IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.746 of 2010 1.SAJJO son of Anamul, 2.Sainuddin son of late Idrish 3.Amin son of Mainuddin 4.Bibi Akbari wife of Sainuddin, all are aresident of village Barhat, P.S. Palasi, Dist. Araria……………………………….Petitioners. Versus STATE OF BIHAR…………………………………O.P. with Cr. Misc. No. 757 of 2010 1.Nibula Sah son of late Sohan Sah @ Sahan Sah 2.Kesh Nath Kushwaha son of late harihar Singh Kushwaha 3.Hansh Lal Kushwaha son of late Uma Kushwaha 4.Ramji Kushwaha son of late Uma Kushwaha, all are residents of village Chhotaka katra , P.S. Mohania, Dist. Kaimur at Bhabhua …Petitioners. Vs. State of Bihar………………………………………O.P. With Cr. Misc. No. 1005 of 2010 1.Nirmal Sharma son of late Radhika Sharma, resident of village Chhotaka Katra, P.S. Mohania, Dist. Kaimuar at Bhabhua ….Petitioner. Vs State of Bihar………………………………………………….O.P. With Cr. Misc. No. 789 of 2010 1.Pappu Yadav son of late Mathura Yadav 2.Gulab Yadav son of late Lauki Yadav 3.Sanjay Yadav son of Arjun Yadav, all are r/o village Shibay Bigha, P.S.Rahui (Wena), Dist. Nalanda ………..Petitioners. Vs. State of Bihar…………………………………………….O.P. With Cr.Misc. No. 3091 of 2010 1.Lalendra Bhagat 2.Rajendra Bhagat both sons of late Sagar Bhagat 3.Mhendra Bhagat 4.Yogendra Bhagat 5.SAtyendra Bhagat, all sons of Lalendra Bhagat 6.Nand Bhagat 7.Arvind Bhagat both sons of Rajendra Bhagat, all are r/o village Ratni Bazar, P.S. Shakurabad, Dist. Jehanabad……Petitioners. Vs State of Bihar……………………………………..O.P. With Cr.Misc. No. 43807 of 2009 1.Dhaneshwar Mahto son of late Satish Mahto resident of village Satghara, P.S. nagar (Rahika), Dist. Madhubani…..Petitioner. - 2 - Vs State of Bihar………………………………………….O.P. ----------- 3 26-03-2010 This batch of Cr. Misc. petitions filed under section 438 Cr.P.C.on behalf of all the petitioners have been heard together as their prayer for anticipatory bail by the respective Sessions Judge has been rejected primarily in view of bar created under section 18 of The Scheduled Castes and The Schedules Tribes (Prevention of Atrocities) Act, 1989 (herein-after referred to as the SC & ST Act for the sake of brevity). Petitioners in Cr. Misc. No. 746 of 2010 are accused in connection with Palasi P.S. case No. 114 of 2009 dated 22.7.2009 registered under sections 341, 323, 504, 448, 380/34 of the Indian Penal Code as also under section 3(I)(X) of the SC & ST Act. Petitioners in Cr. Misc. No. 757 of 2010 as also Cr. Misc. No. 1005 of 2010 are accused in connection with Rohtas (Dehri) SC/ST P.S. case No. 27 of 2008 dated 19.4.2008 registered under sections 147, 148, 149, 341, 323, 384, 379, 504, 120 B of the Indian Penal Code and Section 3(I)(X) of the SC/ST Act. Petitioners in Cr. Misc. No. 789 of 2010 are accused in Rahui (Wena) P.S. case No. 251 of 2009 dated 21.10.2009 registered for offences under sections 341, 342, 323, 354, 379 and 504/34 of the Indian Penal Code as also under section 3(ii) (v) (x) (xi) (xii) of SC&ST Act. Petitioner in Cr. Misc. No. 3091 of 23010 are accused in connection with complaint case no. 26 of 2009 in which by order dated 5.11.2009 cognizance has been taken under sections 323, 147, 504 of the Indian Penal Code as also under section 3(I)(X) of the SC&ST Act whereas petitioner in Cr. Misc. No. 43807 of 2009 is an accused in connection with Madhubani Town (Rahika) P.S. case No. 523 of 2008 - 3 - registered under sections 147, 148, 149, 323, 324, 325, 307/34 of the Indian Penal Code and 3(X) SC&ST Act. I have heard at length learned counsels appearing on behalf of the petitioners as also learned A.P.P. for the State in the respective Cr. Misc. petitions on different dates. Learned counsel appearing on behalf of the petitioners, by referring to various judgements of different High Courts including our own High Court, have submitted that bar created under section 18 of the SC&ST Act is not in absolute terms and facts of each case are required to be examined. The Session Court or the High Court is required to remove veil and if it comes to a finding that provisions of SC&ST Act is not application in the facts of that particular case, then accused persons can be granted the privilege of anticipatory bail by looking to the merit of that case. It was further submitted that learned Sessions Court, in many of the cases at hands, have not examined the merit of that particular case and merely in view of the bar created under section 18 of the SC&ST Act have rejected the