The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK ABLAPL No.7446 of 2024 1) Ashok Kumar Pattanaik 2) Basanta Kumar Sahu 3) Biswa Ranjan Nanda ..... Petitioners Mr. A.K. Mohanty, Senior Advocate along with Mr. Dipak Kumar Dey, Advocate State Of Odisha ..... Opposite Parties -versus- Represented By Adv. – Mr. Samaresh. Jena, ASC CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA ORDER 30.07.2024 This matter is taken up through Hybrid mode. The Petitioners, who are the Senior Executives & Accountant Order No. 01. 1. 2. of MSP Sponge Iron Ltd. have approached this court by filing the present application under section 438 of the Cr.P.C. seeking anticipatory bail in connection with Keonjhar Sadar P.S. Case No. 399 of 2024 corresponding to Special Case No. 30 of 2024, pending in the court of learned Special Judge, Keonjhar for alleged commission of offences under the Sections 341/323/294/506/34 of the I.P.C. read with Section 3(1)(r)(s) of the SC & ST (Prevention of Atrocities) Act, 1989. 3. The prosecution case as unfolded from a reading of the FIR, in brief, is that one Sanjay Munda, Sarpanch of Gobardhan Gram Page 1 of 14
Facts
Panchayat, lodged an FIR on 30.06.2024 before the Keonjhar Sadar P.S. inter alia alleging that on 26.06.2024, he had been to MSP factory for submitting an application with a request to the company management for undertaking plantation project, in view of the alleged pollution caused by the said industry. However, on his arrival nobody wanted to speak to him on the subject. Since, the Informant did not get any positive response, he went to the chamber of the present Petitioner No.1 who was working as Senior General Manager, HR of the company. On his arrival in the chamber of Petitioner No.1, the Informant detected that some workers of the industry were arguing with the Petitioner No.1 in the context of the problems faced by them. The workers as well as the Informant were driven out of the chamber of Petitioner No.1. 4. The Informant has further stated that after coming out of the chamber of the Petitioner No.1, he came to learn about the problems faced by the workers and that the Informant told the officers present that the demand of the workers are justified and that is why the management is doing such wrong. He has further stated that in response to his request, the three Petitioners and other HR officers manhandled the Informant and abused him in filthy language including calling him by his caste name. It was further alleged that the Petitioner No.2 threatened the Informant by saying that if he ever comes to Keonjhar, then he will be killed by engaging professional hooligans. 5.
Legal Reasoning
Supreme Court to the effect that, where no prima facie case is made out for commission of an offence under Section 3 of the SC & ST (PoA) Act, 1989, the bar contained in Section 18 of the said Act will not be applicable to the facts of such case. He further substantiated his point by referring to the allegations made in the FIR and submitting that no part of the occurrence, as described in the FIR, had taken place in public view. 13. To analyze the position with regard to the applicability of the bar under Section 18 of the SC & ST (PoA) Act, 1989, this Court, at this juncture, deems it proper to refer to the judgments relied upon Page 6 of 14 by the learned senior counsel for the Petitioners. In Dr. Subhash Kashinath Mahajan v. State of Maharashtra and others reported in 2018 (6) SCC 454, the Hon’ble Supreme Court was considering several questions pertaining to the 1989 Act, including the question as to whether there is an absolute bar to the grant of anticipatory bail in light of the provisions contained in Section 18 of the SC & ST (PoA) Act, 1989. Section 18 of the aforesaid 1989 Act provides as follows; “18. Section 438 of Cr.P.C. not to apply to the persons committing an offence under the Act-nothing in the Section 438 of Cr.P.C. shall apply in relation to any case involving the arrest of any person on an acquisition of having committed an offence under this Act.” While answering the aforesaid question, the Hon’ble Supreme Court has taken note of the judgments of the Hon’ble Supreme Court in State of M.P. Vs. Ram Kishna Balothia reported in 1995 (3) SCC 221, wherein it had been held that Section 18 of the SC & ST (PoA) Act, 1989 is not violative of Articles 14 and 21 of the Constitution of India. When