Mukesh Kumar Saini & Ors v. State (Delhi Administration)..

S.K Agarwal, J.— By this petition u/s. 438 Code of Criminal Procedure, 1973 (for short Cr.P.C) the petitioners are seeking pre-arrest bail in the case FIR No. 199/2000 under Sections 324/342/34, IPC read with Section 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Act, 1989 (here-in-after SC/ST Act).

2. Above noted case was registered on 26th April, 2000 on the basis of the report lodged by Raj Kumar @ Gattu alleging that he along with his brother Hanuman are running a Mithai Shop which is in front of the house of petitioners. At about 8.30 p.m electrician came and repaired the electric connection at the DESU Pole at Prem Gali; electricity to the house of petitioners was restored but the electricity in the rest of the area was not restored. He was asking the electrician as to why he had not restored their electricity, in the meantime, his brother Hanuman also came there from his shop. Petitioners forcibly took him inside their shop saying “AAJ JULAHEY KO PEKH LO YEH SAALEY BAHUT BOLTEY HAIN YEH SAALA HAMAREY MAKAN KI BINA WAJAH SHIKAYAT KARTA HAI AAJ SAALEY KO ZINDDA JALADO” (hereinafter referred to as ‘the humiliating words’). It is alleged that Suresh Saini (petitioner No. 2) and Naresh Saini (petitioner No. 3) held Hanuman and at the exhortation of Mukesh (petitioner No. 1), his father Madan Lal Saini (petitioner No. 4), poured kerosene oil on his body; when he moved forward to save his brother; petitioner mukesh Saini picked up a piece of glass and attacked him as a result of which his right hand got injured and blood started oozing. He raised alarm. On hearing his cries his neighbour Rajender Kumar and others also reached there. They took his brother out of the shop. Inhabitants of the locality angrily broke the glasses of the shop of Mukesh Saini. On the basis of the above information, initially a case under Section was registered u/ss. 324/342/34, IPC. Section 3 of the SC/ST Act was added subsequently.

3. On the same incident, another case was registered on the report lodged by Madan Lal Saini (petitioner No. 4) alleging; that on 26th April, 2000 at about 830 P.M in the evening there was break down of power supply, on their complaint some electrician from DESU came and their electricity was restored. At that time power supply of the whole locality was somewhat cut off. At this, Puran, Hanuman Raj Kumar, Rajender Shalu, Sohan Lal and Raju came there. Raj Kumar @ Gatoo was armed with knife, Hanuman and Rajender were holding iron rods and others were carrying Lathi and Danda. These persons trespassed into their house and attacked him and his family members. Mukesh (petitioner No. 1), received knife injuries on his left arm and on the abdomen; Rs. 25000/- which was given to them by one Praveen for installation of a new computer was stolen. Petitioner No. 4 (Madan Lal) was hit with a lathi on the head and started bleeding profusely. Ram Lal (petitioner No. 5), received Danda injuries on his head. Glasses of their office and computer were broken and damaged. On the basis of this report FIR No. 200/2000 at P.S Paharganj was registered against the other side including Raj Kumar (complainant in case FIR 199/2000).

4. I have heard the learned counsel for the petitioners and learned APP for the State.

5. Learned APP for State raised preliminary objection and argued that in view of the specific bar contained under Section 18 of the SC/ST Act, petition under Section 438, Cr.P.C for grant of pre arrest bail is not maintainable. Reliance was placed on the Supreme Court decision in State of M.P and Anr. v. Ram Krishna Balothia and Anr., AIR 1995 SC 1198. Wherein it was held:

“The above statement graphically describes the social conditions which motivated the said legislation. It is pointed out in the above Statement of Objects and Reasons that when member of the Scheduled Castes and Scheduled Tribes assert their rights and demand statutory protection, vested interests try to cow them down and terrorise them. In these circumstances, if anticipatory bail is not made available to persons who commit such offences, such a denial cannot be considered as unreasonable or violative of Article 14, as these offences form distinct class by themselves and cannot be compared with other offences.”

