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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE RENGASAMY
RAMASAMY
Versus
STATE BY INSPECTOR OF POLICE
Crl.O.P.1858 of 1997
Decided On : 02-04-1997
Held: Therefore, even the offence said to have been committed falling under the provisions of the Indian Penal Code should have been committed against a person of the Scheduled Caste or the Scheduled Tribe, for the reason that be belongs to the Scheduled Caste or the Scheduled Tribe. So, the object of the commission of the offence under the Indian Penal Code must be that the victim is a member of the Scheduled Caste or the Scheduled Tribe. If the offence under the Indian Penal Code was committed on any other ground without giving any consideration as to his caste, then the offence will not at tract the provisions of the S.C. & S.T. (P.A.) Act. In this case on a perusal of the charge sheet there is nothing to show that the complainant and others, who were way-laid and were pelted with stones, were discriminated on the ground of them being the members of the Scheduled Caste but the charge sheet itself reads that it was only to wreak vengeance for the filthy slogans raised by the occupants of the lorry on 6-3-1996 when they were proceeding to Madurai. (Para 10)
(ii) Criminal Procedure Code, 1973 - Section 438 -Indian Penal Code, 1860 - Sections 147, 148, 341, 324, 427 & 302 – Anticipatory Bail - Offence was committed by pelting stones on complainant party- F.I.R. stated that 300 persons whose names were not known had surrounded complainant party Identities of assailants were not given in F.I.R. -In charge sheet also, no specific overt act against accused persons mentioned - Some of accused had already been granted anticipatory bail- Petitioners are also entitled to benefit of anticipatory bail. (Para 11)
Result: Petitions allowed.
RENGASAMY, J.
( 1 ) CRI. O. P. Nos. 2488 and 2653 of 1997 are for anticipatory bail whereas Cr1. M. P. No. 1113 of 1997 in Cr1. O. P. No. 1858 of 1997 is for cancellation of the anticipatory bail granted already.
( 2 ) THE petitioners in Cr1. O. P. Nos. 2488 and 2653 of 1997 have been charged for the offences under Sections 147, 148. 341, 324. 427 and 302 Indian Penal Code, Section 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 1989, hereinafter to be referred to as S. C. and S. T. (P. A.) Act, and Sections 3 and 5 of the Tamil Nadu Public Property (Prevention of Damage and Loss) Act, 1992 read with Section 149 Indian Penal Code.
( 3 ) THE allegation is that while the complainant and 60 others, who belonged to Scheduled Castes, were returning in a lorry on 7-3-1996 after attending a conference, they were at7 tacked by about 300 persons near Kallukuli village by pelting stones and a person was killed due to the hitting of the stone while five others were injured apart from the damage to the lorry. On the complaint of an injured person, the case was registered by Kallupatti Police initially for the offences under Sections 147. 148, 341, 324 and 302 Indian Penal Code and after investigation, now the charge sheet is filed for the above sections and also for the offence under Section 3 (2) (v) of the S. C. and S. T. (P. A.) Act and also Sections 3 and 5 of the Tamil Nadu Public Property (Prevention of Damage and Loss) Act, 1992.
( 4 ) ALREADY Cr1. O. P. No. 1858 of 1997 was filed by some of the accused, in this Court for anticipatory bail and anticipatory bail was granted on 4-3-1997. The learned Government Advocate (Cr1. Side), Mr. S. Kumaresan, has raised an objection for the maintainability of these petitions under Section 438 Code of Criminal Procedure in view of the bar under Section 18 of the S. C. and S. T. (P. A.) Act and therefore, the respondent/police has field a petition Cr1. M. P. No. 1113 of 1997 to cancel the anticipatory bail granted to some of the accused in Cr1. O. P. No. 1858 of 1997 on 4-3-1997. The learned Government Advocate would submit that Section 18 of the S. C. and S. T. (P. A.) Act is very specific that Section 438 of the Code of Criminal Procedure shall not be applied in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act and as these petitioners have been accused of the offence under Section 3 (2) (v) of this Act. Section 438 Code of Criminal Procedure cannot be invoked by these petitioners for anticipatory bail and therefore, the petitions Cr1. O. P. Nos. 2488 and 2653 of 1997 for grant of anticipatory bail have to be dismissed and Cr1. M. P. No, 113 of 1997 has to be allowed canceling the anticipatory bail granted in Cr1. O. P. No. 1858 of 1997.
( 5 ) IT is true that Section 18 of the S. C. and S. T. (P. A.) Act is a bar for the application of Section 438 Code of Criminal Procedure when the accused is alleged to have committed the offences mentioned in the said Act. But the learned senior counsel Mr. Asokan and the learned counsel Mr. Shanmugavelayutham, appearing for the petitioners in Cr1. O. P. Nos. 2488 and 2653 of 1997, contended that the more inclusion of a section under the said Act will not take away the powers of the Court to grant relief under Section 438 Code/ of Criminal Procedure but the Court has to apply its mind to find out whether any offence has been made out under the said Act for the purpose of the application of Section 438 Code of Criminal Procedure an9 in this case, a cursory glance at the charge sheet itself will make it clear that no offence has been made out under the said Act and therefore, this Court is at liberty is apply Section 438 Code of Criminal Procedure for the grant of anticipatory bail to these petitioners. The learned senior counsel and the learned counsel Mr. Shanmugavelayutham would refer to a catena of decisions in support of their argument
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