Dismissed

Sunil Kumar v. The State Of Bihar

Patna HC13 Apr 2017CR. APP (SJ)/671/2017

Case brief

AI extract

What is this about?

The Patna High Court dismissed the criminal appeal seeking anticipatory bail. The court held that Section 18 of the S.C./S.T. Act creates a bar on anticipatory bail when the allegations prima facie fall under Section 3 of the Act, noting that antifreeze inquiry is required only at the surface level.

What did the court decide?

The appeal seeking anticipatory bail was dismissed as the allegations prima facie attracted the S.C./S.T. (Prevention of Atrocities) Act.

Sunil Kumar Vs The State Of Bihar — Pension and Retirement Benefits | Patna HC (2017)

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Patna High Court CR. APP (SJ) No.671 of 2017 (02) dt.13-04-2017

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IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.671 of 2017

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Arising Out of PS.Case No. -650 Year- 2016 Thana -AHIAPUR District- MUZAFFARPUR

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====================================================== Sunil Kumar, S/o- Shivdhyan Prasad, R/o- Mohallah- Muradpur Dullah, P.S. Ahiyapur, District- Muzaffarpur.

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.... .... Appellant/s

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Versus

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The State of Bihar

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.... .... Respondent/s

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====================================================== Appearance : For the Appellant/s : Mr. Anish Kumar -Advocate For the Respondent/s : Mr. Sadanand Paswan-S.P.P.

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====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER

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Heard learned counsel for the appellant as well as learned Special Public Prosecutor.

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03 13-04-2017

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Referring contents of written report, it has been submitted on behalf of appellant that it happens to be out and out a civil dispute that too, relating to sale and purchase of a land and further, controversy over mode of payment of the consideration amount. The subsequent event, as narrated, had never been taken place rather the same has been introduced only to defeat the interest of the appellant. That being so, appellant should be allowed to avail the privilege of an anticipatory bail. Further, it has also been submitted that appellant happens to be practicing advocate which, in the facts and circumstances of the case, should also be acknowledged as an additional ground in order to discredit

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Patna High Court CR. APP (SJ) No.671 of 2017 (02) dt.13-04-2017

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the version/ allegation having attributed at the end of the

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informant.

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On the other hand, learned Special Public Prosecutor opposed the prayer and submitted that from plain reading of the written report, there happens to be sufficient exposure with regard to applicability of S.C./S.T. (Prevention of Atrocities) Act. Consequent thereupon, instant appeal does not survive.

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It is needless to say that S.C./S.T. (Prevention of Atrocities) Act, which is found in pursuance of Article 17 of the Constitution of India debars an accused to seek anticipatory bail. Section 18 of the Act was challenged and was adjudicated upon by the Hon’ble Apex Court upholding its legality. Subsequent thereof, the matter was again considered by the Hon’ble Apex Court in Vilas Pandurang Pawar and another vs. State of Maharashtra and others reported in A.I.R. 2012 SC 3316, with regard to ambit and scope of Section 18 of the Act whereunder, some sort of relaxation has been allowed to be exercised by the Court while adjudicating upon the prayer of the anticipatory bail to perceive the allegation on its face without making in depth scrutiny which has been followed by the Division Bench in Bisheshwar Mishra and another vs. State of Bihar reported in 2016(4) P.L.J.R. 1058

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Patna High Court CR. APP (SJ) No.671 of 2017 (02) dt.13-04-2017

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(D.B.). That being so, at the time of consideration of prayer for anticipatory bail, the Court is expected only to see a prima facie material and further, for the aforesaid purpose, no depth inquiry has been allowed. Recently, the Hon’ble Apex Court in Manju vs. Onkarjit Singh Ahluwalia @ Omkarjeet Singh & Others reported in Cr. Appeal No.570 of 2017 arising out of S.L.P. (Cri) No.1929 of 2015 has observed:-

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12) It is undoubtedly true that Section 438 of the Code, which is available to an accused in respect of offences under the IPC, is not available in respect of offences under the SC/ST Act. The offences enumerated under the SC/ST Act fall into a separate and special class. Article 17 of the Constitution expressly deals with abolition of „untouchability‟ and forbids its practice in any form and also provides that enforcement of any disability arising out of „untouchability‟ shall be an offence punishable in accordance with law. The offences, therefore, which are enumerated under Section 3(1) of the SC/ST Act arise out of the practice of „untouchability‟. It is in this context that certain special provisions have been made in the SC/ST Act, including 7 the impugned provision under Section 18 which is before us. The exclusion of Section 438 of the Code in connection with offences under the SC/ST Act has to be viewed in the context of the prevailing social

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Patna High Court CR. APP (SJ) No.671 of 2017 (02) dt.13-04-2017

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conditions which give rise to such offences, and the apprehension that perpetrators of such atrocities are likely to threaten and intimidate their victims and prevent or obstruct them in the prosecution of these offenders, if the offenders are allowed to avail of anticipatory bail.

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13) In this connection, it is pertinent to refer to the Statement of Objects and Reasons appended to the SC/ST Act which is as under:-

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“Despite various measures to improve the socioeconomic conditions of the Scheduled Castes and Scheduled Tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to various offences, indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons..

