Sunday 22 November 2015

Anticipatory Bail in SC/ST atrocities cases - Bar U/s 18 of the Act - Citation



Andhra High Court
Goluguri Eswara Reddy And Another vs The State Of Andhra Pradesh, Rep. ... on 19 Sept 2014
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO            
CRL.P.No.11055 of 2014
19-09-2014
Goluguri Eswara Reddy and another.....Petitioners
The State of Andhra Pradesh, rep. by its Public Prosecutor. Respondent
Counsel for the Petitioners : Sri Mangena Sree Rama Rao
Counsel for the Respondent : Public Prosecutor
THE HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
CRIMINAL PETITION No.11055 of 2014
ORDER:
1.         This Criminal Petition is filed under Section 438 Cr.P.C by petitioners/A-1 & A-2 seeking anticipatory bail in connection with a case in P.R.C. No.11 of 2011 on the file of Judicial Magistrate of the First Class, Alamuru, East Godavari District registered against the petitioners and others for the offences punishable under Sections 324 read with 34 I.P.C read with Section 34 I.P.C and Section 3(i)(x) of Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, the Act).

2. Heard the Learned Counsel for the Petitioners, the Learned Additional Public Prosecutor for the Respondent-State and perused the material placed on record.

3. The Petitioners are A-1 and A-2. The petitioners moved the Honourable High Court in Crl.P.No.3361 of 2009 for quashing of the proceedings and by order of this Court (another bench)
dated 08.12.2011 while dismissing the application for quashing from prima facie accusation, there was a direction not to arrest pending investigation. It is pursuant to which the police after completion of investigation, filed charge sheet under the above provisions against the accused persons 1 to 4 including the petitioners herein. It appears after taken cognizance under Section 190 Cr.P.C for committal of the case under Section 209 Cr.P.C, P.R.C. No.11 of 2011 allotted and the case is pending committal stage and before committing as presence of the accused is necessary and he was not arrested earlier by virtue of the order supra of the Honourable High Court, the N.B.W was issued against the accused persons for execution of N.B.W and production of them by showing in abscondence after completion of the investigation for the concession not available beyond investigation completion. It is because of the N.B.Ws pending, this application for anticipatory bail application is filed. Even post cognizance of such pending of N.B.W is not a bar for maintainability of anticipatory bail as held by the Full Bench of this Court, the decision referred in Smt.Sheik Khasim Bi V. The State .

4. However, coming to the facts, there is a bar under Section 18 of the Act, but for maintainability of the anticipatory bail, as there is a prima facie accusation as accused insulted by way of abuse in
public view by touching the caste name of the defacto-complainant to attract the Section 3(1)(x) of the Act. Coming to the bar under Section 18 of the Act, learned counsel for the petitioner placed reliance on the proposition of law laid down by the Apex Court in Shobhan Singh Khanka V. State of Jharkhand drawing attention of this Court to para 22 so also to para 14, wherein it was held that personal liberty is a fundamental right and imposition of conditions as laid down in Section 438 Cr.P.C are to be applied or not to be specified. The learned counsel for the petitioners has also relied on the decision of this Court in Paracha Mohan Rao V. State of Andhra Pradesh , and drawn attention to para 11 which clearly speaks irrespective of the bar under Section 18 of the Act, a bail application is maintainable and it is for the Court to consider whether the allegations in the complaint or F.I.R attracts the prohibition under Section 18 of the Act or a case to grant anticipatory bail. It is clearly observed at the end of para 11 that when the allegations mentioned in the first information report/complaint in their entirety do not attract a particular offence under the Act, then the High Court or the Court of Session can exercise their discretion to grant anticipatory bail.
5. In fact, the Apex Court in the very recent expression in Bachu Das V. State of Bihar , wherein at para 6 by referring to para 9 of the earlier expression in Vilas Panduranga Pawar V. State of
Maharashtra observed as under: 6. It is clear that the learned Magistrate carefully perused the complaint petition, as well as the statement of the complaint and four witnesses examined during enquiry and arrived at a prima facie conclusion against the accused persons that the offence under Sections 147, 148, 149, 323, 448 IPC and Section 3 of the SC/ST Act, is made out. In such circumstance and in view of the bar under Section 18 of the SC/ST Act, the learned counsel relying on the decision of this Court in Vilas Pandurang Pawar V. State of Maharashtra, submitted that the High Court is not justified in granting anticipatory bail. In similar circumstances, this Court has considered the offence under Section 3(1),  as well as the bar provided under Section 18 of the SC/ST Act and concluded as under:

“9. Section 18 of the SC/ST Act creates a bar for invoking section 438 Cr.P.C. 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 accuse persons are not entitled to anticipatory bail.
9) The scope of Section 18 of the SC/ST Act read with Sections 438 Cr.P.C 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 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. Court is not expected to indulge in critical analysis of the evidence on record. When a provision has been 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 Cr.P.C, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence”.

6. From the expression of the Apex Court, it is crystal clear that when the allegations indicate abusing the complainant with caste name with intent to humiliate, it is a bar for maintaining the application for anticipatory bail under section 438 Cr.P.C, in view of Section 18 of the Act.

7. Now, from the proposition of law adverting to the facts covered by the complaint given by the
defacto-complainant for registration of the crime, which is annexed to the application, it refers to
pointing out the occurrence and also abusing in caste name with intent to insult by the petitioners.
When such are the averments in the complaint abusing in caste name in public view with an intent to insult, there is a bar under Section 18 of the Act for anticipatory bail, and thereby whether it is false accusation or whether there is any truth in the allegations cannot be gone into at this stage by this Court for the purpose of bail application as per above law. Thus, it is not a case to grant anticipatory bail to the petitioners from the bar; though otherwise the facts deserve consideration of bail.

8. Having regard to the above, the Criminal Petition is disposed of by giving liberty to the petitioners/A-1 & A-2 to move regular bail application and surrender before the learned Special Judge concerned and after notice to the Public Prosecutor and in such an event, the learned Judge
shall consider for granting of bail in favour of the petitioners with necessary conditions preferably
on the same day. The learned Judge in granting bail as per directions supra can impose necessary
conditions which include furnishing of address proof with bank account particulars if any for
securing presence before Court non- interference with witnesses and the like.

9. Accordingly, the criminal petition is disposed of.
__________________________ Dr. B.SIVA SANKARA RAO J, 19th September, 2014

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