referring to the Balothia’s case (supra), it has been observed in Para-47 of the judgment that, “it cannot be read as being applicable to those who were falsely implicated for extraneous reasons and have not committed the offence on prima facie independent scrutiny. Access to justice, being a fundamental right, grain has to be separated from the chaff by an independent mechanism. Liberty of one citizen cannot be placed at the whim of another. The law has to protect the innocent and punish the guilty. Thus considered, exclusion has to be applied to genuine cases and not to false ones. This will help in achieving the object of the law.” Page 7 of 14 In the very same judgment they have gone on to hold that there is no quarrel with regard to the proposition laid down in Balothia’s case (supra) i.e. persons committing offence under the atrocities act ought not be granted anticipatory bail in the same manner in which the anticipatory bail is granted in other cases with offences punishable with similar sentence. 14. In the above-noted Dr. Subhash Kashinath Mahajan’s case, the Hon’ble Supreme Court has also referred to the judgment in Vilas Pandurang Pawar Vs. State of Maharashtra reported in 2012 (8) SCC 795 and Shakuntla Devi Vs. Baljinder Singh reported in 2014 (15) SCC 521. The aforesaid two judgments have laid down that there is no absolute bar to grant anticipatory bail if no prima facie case is made out, despite upholding the validity of the Section 18 of the SC & ST (PoA) Act, 1989. 15. The Hon’ble Supreme Court has also referred to the judgment in Hema Mishra Vs. State of U.P. reported in 2014 (4) SCC 453. In the said judgment it has been expressly laid down that in spite of the statutory bar against grant of anticipatory bail, a constitutional Court is not debarred from exercising its jurisdiction to grant relief. Further, referring to the judgment in Lal Kamalendra Pratap Singh Vs. State of U.P. reported in 2009 (4) SCC 437, it has been held that interim bail can be granted even in such cases where the accused is not actually arrested. 16. The issue with regard to grant of anticipatory bail in the face of the bar contained in Section 18 of the SC & ST (PoA) Act, 1989, the Hon’ble Supreme Court has summarized the position in Dr. Subhash Kashinath Mahajan’s case (supra) in paragraphs 56 and 57 Page 8 of 14 of the judgment. It has been held that there can be no dispute with regard to the proposition that merely on the allegation by any individual belonging to any caste, when such allegation is clearly a motivated and false one, the same cannot be treated as enough to deprive a person of his personal liberty without an independent scrutiny. Thus, exclusion of the provision for anticipatory bail cannot possibly, by any reasonable interpretation, be treated as applicable where no case is made out or allegations are patently false or motivated. In Para-57 of the judgment, it has been finally held that exclusion of Section 438 Cr.P.C. applies when a prima facie case of commission of offence under the SC & ST (PoA) Act, 1989 is made out. On the other hand, if it can be shown that the allegations are prima facie false or motivated, such exclusion will not apply. Similarly in Para-65 of the judgment, the Hon’ble Supreme Court has held that exclusion of provisions of anticipatory bail will not apply when no prima facie case is made out or the case is patently false or mala fide. Further, it has been observed that the above may have to be determined by the Court concerned on perusal of the facts and circumstances of the case at hand, in exercise of its judicial discretion. In the concluding Paragraph-79 of Dr. Subhash Kashinath Mahajan’s case (supra), the Hon’ble Supreme Court in Para-79.2 has observed as follows: “79.2. There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in Pankaj D. Suthar & N.T. Desai and clarify the judgments of this Court in Balothia and Manju Devi.” Page 9 of 14 17. The judgment of the Hon’ble Supreme Court in Dr. Subhash Kashinath Mahajan’s case (supra) has also been followed in the subsequent judgments of the Hon’ble Supreme Court in Union of India Vs. State of Maharashtra, reported in 2020 (4) SCC 761 in the said judgment, a three-Judge Bench of Hon’ble Supreme Court by reiterating the settled position of law have held that it is the consistent view of the Hon’ble Supreme Court that if prima facie case has not been