Madhya Pradesh High Court
Mukesh vs The State Of Madhya Pradesh on 24 August, 2024
Author: Dinesh Kumar Paliwal
Bench: Dinesh Kumar Paliwal
NEUTRAL CITATION NO. 2024:MPHC-JBP:42332
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
ON THE 24th OF AUGUST, 2024
CRIMINAL APPEAL No. 8230 of 2024
MUKESH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri S.K. Gangrade - Advocate for the appellant.
Shri Ajeet Rawat - Government Advocate for the respondent/State.
None for the respondent No.2/victim despite service of notice.
ORDER
This first application for grant of bail in the form of criminal
appeal under Section 14-A of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989 has been filed assailing the
order dated 09.07.2024 passed by learned Special Judge, SC/ST
(Prevention of Atrocities) Act, District Betul (M.P.), whereby
application under Section 438 of Cr.P.C for grant of anticipatory bail has
been dismissed.
2 . Appellant apprehending his arrest in connection with FIR
No.02/2024 dated 28.05.2024 registered at Police Station AJK, Betul
(M.P.) for commission of offence under Sections 376, 506 of IPC and
Section 3(2)(v), 3(2)(va), 3(1)(w) (ii) of SC/ST Act has knocked at portal
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of this Court for grant of anticipatory bail.
3. As per the prosecution story, on 28.05.2024, 20 years old
prosecutrix submitted an application in writting before the
Superintendent of Police, Betul, stating that she is B.Sc 1st year student.
On 10.05.2024 she along with other girls of the village had gone to
attend the reception. After attending the reception when she was
returning to her home, on the way to home Mukesh Yadav of the village
met and forcibly took her to his agricultural field and committed rape
upon her. She raised alarm, hearing her scream, her cousin along with
his friends came there and Mukesh Yadav fled away from the spot.
Being scared of the incident, she reached to the Chandi Temple and slept
overnight there. Next day she met two persons who took her to Chicholi
and from Chicholi to Bhimpur and from Bhimpur to Gogaipur, wife of
those persons refused to keep her with them. When she was roaming on
foot on road one husband and wife riding on a motorcycle came and
inquired about her. She introduced herself to them. They both took her
with them at village Behadgarh. She gave her mother’s mobile number to
them. They made a call to her mother. After receiving call her mother
along with his cousin came there and took her to home. It was further
stated that she had gone to Police Station Chicholi along with her family
members, but being scared of threat extended by Mukesh Yadav she did
not disclose the incident of rape to Police. Now her family members
have infused courage in her heart. Therefore, she has come to lodge FIR.
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FIR was registered.
4. Learned counsel for the appellant has submitted that appellant
has not committed any offence. He is innocent. He has been falsely
implicated. It is submitted that earlier father of the major prosecutrix had
lodged a missing report on 11.05.2024 in Police Station Chicholi. Major
prosecutrix along with her father had turned up before the Police on
14.05.2024 and in her statement recorded under Section 161 of Cr.P.C
she did not narrate any incident of committing of rape with her by the
applicant. She had stated that nothing had happened with her. Almost
after 14 days producing of the prosecutrix and her statement before
Police Chicholi, a forged FIR has been got registered in AJK Police
Station, Betul with an intention to get compensation from the
government under provision of SC/ST (POA) Act. It is submitted that
the appellant is working as Agniveer in Indian Army and has joined his
duties at Babina Military Station on 12.05.2024 and at present he is
posted somewhere in Rajasthan. He has been falsely implicated in the
case. No offence under provision of SC/ST (POV) Act is made out. It is
further contended that no offence has been committed on the ground that
the prosecutrix is a member of Schedule Tribe. Therefore, it is prayed
that appellant may be released on anticipatory bail.
5. On the other hand, learned counsel for the respondent
no.1/State has opposed the prayer for grant of anticipatory bail to the
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appellant and has contended that Section 18 and 18(A)(i) of the
SC/ST (Prevention of Atrocities) Act prohibits the grant of anticipatory
bail.
6. I have heard learned counsel for the parties at length and
perused the case diary.
7. It is worth mentioning that missing report was lodged in Police
Station Chicholi on 11.05.2024 by prosecutrix’s father she along with
her mother appeared at Chicholi Police Station on 14.05.2024. In Police
Station Chicholi she stated that nothing had happened with her and she
on her own had left home. Almost after 14 days of her statement in
Chicholi Police Station she submitted an application in writing before
AJK of Police alleging of committing of rape. Undoubtedly, Section 18
and 18(A)(i) of SC/ST (Prevention of Atrocities) Act prohobits grant of
anticipatory bail, but it is settled position of law that in cases where
Court is of the view that offence under the provision of
SC/ST (Prevention of Atrocities) Act is not made out, there is no fetter
in grant of anticipatory bail.
