Court: DELHI HIGH COURT
Bench: JUSTICE MANOJ KUMAR OHRI
Ankit vs The State on 17 November 2021
Law Point: Alleged crime not in public view. Crime of firing shots could not be verified. Delhi High Court grants Anticipatory Bail in SC/ ST Case and other sections
JUDGEMENT
1. The present bail application has been filed under Section 438 Cr.P.C. on behalf of the applicant seeking anticipatory bail in FIR No. 569/2021 registered under Sections 323/341/452/506/120B/34 IPC and Sections 3(1)(x)/3(2)(iii) of the SC/ST Act at Police Station Prem Nagar, Delhi. During the course of investigation, Section 336 IPC and Sections 27/54/59 Arms Act have been added to the instant case.
2. Learned counsel for the applicant submits that as per the prosecution case, the incident is stated to have taken place on 18.06.2021 whereas the present FIR came to be registered only on 11.08.2021. He submits that in the FIR, no allegation of uttering of any casteist remark has been made against the present applicant and the complainant has stated that it was co-accused Sandeep who fired two gunshots and uttered the casteist remarks. It is also submitted that the applicant is a resident of Faridabad and was not present at the spot.
3. Learned counsel for the applicant has relied on the decision in Prathvi Raj Chauhan v. Union of India and Others reported as (2020) 4 SCC 727 to submit that an application for anticipatory bail is maintainable in a case under the SC/ST Act, provided the ingredients of the offence are not made out on prima facie reading of the FIR. He further submits that in pursuance of grant of interim protection by this Court vide order dated 08.09.2021, the applicant has joined the investigation. Lastly, he submits that the applicant is not involved in any other case.
4. Ms. Neelam Sharma, learned APP for the State, has vehemently opposed the bail application. She submits that during investigation, a further statement of the complainant was recorded on 18.08.2021 and the statement of independent witnesses, namely Lucky Chauhan, Kunwar Pal Singh, Archana @ Doli, Pinki, Ramji Lal and Sonia and others also came to be recorded on 27.08.2021. It is submitted that in the statement of the independent witnesses, the role of the present applicant has been specified in detail. She also submits that the applicant is a BC of Faridabad and the charge sheet has already been filed against him without arrest.
5. On a specific query as to whether any incident of firing was reported on 18.06.2021, learned APP for the State, on instructions from the concerned ACP, has stated that a PCR call was received on 18.06.2021 but it was filed as no incident of firing came to light.
6. Insofar as maintainability of an application under Section 438 Cr.P.C. in view of bar created by Section 18 of the SC/ST Act is concerned, suffice it to say that the Supreme Court in Prathvi Raj Chauhan (Supra) has held:
“11. Concerning the applicability of provisions of Section 438 CrPC, it shall not apply to the cases under the 1989 Act. However, if the complaint does not make out a prima facie case for applicability of the provisions of the 1989 Act, the bar created by Sections 18 and 18-A(i) shall not apply. We have clarified this aspect while deciding the review petitions.”
7. This view has been reiterated by a separate and concurring judgment of Hon’ble S. Ravindra Bhat, J. in the following manner:
“32. As far as the provision of Section 18-A and anticipatory bail is concerned, the judgment of Mishra, J. has stated that in cases where no prima facie materials exist warranting arrest in a complaint, the court has the inherent power to direct a pre- arrest bail.”
8. The present case is registered under Section 3(1)(x) of the SC/ST Act [now Section 3(1)(r)] read with Section 3(2)(iii) thereof, which read as under:
“3. Punishments for offences of atrocities.- (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-
xxx
(r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;
xxx shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.
xxx (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,–
xxx
(iii) commits mischief by fire or an explosive substance intending to cause or knowing it to be likely that he will thereby cause damage to any property belonging to a member of a Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine;”
9. It is well settled that for applicability of Section 3(1)(r) of the SC/ST Act to a case, all the ingredients of the alleged offence are to be made out from the complaint. Notably, an offence under Section 3(1)(r) is not made out simply because the complainant is a member of a Scheduled Caste or a Scheduled Tribe.
