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Radheshyam vs The State Of Madhya Pradesh on 17 July, 2018

1
HIGH COURT OF MADHYA PRADESH:JABALPUR
Cr.A. No.4258/2018
Radheshyam vs. State of M.P. and another

JABALPUR, DATED : 17 .07.2018
Shri A. D. Mishra, counsel for the appellant.
Shri Aseem Dixit, Government Advocate for the
respondent/State.

Shri S. Khampariya, counsel for the objector.
Heard on this first appeal for anticipatory bail under
section 14-A of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989, filed on behalf of
appellant Radheshyam in Crime No.90/2018, registered by
P.S. Umreth, District Chhindwara (M.P.), under Sections
456, 354 and 354-A of the I.P.C., Section 7/8 of POSCO
Act, 2012 and sections 3(2) (va), 3(1) (w) (i) of the
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989.

This criminal appeal is directed against the order
dated 1.06.2018 passed by the Court of Special Judge
(Atrocities) SC/ST Act, Chhindwara, in Bail Application
No.1233/2018.

As per the prosecution case, the prosecutrix was a
minor unmarried girl aged about 17 years. She belonged to a
scheduled caste. At about 12:00 a.m. on 28.5.2018 when she
was sleeping at home, the appellant entered her house from
behind and caught hold of her right hand. When the
prosecutrix tried to shout, he clamped her mouth shut and
pressed her breasts and abdomen. He started to pull her
cloths. When the prosecutrix raised alarm, her neighbour
Ritesh arrived and woke her mother Laxmi, who was
2
HIGH COURT OF MADHYA PRADESH:JABALPUR
Cr.A. No.4258/2018
Radheshyam vs. State of M.P. and another

sleeping in the adjacent room; whereon, the appellant ran
away.

Learned counsel for the appellant submits that the
appellant has been falsely implicated in the case. Anita,
wife of appellant Radheshyam, is a Panch. She and other
Panchas had complained to the Chief Executive Officer of
the Janpad Panchyat, Chhindwara against the Gram
Panchayat Secretary, who is cousin of the prosecutrix. As a
result, he was suspended; therefore, the Panchayat Secretary
has got to false report lodged against the present appellant.
In support of his contention, learned counsel for the
appellant has filed certain documents. It has further been
submitted that the incident as alleged in the first
information report appears to be highly improbable. It is
improbable that hearing cries of the prosecutrix, her
neighbour woke up but her mother who was sleeping in the
adjacent room, did not. Learned counsel for the appellant
further submits that the spot map reveals that the place of
incident is surrounded on all sides by other houses. Nobody
in his right mind, would select such a place for molesting a
girl against her wishes because he would be sure to be
caught; therefore, inviting attention of the Court to the
judgment rendered by the Supreme Court in the case of Dr.
Subhash Kashinath Mahajan vs. State of Maharashtra
(Cr.A.No.416/2018 dated 20th March, 2018); it has been
prayed that the appellant be granted the benefit of
anticipatory bail.

3

HIGH COURT OF MADHYA PRADESH:JABALPUR
Cr.A. No.4258/2018
Radheshyam vs. State of M.P. and another

Learned Government Advocate for the
respondent/State and learned counsel for the objector have
vehemently opposed the application mainly on the ground
that cousin of the prosecutrix, who is said to have got this
complaint lodged, has nothing to do with the prosecutrix.
He is not her real brother. At any rate, no unmarried girl
would invite such indignity upon herself simply to avenge
her cousin. Her neighbour woke up before her mother
because neighbour’s house is also very near to the place
where the prosecutrix was sleeping; therefore, it has been
prayed that petition for anticipatory bail be dismissed.

The Supreme Court has held in the case of Dr.
Subhash Kashinath Mahajan vs. State of Maharashtra
(Cr.A.No.416/2018 dated 20th March, 2018), as follows:

81. Accordingly, we direct that in absence of any other independent
offence calling for arrest, in respect of offences under the Atrocities
Act, no arrest may be effected, if an accused person is a public
servant, without written permission of the appointing authority and
if such a person is not a public servant, without written permission
of the Senior Superintendent of Police of the District. Such
permissions must be granted for recorded reasons which must be
served on the person to be arrested and to the concerned court. As
and when a person arrested is produced before the Magistrate, the
Magistrate must apply his mind to the reasons recorded and further
detention should be allowed only if the reasons recorded are found
to be valid. To avoid false implication, before FIR is registered,
preliminary enquiry may be made whether the case falls in the
parameters of the Atrocities Act and is not frivolous or motivated.
Consideration of present case

82. As far as the present case is concerned, we find merit in the
submissions of learned amicus that the proceedings against the
appellant are liable to be quashed.

Conclusions

83. Our conclusions are as follows:

i) Proceedings in the present case are clear abuse of process of
court and are quashed.

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HIGH COURT OF MADHYA PRADESH:JABALPUR
Cr.A. No.4258/2018
Radheshyam vs. State of M.P. and another

ii) There is no absolute bar against grant of anticipatory bail in
cases under the Atrocities Act if no prima facie case is made out or
where on judicial scrutiny the complaint is found to be prima facie
mala fide. We approve the view taken and approach of the Gujarat
High Court in Pankaj D Suthar (supra) and Dr. N.T. Desai (supra)
and clarify the judgments of this Court in Balothia (supra) and
Manju Devi (supra);

ii) In view of acknowledged abuse of law of arrest in cases under the
Atrocities Act, arrest of a public servant can only be after approval
of the appointing authority and of a non-public servant after
approval by the S.S.P. which may be granted in appropriate cases if
considered necessary for reasons recorded. Such reasons must be
scrutinized by the Magistrate for permitting further detention.

iv) To avoid false implication of an innocent, a preliminary enquiry
may be conducted by the DSP concerned to find out whether the
allegations make out a case under the Atrocities Act and that the
allegations are not frivolous or motivated.

v) Any violation of direction (iii) and (iv) will be actionable by way
of disciplinary action as well as contempt.
The above directions are prospective.

As such, the scope for grant of anticipatory bail has
been considerably widened. Therefore, in view of the
submissions made by learned counsel for the appellant, it
would be appropriate to dispose of this appeal for
anticipatory bail with following directions:

A preliminary enquiry shall be conducted by the DSP
concerned to find out whether the allegations make out a
case under the Atrocities Act and that the allegations are
not frivolous or motivated.

The appellant shall not be arrested before approval
by the S.S.P., which may be granted if deemed appropriate
and necessary for reasons to be recorded. Such reasons
shall be scrutinized by the Magistrate for permitting further
detention.

5

HIGH COURT OF MADHYA PRADESH:JABALPUR
Cr.A. No.4258/2018
Radheshyam vs. State of M.P. and another

Accordingly, the appeal stands disposed of with
aforesaid directions.

(C.V. Sirpurkar)
ahd Judge

Digitally signed by MOHD AHMAD
Date: 2018.07.18 23:34:26 -07’00’

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