made out attracting the provisions of SC & ST (PoA) Act, 1989, in that case, the bar created under Section 18 of the SC & ST (PoA) Act, 1989 on the grant of anticipatory bail is not attracted and to decide whether an accused is entitled for bail under Section 438 of Cr.P.C., in case no prima facie case is made out or under Section 439 of Cr.P.C. is the discretion of the Court. In the said judgment, it has also been held that if a person, who is proceeded against under the SC & ST (PoA) Act, 1989 apprehends false implication and harassment, he is at liberty to approach the High Court for quashing of FIR under Section 482 of Cr.P.C. in accordance with law. In Paragraph-39 of the judgment in Union of India’s case (supra), the Hon’ble Supreme Court while considering the validity of directions contained in Para-79.3 & 79.4 have come to the following conclusion which has been indicated in Para-70 of the said judgment; “we are of the considered opinion that Directions 79.3 & 79.4 issued by this Court deserves to be and are hereby recalled and consequently we hold that Direction 79.5 also vanishes. However, the direction contained in Para-79.2 remains intact, thereby protecting the power of the Court to grant of involving anticipatory bail Atrocities Act, that no pima facie case is made out or where on judicial scrutiny the complaint is found to in deserving cases Page 10 of 14 be prima facie malafide.” 18. In Hitesh Verma Vs. The State of Uttarakhand and others reported in AIR 2020 SC 5584, the Hon’ble Supreme Court was considering the ingredient of the provisions, i.e., insult or intimidation in any place within public view. The question therefore was what is to be regarded as “place in public view”. In answering the said question, the Hon’ble Supreme Court has referred to the judgment in Swaran Singh and Ors. v. State through Standing Counsel and Ors., reported in 2008 (8) SCC 435. Referring to the Swaran Singh’s case (supra), the Hon’ble Supreme Court has drawn a distinction between the expression “public place” & “in any place within public view”. Thus, it was held that if an offence is committed outside the building, i.e., in a lawn outside a house and the lawn can be seen by someone from the road or lane outside the boundary wall, then the lawn would certainly be a place within the public view. On the contrary, if the remark is made inside the building, but some members of the public are there (not merely relatives or friends) then it could not be an offence since it is not in the public view. The relevant paragraph of the judgment, i.e., Para- 80 is reproduced below: “It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by Appellants 2 and 3 (by calling him a "chamar") when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road Page 11 of 14 or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression "place within public view" with the expression "public place". A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies.” 19. Finally, learned Senior Counsel appearing for the Petitioners referred to the judgment of this Court in Ajay Pattanaik @ Ajaya Kumar Pattanayak and Anr. Vs. State of Odisha and Anr. decided in CRLMC No.2636 of 2021 vide order dated 01.03.2023. On a scrutiny of the aforesaid judgment, this Court observed that the learned Coordinate Bench was deciding an application under Section 482 of Cr.P.C. with a prayer to quash the order of cognizance dated 13th April, 2021. The stand of the Petitioner in that case was that no case is being made out on a plain reading of the FIR under Section 3(1)(r)(s) and 3(2)(va) of SC & ST (PoA) Act, 1989. However, the learned Court below had taken cognizance mechanically. On an analysis of the judgments in Bhagawant Singh Randhawa and Anr. Vs. State of Punjab bearing CRM No. 42685 of 2021 (O&M), as well as the judgement of the Hon’ble Apex Court in Hitesh Verma vs. State of Uttarakhand and Another reported in 2021 (I) OLR (SC) 85 and, a judgement of this court in Bata @ Bata Krushna Moharana Vs. State of Odisha and Manjulata mallick reported in 2016 (63) OCR 134, the Coordinate Bench has come to a conclusion that no offence under the SC & ST (PoA) Act, 1989 is Page 12 of 14 made out against the present Petitioner. Resultantly, the order taking cognizance of offence under the provisions of the SC & ST (PoA) Act, 1989 was quashed. 