Back
CALCUTTA HIGH COURT
Joymalya Bagchi, J.
Parimal Maity @ Parimal Maiti and Anr. —Petitioners
versus
State of West Bengal —Respondent
C.R.M. No.16138 of 2013
Decided on 24.2.2014
Counsel for the Parties:
For the Petitioners:Navanil De, Advocate
For the Respondent:Ayan Bhattacharyya, Advocate
IMPORTANT POINT
Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out.
Headnote:Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 — Section 18 — Statutory bar to maintainability of anticipatory bail application — Duty is cast on Court to verify averments in complaint to find out whether offence under the Act has been prima facie made out — It is however impermissible for Court to critically examine allegations by evaluating the material — FIR showed that accused pPetitioner came infront of house of complainant, started calling him abuses and called abuses in his caste name also — Anticipatory bail application was liable to be dismissed as not maintainable.
(ii) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 — Section 3(1)(x) — offence “in any place within public view” — Where offence is committed in an open public place, whether such insult/intimidation was made in presence of any member of public i.e. outsiders become irrelevant.
(iii) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 — Section 18 — Statutory bar to anticipatory bail application — Mere absence of fact in FIR that accused did not belong to SC or ST community was no ground to hold that offence was not disclosed particularly when same had transpired during investigation.
Result: Petition dismissed.
JUDGMENT
Joymalya Bagchi, J.—This reference has been made in the light of divergence of opinion between two Hon’ble Judges of this Court on the issue of maintainability of the instant application for anticipatory bail in view of the statutory bar under Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred of the Act of 1989).
Point of difference:-
2. Banerjee, J. while holding that the application was not maintainable opined as follows:-
“In the instant case, in the complaint it is alleged that the incident took place outside the house of the complainant, which appears to be a place within public view. Whether the incident actually occurred at the place alleged or at any other place outside public view is a matter of investigation. It is not open to a Court deciding an application under Section 438 of the Indian Penal Code to indulge in critical analysis of the evidence on record. It is immaterial that the contents of the GD entry are not before us since investigation has been ordered under Section 156(3) of the Cr.P.C of a complaint in writing, which we have perused. In deciding an application under Section 438, for anticipatory bail, the scope for appreciation of evidence and analysis of materials on record is limited. This Court is not to indulge in critical analysis of the materials on record.
In view of specific bar of Section 18 of the 1989 Act, I am not inclined to entertain the application for anticipatory bail.”
On the other hand, Chattered, J., differed as follows :
“I respectfully differ with my Learned Senior as to her observation. I have taken note of Section 3 Sub-clause (x) and also Section 18 of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. I have also taken note of the decision of the Apex Court as reported in (2012)3 Supreme Court Cases (Cri) 1062.
As per Section 3(x) of the said Act such offence must be committed within public view. I have gone through the case diary. There is no statement of any outsider to convince this Court even prima facie, that they heard such insulting languages used by the accused persons. Nor there is any whisper in the F.I.R. as to who was present in the house when the alleged derogatory remarks were uttered.
Unfortunately in the case diary there is also no mention regarding contents of the G.D. entry No. 113 dated 03-10- 2012 of Moyna Police Station. This G.D. entry is the earlier piece of information and this Court would have got real picture of the crime had it been before us.
Thus it is my considered view that no prima facie case of any offence has been made out in respect of Section 3(1)(x) of the said Act and accordingly, I am of the view that this is not a fit case to reject the prayer for anticipatory bail.”
3. Hence, the point for difference is whether in the factual matrix of the instant case the statutory bar under Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is attracted or not.
Opinion :-
4. Section 18 of the Act of 1989 reads as follows:-
“18. Section 438 of the Code not to apply to persons committing an offence under the Act.- Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.”
While interpreting the aforesaid statutory bar in entertaining application for anticipatory bail with regard to offences under the said Act, the Apex Court in Vilas Pandurang Pawar and Anr. v. State of Maharashtra & Ors. (2012)3 SCC (Cri) 1062: 2012(6) Supreme 605., held as follow:-
“Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. How-ever, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out In other words, if there is a specific averment in the complaint, namely, insult or intimidation wit
