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Ramkumar vs The State Of Madhya Pradesh on 10 August, 2018

-1- Cr.A. No.4525/2018
A. F. R
HIGH COURT OF MADHYA PRADESH, JABALPUR
Criminal Appeal No. 4525 of 2018
Parties Name Ramkumar, S/o Shri Omprakash
Soni, aged about 38 years,
Occupation Private Work, R/o
Pratap Colony, Harda, Police
Station/Tahsil AJAKS Harda,
District Harda (M.P.)

-Versus-

1.State of M.P. through Police
Station AJAKS, District Harda
(M.P.)

2. Smt. Rajani Bhalavi, D/o Shri
Ghanshyam Bhalavi, aged about 31
years, R/o Shyam Nagar, Harda
(M.P.)

Bench Constituted Hon’ble Shri Justice B.K.
Shrivastava
Order passed by Hon’ble Shri Justice B.K.
Shrivastava.
Whether approved for reporting Yes/No
Name of counsels for parties For appellant : Shri Manikant
Sharma, Advocate and Shri A.K.
Mishra, Advocate.

For respondent/State : Shri
Ashutosh Tiwari, Government
Advocate.
Law laid down
Significant paragraphs numbers

JUDGMENT

(10.08.2018)

-2- Cr.A. No.4525/2018
A. F. R
This appeal has been filed under Section 14-A (1 2) of Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for
short “SC/ST Act”) on 19.06.2018 on behalf of Ram Kumar against the
order dated 15.06.2018 passed by Special Judge, Harda. By the order
impugned, the learned lower Court dismissed the application filed by the
appellant under Section 438 of Cr.P.C for anticipatory bail in connection
with Crime No. 03/2018, registered at Police Station AJAKS, District
Harda (M.P.) under Sections 376(2) (N), 342, 506, 190 of IPC and
Sections 3(1)(W) (ii), 3(2)(V) of SC/ST Act.

2. As per lower court, the offences under section 3(1)(W) (ii) and 3(2)
(V) of SC/ST Act have been registered, therefore Section 18 of the
aforesaid Act is attracted, and as per aforesaid provision, anticipatory bail
could not be granted.

3. It is submitted by the learned counsel for the appellant that the
lower Court committed mistake by rejecting the application filed by the
appellant for anticipatory bail. In this case no medical evidence is
available in support of the contention. Provision of aforesaid Special Act
are not attracted, therefore, anticipatory bail ought to be granted.
Therefore, it is submitted that the order impugned is liable to be set aside
and appellant is entitled to get anticipatory bail.

4. On the other side, State strongly opposed the application/ Appeal
and submitted that FIR was also registered under Sections 3(1)(W) (ii)
3(2)(V) of SC/ST Act and Provision of aforesaid Special Act are also
attracted, therefore, anticipatory bail could not be granted.

5. The complainant was also noticed in this case but she did not turn
up to contest the appeal.

6. It will be useful to quote Section 18 of the Act, which reads as
under:-

“18. Section 438 of the Code not to apply to persons
committing an offence under the Act.- Nothing in Section
438 of the Code shall apply in relation to any case involving
the arrest of any person on an accusation of having
committed an offence under this Act.”

-3- Cr.A. No.4525/2018
A. F. R

7. A bare reading of above provision makes it clear that Section 438 of
Cr.P.C is not applicable to a person who committed the offence(s) under
the Act. In this section word “acquisition” has been used. In Ram Dayal
Vs. State of M.P. reported in 1991 JLJ, 498, it has been said that :-

“Accusation against the accused should be real in essence and
spirit. Where there is no material to reasonably raise a
suspicion of commission of an offence under the Act, it cannot
be said there is an accusation within the meaning of S. 18 of
the Act and maintainability of application u/s 18 cannot be
challenged”.

