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Judgment
Rangasamy, J.—Crl. O.P. Nos. 2488 and 2653 of 1997 are for anticipatory bail whereas Crl. M.P. No. 1113 of 1997 in Crl. O.P. No.
1858 of 1997 is for cancellation of the anticipatory bail granted already.
The petitioners in Crl. O.P. Nos. 2488 and 2653 of 1997 have been charged for the offences under Sections 147,148,341,324,427 and 302
Indian Penal Code, Section 3(2) (V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, hereinafter to be
referred to as S. C. & ST. (PA) Act. and Sections 3 and 5 of the Tamil Nadu Public Property (Prevention of Damage and Loss) Act 1992 read
with Section 149 Indian Penal Code
The allegation is that while the complainant and 60 others, who belonged to Scheduled Castes, were returning in a Lorry on 7.3.1996 after
attending a conference, they were attacked by about 300 persons near Kallukudi village by pelting stones and a person was killed due to the hitting
of the stone while five others were injured apart from the damage to the lorry. On the complaint of an injured person, the case was registered by
Kallupatti Police initially for the offences under Sections 147, 148, 311,324 and 302 Indian Penal Code and after investigation, now the charge
sheet is filed for the above Sections and also for the offence under Sections 3 and 5 of the Tamil Nadu Public Property (Prevention of Damage and
Loss) Act, 1992.
Already Crl. O.P. No. 1858 of 1997 was filed by some of the accused, in this court for anticipatory bail and anticipatory bail was granted on
4.3.1997. The learned Government Advocate (Crl. Side), Mr. S. Kumaresan, has raised an objection for the maintainability of these petitions u/s
438 Code of Criminal Procedure in view of the bar u/s 18 of the S.C. & S.T. (PA) Act and therefore, the respondent police has filed a petition
Crl. M.P. No. 1113 of 1997 to cancel the anticipatory bail granted to some of the accused in Crl. O.P. No 1858 of 1997 on 4.3.1997. The
learned Government Advocate would submit that Section 18 of the S.C. & S.T. (PA) Act is very specific that Section 438 of the Code of
Criminal Procedure shall not be applied in relation to any case involving the arrest of any person on an accusation of having committed an offence
under this Act and as these petitioners have been accused of the offence u/s 3(2) (V) of this Act, Section 438 Code of Criminal Procedure cannot
be invoked by these petitioners for anticipatory bail and therefore, the petitions Crl. O.P. Nos. 2488 and 2653 of 1997 for grant of anticipatory
bail have to be dismissed and Crl. M.P. No. 1113 of 1997 has to be allowed canceling the anticipatory bail granted in Crl. O.P. No. 1858 of
1997.
It is true that Section 18 of the S.C. & ST. (PA) Act is a bar for the application of Section 438 Code of Criminal Procedure when the accused
is alleged to have committed the offences mentioned in the said Act. But the learned senior counsel Mr. Asokan and the learned counsel Mr.
Shanmugavelayutham, appearing for the petitioners in Crl. O.P. Nos. 2488 and 2653 of 1997, contended that the more inclusion of a Section
under the said Act will not take away the powers of the Court to grant relief u/s 438 Code of Criminal Procedure but the Court has to apply its
mind to find out whether any offence has been made out under the said act for the purpose of the application of Section 438 Code of Criminal
Procedure and in this case, a cursory glance at the charge sheet itself will make it clear that no offence has been made out under the said Act and
therefore, this Court is at liberty to apply Section 438 Code of Criminal Procedure for the grant of anticipatory bail to these petitioners. The
learned senior counsel and the learned counsel Mr. Shanmugavelayutham would refer to a catona of decisions in support of their argument that the
Court should go into the allegations to find out whether the accused persons had really committed the offence under the Act.
It cannot be disputed that once an accused person has committed the offence under S.C. & S.T. (PA) Act, certainly, he cannot invoke Section
438 Code of Criminal Procedure as it is a bar u/s 18 of the said Act. But the question is whether the Court has powers to look into the allocations
or charges to find out whether say prima facie case is made out for the violation of the Sections under the said Act. Only if a person is to be
punished under the said Act, he cannot be granted anticipatory bail but if the offence does not fall within that Act, the Court cannot be blind to the
mere allegations referring to the provisions under the SC & ST (PA) Act. For this purpose, it is not necessary that the Court should go into the
question elaborately by assessing the allegation. If the allegations, either in the First Information Repertory in the Charge Sheet, by themselves do
not attract the provisions of the Act, certainly the right to invoke Section 438 Code of Criminal Procedure seeking anticipatory bail cannot be
denied to an accused. This position has been considered in series of decisions of various High Courts. In Ramdayal and Others v. State of M.P.
