Pankaj D. Suthar v. State

(1) Rule. Mr. P. S. Chapaneri, the learned A. P. P. waives service of the Rule on behalf of the Respondent-State. "Whether in cases wherein the accusation in the complaint levelled against any person is to the effect that he has committed an offence punishable under Sec. 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short Atrocities Act), which on prima facie judicial scrutiny is found to be not free from doubt, can then in such cases the accused person be blindly and mechanically denied the benefit of anticipatory bail under Sec. 438 of the Code of Criminal Procedure, 1973 (for short the Code) by virtue of the provisions contained in Sec. 18 of the Atrocities Act merely because he has been so mischieviously branded as an accused of having committed an offence under the Atrocities Act " This is in short the fundamental question of considerable importance touching upon the applicability and the interpretation of Sec. 18 of the Atrocities Act vis-a-vis the precious right of the accused under Sec. 438 of the Code to get the anticipatory bail which this Court is incidentally called upon to consider and decide.

(2) Few relevant facts necessary to decide the question raised above, as per the story given out by the complainant Babubhai Chhaganlal Patel, are to the effect that on 4-7-1991 at 9-00 a.m. when he was at his residence taking supper, the petitioner-accused Pankaj D. Suthar, R.F.O. at Godhra in company of four others came in a Jeep bearing GJN-4451 and keeping the same at some distance sent Beat-guard Usmanbhai Pathan, to call him, who on coming to the house informed the complainant that Ranger Saheb was waiting outside and was calling him. To this, the complainant replied that he was coming, but since this reply did not satisfy Usmanbhai, he was dragged out and while pushing was taken near the Jeep where the petitioner-accused and others surrounded him and ordered him to take seat in the Jeep. According to the complainant, when he stated that he would be coming and meeting them next day morning, the petitioneraccused not liking this reply, got enraged and he with the help of Round Forester Mr. Somabhai Ahir got him bodily lifted and dumped in the rear portion of the Jeep and then drew away. On way all through out, he was beaten and with a view to see that he did not raise any shouts, his mouth was gagged and shut by inserting a piece of cloth. Thereafter, he was taken to the quarters of Malanpada Depot and there also he was severely beaten up and given threats with a view to obtain signature on some confessional statement. However, since the complainant did not oblige by yielding to the said pressures the petitioner-accused and 5-6 others started beating him with sticks, iron bars and also with fists and kicks on various parts of his body, as a result of which he was rendered unconscious. According to the complainant, when he regained consciousness, he asked for water. At that time, the petitioner-accused and accused No. 2 after some conversing inter se instead of giving water to drink, asked the complainant to drink his own excreta (urine). On refusing to do so, the complainant was once again further beaten up this time with a view to compel him to drink his urine. Thereafter, according to the complainant, he was taken to some unknown place in Jeep where he was asked to place his signature on the confessional statement for the alleged theft of forest wood worth Rs. 15,OUO/ -, administering the threat that if that was not done, he would be killed. However, since he had not committed any such offence as alleged by the Forest Officers, lie refused to sign the confessional statement in question. Thereafter, according to the complainant, the petitioner-accused and four others started discussing inter se and the petitioner-accused was heard suggesting that the complainant should be taken to some Police Station and be involved in some offence. Accordingly, at about 23-00 hours, he was taken to Dharampur Police Station but PSO there plainly refused to take him in his custody. Thereafter as the condition of the complainant started worsening, he was taken to Dharampur Hospital where he was made to lie down on a bench and leaving him then and there only the petitioner-accused and others went away. Thereafter, at the instance of accused No. 6 who happened to he a Doctor at the said Hospital, the nurse on duty gave him one injection hut no other treatment was given. According to the complainant, as he was seriously beaten, he was groaning under the pain. Accused No. 6 Doctor did not like this and therefore getting angry over him gave filthy abuses and gave 4-5 slaps. In the meantime, on the basis of some information, relatives of the complainant including his father, brother, police-patel of the village and 4-5 other persons came to Dharampur Hospital to inquire about the complainant. On finding that his condition was very serious, accused No. 6 was requested to give treatment to him but that was refused, as a result of which, the father of the complainant went to Dharampur Police Station and filed a complainant. Further according to the complainant, on the next day at about 10-00 a.m. one M.L.A. named Mr. Madhubhai Bhayya visited him in the hospital and asked the Doctor accused No. 6 to give him some treatment, as a result of which, he was provided with one cot for sleeping. Further according to the complainant, as he was not given any satisfactory treatment at Dharampur Hospital, he requested the Doctor to transfer him to the Civil Hospital at Valsad which was complied with and he took treatment there. On the basis of the aforesaid facts and circumstances, the complainant Babubhai Patel after 10 days that is to say on 14-7-1991 at 6-00 hours filed a complaint against the petitioner-accused and five others for the alleged offences under Sees. 325, 326, 452, 351, 365. 504, 506(2) of the I.P.C. and Sec. 3(1)(i) of the Atrocities Act, before the P.S.I., Dharampur Police Station. It is under these circumstances that the petitioner-accused apprehending his imminent arrest at any moment with a view to save himself from being illegally harrassed, maligned disgraced, humiliated and further in order to save his service career from being blotted on the basis of vaxatious, malacious allegations, has knecked the doors of this Court for getting himself enlarged on anticipatory bail under Sec. 438 of the Code in the event of his arrest.