8. Further in the case of Dule Singh Vs. State of M.P. reported in
1993 (1) MPJR, 223, it has been said that :-

“Strict construction should be put on the word ‘accusation’
within the meaning of S. 18 of the Act. As such, ‘intention’ or
‘intent’ which is material ingredient of the offence under S. 3
(1) (x) of the Act not being clearly stated by the witnesses and
there being no statement that the offence was committed
because the complainant belonged to Scheduled Caste, it
cannot amount to an ‘accusation’ of an offence within the
meaning of S. 18 of the Act so as to bar an application for
anticipatory bail u/s 18 of the Act”.

9. Again in the case of Mohar Singh Vs. State of M.P., reported in
1995 JLJ 584, High Court has observed as under:-

“The word accusation used in S. 18 has not been defined
anywhere, but it can be safely inferred that when there is an
allegation either in the F.I.R. or in the statement of witnesses
constituting offence punishable u/s of the Act, the bar u/s 18 is
attracted.”

10. In the case of Pankaj D. Suthar Vs. State of Gujarat (1992) 1 GLR
405, while considering the scope of Section 18 of Prevention of Atrocities
Act, Gujarat High Court observed as under:-

“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.”

11. In the case of In the case of Vilas Pandurang Pawar and another
Vs. State of Maharashtra and others, AIR 2002 SC 3316 (2012) 8

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A. F. R
SCC 795, the police registered a case against the accused persons under
Section 3(1)(x) of the Act in addition to other offences punishable under
the IPC on the basis of the written complaint of the complainant. The
Additional Sessions Judge rejected their application under Section 438
Cr.P.C., giving reasons thereof. Aggrieved by the said order, the accused
persons filed the bail application before the High Court of Bombay, which
granted anticipatory bail to some of the accused persons. The order of the
High Court was challenged before the Supreme Court. The Supreme Court
considered the provisions and scope of Section 18 of the Act and made the
following observations in paras 8 and 9 (of AIR) of the decision -:

“8. Section 18 of the SC/ST Act creates a bar for invoking
Section 438 of the Code. However, a duty is cast on the court
to verify the averments in the complaint and to find out
whether an offence under Section 3(1) of the SC/ST Act has
been prima facie made out. In other words, if there is a
specific averment in the complaint, namely, in sultor
intimidation with intent to humiliate by calling with caste
name, the accused persons are not entitled to anticipatory bail.

9. The scope of Section 18 of the SC/ST Act read with Section
438 of the Code is such that it creates a specific bar in the
grant of anticipatory bail. When an offence is registered
against a person under the provisions of the SC/ST Act, no
court shall entertain an application for anticipatory bail, unless
it prima facie finds that such an offence is not made out.
Moreover, while considering the application for bail, scope for
appreciation of evidence and other material on record is
limited. The court is not expected to indulge in critical
analysis of the evidence on record. When a provision has been
enacted in the Special Act to protect the persons who belong
to the Scheduled Castes and the Scheduled Tribes and a bar
has been imposed in granting bail under Section 438 of the
Code, the provision in the Special Act cannot be easily
brushed aside by elaborate discussion on the evidence”.

12. Hon’ble Supreme Court in the case of Bachu Das Vs. State of
Bihar (2014) 3 SCC 471 also referred the aforesaid observation.

13. Recently in the case of Dr. Subhash Kashinath Mahajan Vs. State
of Maharastra, reported in AIR 2018 SC 1478, Hon’ble Supreme Court
considered the provision of Section 18 of SC/ST Act and observed as
under:-

“Exclusion of anticipatory bail has been justified only to
protect victims of perpetrators of crime. It cannot be read as
being applicable to those who are falsely implicated for