(1991) (3) Crimes 152). the Madhya Pradesh High Court would observe that when there is no material to reasonably raise a suspicion of the
commission of offence under SC & ST (PA) Act, an application u/s 438 Code of Criminal Procedure cannot be said to have been barred. In
Pankan D. Suthar v. State of Gujarat ( l992 (1) Crimes 1122), the Gujarat High Court also has taken the view that no Court can embark upon
such hazards of refusing anticipatory bail on mere doubtful accusations and assumptions that the Act is applicable and no Court could and should
be permitted to be specified by the applicant whatever he wants to feed and swallow whatever he wants the court to gulp down to attain and
secure his unjust mala fide motivated ends. The Orissa High Court also in Ramesh Prasad Bhanja and Others Vs. State of Orissa, would hold that
merely because a case is mechanically registered under the Act, the provision of Section 483 Code of Criminal Procedure cannot be said to be
inapplicable in each and every case and if the allegations make out prima facie case u/s 3 or for that matter Sections 4 and 5 of the SC & ST (PA)
Act, the jurisdiction to entertain an application u/s 438 Code of Criminal Procedure is definitely ousted. But however, the allegations if do not
make out any prima facie case, punishable under any of the provisions of the Act, the bar u/s 18 of the SC & ST (PA) Act is inapplicable. The
Rajasthan High Court also in its decision in Rakesh & Others v. State of Rajasthan (1994 (4) Crimes 562) and Girdhari Lal and Others Vs. State
of Rajasthan, would hold that Section 18 of the Act does not create a complete bar even to maintainability of an application u/s 438 Code of
Criminal Procedure and judicial scrutiny is permissible to examine facts of a case to find out whether an offence under the Act has been committed
or not. It has further taken the view that the stringent provision of Section 18 cannot be allowed to be misused and that object can be achieved
only if judicial scrutiny is made permissible to find out whether an offence under the above said Act has been committed by a person or group of
persons, before refusing him or them, as the case maybe, anticipatory bail. There-forest cannot be argued that for the reason that in the charge
sheet for the first time, the provision of Section 3 (2)(V) of the SC & ST (PA) Act is mentioned, the powers of the Court to apply Section 438
Code of Criminal Procedure is taken away.
The learned Government Advocate Mr. S. Kumaresan cited a few decisions with regard to the validity of Section 18 of the Act. The Petitioners
are not challenging the validity of the Act but only the applicability of the Act for these cases.
Now, if we peruse the charge sheet filed in this case, it cannot be said that the offence under the SC & ST (PA) Act has been committed by the
accused persons. The charge sheet reads that on 6.3.1997, the complainant and others, natives of Sundararajapuram Village, while going to
Madurai to attend the conference of Devendrakula Vellalar Sangani (a communal organisation of Scheduled Castes) in a lorry, when the lorry was
passing through Kallupatti Village, which is predominantly occupied by Devar Community people, the precisionists in the lorry shouted anti Thevar
slogans, namely ''the vide of Thevar community man will be our concubine'' and ''the Speaker''s wife will be our concubine''. The charge sheet
further reads that, infuriated on these abusive slogans, the accused persons, with the other unknown persons, formed them selves into a unlawful
assembly with the common object of wreaking vengeance and on 7.3.1996 at about 4.00 hrs, while the complainant and others were returning
from Madurai after attending the conference in the same lorry and when the lorry was crossing the speed breaker near Kallikadu Vilakku Road,
the accused and other unknown persons stopped the lorry and threw stones or the occupants of the lorry and one Dilip sustained injuries on his
head and succumbed to the injuries on the spot while other witnesses sustained injuries. Then, the charge sheet reads that in the course of same
transaction, when the police personnel came to the scene to maintain law and order, the above mentioned accused again plated stones and caused
simple injuries to the witnesses and also caused damage to the lorry to the tune of Rs.5,000 and further, they caused damage to the speaker mike
etc., to the tune of Rs. 15,000. Only on the basis of these allegations, the accused persons have been charged for the offences under Sections 147,
341, 323, 325, 332, 336, 427 and 302 Indian Penal Code, Section 3 (2) (V) of the SC & ST (PA) Act and Sections 3 and 5 of the Tamil Nadu
Public Property (Prevention of Damage and Loss) Act 1992 read with Section 149 Indian Penal Code.
Mr. S. Kumaresan, the learned Government Advocate submitted that u/s 3(2) (V) of the SC & ST (PA) Act, even if an offence was committed
under the Indian Penal Code against a person belonging to Scheduled Caste or Scheduled Tribe or property, punishable with imprisonment to a
term of 10 years or more, the offence is made out under the said Act also and in this case, even though the main offence committed by the
petitioners/accused is the attack on the complainant and others with stones, causing injuries and death, for which the offenders are liable to be
punished under the Indian Penal Code, the provision of Section 3 (2) (V) of the said Act also is attracted automatically as the offence was
committed against the members of the Scheduled Caste and Scheduled Tribes and therefore, the offence under the said Act is made out and it will
debar the petitioners from invoking Section 438 Code of Criminal Procedure for anticipatory bail.
