G. S. SINGHVI, V. J. - (1.) THE petitioners have applied for grant of bail u/s. 438 Cr. P. C. in a case registered under Sections 147,323 and 452 IPC and Section 3 of SC/st (Prevention of Atrocities Act), 1989, at Police Station Kherli district Alwar vide first information report No. 106/91.
(2.) PETITIONERS Nos. 2, 3, 4 and 5 are belonged to the same family. The petitioner No. 2 is the father of petitioners Nos. 3 to 5. It has been stated that he is old and infirm person of 70 years of age. It has also been stated that the accused petitioners 1 and 5 are minors. Petitioner No. 2 has claimed that he is a Social Worker and he is a member of Samiti Harijan Sevak Sangh, Rajasthan sub Branch Kherli of district Alwar. This Sangh is working for the welfare of the members of reserved class since 1932. The case of the prosecution is that one Shri Man Singh Jatav lodged a report against the petitioners on 21. 5. 91 at the Police Station Kherli. In this first information report which has been lodged on 21. 5. 91 at about 7. 00 p. m. it is alleged that he was at his house when Sita Ram Pansari S/o Manohar, Kunjaram son of Megharam, Purshottam, Santosh Kumar, Jugal Kishore sons of Kashi Ram and Satyanarain son of Gopi Ram Brahmin came to his residence and started abusing and gave beating, to him. When he raised hue and cry then Tarawati wife of Het Ram who is his neighbour and Kundan Lal came to his rescue. These persons started giving beating to them also. Kashi Ram, Purshottam and Santosh cried that they will kill this 'chamar' and those who have come for his rescue will also not be spared. It is alleged that Sariya, Sticks and Knife were used in the beating. On the aforesaid report a case under Sections 147, 323 and 452 IPC and Section 3 of the SC/st (Prevention of Attrocities) Act was registered and investigation was started. A cross report was also lodged on that very day against Man Singh Jatav, Het Ram son of petitioner No. 2 and seven others alleging that Het Ram and his associates had given beating to Kunja Ram 'and his son after the assailants had entered his house. This first information report bears No. 105/91. The case is under Sections 147,323, 345 and 336 IPC and the same is under investigation. The petitioners moved an application under Section 438 Cr. P. C. before the learned Sessions Judge, Alwar who has dismissed the same by holding that since the case has been registered under Section 3 of the Act, anticipatory bail cannot be granted in view of the Section 18 of the Act, 1989. The learned counsel for the petitioners has argued that the first information report has been lodged by Man Singh Jatav in order to counter the first information report lodged by Kunja Ram. There is dispute between Het Ram son of Petitioner No. 2 on the one hand and members of the petitioners, family on the! other hand. Man Singh Jatav and his family members have sided with Het Ran. They gave beating to the persons belonging to the party of the accused petitioners. First information report No. 105/91 was lodged against them and thereafter Man Singh Jatav lodged the first information report and deliberately made false the alliegation of the use of abusive language in order to bring the case under the provisions of section 3 of the 1989 Act. Learned Public Prosecutor has urged that the petitioners are not entitled to grant of anticipa-" tory bail because of the fact that the case under Section 3 of the 1989 Act has been registered. I have considered the facts of the case as well as the rival submissions of the learned counsel. Section 3 of the 1989 Act specifies the punishment for attrocities enumerated in that Section. Section 3 (l) (x) reads as under:- "punishtnents for offences of attrocities: (l) (x) - Whoever, not being a member of a Scheduled Caste or Scheduled Tribe: intentionally insults or intimidates with intent to humiliates a member of a Scheduled Caste or a Scheduled Tribe in any place within public view": Once ii is found that the person is accused of having committed an offence under the Act, 1989 the embargo imposed under Section 18 of the Act, 1989 against the grant of anticipatory bail would come into play. However/before the provisions of section 18 of the 1989 Act is made applicable the court is bound to consider as to whether the applicant is an accused of having committed an offence under the 1989 Act. Since the provisions contained in Section 18 is an exception carved out from general provisions of anticipatory bail contained in Section 438 Cr. P. C. it has to be construed strictly. Once it is found that an offence spscified under the 1989 Act is committed irrespective of the gravity of the offence anticipatory bail has to be declined but, the Court has to apply its mind to the facts of the case and record a finding that the applicant has been an accused of having committed an offence under the 1989 Act.
(3.) NOW if provisions of Section 3 ( 1 ) (x) are looked into, it is clearly borne out that there must be an intentional insult or intimidation and this must be with intention to humiliate a member of SC/st. in any place within public view. In order to constitute the accusation of an offence under Section 3 (1) (x) there must be an allegation that the accused has/have intentionally insulted or intimidated the complainant in a place which was within public view and such insult or intimidation was done with the intention to humiliate the complainant. If these ingredients are to be found in the accusation, it would be said that the person is accused of having committed an offence under Section 3 of the 1989 Act. In the present case, the allegations contained in the first information report show that the petitioners had gone to the resident of Man Singh Jatva and started giving beating to him while at the same time started abusing him. His neighbours namely Tarawati and Kundan Lal intervened and they too were giving beating. From a perusal of the first information report it is absolutely clear that there is no allegation of intentional insult or intimidation against the petitioners. It is not the case of the complainant that the so called abuses (not specified) were hurled at a place which was in public view. The incident is said to have taken place at the residence of the complainant and not in the view of general public or where members of public were present. There is no allegation that the so called un specified abuses were with object to humiliate the complainant. Thus, in my opinion on the basis of allegations contained in the first information report No. 106/91 it cannot be said that the petitioners are accused of having committed offence under Section 3 of the 1989 Act. So far the other allegations are concerned, they do not constitute such offences which are sufficient for declining the grant of anticipatory bail to the petitioners. It cannot be ignored that the first information report was lodged by Kunja Ram first containing the allegations that Het Ram son of petitioner No. 2 and his associates had beaten him and others after entering into his house. First information report No. 106/91 was lodged after the first information report was lodged by Kunjaram. There is a clear allegation of anmocity between Het Ram on the one hand and the petitioner No. 2 and 5 on the other hand. Having regard to the facts and circumstances of the case i am inclined to grant anticipatory bail to the accused petitioners. ;