-5- Cr.A. No.4525/2018
A. F. R
extraneous reasons and have not committed offence on prima
facie independent scrutiny. Access to justice being
fundamental right, grain has to be separated from chaff, by
independent mechanism. Liberty of one citizen cannot be
placed at whim of another. Law has to protect innocent and
punish guilty. Thus considered, exclusion has to be applied to
genuine cases and not to false ones. This will help in
achieving object of law. Restriction in S. 18 is only at stage of
consideration of matter for anticipatory bail and no such
restriction is available while matter is to be considered for
grant of regular bail. Theoretically it is possible to say that
application under S. 438 of Code may be rejected by Court
because of express restrictions in S. 18 of Act of 1898 but
very same Court can grant bail under provisions of S. 437 of
Code, immediately after arrest. There seems to be no logical
rationale behind this situation of putting fetter on grant of
anticipatory bail whereas there is no such prohibition in any
way for grant of regular bail. It is, therefore, all the more
necessary and important that express exclusion under S. 18 of
Act of 1989 is limited to genuine cases and inapplicable
where no prima facie case is made out. There can be no
dispute with proposition that mere unilateral allegation by any
individual belonging to any caste, when such allegation is
clearly motivated and false, cannot be treated as enough to
deprive person of his liberty without independent scrutiny.

Thus, exclusion of provision for anticipatory bail cannot
possibly, by any reasonable interpretation, be treated as
applicable when no case is made out or allegations are
patently false or motivated. If this interpretation is not taken,
it may be difficult for public servants to discharge their bona
fide functions and, in given cases, they can be black-mailed
with threat of false case being registered under Act of 1989,
without any protection of law. This cannot be scenario in
civilized society. Similarly, even non-public servant can be
black-mailed to surrender his civil rights. This is not intention
of law. Such law cannot stand judicial scrutiny. It will fall foul
of guaranteed fundamental rights of fair and reasonable
procedure being followed if person is deprived of life and
liberty. Thus, literal interpretation cannot be preferred in
present situation. Thus, exclusion of S. 438 of Code applies
when prima facie case of commission of offence under Act of
1989 is made. On the other hand, if it can be shown that
allegations are prima facie motivated and false, such
exclusion will not apply. This may have to be determined by
Court concerned in facts and circumstances of each case in
exercise of its judicial discretion. In doing so, well established
principle of law that protection of innocent against abuse of
law is part of inherent jurisdiction of Court being part of
access to justice and protection of liberty against any
oppressive action such as mala fide arrest is reiterated.
Efficacy of S. 18 is not diluted in deserving cases where Court
finds case to be prima facie genuine warranting custodial
interrogation and pre-trial arrest and detention.”

-6- Cr.A. No.4525/2018
A. F. R

14. From the aforesaid observations, it is crystal clear that if the offence
registered under SC/ST Act, anticipatory bail can be granted when the court
prima facie find that such an offence is not mate out. It is mandatory on the
part of the Judge concerned, at the time of rejecting or granting bail under
Section 438 Cr.P.C. to give a definitive finding upon the basis of the materials
available before him that there is prima facie evidence available to hold that the
accused has committed or not committed the offence(s) punishable under the
Act. Meaning thereby the court cannot reject the bail outright by writing simply
in the order concerned that the police have registered the case for the offence(s)
punishable under the Act, therefore, the bar under Section 18 of the Act is
applicable.

15. Now, we see the fact of present case. It is argued by the learned
counsel for the appellant that appellant is permanent resident of District
Harda and there is no likelihood of his absconding. Complainant was
married in the year 2003 and given a birth to a male child. She left her
husband and came to Harda from Betul. After that She herself made
contacts with other rich person named Deepak Meena in the year 2012.
She developed relationship with Deepak Meena and got married with him
on oath in stamp paper on 05.01.2012 and got the marriage certificate
from Chitragupt Mandir, Hoshangabad. She contacted to another rich
person named Rajesh Sharma in the year 2014 and lived with him till
2016. She also delivered a baby child Divyani on 04.09.2015. She with a
conspired mind to blackmail him, lodged a false complaint on 21.01.2016
against Rajesh Sharma, in which Rajesh Sharma was acquitted. She also
lodged another complaint under Section 498 of IPC against Rajesh
Sharma. But Rajesh Sharma acquitted in that case also. The prosecutrix
was having intention for blackmailing. She is a habitual offender and used
to blackmail rich persons and in habit of collecting huge money from
them, who are in her target. She is a married lady who developed relations
with three other persons and also used to blackmail them by lodging
forged FIR.

