HEMA GOGOI Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard Mr. BD Konwar, learned senior counsel for the petitioner as well as Mr. NJ Dutta, learned Additional Public Prosecutor, appearing for the State of Assam. This is an application, filed under Section 438 of the Cr.PC. seeking pre-arrest bail of the petitioner, namely, Sri Hema Gogoi, in connection with Moran PS Case No. 190/2019 registered under Sections 325/153(A)/427/500/506 of the IPC read with Section 25(1A) of the Arms Act and Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Perused the case diary produced before this court.

(2.) The fact of the case, as appears from the FIR, is that the informant and his family members are fish sellers at Moran Lahori Bazar and the petitioner used to purchase fishes from him. But, for the last several days, the petitioner did not make payment to the informant against fishes purchased by him. On 29.07.2019, at about 10:00 am, the petitioner went to the fish shop of the informant and asked for fish. The informant then asked him to clear the outstanding amount due to him earlier. Then, the petitioner became very angry and violent. Pointing a pistol at the informant, he assaulted the informant with blows and fists in public. The informant was also forced to kneel down in public in the market. He also attempted to drag the informant to his vehicle although the informant could manage to save himself. The petitioner had also taken the name of his caste and community by uttering the word "Doom". The learned senior counsel for the petitioner has referred to the decision of the Hon'ble Supreme Court in Dr. Subhash Kashinath Mahajan -vs- State of Maharashtra & Anr. , reported in (2018) 6 SCC 454, particularly para 79 thereof. He has also referred to paras 45 and 46 of the said judgment. The decision referred to by the learned senior counsel for the petitioner was rendered by the Hon'ble Supreme Court on 20.03.2018. But, thereafter the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 (hereinafter referred to as the 'Act') was amended and Section 18A of the said Act was inserted to be effective from 20.08.2018. This amendment, inserting Section 18A, was brought in the Act after the said decision of the Hon'ble Supreme Court was rendered. Section 18A of the Act reads as follows:-

(3.) The learned Additional Public Prosecutor referred to an order dated 30.04.2019, passed by a co-ordinate Bench of this court in AB No. 1261/2019 and has submitted that it was held in that order that the benefit of Section 438 of the Cr.PC is not applicable in relation to any case involving the arrest of any person or an accusation of having committed an offence under the said Act. The learned senior counsel for the petitioner has submitted that this order is not applicable in the instant case in view of the fact that Section 18A of the Act has not been dealt with in the said order. He has further submitted that pre-arrest bail of the petitioner is maintainable for the reason that there is no evidence/statement to indicate that the petitioner knew from before that the informant is a person belonging to Scheduled Caste. He has also submitted that Section 3(1)(r) of the said Act may be applicable in this case and not Section 3(1)(x) of the said Act. On perusal of the materials in the case diary, it is found that the petitioner insulted the informant by calling the name of his community "Doom". It is a common knowledge of all of us that the person belonging to the fishermen community is called "Doom". Therefore, using the word "Doom" in public to the informant is found to be insulting to the informant. He also made the informant to kneel down in public as found from the materials in the case diary and compelling any person to kneel down in public is insulting as well as humiliating. That apart, with a pistol in his hand, the petitioner also intimidated the informant. Therefore, the argument by the learned senior counsel for the petitioner that Section 3(1)(x) of the said Act is not applicable has failed to persuade this court.