It was further held:—

“However, looking to the historical background relating to the practice of “Untochability” and the social attitudes which lead to the commission of such offences against Scheduled Castes and Scheduled Tribes, there is justification for an apprehension that if the benefit of anticipatory bail is made available to the persons who are alleged to have committed such offences. There is every likelihood of their misusing their liberty while on anticipatory bail to terrorise their victims and to prevent a proper investigation.

(Emphasise supplied)

6. There cannot be any dispute about the proposition of law that anticipatory bail cannot be availed by the persons, who have committed the offences under the SC/ST Act. However, merely because of Section of the SC/ST Act mentioned in the FIR, by itself cannot be a ground to decline the pre-arrest bail. Judicial scrutiny of the documents, is permissible, to evaluate whether the material relied upon by the prosecution reveals the existence of basic ingredients of the offence or not. The court can shift the material for this limited purpose. Before examining the question whether on the allegations made in the FIR prima facie any offence u/s. 3(1)(x) is made out, it is first necessary to examine ingredients of Section 3(1) of the SC/ST Act. It reads:

“3. Punishments for offences or atrocities.

(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe.

(i) to (ix) xxxx

(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;

(xi) to (xv) xxx

7. The basic ingredients of the offence under clause (x) of Sub-section (1) of Section 3 of the SC/ST Act are; a) that there must be an “intentional insult” or “intimidation” with “intend” to humiliate SC/ST member by a non-SC/ST member; (b) and that insult must have been done in any place within the “public view”. The use of expression “intentional insult or intimidation” with “intention” to humiliate, makes it abundantly clear that the mens rea is an essential ingredient of the offence and it must also be established that the accused had the knowledge that the victim is the SC/ST and that the offence was committed for that reason. Merely calling a person by caste would not attract the provisions of this Act. There must be specific accusation alleged against each of the accused. Section 34. of the Indian Penal Code cannot be pressed into service. Omnibus statement that all the accused persons uttered allegedly humiliating word may not be enough. This being a penal provision has to be given a strict interpretation. If any of the ingredient is found lacking, it would not constitute the offence. Reference in this regard can.be made to the various decisions referred to at the bar, reported in Satya Narain v. State of Rajasthan, 1991 RLW (1) 573, Chandra Poojari v. State of Karnataka, 1998 Crl.LJ 53, Haridas v. State of Maharashtra, 1997 Crl.L.J 122, Ramesh Prasad Bhanja v. State of Orrisa, 1996 Crl.LJ 2743, Munir Khan v. State of Rajasthan, 1991 (2) RLW 309, Pankaj D. Suthar v. State of Gujarat, 1992 (1) GLR 405, and Karan Singh v. State of M.P, 1992 Crl.L.J 3054.

8. As per the complainant's own showing some electrician of DESU restored the electricity to the house of petitioners and the electric supply to the rest of the area was not restored. The complainant Raj Kumar, raised objection with the electrician, his brother Hanuman also came at the spot from his shop was allegedly dragged by the petitioners inside their shop using above noted humiliating words. Complainant's brother raised alarm; neighbours reached there, and rescued him. Thereafter, it is alleged that the public angrily broke glass panes of their shop. As per the FIR, humiliating words were uttered while Hanuman being dragged inside before the arrival of neighbours, therefore, these words cannot be said to have been uttered in the “public view”. Thus basic ingredients of the offence under Section 3(1) (x) of the SC/ST Act are not made out. Further, admittedly, two cross cases were registered. Both the parties were injured. section 3 of the sc/st act was not initially mentioned in the FIR. Possibility of the complaint having a grudge in getting the petitioners arrested cannot be ruled out.

9. In the facts and circumstances noted above, petitioners are ordered to be released on bail on each of them furnishing personal bond in the sum of Rs. 10,000/- each with one surety in the like amount to the satisfaction of the Arresting Officer/SHO, in the event of their arrest. Any observation made herein shall not affect the merits of the case.

Dasti.

Petition stands disposed of.