This is the first criminal appeal filed on behalf of the appellant under Section 14-A of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 for grant of anticipatory bail against order dated 24.06.2024 passed by Special Judge, SC & ST (Prevention of Atrocities) Act , Jabalpur (M.P.) passed in B.A. No. 1824/2024.

2. Appellant is apprehending his arrest in connection with FIR No.129/2024, registered at Police Station - Katangi, District Jabalpur (M.P.) for the offences punishable under Sections 323 , 324 , 294 , 506 , 427 , 436 / 34 of IPC and under Section 3(2)(da)(dha) and 3(2)(va) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

3. The prosecution story in short is that complainant Himmu Gond registered a complaint on 20.02.2024, before police station katangi and mentioned that when he was working with his cousin brother Vinod Gond, elder mother Ramsakhi Bai, and mother Saraswati Bai then applicant, Raghvendra Patel and Malkhan Patel reached there and abused them. They also insulted and abused on NEUTRAL CITATION NO. 2024:MPHC-JBP:43370 2 CRA-8280-2024 their caste. When complainant and his family members told not to abuse then Suryabhan (applicant) hit by axe, Raghvendra hit by the handle of axe, Malkhan Patel hit by hands and fists and also threatened them. Police registered the case against the applicant and other co-accused as crime No. 129/2024 u/s 323 , 324 , 294 , 506 / 34 of Indian Penal Code and section 3 ( 1)(d), 3(2) of and 3(2)(5)

(a) of SC/ST Act.

4. It is submitted by learned counsel for the appellant that there was land dispute between the present applicant and complainant party. The name of the appellant's mother is recorded as owner of the land bearing Khasra No. 142, 143, 146, 148, 153, 156 of village Sakra Karangi. On 20.02.2024 Sonu Patel went to do agricultural work then Shyamlal Gond and his other family members abused and beat by axe and lathi. Serious injury was caused to the appellant. Thereafter, they informed Police through dial 100 went with the same vehicle. Complainant belongs to SC/ST category therefore, undue advantage of their caste false FIR has been registered against the applicant. All the incident has been recorded in the mobile phone and recording of same is in the pen drive. Applicant also lodged FIR against the complainant party Himbu Gond, Vinod Gond, Ramsakhi Bai and Saraswwati Bai bearing crime no.130/24 in Police Station Katangi Jabalpur under Sections 294 , 323 and 506 / 34 of IPC. He further submitted that even before this incident present applicant and his family members has given many complaints before the Police authorities alleging that present applicant and his family members are preventing them from doing agricultural work in their field and they are abusing them and threatening to kill them. It is further contended that due to previous enmity and being known that present applicant is serving in Army, intentionally this false case has been registered under aforesaid sections. Whereas, NEUTRAL CITATION NO. 2024:MPHC-JBP:43370 3 CRA-8280-2024 ingredients of Atrocities Act are not attracted in the present case. It is further submitted that in this case prima facie case under Prevention of Atrocities Act is not made out and his case comes under extraordinary condition. From the photographs which have been annexed with the application, it is clear that complaint Himu Gond and his family members were armed with lathi and axe. Police has also verified the same. It is further submitted that his case under extraordinary situation and in these matter application for anticipatory bail is maintainable.

5. Learned counsel for the State as well as learned counsel for the objector have opposed the prayer for grant of anticipatory bail to the appellant.

6. A preliminary objection is raised by the State Counsel to the effect that one of the offences alleged being Section 3 of the SC & ST (PA) Act, the anticipatory bail application is not maintainable in view of the bar under Section 18 and 18-A of the said Act.

7. On the point of maintainability, learned counsel for the appellants, has relied upon the decisions of the Supreme Court in the case Ramesh Chandra Vaishya vs. State of Uttar Pradesh and Another , reported in 2023 SCC OnLine SC 668; Prathvi Raj Chauhan vs. Union of India and others , reported in (2020) 4 SCC 727; and decision of Orissa High Court in the case of Dharani Pradhan Vs. State of Orissa , reported in 2014(II) OLR 720.

8. As regards the maintainability of the application under Section 438 of Cr.P.C., there is no dispute that Section 18 & 18-

A of SC & ST (PA) Act place bar for entertaining application under Section 438 of Cr.P.C. The provisions are quoted hereinbelow for immediate reference.

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.

18-A . No enquiry or approval required.-- (1) For the purposes of this Act,-- a) preliminary enquiry shall not be required for registration of a First Information Report against any person; or

(b) the investigating officer shall not require approval for the arrest, if necessary, of any person, against whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply.

(2) The provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court."