prayer made on behalf of the petitioners, and, therefore, submission was that this Court itself may examine the merit of each of the case and should come to a finding as to whether offences alleged under the provisions of SC&ST Act are at all made out against the accused persons including the petitioners. Learned A.P.P. appearing for the State has opposed the prayer made on behalf of the petitioners for grant of anticipatory bail primarily on the ground that applications are not maintainable in view of bar created under section 18 of the SC&ST Act. I may observe here that all these matters were adjourned on some previous dates at the request made by learned A.P.P, as according to him Shri Lalit Kishore, learned A.A.G-III would be appearing - 4 - in all these cases to assist the court. Unfortunately despite accommodation made, learned A.A.G-III has chosen not to appear in these matters when it was finally taken up for hearing, for the reasons best known to him. Consequently there was no adequate assistance in these matters from the State. In view of rival submissions made on behalf of the parties,and in the light of the impugned orders passed by the learned Sessions Court in the cases at hands, it is apt to quote section 18 of the SC & ST Act, which is as follows: “18. Section 438 of the Code not to apply persons committing an offence under the Act- Nothing in Sec. 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”. It is pertinent to mention here that the very validity of the SC&ST Act came under challenge before different High Courts primarily on the ground of infraction of Articles 14 and 21 of the Constitution of India. Prayers were made that whole Act may be declared ultravires. A Full Bench of the Rajsthan High Court in the case of Jai Singh V Union of India, reported in AIR 1993 Rajsthan, 177 negatived the challenge and held that Act is intravires. Similarly constitutional validity of certain provisions of SC & ST Act came to be challenged before High Court of Madhya Pradesh. The said High Court, while rejecting the challenge with respect to other provisions of SC&ST Act, declared section 18 of the said Act as unconstitutional on the ground of violation of Articles 14 and 21 of the Constitution of India. State of Madhya Pradesh took the matter to the Apex Court challenging the propriety and legality of the order passed by the said High Court. Hon’ble - 5 - Apex Court in the matter of State of M.P. V. Ram Kishan Balothia reported in A.I.R. 1995 SC, 1198 reversed the judgment and order of the High Court of M.P. and upheld the validity and legality of section 18 of the SC&ST Act in no uncertain terms. Once the Constitutional validity of SC&ST Act was upheld by the Apex Court in the case referred to above, the question arose before different High Courts that as to whether an application for anticipatory bail is maintainable with respect to any offence having been committed by any person under the provisions of SC&ST Act particularly in view of the bar created under section 18 of the said Act. The matter came up for consideration before Orissa High Court in the case of Ramesh Prasad Bhanja V State of Orissa reported in 1996 Cr. L. J 2743. Learned single judge was pleased to hold that mere registration of a case under section 3(I) of the SC&ST Act would not ipso facto attract prohibition contained in section 18 of the said Act. It was held that if prima facie case under the said Act is not made out then applicability to section 438 Cr.P.C. cannot be excluded. Learned single Judge of Panjab and Haryana High Court in the case of Phulla Dass V State of Punjab reported in 1998 Cr. L.J. 157 was of the view that provision of section 18of the SC&ST Act places specific embargo on powers of the court to grant anticipatory bail under section 438 Cr.P.C. However, if it comes to a finding that there has been misuse of process of law and totally malafide and vexatious complaint petition has been filed, it can exercise its inherent power for granting anticipatory bail to an accused. When similar matter came up for consideration before Andhara Pradesh High Court in the case of K. Mallesham V State of Andhra - 6 - Pradesh reported in 1999 Cr. L.J. 324, learned Single Judge was of the considered opinion that a special law or provision shall always prevail over the general law or provision. Therefore, section 18 of the SC&ST Act excludes operation of section 438 of the Code of Criminal