Punjab-Haryana High Court
Mahesh And Another vs State Of Haryana on 15 November, 2023
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CRA-S-2596-2023 1
229
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
1. CRA-S-2596-2023
Date of decision : 15.11.2023
MAHESH AND ANOTHER
....Appellants
Versus
STATE OF HARYANA ....Respondent
CRA-S-2737-2023
2. Date of decision : 15.11.2023
RAHUL SINGH
....Appellant
Versus
STATE OF HARYANA
....Respondent
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present : Mr. Sandeep Kumar Yadav, Advocate
for the appellants.
****
KULDEEP TIWARI.J.
1. This common order shall dispose of both these appeals, as they arising
out of FIR No. 206 dated 21.08.2023, registered under Sections 148, 149, 323,
452, 506 and 34 IPC and Section 3(2)(va) of SC/ST Act, 1989, identical questions
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of common fact and law are involved therein For the sake of brevity, the facts are
being extracted from CRA-S-2596-2023.
2. The present appeals have been filed against the order dated
08.09.2023 passed by the learned Additional Sessions Judge, Narnaul, vide which
anticipatory bail of the appellants, in case FIR(supra) have been dismissed. The
declining order(supra) caused grievance to the appellants and led them to file the
instant appeal. At the time of issuance of notice of motion on dated 15.09.2023, the
following order was passed by this Court:-
The present appeal has been filed against the order
dated 08.09.2023 passed by the learned Additional Sessions
Judge, Narnaul vide which anticipatory bail of the appellants
in case FIR No.206 dated 21.08.2023 registered under
Sections 148, 149, 323, 452, 506 and 34 IPC and Section 3(2)
(va) of SC and ST Act, 1989 has been dismissed.
Learned counsel contends that the allegations of use of
caste related remarks were against co-accused Jony son of
Hans RajThere is a delay of one day in lodging the FIR. The
appellants are alleged to have caused injuries to the
complainant, Ankit and Rajesh. Though there is no MLR
regarding the complainant but the injuries suffered by Ankit
and Rajesh are simple in nature, being bruises. The
appellants, who are poor labourers, are married and having
minor children. They have been falsely implicated in the case
on account of Panchayat elections. They are not involved in
any other case and are ready and willing to join the
investigation as and when required by the investigating
agency and will cooperate.
Notice of motion.
At the asking of the Court, Mr. Jagdish
ManchandaAddl. AG, Haryana accepts notice on behalf of
respondent-State.
Meanwhile, the appellants are directed to join the
investigation on or before 23.09.2023In the event of their
arrest, they shall be released on interim bail to the
satisfaction of the Arresting Officer, subject to compliance of
conditions. as enshrined under Section 438(2) Cr.P.C.
However, it is clarified that if the appellants do not join
and cooperate with the Investigating Agency as required by
the Arresting/Investigating Officer, this interim order shall be
deemed to have been vacated.
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Adjourned to 15.11.2023.
3. Learned counsel for the appellants submits that in compliance of the
order(Supra), the appellants have joined the investigation and fully cooperated
with the Investigating Officer concerned. He submits that even if the allegations as
leveled in the FIR, are taken as a gospel truth, yet the offence punishable under
Section 3 of the SC/ST Act are not attracted. He also draws attention of this Court
towards the allegations, as leveled by the complainant, that on 20.08.2023, at
about 9.15 p.m., the appellants/accused, in a drunken state used caustic remarks
against the complainant and thereupon, gave beatings to him. To build up his
argument that assumingly even if any caustic remarks were made by the accused,
yet since there are no allegations that the same were made in public view,
therefore, the same does not attract the provisions of SC/ST Act. He has placed
reliance upon the judgment rendered by Hon'ble the Supreme Court of India in
case titled as "Vasant S/o Kerba Shinde & others Vs State of Maharashtra &
Another", reported as 2021 (4) RCR (Criminal) 401, wherein, Hon'ble the
Supreme Court has held that if prima facie the offence punishable under Section 3
of the SC/ST Act, does not attract the relief under Section 438 Cr.P.C. being
granted. The relevant observation of the Hon'ble Apex Court rendered in
abovesaid judgment (Supra) is extracted here as under:-
"7. The allegations in the FIR do not indicate that the
offences punishable under Sections 3(1)(r) and 3(1)(s)
were made in public view. Secondly, the documents
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placed on record also raise sufficient doubts about the
applicability of Section 3(2)(va) of the Act.