16. FIR has been lodged by the prosecutrix on 30.05.2018 at 19:00 pm.
As per this report first incident took place in November, 2013. It is stated
in the FIR that the prosecutrix had gone to Balagoan in November, 2013.
In December 2013 she came in the contact of Ram Kumar Soni, who gave

-7- Cr.A. No.4525/2018
A. F. R
assurance of service as well as marriage. He also provided a house on rent
to the complainant. In that house he committed sexual intercourse with the
prosecutrix on 27.12.2013 at about 10:00 pm in the night. Thereafter he
repeated aforesaid the act and prosecutrix became pregnant and delivered
a girl child named Divyani. On 29.05.2018 when the prosecutrix told the
accused Ramkumar Soni that neither he arranged the service nor he
married with the prosecutrix, upon this, accused became annoyed and
assaulted her and also given threatened to life.

17. Therefore, it appears from the First Information Report that as per
prosecutrix she was in sexual relationship with Ramakumar Soni since
November, 2013 to 29.05.2018 and during this period she also delivered a
girl child named Divyani.

18. On the other side, appellant submits various documents against the
aforesaid version of the prosecutrix. Document Annexure A/2 at page
No.17 is a document related to the marriage. This document was executed
before the Notary on 05.01.2012 between prosecutrix and Deepak Kumar.
In this document it is mentioned that the marriage has been solemnized
between them by exchanging garlands. A certificate is also annexed at
page No.21, which has been issued by Chitragupt Mandir, Hoshangabad,
in shape of registration of marriage. In this certificate, photographs of both
parties meaning Deepak and prosecutrix have been pasted and it is
certified that the marriage has been solemnized on 14.01.2012. The
aforesaid documents shows that the prosecutrix has done first marriage
with Deepak on 14.01.2012 and they lived as husband and wife.

19. Annexure A/4 is an FIR of Crime No.11/2016 registered at Mahilla
Thana, Bhopal under Sections 376, 506 of IPC and Section 3(1)(xii) and
Section 3(2)(5) of SC/ST Act. This report was also lodged by the same
prosecutrix. The offence was registered upon the written report submitted
by the prosecutrix. As per this FIR the report was lodged on 21.01.2016,
while the date of incident is mentioned as 28.04.2014. In this FIR she
stated that she is living in Bhopal since 2 ½ years back and doing job in
private company and also living in a rented house. She again stated that
Rajesh Sharma (accused of that case) given her false assurance of

-8- Cr.A. No.4525/2018
A. F. R
marriage and committed sexual intercourse with her for a period of 1 ½
year. After sometime she came to know that Rajesh Sharma is a married
person and also having two children. When the complainant asked him
that he is married man then how he will marry with her, than he said that
he will give divorce to his wife and thereafter marry with the prosecutrix.
Important fact is also mentioned in this report that the prosecutrix became
pregnant and asked for abortion but the accused Rajesh Sharma denied and
assured that he will give name of father to the aforesaid child. After
sometime Rajesh Sharma did not contact to the prosecutrix and
prosecutrix delivered a girl child. Thereafter when girl was aged about 1 ½
months accused Rajesh Sharma created hurdle. Upon the instigation of
Rajesh Sharma, landlord pressurized the prosecutrix to evict the house. It
means that the girl child delivered by the prosecutrix during the
relationship with Rajesh Sharma.