20. In view of the analysis of the legal position, as has been laid down by the Hon’ble Supreme Court, this Court is of the considered view that the judgment of the Hon’ble Supreme Court in Dr. Subhash Kashinath mahajan’s case (supra) has laid down the law succinctly and that the said judgment still holds the field, with the modification that the directions contained in Para-79.3, 79.4, 79.5 have been recalled by the subsequent Bench of the Hon’ble Supreme Court in Union of India’s case (supra). However, the direction contained in Para-79.2, with regard to maintainability of an anticipatory bail application, applies in the following contingencies; i. Where no prima facie case is made out; ii. Where upon a scrutiny the Court comes to a conclusion that a case has been registered malafidely. 21. Keeping in view the aforesaid settled principle of law, this Court has to examine the facts of the present case. As per the FIR allegation, it is the admitted case that the occurrence took place inside the chamber of the Petitioner No.1, who is the General Manager of HR of MSP Company. Admittedly, the chamber is a confined place with restricted access. Therefore, the same cannot be construed by any scope of imagination to be a place in public view. Following the principle laid down in Swaran Singh’s case (supra), this Court is of the view that prima facie no case is made out under Page 13 of 14 the SC & ST (PoA) Act, 1989, as such this Court has no hesitation in arriving at a conclusion that the present anticipatory bail application in the attending circumstances, at the instance of the present Petitioners, is very well maintainable in law. 22. Considering the allegations made in the FIR and the offence alleged, further, taking note of the seriousness and gravity of such allegations and the maximum period of punishment prescribed, this Court is inclined to exercise the power conferred upon it under Section 438 of Cr.P.C. Accordingly, it is directed that the Petitioners shall be released on anticipatory bail by the Arresting Officer in the event of their arrest, subject to such terms and conditions as deemed just and proper by such Arresting Officer. 23. With the aforesaid observations/directions, the ABLAPL
Arguments
Heard Shri Ashok Mohanty, learned Senior Counsel appearing for the Petitioners, and Mr. Samaresh Jena, learned Additional Standing Counsel representing the State-Opposite Party. Page 2 of 14 Perused the materials on record. 6. Mr. Mohanty, learned Senior Counsel appearing on behalf of the Petitioners at the outset submitted that the FIR lodged by the informant contains false and vexatious allegations against the present Petitioners. He further alleged that the Informant happens to be the Sarpanch of Gobardhan G.P. and that the industry, where the Petitioners are working is situated in Kuanrikala G.P. Mr. Mohanty, learned Senior Counsel appearing for the Petitioners, countering the allegations made in the FIR, submitted that the Informant along with his followers forcibly entered into the factory premises by assaulting the security personnel deployed at the entry gate at about 10:40 a.m. on 26.06.2024. Thereafter, they entered into the HR Department and abused the Petitioner No.1 and the other officers present there. The Petitioners, who are senior executives of the company, were kept in confinement for almost 3 to 4 hours by obstructing their passage out of the premises and the informant, along with his supporters, made a demand of additional employment commitment. It was further alleged that the Informant and his followers terrorized the officers present and warned them of dire consequences in the event their demands were not fulfilled. 7. Mr. Mohanty, learned Senior Counsel for the Petitioners contended that initially the Petitioner No.1 lodged an FIR with the Keonjhar Sadar P.S. on 29.06.2024, which was registered as Keonjhar Sadar P.S. Case No. 398 of 2024 against the Informant and his followers, inter alia alleging that the Informant trespassed into the office premises of the Petitioners and threatened the officers present there. It was further contended that as a counter blast to the Page 3 of 14 aforementioned FIR filed by Petitioner No.1, the Informant has lodged this false case against the Petitioners which had been registered as Keonjhar Sadar P.S. Case No.399 of 2024. He further emphatically argued that the Informant is trying to misuse the provisions contained in the SC&ST (PoA) Act, 1989 and in doing so, the informant has also resorted to abusing the process of law so as to put pressure on the Petitioners to accept the demands of the informant. 