(3) Mr. J. B. Pardiwala, the learned Advocate appearing for the petitioneraccused while pressing hard for the anticipatory bail, has submitted that the accusations levelled by the complainant against the petitioner-accused arc prima facie mala fide, improbable, false, frivolous, vaxatious and in any event at least not free from doubt, and therefore, the same should not be accepted at its face value. While driving home this point, Mr. Pardiwala invited the attention of this Court to the following glaring facts, surfacing on the face of the complaint itself, viz., (i) that the incident took place on 4-7-1991 at 21-00 hours and yet for the reason best known to the complainant, the complaint regarding the same came to be filed on 14-7-1991 at 6-00 hours that is to say after a lapse of ten days and full deliberations; (ii) that immediately after the alleged incident, though the father and brother of the complainant alongwith another person no less than police-patel of the village and other 4-5 persons had gone to see the complainant at the hospital and thereafter the father of the injured complainant is alleged to have filed some complaint, yet neither a copy of the same is annexed with the present complaint nor the police officer before whom the said complaint was filed, has been cited as a witness in the list of witnesses given by the complainant at the end of the complaint; (iii) that looking to the facts alleged in the complaint and particularly the wild allegations that the complainant was severally beaten on several occasions not only with fists and kick blows, but also by sticks and iron bars and that too by number of persons, meaning thereby, there must have been serious injuries with external marks on his person and yet quite strangely when the medical officer of Dharampur examined the injured complainant on next day, i.e., 15-7-1991 at 9-30 a.m. he did not appear to have notice any such injuries. In fact, the certificate produced by Mr. Pardiwala reveals that what was vaguely complained of was merely a pain in the chest. It appears that some X-ray of the complainant were taken and the result was that of N.A D. This also sadly and adversely reflects upon overall credibility of the prosecution story; (iv) that as per the Anncxure B to the petition on 4-7-1991, it appears that some complaint has been filed by the Forest Department against the complainant B. C. Patel for the alleged theft of the forest wood committed by him and therefore apparently with a view to demoralise and desist the petitioner-accused from discharging his duty effectively and thereby to get away from the clutches of law, false malicious and vexatious complaint has been filed by him by way of counterblast against the petitioner-accused. 3A. Mr. Pardiwala on the basis of the aforesaid contentions finally submitted that if the benefit of anticipatory bail under Sec. 438 of the Code was not made available to the petitioner-accused and if by sheer misfortune he was arrested and detained in custody for a period of 48 hours or more, then in that case, as per the provisions contained in Rules 5(2) of the Gujarat Civil Services Rules, 1971, he shall be deemed to have been placed under suspension by an order of appointing authority. This indeed would seriously prejudice the honest and innocent public servant like the petitioner-accused who day in and day out while discharging his public duty honestly, sincerely and firmly has to displease number of anti-socials and the criminals and who in turn bearing grudge and malice may schemingly victimise such innocent public servants by such false and malicious allegations. According to Mr. Pardiwala, if despite the overall improbabilities and the falsehood of the allegations as pointed out above, the Court is to refuse the anticipatory bail merely on the ground of the offence being under the Atrocities Act, then in that case, the petitioner-accused would be seriously prejudiced at the very threshold of the prosecution and in that case, if ultimately he was to be acquitted, damage caused as a result of denial of anticipatory bail would be simply irreparable. Mr. Pardiwala accordingly finally urged that this was one of those fittest case wherein on mere look and assessment of the complaint, the petitioner -accused deserves to be enlarged on anticipatory bail. 3B. As against the above, Mr. P. S. Chapaneri, the learned A. P. P. for the State vehemently submitted that the petitioner-accused having been accused of a very serious offence under Sec. 3(1) of the Atrocities Act, taking into consideration the special provision contained in Sec. 18 of the said