"The practice of accused surrendering before Sessions Court or High Court and thereby obtaining bail, cannot be said to be with a view to override the legislative intention of restraining the anticipatory bail to the violators of the SCST Act."
The Himachal Pradesh High Court has held that mere non-application of the provision for anticipatory bail to offenders accused under the SC/ ST Act does not preclude them from surrendering before the court and seeking regular bail.
The single-Judge bench of Justice Anoop Chitkara has clarified that when the provisions of the SC/ ST Act have been used as a tool to send and keep people in custody, then it shall be legal to grant ad-interim bail or regular bail to the accused.
"The Courts cannot be mute spectators, even when from the face of the allegations, it is seen that the provisions of the SCST Act have been invoked simply with a view to deny the benefit of Section 438 of the Code of Criminal Procedure," he observed.
In the present application for regular bail, the Petitioner had been directed to surrender before a local Judicial Magistrate and furnish personal bonds for release on bail. This, because Sections 18 & 18A of the SC/ST Act, bar the right of anticipatory bail contained under Section 438 of CrPC.
Justifying the order Justice Chitkara said,
"The practice of accused surrendering before Sessions Court or High Court and thereby obtaining bail, cannot be said to be with a view to override the legislative intention of restraining the anticipatory bail to the violators of the SCST Act. If the allegations are serious, keeping in view the object of the SCST Act and the purpose for which this stringent provision in SCST Act was enacted, then certainly, such kind of accused would not be permitted to take advantage bails after surrender. However, when prima facie, the Court notices that the provisions have been used as a tool to send people in custody, then in such cases, it shall be prudent, proper and legal to grant ad-interim bail or regular bails."
Reliance was placed on Karam Dass & Ors. v. State of HP, 1995 (1) Shim LC 363, whereby a division Bench of the High Court accepted the surrender of the persons who had been arraigned as accused in an FIR under SCST Act, and released them on bail, by exercising its powers under Section 439 CrPC.
The same takes cue from a judgment rendered by Justice VR Krishna Iyer in Niranjan Singh v. Prabhakar Rajaram Kharote, 1980 Cri LJ 426, whereby he observed,
"Custody, in the context of Section 439, (we are not, be it noted, dealing with anticipatory bail under Section 438) is physical control or an least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court.
He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can, be stated to be in judicial custody when he surrenders before the court and submits to its directions."
In the case at hand, the court noted, custodial interrogation of the Petitioner is not going to serve any purpose.
The bench observed that that the provisions of the SC/ST Act were often being misused against people of other community. Making a similar observation in Jones v. State, 2004 Cr LJ 2755, the Madras High Court had also cautioned,
"The purpose of bringing SC & ST Act is to put down the atrocities committed on the members of the scheduled castes and scheduled tribes. The law enforcing authorities must bear in mind that it cannot be misused to settle other disputes between the parties, which is alien to the provisions contemplated under the Act."
Justice Chitkara also observed that allowing the accused under the Act to surrender before the Court and releasing him/ her on bail becomes essential to safeguard the rights of accused and to prevent the abuse of provisions of the Act.
"The Courts cannot be mute spectators, even when from the face of the allegations, it is seen that the provisions of the SCST Act have been invoked simply with a view to deny the benefit of Section 438 of the Code of Criminal Procedure," he remarked.
The court thus allowed the bail plea subject to the Petitioner surrendering before the Magistrate.
"Let the bail petitioner surrender herself before the Court of Ld. Judicial Magistrate, Gohar, District Mandi, during the course of the day, either in the Court complex or at the residence of the concerned Magistrate, as the concerned Judicial Magistrate may desire. Once she surrenders, the concerned Judicial Magistrate shall accept her personal bonds, and release her on bail," the order states.
The Petitioner had been booked under Sections 323 & 506 of IPC and Ss. 3(i)(s) and 3 (ii)(va) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Case Title: Saroj Kumari v. State of HP
Case No.: Cr. MP(M) No. 668/2020
Quorum: Justice Anoop Chitkara
Appearance: Advocate Sanjeev Kumar Suri (for Petitioner); Additional Advocate General Nand Lal Thakur (for Respondent)
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