Procedure and to that extent takes away the statutory rights conferred upon the persons to be released on bail in the event of their arrest in connection with commission of an offence under the provisions of the SC&ST Act. However, learned single judge was further of the view that the courts jurisdiction to issue appropriate direction in exercise of his jurisdiction under section 438 of the Code would in no way be excluded by mere mentioning the provisions of the SC&ST Act in the F.I.R. or in the complaint petition, as the case may. Courts jurisdiction could not be affected by what has been mentioned by the police at the time of registration of the case. The crucial question would be as to whether the contents of the complaint or the F.I.R. would attract the provisions of SC & ST Act. In view of certain controversies regarding maintainability of petition under section 438 Cr.P.C. with respect to offences committed under the provisions of SC & ST Act, a learned Single Judge of Karnataka High Court referred a matter to the Division Bench for its authoritative decision. A Division Bench of Karnataka High Court in the case of N.B. Gungarakoppa V State of Karnataka ,reported in 2002 Cr. L.J., 3311, has held in no uncertain term that entertainment of an application under section 438 Cr.P.C. is not totally barred by section 18 of the SC&ST Act. Court can lift the veil to ascertain true nature of charges with respect to commission of offence under the provisions of SC&ST Act. If charge is found genuine then bar under section 18 of the SC&ST Act would apply and if on preliminary examination - 7 - it is found that offences are not attracted, then petition under section 438 Cr.P.C. is maintainable. A question arises that what should be extent of inquiry with respect to applicability of the offence alleged under the provisions of SC&ST Act at the time of consideration of an application under section 438 Cr.P.C.? whether the courts are required to make in depth inquiry by looking to the first information report or the complaint petition as also be calling for the case diary and by considering the defence placed by the accused persons? These questions have been aptly answered by a Full Bench of Rajsthan High Court in the case of Virendra Singh V. State of Rajsthan reported in 2000 Cr.L.J. , 2899. I am tempted to quote the relevant passage of paragraph 18 of the judgment which is as follows; “We are afraid that if an interpretation of Sec. 18 is made in a manner so as to permit scrutiny of materials into the case diary, charge sheet, statements of the witnesses and other materials on record, it would be difficult to make a distinction between usual application for anticipatory bail and the one filed in a case alleged against an accused under the Act of 1989. It has to be borne in mind that if a person is even alleged of an accusation of committing of an offence under the S.C.S.T Act of 1989 the intention of Section 18 is clearly to debar him from seeking the remedy of anticipatory bail and it is only in the circumstances where there is absolutely no material to infer as to why Sec. 3 has been applied to implicate a person for an offence under the Act of 1989 the Courts would be justified in a very limited sphere to examine whether the application can be rejected on the ground of its maintainability. What is intended to be emphasized is that while dealing with an application for anticipatory bail, the Courts would be justified in merely examining as to whether there is at all an accusation against a person for registering a case under section 3 of the Act of 1989 and once the ingredients of the offence are available in the F.I.R. or the complaint, the Courts would not be justified in entering into a further inquiry by summoning the case diary or any other material as - 8 - to whether the allegations are true or false or whether there is any preponderance of probability of commission of such an offence. Such an exercise in our view is intended to put to a complete bar against entertainment of application of anticipatory bail which is unambiguously laid down under Sec. 18 of the Act of 1989, which is apparent from the perusal of the section itself and thus the Court at the most would be required to evaluate the FIR itself with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of the ingredients constituting the alleged offence. In our opinion, the Court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegation made in the FIR or the complaint by calling for the case diary, charge sheet or any other material gathered at the time of investigation but, if the allegations in the FIR or the complaint even if they are taken at their face value are accepted in their entirety do not constitute the offence alleged, it is only in those miniscule number of cases, the Courts would be justified in entertaining the application , not because it is maintainable but clearly because the Act would be inapplicable in the facts and circumstances of that particular case.” Similar matters came up for consideration before our own High Court also in the case of Mahesh Pd. Singh v State of Bihar, reported in 2005 (3) PLJR, 744. Learned single judge has been pleased to hold that an application for anticipatory bail would not lie in a prosecution under SC&ST Act ,but the court must be per se satisfied that prima facie allegations against the petitioners under the provisions of the SC&ST Act is made out or not. From bare perusal of the complaint if it can be found that allegations are cosmetic in nature, then application for anticipatory bail under section 438 Cr.P.C. would be maintainable.Similar view has been taken by another learned single judge of this Court in the case of Lalit Kumar V State of Bihar report in 2007 (1) PLJR , 432. After having deliberated rival contentions of the parties, and - 9 - after having considered the judgments of various High Courts, referred to above including are own High Court, this court comes to following conclusive conclusions: (a) That an application under section 438 Cr.P.C. with respect to offences under the provisions of SC&ST Act is not maintainable as of matter of right either before High Court or before the court of Session. However, if in the circumstances set forth below, the court is of the opinion that offences alleged are in applicable under the Provisions of SC & ST Act then certainly an application under section 438 Cr.P.C. is maintainable and relief can be granted. (b) Merely mentioning the provisions either in the FIR or the complaint petition regarding commission of the offences under SC&ST Act would not itself denude the court to exercise its power under section 438 Cr.P.C (c) The court is required to lift the veil in each case and is required to come to a finding as to whether an offence under the provisions of SC&ST Act is made out or not, (d) For the purpose of coming to the conclusion about applicability of the provisions of SC&ST Act in a particular case, the court is not required to make an in-depth inquiry or to examine the materials on record meticulously. At this stage for the purpose of consideration of prayer for anticipatory bail, court is required to see only as to whether a prima-facie case is made out or not. (e) For the purpose of coming to a conclusion as to whether offence under the provisions of SC&ST Act is made out or not, it would be suffice to scrutinize the FIR or the complaint petition, as the case may be. Calling for the case diary, charge sheet, statement of witnesses and other materials on record and considering the defence of accused at this stage would - 10 - be contrary to the Legislative intent of section 18 of the SC&ST Act and as such for the purpose of consideration of application under section 438 Cr.P.C. same are to be avoided. (f) In a case of barbaric nature of atrocities punishable under the Provisions of SC & ST Act or in a case of attack with casteist angle, bar u/s 18 of SC & ST Act shall be applicable, and petition under section 438 Cr.P.C. cannot be entertained. (g) Merely calling some one by caste name does not ipso facto attract the Provisions of SC & ST Act Having stated the legal proposition regarding maintainability of anticipatory bail application with respect to offences under the provisions of SC&ST Act, now I come to consider the merit of each of the petitions filed on behalf of the petitioners. (1) Cr. Misc. No. 746 of 2010: In this application entire occurrence is said to have taken place on the question of grazing of a she goat of the informant in the field of accused persons. Dispute between the parties is of petty nature and the provisions of SC&ST Act is not at all applicable in the present case. Hence the above named petitioners in the event of their arrest or surrender in the court below within four weeks from today be released on bail on furnishing bail bonds of Rs. 