Dr. Rabindra Nath Pradhan vs State of Orissa

I.M. Quddusi, J.—Heard Shri H. S. Mishra, appearing for Shri T.K. Sahoo, Advocate engaged by the petitioner, Shri Sibani Sankar Pradhan, learned counsel for the complainant and the learned Additional Government Advocate.

This petition has been filed by the petitioner with the prayers that he may be granted anticipatory bail in Bhubaneswar Mahila P.S. Case No. 125 of 2004 dated 17.12.2004 corresponding to G.R. Case No. 4151 of 2004 pending in the Court of the learned S.D.J.M., Bhubaneswar with any terms and conditions considered to be fit and proper. Further, he has made two alternative prayers; (1) to grant him three months interim bail to enable him to move the Courts below as well as before this Court in the light of the judgment laid down by the Apex Court as well as by this Court or (2) this Court may direct the S.D.J.M., Bhubaneswar to release the petitioner on bail on his surrender in the above mentioned case.

In fact this petition has been registered as BLAPL i.e. anticipatory bail, due to first prayer. But learned counsel for the petitioner has made oral prayer for exercising inherent powers by this Court conferred to it u/s 482, Cr.P.C. due to the alternative prayers.

The brief facts of the case are that the complainant is an employee of Government Ayurvedic Hospital, Bhubaneswar. She is a lady masseur working under petitioner''s Panchakarma Department where the petitioner is posted as Department Doctor (Medical Officer). Complainant has lodged a First Information Report registered as F.I.R. No. 125 of 2004 dated 17.12.2004 mentioning the incident of 8 months before i.e. 20.4.2004 stating therein that while she entered into the Chamber to bring soap for hand wash, and When she was taking the soap by opening almirah, the petitioner stood at the Chamber''s door looking outside and when knowing that no one was there, he hugged the informant and asked her to give a hot kiss. Then she protested and ran away by giving him a thrust. Initially the F.I.R. was registered imposing Section 354, I.P.C. against the petitioner. But on the next date i.e. on 18.12.2004 the Officer-in-Charge, Bhubaneswar Mahila P.S. reported the S.D.J.M., Bhubaneswar that during the course of investigation it was ascertained that the victim lady is a Scheduled Tribe by caste and as such he had imposed Section 3 of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act (hereinafter referred to as ''S.C. & S.T. Act'') also. The case is under investigation at present.

Learned counsel for the complainant has raised objection and drawn the attention of this Court towards the provision of Section 18 of the S.C. & S.T. Act which is reproduced as under :-

"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."

In view of the above quoted provision, learned counsel for the complainant has submitted that anticipatory bail cannot be granted to the petitioner for the accusation under the S.C. & S.T. Act.

It is right that anticipatory bail cannot be granted in relation to a case in which accusation of commission of offence under S.C. & S.T. Act has been alleged.

Learned counsel for the petitioner has relied upon the decision of this Court in anticipatory bail application filed by Narsingh Charan Moharana 2004 (II) OLR 734 reported in (2004) 29 OCR 864, the operative part of which is quoted as under :-

"The copy of the F.I.R. indicates that some unknown person extended threat and abused the M.L.A.-informant over mobile telephone and the mobile telephone from which the call had been made was the mobile telephone of the petitioner."

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It is submitted by the learned Addl. Government Advocate that accusation having been made u/s 3(x) of the S.C. & S.T. (P.A.) Act, bar will apply. Section 3(x) of the Act reads thus :-

"Whoever, not being a member of Scheduled Caste or Scheduled Tribe, intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view".

The sub-section, therefore, says that the insult or intimidation etc. must be within public view. In the present case there is no allegation that threat or intimidation was made within the public view. So the submission of the learned counsel for the petitioner is tenable that at the moment prima facie case for the alleged offence u/s 3(1)(x) of the S.C. & S.T. (P.A.) Act has not been made out. In that situation, the bar provided u/s 18 of the

Act will not apply and the petition u/s 438, Cr.P.C. can be entertained."

An offence in S.C. & S.T. Act would be made only when It is made by a person not being a member of S.C. & S.T. Caste intentionally on the ground that the victim is a member of S.C. or S.T. and the intention is to insult him or her on that basis.

In the case of Masumsha Hasanasha Musalman v. State of Maharashtra reported in AIR 2000 SC 1976, the Supreme Court in paragraph 9 of the same has held as under :-

"Section 3(2)(v) of the Act provides that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, commits any offence under the Indian Penal Code punishable with imprisonment for a term of 10 years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine. In the present case, there is no evidence at all to the effect that the appellant committed the offence alleged against him on the ground that the deceased is a member of a Scheduled Caste or a Scheduled Tribe. To attract the provisions of Section 3(2)(v) of the Act, the sine qua non is that the victim should be a person who belongs to a Scheduled Caste or a Scheduled Tribe and that the offence under the Indian Penal Code Is committed against him on the basis of that such a person belongs to a Scheduled Caste or a Scheduled Tribe. In the absence of such ingredients, no offence u/s 3(2)(v) of the Act arises. In that view of the matter, we think, both the trial Court and the High Court missed the essence of the aspect. In those circumstances the conviction under the aforesaid provision by the trial Court as well as the High Court ought to be set aside."