8. Hon’ble Apex Court in the case of Prathvi Raj Chouhan Vs.
Union of India (2020) 4 SCC 727, while upholding the valadity of
Section 18 and 18(A) of the Act, 1989 has observed that if the
complaint has not make out the prima facie case for applicability of
provision of Act 1989 then the bar created by Section 18 and 18(A) shall
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not apply and thus the Court would not be preculded from granting pre-
arrest bail to the accused person. It was also further observed that in case
where no prima facie material exist in a complaint, it would not warrant
arrest of the applicant and the Court has inherent power to direct for pre-
arrest.
9. Hon’ble Apex Court in Criminal Appeal No.2622/2024 (Shajan
Skaria Vs. State of Kerala and another) in judgment dated 23.08.2024 in
paragraph No.41 and 42. has held as under:-
“41. It is clear from the aforesaid discussion that Section
18 of the Act, 1989 does not impose an absolute fetter on the
power of the courts to examine whether a prima facie case
attracting the provisions of the Act, 1989 is made out or not.
As discussed, Section 18 stipulates that in any case which
involves the arrest of any person on the accusation of having
committed an offence under the Act, 1989, the benefit of
anticipatory bail under Section 438 of CrPC would not be
available to the accused. We have deliberated on the
significance of the expression “arrest of any person”
appearing in the text of Section 18 of the Act, 1989 and are of
the view that Section 18 bars the remedy of anticipatory bail
only in those cases where a valid arrest of the accused person
can be made as per Section 41 read with Section 60A of
CrPC.
42. Section 60A of CrPC provides that no arrest shall be
made except in accordance with the provisions of CrPC or any
other law for the time being in force and providing for arrest.
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Section 41 of CrPC confers upon the police the power to arrest
without warrant in certain situations as specified therein.
Sections 41(1)(b) and 41(1)(ba) respectively of CrPC read as
follows:
“41. When police may arrest without warrant.–(1) Any
police officer may without an order from a Magistrate and
without a warrant, arrest any person–
xxx xxx xxx
(b) against whom a reasonable complaint has been
made, or credible information has been received, or a
reasonable suspicion exists that he has committed a
cognizable offence punishable with imprisonment for a term
which may be less than seven years or which may extend to
seven years whether with or without fine, if the following
conditions are satisfied, namely:–
(i) the police officer has reason to believe on the basis
of such complaint, information, or suspicion that such person
has committed the said offence;
(ii) the police officer is satisfied that such arrest is
necessary–
(a) to prevent such person from committing any further
offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of
the offence to disappear or tampering with such evidence in
any manner; orSignature Not Verified
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(d) to prevent such person from making any
inducement, threat or promise to any person acquainted with
the facts of the case so as to dissuade him from disclosing
such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the
Court whenever required cannot be ensured, and the police
officer shall record while making such arrest, his reasons in
writing.
Provided that a police officer shall, in all cases where
the arrest of a person is not required under the provisions of
this sub-section, record the reasons in writing for not making
the arrest.
(ba) against whom credible information has been
received that he has committed a cognizable offence
punishable with imprisonment for a term which may extend to
more than seven years whether with or without fine or with
death sentence and the police officer has reason to believe on
the basis of that information that such person has committed
the said offence.”
10. Hon’ble Supreme Court while determining the issue No.III
when can it be said that a prima facie case is made out in given
FIR/complaint held as under:-
“47. Prima facie is a Latin term that translates to “at first
sight” or “based on first impression”. The expression “where
no prima facie materials exist warranting arrest in a complaintSignature Not Verified
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or FIR” should be understood as “when based on first
impression, no offence is made out as shown in the FIR or the
complaint”. This means that when the necessary ingredients to
constitute the offence under the Act, 1989 are not made out
upon the reading of the complaint, no case can be said to exist
prima facie.
48. As a sequitur, if the necessary ingredients to
constitute the offence under the Act, 1989 are not disclosed on
the prima facie reading of the allegations levelled in the
complaint or FIR, then in such circumstances, as per the
consistent exposition by various decisions of this Court, the
bar of Section 18 would not apply and the courts would not be
absolutely precluded from granting pre-arrest bail to the
accused persons.
