The power of arrest in respect of offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is not provided under the special Law. It is derivable from the provisions of the Code in view of section 4(2) of the said Code. Power to arrest under the Code is provided in section 41 thereof. In order to regulate the unbridled power of the police to arrest persons accused of offences punishable with imprisonment up to seven years, the aforesaid provision was amended by the Act 5 of 2009 and objective parameters were laid down so as to regulate such power.

Joymalya Bagchi, J.

Proceeding registered in Suri P.S. Case No.448 of 2015 dated 17th December, 2015 under Section 323/427/379/506 of the Indian Penal Code and under Section 3(i)(iv)(v)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter referred to as Act of 1989) has been assailed. The allegations in the application under Section 156(3) of the Cr.P.C. which were treated as F.I.R. in the instant case is to the effect that the defacto-complainant and his family members are members of the Scheduled Caste Community. It has been claimed that the family members of the defacto-complainant were carrying on pisciculture in the pond in question for the last 50 years. On 20.3.2015 at about 8 A.M., the petitioners attacked the defacto-complainant and assaulted him and took away fishes from them. The petitioners also abused the defacto-complainant by referring to their caste. When the family members of the defacto-complainant objected, they were further abused and it was stated that the petitioners shall not permit them to enter the pond as they were members of low caste. The petitioners had also threatened that they would kill and/or destroy fishes which were raised by the defacto-complainant in the pond.

2. The petitioners have assailed the impugned proceeding, inter alia, on the ground that the uncontroverted allegations in the first information report do not disclose the ingredients of the alleged offences. There is no averment in the first information report that the petitioners are not members of the Scheduled Caste and Scheduled Tribes Community and that the question of dispossession of the defacto-complainant from the pond does not and cannot arise at all inasmuch as they were not in possession of the pond at all and it was the petitioners who were carrying on pisciculture in the said pond.

3. Mr. Ghosh appearing for the petitioner argued that a complaint was lodged against the defacto-complainant for committing theft in the said pond on 20.3.2015. He further drew my attention to the fact that although there was a lease executed in favour of the defacto-complainant to carry on pisciculture in the pond in question but the said lease had expired long ago and since then the petitioners themselves were carrying on such activity in the pond. It is also brought to my notice that a preemption suit is pending by and between the parties. In the backdrop of the aforesaid facts, it is submitted that the allegations of dispossessing or preventing the defacto-complainant from entering the pond on account of their caste appears to be patently absurd and inherently improbable. Provisions of the Act of 1989 has been invoked to harass and humiliate the petitioners particularly petitioner no.3 who is an employee of Central Government. Reliance has to be placed on (2009) 1 SCC (Cri) 446 (Gorige Pentaiah v. State of Andhra Pradesh & Ors.) and 2013 (1) Supreme 257 (Ravinder Singh v. Sukhbir Singh & Ors.)

4. Mr. Ahmed, appearing for the defacto-complainant opposite Party no.2, submitted that the petitioners were in possession of the pond and were carrying on pisciculture therein since time immemorial. He relied on the report filed on behalf of the B.L.&L.R.O. in a proceeding under Section 144 Cr.P.C. instituted by and between the parties in support of such claim. Copy of the said report is kept with the record. He also submitted that a co-sharer had sold a portion of the pond in favour of his client which further probabilises their presence in the pond in question. He submitted that the allegations prima facie disclose ingredients of the alleged offences and interference at the stage of investigation is unwarranted in law.

5. Mr. Sengupta appearing for the State submitted that investigation is in progress in the instant case.

6. I have considered the materials on record. Prima facie, there are allegations of dispossession or theft from members of Scheduled Caste Community and also abuses and insinuations