8. Mr. Mohanty learned Senior Counsel appearing on behalf of the Petitioners, further contented that the Informant along with his supporters again entered into the factory premises on 29.06.2024 at about 6:00 a.m. and closed the entrance of the factory site, thereby restraining the Shift-A workers from getting out and the Shift-B workers from entering into the premises of the factory. The said problem was resolved only after the intervention of the Keonjhar Sadar Police Station. An FIR has also been lodged in the aforesaid context, which has been registered as Keonjhar Sadar P.S. Case No.407 of 2024 against the Informant. 9. Learned senior counsel appearing for the Petitioners at this juncture submitted that the Petitioners’ industry has been functioning with the consent and permission granted by the Pollution Control Authority and there has been no violation of any pollution control laws. He further submitted that the Informant, who is a local Sarpanch is trying to blackmail and pressurize the management of the industry with a motive to force the industry’s management to concede to the Informant’s unlawful demands. 10. As far as the commission of offence punishable under the SC Page 4 of 14 & ST (PoA) Act, 1989 is concerned, learned senior counsel appearing for the Petitioners submitted that no prima facie case is made out against the Petitioners for violation of any of the provisions of the aforesaid SC & ST (PoA) Act, 1989. It was further contended by the learned senior counsel appearing for the Petitioners that, the Petitioners are all responsible Sr. Executives of the company and have been discharging their duties sincerely and with utmost diligence. Therefore, there exists no apprehension that the Petitioners will ever abscond from justice. Furthermore, it was submitted that the Petitioners being responsible citizens will fully corporate with the investigating agency and also participate in the trial. 11. Learned counsel for the State on the other hand objected to the release of the Petitioners on anticipatory bail. He further contended that on the basis of the allegations made in the FIR, a case is well made out against the present Petitioners, which is punishable under the provisions of the SC & ST (PoA) Act, 1989. Further, drawing attention of this Court to the Section 18 of the SC & ST (PoA) Act, 1989, the learned counsel for the State submitted that there exists a bar under the aforesaid section with regard to entertaining a pre-arrest bail under section 438 of the Cr.P.C. In such view of the matter, learned Additional Standing Counsel submitted that since the present anticipatory bail application is not maintainable in the first place, the question of granting anticipatory bail to the present Petitioners does not arise. On such grounds learned Additional Standing Counsel submitted that the Petitioners be directed to surrender before the court below and move a regular Page 5 of 14 bail application under section 439 of the Cr.P.C. 12. In reply to the contention raised by the learned Additional Standing Counsel appearing for the State with regard to non- maintainability of the anticipatory bail applications under the Section 18 of the SC & ST (PoA) Act, 1989, Mr. Mohanty, learned Senior Council for the Petitioners argued that for Section 18 to be applicable, a case has to be first made out against the Petitioners under Section 3 of the said Act. In the present matter, it was argued that no case is made out under Section 3 of the aforementioned SC & ST (PoA) Act, 1989. He further contended that the alleged incident had taken place within the confines of the chambers of the Petitioner No.1, which cannot be described as a public place. Therefore, learned senior counsel appearing for the Petitioners submitted that the alleged occurrence has not taken place in public view, if at all the same has happened. In the course of his argument, learned senior counsel appearing for the Petitioners contended that the law is well settled by a catena of judgments of the Hon’ble
Decision
stands disposed of. S.K. Rout ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: SANTANU KUMAR ROUT Page 14 of 14 Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Aug-2024 17:39:09