Punjab & Haryana HC Refuses To Cancel Pre-Arrest Bail Granted To Juvenile Booked Under Wrong Provision Of SC/ST Act

The Punjab & Haryana High Court refused to cancel bail granted by the Sessions Court under wrong provision of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) 1989 Act (SC/ST Act) to a then juvenile, accused of abusing and assaulting a member of a Scheduled Caste community.

The accused was allegedly granted bail by the Sessions Court considering the provision of 3 (1)(r) of the SC/ST Act invoked by the Police, which penalises humiliating a member of a Scheduled Caste or a Scheduled Tribe in any place "within public view." However, the Court noted that prima facie the abusive words were not spoken in public view.

Justice Anoop Chitkara said, "the alleged derogatory words were not spoken in public view; as such, the offense under section 3(1)(r) would not primafacie apply, but the offense under S. 3(2)(va) would attract. Thus, the Court did not apply the penal provision correctly. Be that as it may, now, this Court shall consider the offense having been committed under Section 3(2)(va) of the SCSTPOA, but still, it is not a case to send the accused to pre-trial custody."

The Court said that imposing a strict condition will ensure that the accused will not repeat the alleged offence.

These observations were made while hearing the plea of an alleged victim to cancel pre-arrest bail granted under Section 439(2) CrPC.

According to the FIR, the accused in the present plea along with a co-accused reached alleged victim's house, started beating him with rod and passed casteist remarks. 

Counsel for the victim submitted that wrong penal provision was added by the investigator and even the court granted the bail considering the wrong provisions, as such on this ground alone the bail has to be cancelled and the matter has to be remanded back.

In reply, the State counsel submitted that there were total 5 injuries on the person of the complainant as per the MLR. During the investigation of the case,  after going through the X-Ray reports of the appellant, all the injuries were declared simple in nature.

The State counsel also added that the accused was juvenile at the time of offence.

After hearing the submissions, the Court referred to Section 3 (2) (va) of SC/ST Act which penalises committing any offence specified in the Schedule of the Act, against a person or property, knowing 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 such punishment as specified under the Indian Penal and Section 3[(1)(r).

The judge noted that even if it consider the offence having been committed under Section 3(2)(va) of the SCSTPOA, but still, "it is not a case to send the accused to pre-trial custody."

It also observed that,  "evidence might be prima facie sufficient to launch prosecution or to frame charges, but the Court is not considering the evidence at that stage but analyzes it for the purpose of cancellation of bail."

Reliance was placed on Prathvi Raj v. Union of India [AIR 2020 SC 1036], wherein Supreme Court held, 

"Concerning the applicability of provisions of section 438 Cr.PC, it shall not apply to the cases under Act of 1989. However, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by section 18 and 18A (i) shall not apply."

Analysing the submissions made, the Court opined that, "it is not a case to cancel the bail granted to respondent No.2,"  However the Court imposed certain conditions on the accused.

In the light of the above, the plea was disposed of.

Mr. Jitender Dhanda, Advocate for the petitioner.

Mr. Aashish Bishnoi, DAG, Haryana.

Mr. Mohit Nehra, Advocate for respondent No.2.

 Title: Jazbaat Naagar v. State of Haryana and another

Citation: 2024 LiveLaw (PH) 276