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2. Because of the awareness created amongst the Scheduled Castes and the Scheduled Tribes through spread of education, etc., they are trying to assert their rights and this is not being taken very kindly by the others. When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them

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Patna High Court CR. APP (SJ) No.671 of 2017 (02) dt.13-04-2017

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down and terrorise them. When the Scheduled Castes and the Scheduled Tribes try to preserve their selfrespet or honour of their women, they become irritants for the dominat and the mightly. Occupation and cultivation of even the Government allotted land by the Scheduled Castes and the Scheduled Tribes is resented and more often these people become victims of attacks by the vested interests. Of late, there has been an increase in the disturbing trend of commission of certain atrocities like making the Scheduled Caste persons eat inedible substances like human excreta and attacks on and mass killings of helpless Scheduled Castes and the Scheduled Tribes and rape of women belonging to Scheduled Castes and the Scheduled Tribes. Under the circumstances, the existing laws like the Protection of Civil Rights Act, 1955 and the normal provisions of the Indian Penal Code have been found to be inadequate to check these crimes. A special Legislation to check and deter crimes against them committed by non-Scheduled Castes and nonScheduled Tribes, has 8 therefore, become necessary. 3. The term „atrocity‟ has not been defined so far. It is considered necessary that not only the term „atrocity‟ should be defined but stringent measures should be introduced to provide for higher punishments for committing such atrocities. It is also proposed to

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Patna High Court CR. APP (SJ) No.671 of 2017 (02) dt.13-04-2017

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enjoining on the States and the Union Territories to take specific preventive and punitive measures to protect the Scheduled Castes and the Scheduled Tribes from being victimized and where atrocities are committed, to provide adequate relief and assistance to rehabilitate them.”

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14) In the above context, it is now easy to understand the factual matrix of the case. The use of the word „Harijan‟ „Dhobi‟ etc. is often used by people belonging to the so-called upper castes as a word of insult, abuse and derision. Calling a person by these names is nowadays an abusive language and is offensive. It is basically used nowadays not to denote a caste but to intentionally insult and humiliate someone. We, as a citizen of this country, should always keep one thing in our mind and heart that no people or community should be today insulted or looked down upon, and nobody‟s feelings should be hurt.

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15) Though the Constitution of India abolishes „untouchability‟ but in view of the social attitudes which lead to the commission of such offences against Scheduled Castes and Scheduled Tribes, there is justification for an apprehension that if the benefit of anticipatory bail is made available to the persons who are alleged to have committed such offences, there is every likelihood of their misusing their liberty while on

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Patna High Court CR. APP (SJ) No.671 of 2017 (02) dt.13-04-2017

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anticipatory bail to terrorise their victims and to prevent a 9 proper investigation. It is in this context that Section 18 has been incorporated in the SC/ST Act. The offences which are enumerated under Section 3 of the SC/ST Act are offences which, to say the least, denigrate members of Scheduled Castes and Scheduled Tribes in the eyes of society and prevent them from leading a life of dignity and self-respect. Such offences are committed to humiliate and subjugate members of Scheduled Castes and Scheduled Tribes with a view to keeping them in a state of servitude. These offences constitute a separate class and cannot be compared with offences under the Penal Code.

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16) In view of the above, it would be relevant to quote a decision of this Court in Vilas Pandurang Pawar and Another vs. State of Maharashtra and Others (2012) 8 SCC 795 wherein this Court has held as under:-

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“9. 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. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to

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Patna High Court CR. APP (SJ) No.671 of 2017 (02) dt.13-04-2017

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anticipatory bail.

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10. The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no court shall entertain an application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. The court is not expected to indulge in critical analysis of the evidence on record. When a provision has been 10 enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence.”

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The principles laid down in the aforementioned case has been followed by this Court in Bachu Das vs. State of Bihar and Others (2014) 3 SCC 471.

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17) A similar view of Section 18 of the SC/ST Act has been taken by the Full Bench of the Rajasthan High Court in the case of Jai Singh and Another vs. Union of India and Others AIR 1993 Raj. 177 wherein it was

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Patna High Court CR. APP (SJ) No.671 of 2017 (02) dt.13-04-2017

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held that the SC/ST Act with which we are concerned aims at to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. The two Acts may be different in their amplitude, but indignity tolerated up to the year 1988 by the Scheduled Castes and Scheduled Tribes had been felt not to be tolerable any more, consequently, the present Act was enacted and we respectfully agree with its findings.

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18) The decision relied upon by learned senior counsel for the respondents in Nirmal Jeet Kaur vs. State of M.P. and Another (2004) 7 SCC 558 does not help the respondents for the simple reason that in the aforesaid case it has been held that Sections 438 and 439 operate in different fields and for making an application in terms of Section 439 of the Code a person has to be in custody whereas Section 11 438 of the Code deals with direction for grant of bail to person apprehending arrest and contemplates merely an order directing the release of accused on bail in the event of his arrest.

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Now, coming to facts of the case, it is evident that

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there was dispute existing with regard to negotiation/ part payment of the consideration amount and in the aforesaid background, it has been alleged that while informant was present near Ahiyapur temple, Sunil Kumar and Shivdhyan Prasad and four unknown

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Patna High Court CR. APP (SJ) No.671 of 2017 (02) dt.13-04-2017

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persons gathered there and in order to humiliate him as a Member of Scheduled Caste, began to abuse. On protest, Sunil Kumar pushed him and then, Shivdhyan Prasad assaulted with shoe, others have also assaulted with leg and fists and during course thereof, snatched Rs.15,000/-. Sunil Kumar and Shivdhyan Prasad also pressed his neck in order to kill, but was rescued by the local persons. Furthermore, they have also spoken “Sale Dusad Tumhe na to paisa denge aur na hi jamin denge jo karna hai karlo.”

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From plain reading of the written report, prima facie case attracting S.C./S.T. (Prevention of Atrocities) Act is made out so categorized under Section 3 thereof, whereupon instant appeal sans merit and is accordingly, dismissed.

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(Aditya Kumar Trivedi, J)

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Vikash/-

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U T

Sunil Kumar v. The State Of Bihar

Case brief

What is this about?

What did the court decide?

Sunil Kumar v. The State Of Bihar

Case brief

What is this about?

What did the court decide?

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