Atrocities Act expressly withhelding the benefit of anticipatory bail under Sec. 438 of the Code to the persons accused of such offences under the Atrocities Act, this Court would not be legally justified in bypassing the same by releasing the petitioner-accused on anticipatory bail. To make good this submission, the learned A.P.P. invited the attention of this Court to Sec. 18 of the said Atrocities Act, which reads as under ; "Sec. 18. Section 438 of the Code do not to apply to the person committed offence under the Act: Nothing in Sec. 438 of the Code shall apply is relation to the nature of case involving the arrest of the person on accusation of having committed the offence under this Act." Laying absolute emphasis on the phrase on accusation of having committed an offence under this Act (emphasis supplied), the learned A.P.P. submitted that since the averments made in the complaint disclose that the petitioner -accused in fact was accused of having committed a serious offence punishable under Sec. 3(l)(i) of the Atrocities Act, by virtue of Sec. 18 of the said Atrocities Act, he can never be enlarged on anticipatory bail under Sec. 438 of the Code. The learned A.P.P. further submitted that despite express exclusion of anticipatory bail under Sec. 438 of the Code by virtue of Sec. 18 of the Atrocities Act, the Courts were yet to release the accused (alleged to have committed an offence under the Atrocities Act) on anticipatory bail, the said express provision under Sec. 18 of the Act will not only lose its rigour and sanctity, but would stand virtually defused and written of. On the basis of the aforesaid submission, the learned A.P.P. finally urged that this anticipatory bail application filed by the petitioner-accused should be rejected.

(4) Now undoubtedly it is true that the alleged offence under the Atrocities Act is a very serious offence and if indeed the complaint is ultimately found to be truthful and genuine one, there cannot be any two views about the strictest possible view taken in such matter. Not only that but if the complaint is also found to be prima facie dependable one that is to say, free from doubt, then as a warranted under Sec. 18 of the Atrocities Act, even the anticipatory bail to such accused has got to be refused. In fact, the Parliament in its utmost wisdom has rightly evidenced great concern and anxiety over the atrocities which are going on unabatedly on S.Cs. and S.Ts. by inserting the provisions under Sec. 18 of the Atrocities Act disability the accused from obtaining the anticipatory bail under Sec. 438 of the Code. This indeed is a wcl-come step and in accordance with the axiomatic truth, viz., the disease grown desperately must be treated desperately else not. The disease of commission of offences by way of atrocities against the members of S.Cs. and S.Ts. are unabatedly going on since last hundreds of years and in the recent past have become alarmingly increasing and has become so rampant, breath taking and has reached such a desperate pass that it indeed needed a very stringent and desperate legislation which could help save the situation by effectively providing the legal protection to such cursed, crushed and downtrodden members of S.Cs. and S.Ts. communities. Under such circumstances, it is equally the paramount duty of every Court to see that it responds to legislative concern and call and ensure effective implementation of the Atrocities Act, by seeing that the provisions enshrined in the said Act are duly complied with. But then, what according to this Court is the most welcome step by way of collective wisdom of the Parliament in ushering social beneficial legislation cannot be permitted to be abused and converted into an instrument to blackmail to wreck some personal vengeance for settling and scoring personal vendetta or by way of some counter-blasts against opponents some public servants, as prima facie appears to have been done in the present case. The basic questions in such circumstances therefore are - Whether a torch which is lighted to dispel the darkness can it be permitted to set on fire the innocent surroundings Whether a knife an instrument which is meant for saving human life by using the same in the course of operation by a surgeon, can it be permitted to be used in taking the life of some innocent The very same fundamental question arises in the facts and circumstances of this case also, viz., whether any statute like the present Atrocities Act, especially enacted for the purposes of protecting weaker sections of the society hailing from S.C. and S.T. communities can be permitted to be abused by