10. The basic ingredients that need to be established in order to attract penalty under Section 3(1)(r) of the SC/ST Act are – (i) intentional insult or intimidation with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe and (ii) in any place within ‘public view’. Likewise, to establish the commission of an offence under Section 3(2)(iii) of the SC/ST Act, the ingredients required to be established are – (i) commission of mischief by fire or an explosive substance, and (ii) the intention to cause or the knowledge that the mischief is likely to cause damage to a property owned by a member of a Scheduled Caste or a Scheduled Tribe.
11. The word ‘public view’ has not been defined under the SC/ST Act. But, what is to be regarded as a ‘place within public view’ has come up for consideration in various decisions. In Asmathunnisa v. State of Andhra Pradesh represented by the Public Prosecutor, High Court of Andhra Pradesh, Hyderabad and Another reported as (2011) 11 SCC 259, it has been held that:-
“9. The aforesaid paragraphs clearly mean that the words used are “in any place but within public view”, which means that the public must view the person being insulted for which he must be present and no offence on the allegations under the said section gets attracted if the person is not present.”
12. Prior to this decision, a distinction had been drawn between the expressions ‘public place’ and ‘in any place within public view’ in Swaran Singh and Others v. State through Standing Counsel and Another reported as (2008) 8 SCC 435 in the following terms:-
“28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by Appellants 2 and 3 (by calling him a “chamar”) when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression “place within public view” with the expression “public place”. A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies.”
13. The view taken in Swaran Singh and Others (Supra) has been cited with approval in Hitesh Verma v. State of Uttarakhand and Another reported as (2020) 10 SCC 710, wherein charge sheet against the accused was quashed to the extent of allegations under Section 3(1)(x) of the SC/ST Act [now Section 3(1)(r)]. One of the primary factors that weighed with the Court in arriving at the decision was that it was not the complainant’s case that the alleged incident had taken place within ‘public view’. A basic ingredient of the section impugned having not been made out, the decision was rendered in favour of the accused.
14. It is noted that in the present case, even though the incident is stated to be of 18.06.2021, the FIR came to be lodged only after a delay of about 48 days. In the FIR, the complainant has not specified any role to the present applicant which could constitute an offence under the aforesaid Sections, inasmuch as allegations of levelling of casteist remarks as well as of firing have been levelled against co-accused Sandeep. A perusal of the statement of the complainant recorded under Section 161 Cr.P.C. on 18.08.2021 would show that the complainant has partially improved upon his version, as he again attributed the utterance of casteist remarks to Sandeep, but stated that the present applicant also fired gunshots.
15. Keeping in view the facts and circumstances of the case and the fact that no role was attributed to the present applicant in the initial complaint that would constitute an offence under the SC/ST Act, the interim protection granted to the applicant vide order dated 08.09.2021 is made absolute and it is directed that in the event of arrest, the applicant be released on anticipatory bail subject to his furnishing a personal bond in the sum of Rs.25,000/- with one surety in the like amount to the satisfaction of the Arresting Officer/Investigating Officer/SHO of the concerned police station and also subject to the following further conditions:-
(i) The applicant shall not leave the NCR of Delhi without prior intimation to the concerned Investigating Officer.
(ii) The applicant shall remain available on mobile number:
8595383405, which he undertakes to keep operational at all times during the period of the trial.
(iii) The applicant shall not directly/indirectly try to get in touch with the complainant or any other prosecution witnesses or tamper with the evidence.
(iv) The applicant shall continue to join investigation as and when he is directed to do so.
(v) The applicant shall regularly appear before the Trial Court as and when the charge sheet is filed against him.
(vi) In case of change of residential address/contact details, the applicant shall promptly inform the same to the concerned Investigating Officer/SHO.
(vii) The applicant, after his release on anticipatory bail, shall not indulge in any offence of similar nature.
16. The bail application is disposed of in the above terms.
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