But on a careful reading of Section 3(2)(V) of the SC & ST (PA) Act, the object of Section 3 (2) (v) is not to import the provisions of the said
Act for every offence committed under the Indian Penal Code against a member of the Scheduled Caste or the Scheduled Tribe but only if such
offence was committed against such persons on the ground that he or she belongs to Scheduled Caste or the Scheduled Tribe. The Section reads
as follows:
(3). Punishments for offence of atrocities:
(1).....
(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe-
1 ....
2...
3.......
4.......
Commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten 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;
Therefore, even the offence said to have been committed falling under the provisions of the Indian Penal Code, should have been committed
against a person of the Scheduled Caste or the Scheduled Tribe, for the reason that he belongs to the Scheduled Caste or the Scheduled Tribe.
So, the object of the commission of the offence under the Indian penal code must be that the victim is a member of the Scheduled Caste or the
Scheduled Tribe. If the offence under the Indian Penal Code was committed on any other ground without giving any consideration as to his cast,
then the offence will not attract the provisions of the SC & ST (P) A Act. In this case, on a perusal of the charge sheet, there is nothing to show
that the complainant and others, who were way-laid and were pelted with stones, were discriminated on the ground of them being the members of
the Scheduled Caste but the charge sheet itself reads that it was only to wreak vengeance for the filthy slogans raised by the occupants of the lorry
on 6.3.1996 when they were proceeding to Madurai. When the occupants of the lorry had reviled the members of the Thevar community with their
filthy slogans, that ''the wives of every member of Thevar community will be our concubine'' and ''the wife of the Speaker of the Assembly (who
also belongs to the Thevar community) will be our concubine'' naturally it would have provoked every member of Thevar community not for the
reason that it was said by the members of the Scheduled Caste or the Scheduled Tribe, but by someone, underestimating the virtues of their
womenfolk. Can it be said that if these slogans were raised by the members of any other community, including that of the upper caste, the accused,
who are the members of the Thevar community, would have tolerated and allowed them to continue such slur? Therefore, the provocation for the
attack on the occupants of the lorry on 7.3.1996 was not on the basis of the caste aversion but due to the scurrilous slogans casting aspirations
against the virtues of their women folk. Even though the occupants of the lorry belonged to the Scheduled Castes, the attack on them, as alleged in
the charge sheet, was not for the reason that they attended the conference at Madurai arranged for the Devendrakula Vellalar, the members of the
Scheduled Caste, but solely to satiate their vengeance for the filthy slogans against the women of their community. Nowhere in the charge sheet it is
alleged that the occupants of the lorry were attacked for the reason of their being the members of the Scheduled Caste. On the other hand, the
charge sheet very specifically mentions that infuriated on the slogans, the accused and other unknown persons, formed themselves into unlawful
assembly, pelted stones at the occupants of the lorry causing injuries to them and damage to the lorry. Therefore, when there is no iota of allegation
in the charge sheet to attract the provisions of the SC & ST (PA) Act, as held by the decisions mentioned above, it cannot be stated that the
accused/petitioners are liable to be punished under the SC & ST (PA) Act. When the applicability of the provision of the SC & ST (PA) Act is
excluded, the remaining offences fall only under the Indian Penal Code. Therefore, the petitions u/s 438 Code of Criminal Procedure are
maintainable.
With regard to the merit of these petitions, no doubt, the offence alleged, viz. pelting stones by the persons, who surrounded the lorry, and
causing death of one of the occupants of the lorry, is a very serious offence. But in the First Information Report, it is simply stated that 300
persons, whose names were not known, surrounded the lorry and they pelted stones. So, the identities of the assailants are not given in the First
Information Report. In the charge sheet also, no specific overt act against the accused persons is mentioned and here also it is as bald as the First
Information Report stating that the accused persons with unknown persons, pelted stones. The charge sheet has been already laid. Taking into
consideration of the completion of the investigation in full and the filing of the charge sheet already, the anticipatory bail was granted already in Crl.
O.P. No.1858 of 1997 on 14.3.1997 to the co-accused. Therefore, the petitioners, who are the co-accused, also are entitled to have the same
benefit. Hence, the petitioners in Crl. O.P. No. 2488 and 2653 of 1997 also have to be granted anticipatory bail.
In the result, the petitioners in Crl. O.P. No. 2488 and 2653 of 1997, in the event of arrest, shall be enlarged on bail on each of them executing
a bond for Rs. 3,000/- with two sureties each for a like sum to the satisfaction of Judicial Magistrate, Thirumangalam. Crl. M.P. No. 1113 of 1997
in Crl. O.P. No. 1859 of 1997 is dismissed.