In the case of Vidyadharan v. State of Kerala reported in AIR 2003 SCW 6511, the Hon''ble Apex Court has held that the essential ingredients of the offence u/s 354, I.P.C. are as under :-

(i) that the person assaulted must be a woman;

(ii) that the accused must have used criminal force on her, and

(iii) that the criminal force must have been used on the woman intending thereby to outrage her modesty.

At this stage it is necessary to peruse the provisions of Section 354, I.P.C. which are quoted as under :-

"Section 354. Assault or criminal force to woman with intent to outrage her modesty. - Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both".

In the instant matter, there is no allegation in the F.I.R. that the petitioner had assaulted or used criminal force on her. However, it is also a matter of investigation as to whether in such circumstances the provision of S.C. & S.T. Act would be attracted or not.

In the case of Joginder Kumar v. State of U.P. and Ors. reported in AIR 1349 SC , the Hon''ble Supreme Court has laid down the principle that :-

"A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the Officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an offence must be avoided if a police officer issues notice to person to attend the Station House and not to leave station without permission do".

The relevant portion of the judgment of the Apex Court in the case of Joginder Kumar (supra) is reproduced as under:-

"In India, Third Report of the National Police Commission at page 32 also suggested:

".... An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances :-

(i) The case involves a grave offence like murder, dacoity, robbery, rape etc, and it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims.

(ii) The accused is likely to abscond and evade the process of law.

(iii) The accused is given to violent behavior and is likely to commit further offences unless his movements are brought under restraint.

(iv) The accused is a habitual offender and unless kept in custody he is likely to commit similar offences again.

It would be desirable to insist through departmental instructions that a police officer making an arrest should also record in the case diary the reasons for making the arrest, thereby clarifying his conformity to the specified guidelines..."

The above guidelines are merely the incidents of personal liberty guaranteed under the Constitution of India. No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a Police Officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and reasonable belief both as to the person''s complicity and even so as to the need to ''effect arrest''. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave Station without permission would do."

In view of the above mentioned facts and circumstances, the petitioner is liable to be granted anticipatory bail in respect of Section 354, I.P.C. only. Since there is a specific statutory bar to grant anticipatory bail on an accusation of having committed the offence under S.C. & S.T. Act, the question for consideration before this Court is whether due to that bar a person against whom the police has imposed a case u/s 3 of the S.C. & S.T. Act would be remediless.

In the opinion of this Court, in the facts and circumstances of the instant case, the Court should exercise its inherent power conferred to it u/s 482, Cr.P.C. This Court is conscious that there is catena of decisions of Hon''ble Apex Court that the High Court should exercise inherent powers u/s 482, Cr.P.C. sparingly in rarest of rare cases like State of Haryana and others Vs. Ch. Bhajan Lal and others, ; Dr. Raghubir Sharan Vs. The State of Bihar, ; Mrs. Rupan Deol Bajaj and another Vs. Kanwar Pal Singh Gill and another, and further in the case of Zandu Pharmaceutical Works Ltd. and Others Vs. Md. Sharaful Haque and Others, , the Hon''ble Supreme Court has held as under :-

"Exercise of power u/s 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power, which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent Jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule, which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties Imposed upon them by law. That is the doctrine, which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All Courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex alquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the Section, the Court does not function as a Court of appeal or revision. Inherent jurisdiction under the Section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone Courts exist. Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. It would be an abuse of process of the Court to allow any action, which would result in injustice and prevent promotion of justice. In exercise of the powers, Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."

In the instant matter, When the police has Imposed Section 3 of the S.C. and S.T. Act against the petitioner and there is statutory bar of application of Section 438, Cr.P.C., in such cases and at this stage on the basis of the incident narrated in the F.I.R., it cannot be said that a prima facie case has been made out against the petitioner as to the accusation of having committed an offence u/s 3 of the S.C. and S.T. Act. In the opinion of this Court, it is a fit case to exercise inherent powers conferred to this Court u/s 482 Cr.P.C. The matter is being investigated by the police, and as such, this Court while exercising powers u/s 482, Cr.P.C., cannot interfere in the investigation. Further, this Court is also not inclined to accept the further prayer made in this petition to the effect that the S.D.J.M., Bhubaneswar be directed to release the petitioner on bail or he should be granted interim bail in respect of the offence u/s 3 of the S.C. and S.T. Act. However, considering the prayer and circumstances of the case it would be proper that keeping in view the principle in Joginder Kumar''s case (supra), the arrest of the petitioner be stayed till the availability of credible evidence against the petitioner.

In view of the above mentioned facts and circumstances, this petition is disposed of finally with the direction that in respect of Section 3 of the S.C. and S.T. Act the petitioner shall not be arrested in the above mentioned case unless on the basis of investigation a credible evidence comes against the petitioner by which the offence u/s 3 of the S.C. and S.T. Act is made out against the petitioner in the light of the above observation or till the submission of charge sheet whichever occurs earlier with the condition that the petitioner shall appear before the Investigating Officer as and when required and shall participate in the investigation which shall be concluded as expeditiously as possible in accordance with law.