8. It was laid down Court in Vilas Pandurang Pawar &
Anrv. State of Maharashtra & Ors.(2012) 8 SCC 795
wherein this Court held:
"10. The scope of section 18 of the SC/ST Act read
with Section 438 of the Code is such that it creates a
specific bar in the grant of anticipatory bail. When an
offence is registered against a person under the
provisions of the SC/ST Act, no court shall entertain an
application for anticipatory bail, unless it prima facie
finds that such an offence is not made out. Moreover,
while considering the application for bail, scope for
appreciation of evidence and other material on record is
limited. The court is not expected to indulge in critical
analysis of the evidence on record. When a provision has
been enacted in the Special Act to protect the persons
who belong to the Scheduled Castes and the Scheduled
Tribes and a bar has been imposed in granting bail under
Section 438 of the Code, the provision in the Special Act
cannot be easily brushed aside by elaborate discussion
on the evidence.
9. Further, this Court in Union of India v. State of
Maharashtra & Ors., (2020) 4 SCC 761 held:
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57. The guidelines in paras 79.3 and 79.4 appear to have
been issued in view of the provisions contained in Section
18 of the 1989 Act; whereas adequate safeguards have
been provided by a purposive interpretation by this Court
in State of M.P. v. Ram Kishna Balothia [State of M.P. v.
Ram Kishna Balothia, (1995) 3 SCC 221: 1995 SCC
(Cri) 439]. The consistent view of this Court that if prima
facie case has not been made out attracting the
provisions of the SC/ST Act of 1989 in that case, the bar
created under Section 18 on the grant of anticipatory bail
is not attracted. Thus, misuse of the provisions of the Act
is intended to be taken care of by the decision above. In
Kartar Singh [Kartar Singh v. State of Punjab, (1994) 3
SCC 569: 1994 SCC (Cri) 899], a Constitution Bench of
this Court has laid down that taking away the said right
of anticipatory bail would not amount to a violation of
Article 21 of the Constitution of India. Thus, prima facie
it appears that in the case of misuse of provisions,
adequate safeguards are provided in the decision
mentioned above.
10. At the present stage, going by prima facie view in the
matter that the offences punishable under Sections 3(1)
(r), 3(1)(s) and 3(2)(va) of the Act do not get attracted,
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we find that case for relief under section 438 of the Code
of Criminal Procedure, 1973 is made out."
4. Today, Sh. Bhupinder Singh DAG, Haryana, learned State counsel on
instructions from ASI Kishor, submits that the appellants have joined the
investigation and they are not further required.
5. However, on the other hand, Mr. Sanjeev Kumar, has put an
appearance on behalf of the complainant, through valid executed Vakalatnama,
which is taken on record. He further submits that the asked relief, cannot be
granted in view of the provisions under Sections of 18, SC/ST Act, 1989 which
creates specific bar for invoking Section 438 Cr.P.C. He further submits that there
are specific allegations which attract the penal provisions of Section SC/ST Act,
1989, dis-entitling the appellants to claim the relief of anticipatory bail.
6. Considering the nature of the offence as well as the law laid down by
Hon'ble the Supreme Court, this Court finds that both the present appeals, deserve
to be allowed. First of all, the moot question which arise as for adjudication is that
"whether the offence punishable under the SC/ST Act are made out or not", which
needs adjudication by the learned trial court at an appropriate stage. However,
prima facie, this court is satisfied that no offence punishable under the SC/ST Act,
is not made out. It is also not disputed that the appellants have joined the
investigation and duly cooperated with the investigating agency. The learned State
counsel made a specific statement on instructions imparted by the Investigating
Officer that the custodial interrogation of the appellants/accused is not required
and investigation is at a final stage.
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7. In view of above specific observations and legal prepositions, both the
appeals are allowed and the interim order dated 15.09.2023 is hereby made
absolute.
( KULDEEP TIWARI )
15.11.2023 JUDGE
monika
Whether speaking/reasoned ? Yes/No
Whether Reportable ? Yes/No
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