49. In our opinion, the aforesaid is the only test that the
court should apply, when an accused prays for anticipatory
bail in connection with any offence alleged to have been
committed under the provisions of the Act, 1989. In a given
case, an accused may argue that although the allegations
levelled in the FIR or the complaint do disclose the
commission of an offence under the Act, 1989, yet the FIR or
the complaint being palpably false on account of political or
private vendetta, the court should consider the plea for grant
of anticipatory bail despite the specific bar of Section 18 of
the Act, 1989. However, if the accused puts forward the case
of malicious prosecution on account of political or private
vendetta then the same can be considered only by the High
Court in exercise of its inherent powers under Section 482 of
the Code or in exercise of its extraordinary jurisdiction under
Article 226 of the Constitution. However, powers underSignature Not Verified
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Section 438 of the CrPC cannot be exercised once the contents
of the complaint/FIR disclose a prima facie case. In other
words, if all the ingredients necessary for constituting the
offence are borne out from the complaint, then the remedy of
anticipatory bail becomes unavailable to the accused.
50. The duty to determine prima facie existence of the
case is cast upon the courts with a view to ensure that no
unnecessary humiliation is caused to the accused. The courts
should not shy away from conducting a preliminary inquiry to
determine if the narration of facts in the complaint/FIR in fact
discloses the essential ingredients required to constitute an
offence under the Act, 1989. It is expected of the courts to
apply their judicial mind to determine whether the allegations
levelled in the complaint, on a plain reading, satisfy the
ingredients constituting the alleged offence. Such application
of judicial mind should be independent and without being
influenced by the provisions figuring in the complaint/FIR.
The aforesaid role of the courts assumes even more
importance when a prima facie finding on the case has the
effect of precluding the accused person from seeking
anticipatory bail, which is an important concomitant of
personal liberty of the individual.
51. The aforesaid position is also apparent from a plain
construction of the text of Section 18 of the Act, 1989. The
words “having committed an offence under this Act” denote
that it is only when the accusation in the complaint clearly
points towards the commission of an offence under the Act,
1989 that the bar of Section 18 would apply. The minimum
threshold for determining whether an offence under the Act
has been committed or not is to ascertain whether all theSignature Not Verified
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ingredients which are necessary to constitute the offence are
prima facie disclosed in the complaint or not. An accusation
which does not disclose the necessary ingredients of the
offence on a prima facie reading cannot be said to be
sufficient to bring into operation the bar envisaged by Section
18 of the Act, 1989. Holding otherwise would mean that even
a plain accusation, devoid of the essential ingredients required
for constituting the offence, would be enough for invoking the
bar under Section 18. In our considered view, such an
approach would not be in line with the dictum as laid by this
Court while upholding the Constitutionality of Sections 18
and 18-A respectively of the Act, 1989.”
11. Adverting to the facts of the case, it is noteworthy that two
different informations have been given at two different point of time at
Police Station. In first Police Station the prosecutrix along with parents
appeared and denied of having been committed any offence with her and
clearly stated that she on her own will had gone out of the home and
nothing had happened with her, But after 14 days of earlier statement
recorded under Section 161 of Cr.P.C before Police Chicholi,
prosecutrix appeared before another Police Station submitted an
application in writing and the case was registered. In second
information, it is not the statement of prosecutrix that offence was
committed with her knowing that she is a member of Schedule Tribe.
12. Therefore, having taken into consideration all the facts and
circumstances of the case, but without expressing any opinion on the
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merits of the case, I am of the view that it is a case where the provision
of Section 3(2)(v) of the Act shall hardly attract. Accused is serving in
Indian Army as Agniveer his arrest does not appear necessary.
Consequently, this appeal under Section 14-A of the Scheduled Castes
and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 filed on
behalf of appellant stands allowed and the impugned order dated
09.07.2024 passed by learned Special Judge, SC/ST (Prevention of
Atrocities) Act, District Betul (M.P.) is set-aside.
13. It is directed that in the event of arrest, the appellant – Mukesh be
released on bail upon his furnishing a bail bond in the sum of
Rs.50,000/- (Rupees fifty thousand) with one solvent surety of the like
amount to the satisfaction of the Station House Officer/Arresting Officer
of the Police Station concerned. At stage of filing of charge-sheet by
police, applicant shall furnish fresh bail bond of same amount before
trial Court to its satisfaction subject to following conditions:-
(i) Applicant shall make himself available for interrogation by a police
officer as and when required;
(ii) Applicant is directed to join investigation, then and there.
(iii) Applicant shall not, directly or indirectly, make any inducement,
threat or promise to any person acquainted with the facts of the case so
as to dissuade them from disclosing such facts to the Court or to any
police officer;
(iv) In case, applicant is not arrested within a period of 07 days by the
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Investigation Officer from today, he shall surrender himself before the
Investigation Officer within 10 days’ from today failing which this order
shall become ineffective.
14. However, it is being made clear that in case of bail jump and in
violation of any of conditions imposed herein above, this order shall
become ineffective and Investigation Officer/Trial Court shall be at
liberty to proceed against the applicant as per law.
Certified copy as per rules.
(DINESH KUMAR PALIWAL)
JUDGE
Vin**
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