10,000/- (ten thousand) each with two sureties of like amount each to the satisfaction of C.J.M. Araria in connection with Palasi P.S. case no. 114 of 2009, subject to the conditions laid down under section 438(2) Cr.P.C. 2. Cr. Misc. No. 757 of 2010 with Cr. Misc. No. 1005 of 2010: Petitioners in both the applications are accused with respect to various offences - 11 - of Indian Penal Code and under the provisions of SC&ST Act. The occurrence is said to have taken place because of bonafide land dispute between the parties. The provisions under the SC&ST Act appear to be super addition merely on the ground that informant happens to be a member of a scheduled caste. In the facts and circumstances of the case let the above named petitioners in the above noted cases in the event of their arrest or surrender in the court below within four weeks from today be released on bail on their furnishing bail bonds of Rs.10,000/- (ten thousand) with two sureties of like amount each to the satisfaction of C.J.M. , Kaimur at Bhabhua in connection with Rohtas (Dehri ) SC/ST P.S. case no. 27 of 2008 subject to the conditions laid down under section 438 Cr.P.C. 3.Cr. Misc. No. 789 of 2010: In this case the husband of the informant was killed by accused persons three months prior to the alleged occurrence. Since informant, a lady, and her supporter have deposed against the accused persons in that murder case, for that reasons present occurrence is said to have taken place. There are specific allegation against the petitioners of having committed criminal misbehaviour against the informant and two other persons. In the present case clearly offences under the SC&ST Act are applicable against the petitioners and therefore, the petition for anticipatory bail on behalf of the petitioner is not maintainable. It is accordingly dismissed. The petitioners must surrender in the court below in connection with Rahui (Wena) P.S. Case no.251/2009 and seek regular bail. 4.Cr. Misc. No. 3091 of 2010: In the present case complaint petition was filed and cognizance has been taken for all bailable offences under the Indian Penal Code besides under section 3 (1) (X) SC&ST Act. From perusal of the complaint petition it is apparent that the occurrence has taken - 12 - place inside the house and it was not within the public view. In that view of the matter provisions under the SC&ST Act is not applicable against the petitioners. In the facts and circumstances of the case let the above named petitioners in the event of their arrest or surrender in the court below within four weeks from today be released on bail on furnishing bail bond of Rs. 10,000/- (ten thousand) with two sureties of like amount each to the satisfaction of C.J.M, Jehanabad in complaint case no. 26 of 2009, subject to the conditions laid down under section 438(2) Cr.P.C. 5.Cr. Misc. No. 43807 of 2009: In the present case there is specific allegation of assault by Farsa as a result of which informant and his brother sustained injury on their head. Occurrence is also said to have taken place in the public view and on the occasion of Durgapuja. The informant was humiliated and was not allowed to come on the verandah of the temple on the ground that he happens to be member of the Scheduled caste. Offences under the SC&ST Act are clearly attracted. Therefore, application for grant of anticipatory bail filed on behalf of the petitioner is not maintainable in view of bar created under section 18 of SC&ST Act. Even on merit of the prosecution case petitioner is not entitled to have the privilege of anticipatory bail. It is accordingly dismissed. The petitioner must surrender in connection with Madhubani Town (Rahika ) P.S. case No. 523 of 2008, and seek regular bail in the court below. However, it is made clear that any of the observation made in the present order shall not in any way adversely affect the case of the parties in future proceedings, which are left to be decided by the appropriate court at the appropriate Stage. Having regard to the number of cases that arise under the - 13 - provisions of this Act and the necessity of acquainting the judicial officers with correct position in law, I direct the Registrar General to circulate copies of this judgment to all the District Judges in the State who in turn shall ensure that it is circulated to all the courts of Session in the State of Bihar. Orders accordingly (Birendra Prasad Verma, J) ( AFR ) M.Rahman