1 2025:CGHC:13760 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Order Reserved on 31.01.2025 Order delivered on 22.03.2025 CRA No. 2139 of 2024 1 - Ramkhilawan Vaishnav S/o Bhusan Das Aged About 66 Years R/o Village Limtara P.S. Masturi District - Bilaspur (C.G.) 2 - Yogendra Vaishnav S/o Ramkhilawan Aged About 45 Years R/o Village Limtara P.S. Masturi District - Bilaspur (C.G.) ... Appellant(s) versus 1 - State Of Chhattisgarh Through The Station House OfÏcer Police Station Schedule Cast Schedule Tribe Welfare Bilaspur District - Bilaspur (C.G.) ----Respondent For Appellant : Ms. Manisha Yadav, Adv. For State : Mr. Karan Bahrani, P.L. For Objector : Ms. Gunjan Tiwari, Advocate Hon’ble Shri Arvind Kumar Verma, Judge CAV Order 1. This criminal appeal filed under Section 14-A(2) of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989, (for short, 'Act of 1989') against order dated 21.11.2024 passed by learned Special Judge (Atrocities) Bilaspur District Bilaspur (CG) whereby an application filed by the appellant under Section 482 of Bharatiay Nagarik Suraksha Sanhita, 2023 has been Digitally signed by JYOTI JHA Date: 2025.03.22 16:19:46 +0530 2 dismissed. 2. Appellant is apprehending his arrest in connection with Crime No.5/2024 registered at Police Station –Schedule Caste Schedule Tribe Welfare, Bilaspur, (CG), for the offence punishable under Sections 296, 3(5), 351(2) of BNSS and Sections 3(1)(r) & 3(1)(s) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. Case of the prosecution, in brief, is that on 05.08.2024, at morning 8-9 am when complainant had been to field for work at that time the appellant caught hold her hand and started uttered filthy language. Further she being member of Scheduled Caste & Scheduled Tribe and the appellants had accused her by her caste and threaten her for life. The complainant filed a written report and on the basis of said written report, offences under Section 296, 3(5), 351(2) of BNSS and Sections 3(1)(r) & 3(1) (s) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been registered against the appellants. 4. Learned counsel for the appellant submits that the appellants name are recorded in revenue record of the land situated in the village bearing Khasra No-788/01 area 0.09 Acre and Khasra No-788/02 area 0.09 Acre. On demarcation it was found that the husband of the complainant had encroached over the land to which they approach before Tehsildar and Tehsildar pass order in favour of the appellants under section 250 of CG Land 3 Revenue Code. Further vide order dated 02/04/2024, the Tehsildar has passed the order for removing encroachment over the land of the appellants. Further appeal preferred by the husband of the complaintant got dismissed. Therefore due to such land land dispute between the parties, the complainant has lodged false, baseless and frivolous complaint against the appellants. After the order of Tehsildar, the complainant parties were removed from encroachment but again they forcefully encroached over the said land of the appellants which is evident from order issued by the Tehsildar on 26/07/2024 to Station House OfÏcer of PS- Masturi, Dist- Bilaspur. Even there are two orders of revenue authorities in favour of the appellants but the complainant parties on regularly basis abuses and had given threatening for life to which the appellants had made several complaints before the concerned Police Station & Collector, but no action has been taken against them. 5. Learned counsel for the appellants further submits that the court below erred in giving finding that the documents relied upon by the defence (appellants herein) cannot be considered at this stage as same is matter of evidence because those documents relied upon by the appellants are the orders issued by the competent authority under statutory law therefore these are undisputed and public documents which not required to prove. 6. Learned counsel for the appellants would submits that the 4 alleged incident happened on 05.08.2024 and FIR has been registered on 17.08.2024 ie after 12 days of the alleged incident, which itself justify the version of the appellants that a false and fabricated report has been lodged against the appellants. Therefore in such circumstances the court below erred in giving finding that there is Prima facie case against the appellants. 7. Learned counsel for the appellants would submit that vide complaint dated 13/08/2024 made to Superintendent of police, the appellants have informed about their apprehension that complainant parties may implicate them under SC/ST Act, thus, these facts create a doubt to the contents of alleged crime of SC/ST Act. Vide Annexure A/7, it has also reflected from the newspaper cutting that there was land dispute between the parties. Thus, learned counsel for the appellants prays for grant of anticipatory bail. 8. In support of his contention, learned counsel for the appellants relied upon decisions of the Hon’ble Supreme Court in the case of Prathvi Raj Chauhan Vs. Union of India reported in 2020(4) SCC 727 and also in the case of Rahna Jalal v. State of Kerala reported in 2021 (1) SCC 733. 9. Learned State Counsel opposes the submissions made by learned counsel for appellant and submits that specific allegation has been made against them by the complainant in her complaint, which required inquiry and the investigating agency 5 has already started investigation. Moreover the appellants are also absconding and could not be arrested till date. The allegation of abusing language in the name of caste of the complainant is leveled against the appellants. Hence, in view of bar under Section 18 of the Act of 1989 anticipatory bail application is not maintainable. 10. Learned counsel appearing for the objector opposes the anticipatory bail application of the appellants. 11. Heard learned counsel for the parties. 