20. When the report of Crime No.11/2016 was lodged ,the prosecutrix
was also examined before the JMFC, Bhopal on 01.02.2016 under Section
164 of Cr.P.C. In her statement she also stated that Rajesh Sharma given a
false assurance of marriage and committed sexual intercourse and due to
this relationship she became pregnant and gave birth to a girl child. Birth
certificate of that girl child is also filed as Annexure A/3, in which father’s
name is mentioned as Rajesh Sharma and date of birth is mentioned as
04.09.2015.

21. Annexure A/6 is the copy of judgment dated 15.02.2018 passed by
the Special Judge SC/ST, Bhopal in Special Case No.37/2016, which was
based on previous FIR lodged against Rajesh Sharma. The Court acquitted
the accused Rajesh Sharma in the aforesaid case. In para-12, it is
mentioned by the Court that the prosecutrix examined as PW-8 and she
deposed on oath that the accused Rajesh Sharma made sexual relationship
with her since 2014 and she became pregnant in the year 2015 and
delivered a girl child on 04.09.2015. In para 22, it is also mentioned that
the prosecutrix and accused committed sexual intercourse with the consent
of each other since January, 2014 to Jun, 2017. Therefore it appear that in
the previous First Information Report she alleged that Rajesh Sharma is
the father of that girl child while in the present FIR she alleged that the

-9- Cr.A. No.4525/2018
A. F. R
present appellant Ramkumar is the father of that girl child.

22. Another judgment Annexure A/5 is also filed in this case. The
complaint was lodged by the prosecutrix and the offence under Section
498-A of IPC was registered against Rajesh Sharma. By the judgment
dated 20.10.2015 passed in Case No.8284/2015 by Shri Ashok Bhardwaj,
JMFC, Bhopal the accused Rajesh Sharma was acquitted. In para-6 of the
aforesaid judgment, it is mentioned that the prosecutrix became hostile and
she did not support the FIR as well as her police statements. Therefore, it
appears that the prosecutrix herself lodged the report and thereafter during
trial she became hostile and did not support her own version which was
given in the FIR.

23. Some photographs are also filed for showing the conduct of
prosecutrix. These are at page Nos.49 to 55. In four photographs the
prosecutrix is with Rajesh Sharma. Three photographs are with Deepak
Meena. These photographs also indicate the intimate relationship as
husband and wife.

24. Therefore, looking to the aforesaid entire documents and the case
diary, it can be said that the prosecutrix is not a fair lady. She delivered a
girl child on 04.09.2015. At that time she was in relationship with Rajesh
Sharma. She also admitted in the previous case that Rajesh Sharma is the
father of that girl child. But again in this case she made allegation against
the present appellant by saying that he is father of that girl child. The
period of living with Rajesh Sharma is also overlapping with the period to
be said with the present appellant. Any act related to the cast is not alleged
in the entire evidence. It is also proper to mention hear that in para 6(3) of
the appeal memo, it is mentioned that initially complainant was married in
her caste in the year 2003 and a baby was born during her marital life.
Thereafter she married with Deepak Meena in the year 2012. Any divorce
from any Court has not been obtained by the prosecutrix.

25. Therefore, it can be said that the bar created in Section 18 is not
attracted in this case. Looking to all situations and the evidences, appeal is
allowed. The impugned order passed by the trial Court is set-aside and it is
directed that in the event of arrest of the appellant Ramkumar shall be

-10- Cr.A. No.4525/2018
A. F. R
released on bail on his furnishing a personal bond in the sum of
Rs.20,000/- (Rupees Twenty Thousand only) with one solvent surety in
the like amount to the satisfaction of the Arresting Officer. It is also
directed that the appellant shall abide by the conditions as enumerated
under Section 438(3) of the Cr.P.C. The appellant shall remain present
before the Investigating Officer as and when he is directed so and
cooperate in investigation and he shall also appear before the trial Court.

26. Consequently, the present criminal appeal stands allowed and
disposed of.

Certified copy as per rules.

(B.K. Shrivastava)
Judge

Vin**

Digitally signed by VINOD SHARMA
Date: 2018.08.10 15:06:45 +05’30’

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