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HIGH COURT OF CHHATTISGARH, BILASPUR
Parth Prateem Sahu, J.
Bharatlal Dhruv – Appellant
Versus
State of Chhattisgarh – Respondent
MCRC No. 5866 of 2021
Decided On : 19-01-2022
Regular Bail - Jurisdiction of Special Court - Sections 306, 506/34 of IPC and Section 4/5 of the Chhattisgarh Tonhi Pratadana Adhiniyam, 2005 - [Sections 3(2)(v) & 3(1)(zd) of the Act of 1989] - The court held that the bail application under Section 439 Cr.P.C. cannot be held to be maintainable particularly when offences alleged against applicant includes offence punishable under Sections 3(2)(v) & 3(1)(zd) of the Act of 1989.
Fact of the Case:
The applicant filed for regular bail under Section 439 of Cr.P.C. for offences under Sections 306, 506/34 of IPC and Section 4/5 of the Chhattisgarh Tonhi Pratadana Adhiniyam, 2005. The charge sheet was filed against the applicant for offences under Sections 3(2)(v) & 3(1)(zd) of the Act of 1989.
Finding of the Court:
The court found that the bail application under Section 439 Cr.P.C. cannot be held to be maintainable particularly when offences alleged against applicant includes offence punishable under Sections 3(2)(v) & 3(1)(zd) of the Act of 1989.
Issues: Maintainability of the bail application under Section 439 Cr.P.C. in light of the addition of offences under Sections 3(2)(v) & 3(1)(zd) of the Act of 1989.
Ratio Decidendi: The bail application under Section 439 Cr.P.C. cannot be held to be maintainable when offences alleged against applicant includes offence punishable under Sections 3(2)(v) & 3(1)(zd) of the Act of 1989.
Final Decision: The bail application is dismissed as not maintainable, and the applicant is advised to approach the Special Court under the Act of 1989 for grant of regular bail.
JUDGMENT :
Parth Prateem Sahu, J.
1. This is an application filed on behalf of applicant under Section 439 of Cr.P.C. seeking regular bail in connection with Crime No. 197/2021 registered at Police Outpost Chilfi, Police Station Lormi, District Mungeli (CG) for commission of offence under Sections 306, 506/34 of Indian Penal Code and Section 4/5 of the Chhattisgarh Tonhi Pratadana Adhiniyam, 2005 (for brevity 'the Adhiniyam of 2005').
2. This application filed for grant of regular bail was taken up for hearing on 24.11.2021 along with Criminal Appeal No. 1011/2021, filed by co-accused persons under Section 14A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for brevity 'the Act of 1989') for grant of regular bail, but on an objection being raised with regard to maintainability of this bail application in its present form, it was de-linked from Criminal Appeal No. 1011/2021, which was heard and decided on 24.11.2021.
3. Mr. Chandrabhushan Kesharwani, learned counsel for applicant would submit that present application filed under Section 439 of Cr.P.C. is maintainable. He submits that on 14.6.2021 complaint being lodged by complainant Yashoda Bai in concerned police station mentioning that her mother set herself ablaze after pouring kerosene, merg was recorded and after preliminary investigation, FIR is registered against applicant and other co-accused persons for commission of offence under Sections 306, 506, 34 of IPC and Sections 4 & 5 of the Adhiniyam of 2005. Applicant was arrested on 26.6.2021. Thereafter an application under Section 439 of Cr.P.C. was moved before the Court of Sessions for grant of regular bail, which was transferred to the Court of 1st Additional Sessions Judge, Mungeli for hearing. Said application came to be rejected vide order dated 15.7.2021. He submits that on the date of rejection of bail application of applicant, there was no allegation against applicant of committing any offence punishable under the provisions of the Act of 1989. Even it was a Police Inspector who investigated into report lodged by complainant till 26.8.2021. The Additional Superintendent of Police, Mungeli took over investigation only on 27.8.2021, prior to which applicant moved application under Section 439 of Cr.P.C. before the High Court. On completion of investigation, charge sheet was filed on 18.9.2021 by the Additional Superintendent of Police before Special Court adding offence under Section 3(2)(v) and 3(1)(zb) of the Act of 1989. It is contended that as application under Section 439 of Cr.P.C. was considered and decided by the Court of 1st Additional Sessions Judge and not by exclusive Special Court, this bail application under Section 439 Cr.P.C. is maintainable before this Court. He submits that as per Section 14 of the Act of 1989, the State Government shall, with the concurrence of Hon'ble the Chief Justice of High Court, by notification, establish an Exclusive Special Court for one or more districts, whereas in District Mungeli Exclusive Special Court is not established. Hence it is the Sessions Court which has to take cognizance of offence and try cases under the Act of 1989. Appeal under Section 14A of the Act of 1989 would lie only when order is passed by Exclusive Special Court. Learned counsel places his reliance on the order dated 10.10.2018 passed in Criminal Writ Public Interest Litigation No. 8/2018, parties being In Re. Provision of Section 14A of SC/ST (Prevention of Atrocities) Amendment Vs. Nill, to contend that in absence of establishment of Exclusive Special Court, any case or application for grant of bail is to be considered and decided by the Sessions Court only.
It is further contended that Rule 7(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (for short 'Rules of 1995'), as stood amended in the year 2016, mandates filing of charge sheet within a period of sixty days. In case at hand, charge sheet was not filed within sixty
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