12. Section 3 (1) (r) of the Act, 1989 reads as under;- Section 3(1) in The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989:- (1)Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,— xxx xxx xxx xxx xxx xxx xxx xxx 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; 13. The Supreme Court in the matter of Hitesh Verma Vs. State of Uttarakhand {(2020) 10 SCC 710} has held thus :- 13. The offence under Section 3 (1) (r) of the Act would indicate the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe. All insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. The object of the Act is to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes as they are denied number of civil rights. Thus, an offence under the Act would be made out when a member of the vulnerable section of the Society is subjected to indignities, humiliations and harassment. The assertion of title over the land by either of the parties is not due to either the indignities, humiliations or 6 harassment. Every citizen has a right to avail their remedies in accordance with law. Therefore, if the appellant or his family members have invoked jurisdiction of the civil court, or that respondent No.2 has invoked the jurisdiction of the civil court, then the parties are availing their remedies in accordance with the procedure established by law. Such action is not for the reason that respondent No.2 is member of Scheduled Caste. 18. Therefore, offence under the Act is not established merely on the fact that the informant is a member of Scheduled Caste unless there is an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste. In the present case, the parties are litigating over possession of the land. The allegation of hurling of abuses is against a person who claims title over the property. If such person happens to be a Scheduled Caste, the offence under Section 3(1)(r) of the Act is not made out. 14. Further, Supreme Court in the matter of Prathvi Raj Chauhan Vs. Union of India AIR 2020 Supreme Court 1036 held that bar created by Sub section 18 and Section 18A against grant of anticipatory bail in case of atrocity against SC and ST shall not apply unless prima facie is made out- However in case of misuse of provisions Court can quash the cases to prevent misuse on settled parameters. 15. A view has been taken from the judgment of the hon’ble Supreme Court in the case of Rahna Jalal v. State of Kerala, 2021(1) SCC 733 and the principles have been reiterated and explained in para 23 and 25- 23 The provisions of Sections 18 and 18-A have been interpreted by a three-Judge Bench of this Court in Prathvi Raj Chauhan v. Union of India [Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727 Arun Mishra, J. speaking for himself and Vineet Saran, J. while construing these provisions, observed that: (SCC p. 751, para 11) "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 7 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." 25. Thus, even in the context of legislation, such as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, where a bar is interposed by the provisions of Section 18 and sub-section (2) of Section 18-A on the application of Section 438 CrPC, this Court has held that the bar will not apply where 9 (2021) 1 SCC 733 2022:CGHC:10255 Neutral Citation 10 the complaint does not make out "a prima facie case" for the applicability of the provisions of the Act. A statutory exclusion of the right to access remedies for bail is construed strictly, for a purpose. Excluding access to bail as a remedy, impinges upon human liberty. Hence, the decision in Chauhan [Prathvi Raj Chauhan v. Union of India, (2020) 4 SCC 727: (2020) 2 SCC (Cri) 657] held that the exclusion will not be attracted where the complaint does not prima facie indicate a case attracting the applicability of the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989." 16. A perusal of records shows that parties are resident of same village and on demarcation, it was found that the husband of the complainant had encroached over the land to which they approach before the Tehsildar and Tehasildar passed the order in favour of the appellants and directed to remove encroachment over the land of the appellants and thereafter husband of the complainant preferred an appeal which got dismissed. Documents also show that both the parties have lodged complaints against each other with regard to land dispute between the parties. Thereafter, again complainant party encroached over the said land of the appellants to which also the appellants had made several complainants before the concerned police stations. It is alleged that due to complaint made to the 8 authorities by the appellants, the appellants have informed about their apprehension that complainant parties may implicate them under SC/ST Act since they belongs to SC/ST category and made a complaint to the Superintendent of police vide complaint dated 13/08/2024 (Annexure A/6). 17. Aforesaid facts available on record shows that there is animosity between both the parties in respect of land dispute. Since there is counter case against each other for alleged incident and appellants have informed about their apprehension that complainant may implicate them under SC/ST act, thus these facts create a doubt to the contents of alleged crime of SC/ST Act. Moreover, the appellants have approached the Tehsildar for demarcation of his land and on demarcation, it was found that husband of the complainant had encroached over the land of the appellants and the Tehsildar has passed the order for removing encroachment, to which husband of the complainant filed an appeal, which got dismissed, thus it prima facie shows that it is counter blast case, therefore, the bar of Section 18(2) of the SC/ST (Prevention of Atrocities Act) would not be applicable in this case. 18. Considering the aforesaid facts of the case and also considering the ratio laid down by the Hon’ble Supreme Court in the case of Prithvi Raj Chouhan (supra) and Rahna Jalal (supra) and also considering nature of allegations, submission of counsel for 9 appellants, this Court is inclined to grant the protection of anticipatory bail to the appellants. 19. Accordingly, appeal is allowed. Impugned rejection order 21.11.2024 passed by Special Judge, (Atrocities) Bilaspur (Annexure A-1) is set aside. It is directed that in the event of arrest by the Police OfÏcer appellants shall be released on bail upon his furnishing a bail bond in sum of Rs.10,000/- with two sureties in the like sum to the satisfaction of the Arresting ofÏcer on the following conditions that:- a) Appellant shall appear before trial Court regularly on each and every date, unless exempted from appearance. b) Appellant shall not, in any manner, tamper with the prosecution witnesses. c) Appellant shall in any manner will not threaten the complainant of the case. d) Appellant will give his full co-operation whenever the Police OfÏcer will ask him to come for inquiry. e) Appellant in any manner will take full participation in resolving the case and will not ask for unnecessary adjournment. 20. However, it is made clear that this Court has not expressed any opinion on the merits of the case. Sd/- (Arvind Kumar Verma) Judge Jyoti