Persons belonging to the Scheduled Caste category cannot be prosecuted for the offence under the Act: Patna High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEALNo.19321 Arising Out of PS. Case No. 283 Year 2019 Thana CHANDI District Nalanda 1. Nande Paswan @ Jitendra Kumar Son of Shiv Balak Paswan Ram Balak Paswan Son of Bhagirath Paswan Both R O Village Rupaspur P.S. Chandi Dist. Nalanda ... Appellants ... Respondent The State of Bihar For the Appellants For the Respondent CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH Date : 27 05 2021 Mr. Pramod Kumar Sinha Advocate Mr. Sadanand Paswan Spl. P.P Heard Mr. Pramod Kumar Sinha learned counsel for the appellants and Mr. Sadanand Paswan learned Special Public Prosecutor appearing for the State The appellants have preferred the present appeal under Section 14 Aof the Scheduled Castes and the Scheduled TribesAct 1989challenging the order dated 30.01.2021 passed in ABP No.211 of 2021 by the learned Special Judge SC ST Act Biharsharif Nalanda whereby he has rejected their prayer for grant of pre arrest bail Mr. Pramod Kumar Sinha learned counsel appearing for the appellants submitted that on the basis of the allegations made in the first information report no offence Patna High Court CR. APPNo.19321 dt.27 05 2021 under the Act is attracted against the appellants. He contended that since the appellants themselves belong to the scheduled caste category they cannot be prosecuted for the offences under the Act. He further contended that the appellants are apprehending their arrest in view of the fact that differing with the police report the learned Special Judge has taken cognizance of the offences against them also in spite of the fact that on completion of investigation the police had found the allegations to be false as against the appellants On the other hand learned Special Public Prosecutor appearing for the State submitted that even though the appellants may not be prosecuted for the offences under the Act they can very well be prosecuted for the offences punishable under the Indian Penal Code. He contended that in view of the materials collected by the police during investigation the court below has rightly differed with the police report and taken cognizance of the offences against the I have heard learned counsel for the parties and carefully perused the record The first information report is based on the written report of one Rahul Kumar submitted to the Officer in Patna High Court CR. APPNo.19321 dt.27 05 2021 charge Chandi Police Station on 3rd of August 2019 wherein he has stated that on 03.08.2019 at about 07:00 am when he reached his house he heard hulla that his father has been intercepted by Manoj Yadav Gorakh Paswan Ram Balak Paswan and Nand Paswan near the orchard of one Kashi Yadav and they are abusing and assaulting him. He has stated that Manoj Yadav and Gorakh Paswan fired from their respective pistols which hit his father as a result of which he fell down The motive attributed for the occurrence is land dispute On the basis of the aforesaid information given to the police Chandi P.S. Case No.283 of 2019 dated 03.08.2019 was registered for the offences punishable under Sections 341 323 307 504 read with 34 of the Indian Penal Code Section 27 of the Arms Act and Section 3(1)(r) of the Act On completion of investigation the police submitted their report vide charge sheet No.246 2019 dated 16th of October 2019. The police sent up only Gorakh Paswan for trial for the aforesaid offences and found the appellants However differing with the police report the learned Special Judge SC ST Act Biharsharif Nalanda vide order dated 11th of December 2019 took cognizance of the Patna High Court CR. APPNo.19321 dt.27 05 2021 offences against the appellants for the offences punishable under Sections 341 323 307 504 read with 34 of the Indian Penal Code and section 27 of the Arms Act 10. Apparently in the first information report no allegation of any overt act has been made against the appellants As seen above even during investigation the investigating officer found the appellants innocent. The order by which cognizance has been taken against the appellants for the offences punishable under the penal code and Arms Act does not show the material on which the learned court below has relied upon for differing with the police report. It has rightly been submitted on behalf of the appellants that since they themselves belong to the Scheduled Caste category they cannot be prosecuted for the offence under the Act. 11. Under such circumstances in the opinion of this Court a case for grant of pre arrest bail is made out 12. Accordingly the impugned order dated 30.01.2021 passed by the learned Special Judge SC ST Act Biharsharif Nalanda in ABP No. 2121 is set aside The appellants are directed to be released on bail in the event of their arrest or surrender on furnishing bail bond of Rs.10 000 with two sureties of Patna High Court CR. APPNo.19321 dt.27 05 2021 the like amount each to the satisfaction of the learned Additional Sessions Judge 1st cum Special Judge SC ST Act Biharsharif at Nalanda in connection with Chandi P.S. Case No.2819 The appeal stands allowed Since the court proceedings are being conducted through virtual mode and normal court functioning has not been restored till date it is considered appropriate to adopt the following procedure for communication of the present The order which has been dictated during the course of proceeding of the virtual court shall be communicated to me electronically by the Joint Registrar cum Addl. PPS The corrected copy of the order shall be transmitted by me to the Joint Registrar cum Addl. PPS electronically which shall be treated to be an authentic copy of the order passed by this Court in the present proceeding iii) Hard copy of the order duly signed by me shall be preserved in my residential office for documentation and future use if any iv) Let steps be taken by the Joint Registrar cum Addl Patna High Court CR. APPNo.19321 dt.27 05 2021 PPS registry for up loading of the present order without compromising with the norms of social (Ashwani Kumar Singh J

Summary: A person who belongs to the Scheduled Caste category cannot be booked with charges prescribed under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989. A single bench comprising of Justice Ashwini Kumar Singh in adjudicating the matter in Nande Paswan &amp; others v. State of Bihar (CRIMINAL APPEAL (SJ) No.1932 of 2021 ) dealt with the issue of granting pre-arrest bail to the appellant and setting aside the previous order of the learned Special Judge. The Appellants in the present case present an appeal u/s 14-A(2) under Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 challenging the order dated 30.01.2021 passed in ABP No.211 of 2021 by the learned Special Judge, SC/ST Act, Biharsharif, Nalanda rejecting their prayer for grant of pre-arrest bail. As per the FIR, the learned counsel appearing on behalf of the Appellants contended that no offense under the Act is attracted against the Appellants as they belong to the scheduled caste category. The FIR Iis based on the Report of Rahul Kumar and is submitted to the Officer-in-charge stating that he heard some noise that his father was intercepted by the Appellants near the orchard of Kashi Yadav and they were abusing and assaulting him. He also stated that one of the Appellant fired from the Respective pistols that hit his father due to which he fell down and the motive for this act is derived from an occurrence in the land dispute. Owing to the FIR, the police charged the appellants for offenses punishable under Sections 341, 323, 307, 504 read with 34 of the Indian Penal Code, Section 27 of the Arms Act, and Section 3(1)(r) of the Act. After completion of the investigation, Gorakh Paswan was sent for trial, and others were found innocent. The Learned Special Judge differing from the Police report took cognizance of the offenses against the appellants for offenses u/s- 341, 323, 307, 504 read along with 34 of the Indian Penal Code and section 27 of the Arms Act. The court observed that there was no undertaking of an overt act in the FIR and the appellants were also found innocent in the investigation process. Also, it was held that” The order by which cognizance has been taken against the appellants for the offenses punishable under the penal code and Arms Act does not show the material on which the learned court below has relied upon for differing with the police report. It has rightly been submitted on behalf of the appellants that since they themselves belong to the Scheduled Caste category, they cannot be prosecuted for the offense under the Act.”