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2013 Supreme(MP) 63
HIGH COURT OF MADHYA PRADESH
Sujoy Paul, J.
Ummed Singh and others v. State of M.P. and another
Miscellaneous Criminal Case No.8898 of 2012 (Gwalior);
Decided on 22.1.2013.
Ankur Maheshwari for applicants;
B.K. Sharma and Smt. Sangita Pachauri, Public Prosecutor for respondent/State.
Headnote:(1) Criminal P.C., 1973 -- S.438 -- Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 -- Ss.3(1)(x) and 18 -- Penal Code, 1860 -- Ss.447 and 294 -- offence under IPC and under section 3(1)(x) of the Act of 1989 -- application for anticipatory bail -- maintainability of -- if Court is satisfied itself -- that prima facie case under section 3(1)(x) of the Act of 1989 not made out -- bar under section 18 of the Act of 1989 -- not attracted -- application for anticipatory bail can be entertained. [Paras 14 & 15
(2) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 -- Ss.18 and 3(1)(x) -- Criminal P.C., 1973 -- S.438 -- offence under sections 447 and 294 of IPC and under section 3(1)(x) of Act of 1989 -- application for anticipatory bail -- FIR that accused not permitting to work on agricultural field -- he was using abusive and filthy language -- it is not clear that incident took place in public view -- prima facie ingredients of section 3(1)(x) of the Act of 1989 not satisfied -- anticipatory bail granted. (2012)8 SCC 795 followed. 1991 JLJ 468, 1999 JLJ 84, 2006(I) MPWN 84, 2006(I) MPWN 123, (1995)3 SCC 221, (2008)8 SCC 435, 1997 Cr.LJ 2036 (Ker.), (2011)11 SCC 259, 2004(4) MPHT 78 and 2009(2) MPHT 13 referred to. [Paras 16 to 18
¼1½ naM izfdz;k lafgrk] 1973 && /kkjk 438 && vuqlwfpr tkfr;k¡ vkSj vuqlwfpr tutkfr;k¡ ¼vR;kpkj fuokj.k½ vf/kfu;e] 1989 && /kkjk 3(1)(xi) rFkk 18 && naM lafgrk] 1860 && /kkjk 447 rFkk 294 && Hkk-na-la- ds v/khu rFkk 1989 ds vf/kfu;e dh /kkjk 3(1)(xi) ds v/khu vijk/k && vfxze tekur ds fy;s vkosnu && dk pykus ;ksX; gksuk && ;fn U;k;ky; dk Lo;a lek/kku gks tkrk gS && fd izFken`"V~;k /kkjk 3(1)(xi) ds v/khu ekeyk ugha curk gS && 1989 ds vf/kfu;e dh /kkjk 18 dk otZu && vkdf"kZr ugha gksrk && vfxze tekur ds fy;s vkosnu xzg.k fd;k tk ldrk gSA ¼iSjk 14 rFkk 15½
¼2½ vuqlwfpr tkfr;k¡ vkSj vuqlwfpr tutkfr;k¡ ¼vR;kpkj fuokj.k½ vf/kfu;e] 1989 && /kkjk 18 rFkk 3(1)(xi) && naM ds v/khu vijk/k && vfxze tekur ds fy;s vkosnu && izFke bfRryk fjiksVZ fd vfHk;qDr us d`f"k Hkwfe ij dk;Z ugha djus fn;k && ;g xkyh&xykSt rFkk xanh Hkk"kk dk iz;ksx dj jgk Fkk && ;g Li"V ugha fd ?kVuk turk dks n`f"Vxkspj LFkku ij gqbZ && 1989 ds vf/kfu;e dh /kkjk 3(1)(xi) ds la?kVdksa dk izFken`"V~;k lek/kku ugha && vfxze tekur iznku dh xbZA ¼2012½ 8 ,l lh lh 795 vuqlfjrA 1991 ts ,y ts 468] 1999 ts ,y ts 84] 2006 ¼1½ e-iz- ohDyh uksV~l 84] 2006 ¼1½ e-iz- ohDyh uksV~l 123] ¼1995½ 3 ,l lh lh 221] ¼2008½ 8 ,l lh lh 435] 1997 lh vkj ,y ts 2036 ¼dsjy½] ¼2011½ 11 ,l lh lh 259] 2004¼4½ ,e ih ,p Vh 78 rFkk 2009 ¼2½ ,e ih ,p Vh 13 fufnZ"VA ¼iSjk 16 ls 18½
1. In this case a preliminary objection was raised by the State regarding maintainability of this application under section 438, CrPC, in view of specific bar under section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, the “SC/ST Act”) for grant of anticipatory bail. In other words, it is the stand of the State Government that application for grant of anticipatory bail for offences under the SC/ST Act is not maintainable.
2. With the consent of parties, matter is finally heard on the question of maintainability as well as on merits.
On maintainability :
3. In this case the offences are registered vide Crime No.476/2012 under sections 447, 294 of Indian Penal Code and section 3(1)(x) of SC/ST Act by Police Station Chachoda as well as by Police Station AJK, Guna.
4. Learned counsel for the State heavily relied on section 18 of SC/ST Act to submit that anticipatory bail is completely barred. It is profitable to quote section 18, which reads as under :
“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.”
5. Learned counsel for the State heavily relied on a recent judgment of Supreme Court delivered in the case of Vilas Pandurang Pawar v. State of Maharashtra [(2012)8 SCC 795], to submit that anticipatory bail cannot be entertained in view of prohibition under section 18 of the SC/ST Act. Shri B.K. Sharma, learned Public Prosecutor for the State, submits that in Vilas Pandurang Pawar (supra), the apex Court has dismissed the anticipatory bail, which shows that the anticipatory bail application cannot be entertained.
6. Shri Ankur Maheshwari, learned counsel for the applicants, on the other hand, relied on various judgments of this Court and other High Courts to submit that when prima facie on reading of the complaint/FIR the ingredients of section 3(1)(x) of the SC/ST Act are not satisfied/attracted, bar of section 18 has no role to play for entertaining the application under section 3(1)(x) of the SC/ST Act.
7. In view of rival contentions of learned counsel for the parties, I deem it proper to trace the legal history on the subject. Section 438 of Code of Criminal Procedure was introduced pursuant to 41st report of Law Commission. The recommendation for introduction of anticipatory bail reads as under :
“We agree that this would be a useful advantage. Though we must add that it is in very exceptional cases that such power should be exercised.”
In the light of this recommendation, section 438 was incorporated, for the first time, in the Criminal Procedure Code of 1973. Thus, it is essentially a statutory right conferred long after coming into force of the Constitution of India. The apex Court considered this aspect in (1995)3 SCC 221 (State of M.P. v. Ram Krishna Balothia), wherein the constitutional validity of section 18 of SC/ST Act was called in question and opined that section 18 neither violates Article 14 nor 21 of the Constitution. Thus, the question is whether section 18 aforesaid provides a blanket prohibition for anticipatory bail under section 438? In other words, whether anticipatory bail is totally barred if offences under section 3(1)(x) are alleged against the accused.
8. In (2008)8 SCC 435 (Swaran Singh v. State), the apex Court opined as under :
“24. In our opinion, calling a member of the Scheduled Caste “chamar” with intent to insult or humiliate him in a place within public view is certainly an offence under section 3(1)(x) of the Act. Whether there was intent to insult or humiliate by using the word “chamar” will of course depend on the context in which it was used.
25. A perusal of the FIR clearly shows that, prima facie, an offence is made out against appellants 2 and 3. As already stated above, at this stage we have not to see whether the allegations in th