9. Thus, ordinarily, an application under Section 438 of Cr.P.C. would not be maintainable where the offence under Section 3 of the SC & ST Act is involved. However, the provision has been interpreted by the Supreme Court to imply that the bar operates only when the offence under Section 3 of the SC & ST (PA) Act is, prima facie, made out but where opposite is the situation i.e., the offence under SC & ST (PA) Act is not, prima facie, made out, the bar in the provision under Section 18 and 18-A of the SC & ST (PA) Act would not operate. In the case of Prathvi Raj Chauhan (supra) it was held as follows:

10. In the case of Shajan Skaria Vs. The State of Kerala and another 2024 Supreme(SC) 688, Supreme Court has observed as under:

Scheduled Caste is not disputed. There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste and therefore, the conviction of the appellant-accused under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable."

18. Therefore, offence under the Act is not established merely on the fact that the informant is a member of Scheduled Caste unless there is an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste. In the present case, the parties are litigating over possession of the land. The allegation of hurling of abuses is against a person who claims title over the property. If such person happens to be a Scheduled Caste, the offence under Section 3(1)(r) of the Act is not made out." (Emphasis supplied)

60. Thus, the dictum as laid aforesaid is that the offence under Section 3(1)(r) of the Act, 1989 is not established merely on the fact that the complainant is a member Criminal Appeal No. 2622 of 2024 Page 55 of 69 of a Scheduled Caste or a Scheduled Tribe, unless there is an intention to humiliate such a member for the reason that he belongs to such community. In other words, it is not the purport of the Act, 1989 that every act of intentional insult or intimidation meted by a person who is not a member of a Scheduled Caste or Scheduled Tribe to a person who belongs to a Scheduled Caste or Scheduled Tribe would attract Section 3(1)(r) of the Act, 1989 NEUTRAL CITATION NO. 2024:MPHC-JBP:43370 9 CRA-8280-2024 merely because it is committed against a person who happens to be a member of a Scheduled Caste or Scheduled Tribe. On the contrary, Section 3(1)(r) of the Act, 1989 is attracted where the reason for the intentional insult or intimidation is that the person who is subjected to it belongs to a Scheduled Caste or Scheduled Tribe. We say so because the object behind the enactment of the Act, 1989 was to provide stringent provisions for punishment of offences which are targeted towards persons belonging to the SC/ST communities for the reason of their caste status.

74. Having regard to the reprehensible conduct and the nature of the derogatory statements made, the appellant, at best could be said to have prima facie committed the offence of defamation punishable under Section 500 of the IPC. If that be so, it is always open for the complainant to prosecute the appellant accordingly. However, the complainant could not have invoked the provisions of the Act, 1989 only on the premise that he is member of Scheduled Caste, more so, when a prima facie conjoint reading of the transcript of the video and the complaint fails to disclose that the actions of the appellant were impelled by the caste identity of the complainant.

77. In our opinion, there is nothing to even prima facie indicate that the appellant by publishing the video on YouTube promoted or attempted to promote feelings of enmity, hatred or ill-will against the members of Scheduled Castes or Scheduled Tribes. The video has nothing to do in general with the members of Scheduled Caste or the Scheduled Tribe. His target was just the complainant alone. The offence under Section 3(1)(u) will come into play only when any person is trying to promote ill feeling or NEUTRAL CITATION NO. 2024:MPHC-JBP:43370 10 CRA-8280-2024 enmity against the members of the scheduled castes or scheduled tribes as a group and not as individuals.

80. At the cost of repetition, the words in Section 3(1)(r) of the Act, 1989 are altogether different. Mere knowledge of the fact that the victim is a member of the Scheduled Caste or Scheduled Tribe is not sufficient to attract Section 3(1)(r) of the Act, 1989. As discussed earlier, the offence must have been committed against the person on the ground or for the reason that such person is a member of Scheduled Caste or Scheduled Tribe. When we are considering whether prima facie materials exist, warranting arrest of the appellant, there is nothing to indicate that the allegations/statements alleged to have been made by the appellant were for the reason that the complainant is a member of a Scheduled Caste."

11. After hearing the learned counsel for the parties and perusing the case diary, it appears that field of appellant and complainants are adjacent to each other and there is land dispute between them. Photographs of which, has been submitted by the appellant and they are verified by the Police. Cross case is also registered against the complainant party. Offence under Section 3(2) (v-a) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is prima facie not made out against the present appellant.

12. Considering the aforesaid circumstances, criminal appeal filed by appellant is allowed. It is directed that in the event of arrest of appellant, he shall be released on bail on furnishing a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand only) with one surety in the like amount to the satisfaction of the Arresting officer (Investigating Officer) for his NEUTRAL CITATION NO. 2024:MPHC-JBP:43370 11 CRA-8280-2024 regular appearance before the Police during the investigation or before the Court during trial.

13. The appellant is directed to join the investigation immediately and co-operate with the investigating agency. He will further abide by the conditions enumerated in sub-section (2) of Section 438 of the Cr.P.C.

14. It is made clear that any opinion expressed by this Court in aforesaid order, will not affect the merits of the case.

15. Certified copy as per rules.

(PRAMOD KUMAR AGRAWAL) JUDGE anu ANUPRIYA SHARMA 2024.08.30 17:55:37 +05'30'