny the complaint is found to be prima facie
malafide. We approve the view taken and approach of
the Gujarat High Court and Pankaj D Sutar (supra),
and Dr NT Desai (supra) and clarify the judgements
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of this Court in Bhalotia (supra) and Manju Devi
(supra). ..." (emphasis supplied)
Moreover, a perusal of the FIR dated 22.9.2022 and even the
supplementary statement dated 25.9.2022 shows that it has nowhere been
specifically alleged therein that the appellant was aware of the caste of the
complainant. As such, the key ingredient of 'knowledge', on the part of the
appellant that the complainant is a Scheduled Caste, which is a pre-requisite
and necessary to attract Section 18 of the Act, is missing in the present case.
It would be helpful at this point to refer to the supplementary
statement dated 25.9.2022 of the complainant whereby offence u/s 3 of the
SCST Act was added. Relevant part of supplementary statement dated
25.9.2022 is reproduced below:
"Stated that I am resident of above-mentioned address
and belongs to Scheduled Caste. That on 22.9.2022 the
statement which was recorded by me to you and in this
regard case no.75 dated 22.9.2022 under Section 354-A, 506
IPC, PS Patara has been registered. That they are resident of
my village and know about my caste intentionally to lower
my estimation and to hurt my feelings hurled abuses to me
and done obscene acts and due to this personally and
publicly I have to face insult. That due to of not good health
of mine earlier I could not record my correct statement.
Today I have good health I along with my husband came
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present and recorded my statement so under the relevant
provisions of law legal action be taken against them.
Statement is recorded which is correct."
A perusal of the above statement shows that vague and general
assertions have been made therein. The above statement contains no specific
allegation against the appellant as required under law, specifying what exact
words were used by the appellant to humiliate and insult the complainant. It
has nowhere been stated what specific caste name was used by Appellant to
insult the complainant. Moreover, allegation u/s 3 of the Act was made only
after 5 days, which raises doubt regarding the veracity or truthfulness of the
allegation. In view of these legal lacunae it is clear that no case is made out for
the applicability of bar available u/s 18 of the Act of 1989, and the ld. Court
below was in error in holding that the appellant's application u/s 438 of the
Code was not maintainable.
Further perusal of the supplementary statement shows that the only
reason given by the complainant for delay in making said statement is "due to
of not good health of mine" on the day FIR was registered. However, no details
regarding what malady ailed the complainant on that day, or what treatment
she underwent are available, which raises doubt regarding the truthfulness of
the allegation. It is but trite to suggest that if the complainant could make the
statement on basis of which FIR u/s 354A and 506 IPC was registered, what
forbade her from including allegations under the SCST Act at that time itself.
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Clearly, inclusion of offence under Section 3 after five days is an afterthought,
which casts a dubious cloud regarding the veracity of the same.
In Lokesh and others (supra) relied upon by the counsel for the
appellant, Karnataka High Court has held that "Single Judge has jurisdiction
to entertain and decide an appeal under sub-Section (2) of Section 14-a of the
SC and ST Act. High Court can consider the question of grant of pre-arrest
bail only if the complaint does not make out a prima facie case for the
applicability of the provisions of the SC and ST Act."
In my view, a sum total of all the above facts goes to establish that
no prima facie case is made out against the appellant.
As such, keeping in view the aforestated legal position, as also the
facts and circumstances noted above, this Appeal is allowed, the impugned
order dated 30.9.2022 dismissing the appellant's application for anticipatory
bail, is hereby set aside and the application for anticipatory bail is allowed.
It is accordingly, directed that in the event of arrest or when the
appellant surrenders before Court, the appellant shall be released on bail on her
furnishing bail/ surety bonds to the satisfaction of the concerned trial Court/
Duty Magistrate, subject to the following conditions as envisaged under
Section 438(2) Cr.PC:
1. the appellant shall make herself available for interrogation
by a police officer as and when required;
2. the appellant shall not, directly or indirectly, make any
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with the facts of the case so as to dissuade him from
disclosing such facts to the Court or to any police officer;
3. the appellant shall not leave India without the previous
permission of the Court;
Accordingly, this Appeal is allowed in aforesaid terms. All pending
applications, if any, stand disposed of.
However, nothing stated above shall be construed as a final
expression or opinion on the merits of the case and the trial would proceed
independently of the observations made in the present case which are only for
the purpose of adjudicating the present appeal.
(Nidhi Gupta)
Judge
07/10/2022
Joshi
Whether Yes/No
speaking/reasoned
Whether Yes/No
reportable
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