conveniently converting the same into a weapon of wrecking personal vengeance on the opponents The answer to this question is undoubtedly and obviously No. Under such circumstances, if the Courts are to apply such provision of Sec. 18 of the Atrocities Act quite mechanically and blindly merely guided by some general and popular prejudices based on some words and tricky accusations in the complaint on mere assumptions without intelligently scrutinising and testing the probabilities, trutlifulness, genuineness and otherwise dependability of the accusations in the complaint etc., then it would be simply unwittingly and credulously playing in the hands of some scheming unscrupulous complainant in denying the justice. Virtually, it would be tentamount to abdicating and relegating its judicial duty, fanction of doing justice in such matters in favour and hands of such unscrupulous complainant by making him a Judge in his own cause. This is simply unthinkable and therefore impermissible. Whether the provisions of any particular Act and for that purpose the rules made thereunder are applicable to the facts of a particular case or not, is always and unquestionably a matter which lies strictly and exclusively within the domain of judicial consideration - discretion and therefore neither mere allegations made in the complainant by themselves nor bare denials by the accused can either automatically vest or divest the Court from discharging its ultimate judicial function-duty to closely scrutinise and test the prima facie dependability of the allegations made in the complaint and reach its own decision.

(5) Now reverting to the contents of the complaint and attending circumstances high lighted by Mr. Pardiwala, the learned Advocate for the petitioner-accused, the same prima facie clearly demonstrates that at this stage the story revealed by the complainant docs not appear to be free from doubt. If that is so, very applicability of the Atrocities Act is rendered doubtful. If that is the situation, then to refuse the anticipatory bail on mere accusations and assumptions that the petitioner-accused has committed an offence under the Atrocities Act would be absolutely illegal, unjudicious, unjust and ultimately a travesty of justice. No Court can ever embark upon such hazards of refusing anticipatory bail on mere doubtful accusations and assumptions that Atrocities Act is applicable. No Court could and should be permitted to bo spoon-fed by the complainant whatever he wants to feed and swallow whatever he wants the Court to gulp down to attain and secure his unjust mala fide motivated ends. Section 18 of the Atrocities Act gives a vision, direction and mandate to the Court as to the cases where the anticipatory bail must be refused, but it does not and it certainly cannot whisk away the right of any Court to have a prima facie judicial scrutiny of the allegations made in the complaint. Nor can it under its hunch permit provisions of law being abused to suit the mala fide motivated ends of some unscrupulous complainant. In this case also if indeed this Court been satisfied with the story revealed by the complainant as truthful and genuine, then anticipatory bail would have been surely rejected right forth as a matter of course, but since the submissions of Mr. Pardiwala have considerable force, this Court has no alternative but to accept the same in the larger interests of justice to see that merely on the count of the firsthand prejudice attempted to be caused by allegations in the complaint, the petitioner-accused is not denied his precious right of the anticipatory bail.

(6) In view of the aforesaid discussion, though in a way the learned A.P.P. is absolutely right when he submitted that no anticipatory bail can be granted to the petitioner-accused because of Sec. 18 of the Atrocities Act, in the opinion of this Court, his submission fails because at this stage it is too difficult to rule out the probability of the accusations levelled by the complainant against the petitioner-accused having committed an offence under the Atrocities Act being false, vexatious and by way of counterblast as stemming from the ulterior motive to humiliate, disgrace and demoralise the petitioner-accused who is a public servant. When that is the result and position, there is no question of bypassing of Sec. 18 of the Atrocities Act arises as apprehended by the learned A.P.P. Taking into consideration the facts and circumstances of this particular case, and in view of the aforesaid discussion, this Misc. Criminal Application for anticipatory bail deserves to be allowed and is allowed accordingly