AISHA Vs. STATE OF HARYANA

JUDGEMENT

(1.) Prayer in the present petition is for grant of anticipatory bail to the petitioner in FIR No.301 dtd. 16/11/2020 registered under Ss. 379, 506, 120-B of the Indian Penal Code, 1860 (hereinafter to be referred as "the IPC") and Ss. 3/33/89 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter to be referred as "the SC/ST Act") at Police Station Sadar Palwal, District Palwal, Haryana.

(2.) The brief facts of the case are that the present FIR was registered against 12 persons only on the allegations made by the complainant-Bheekam Singh to the effect that he was owner of landmeasuring 8 kanals and constant fights took place between him and the said accused persons with respect to the said land and earlier also, two FIRs had been registered. On 2/9/2020, at about 7:30 AM, in the morning, when the complainant had gone to check up on his land, he saw that there, on the abovesaid land, Bajra crop was being cut down/stolen by the petitioner and the other accused persons and they, in unison, slurred/passed casteist remarks against the complainant.

(3.) Learned counsel for the petitioner has argued that the complaint in the present FIR had been given after a period of 10 days from the alleged incident and there was a delay of 42 days in registration of the FIR and the said FIR is a counter blast to the civil litigation, which is pending between the husband of the petitioner namely Sharif and the complainant. It is further argued that the offence under Sec. 3 of the SC/ST Act is not even remotely made out inasmuch as no specific words have been attributed to the petitioner and it has been stated that all the accused persons had in unison stated the casteist slurs/words, as is alleged in the FIR. It is argued that it is highly unlikely that all the accused persons would be able to say the same thing, together, in one line. It is also submitted that it is nowhere mentioned in the FIR that the petitioner had knowledge that the accused persons belonged to a Scheduled Caste. Reliance has been placed upon the latest judgment of Hon'ble Supreme Court in Prathvi Rai Chauhan Vs. Union of India and others, reported as 2020(4) SCC 727, to contend that in such like situation, the bar under Ss. 18 and 18-A of the SC/ST Act would not apply. Further reliancehas been placed upon judgment of a Coordinate Bench of this Court in Jai Parkash and others Vs. State of Harvana and another, reported as 2011(3) RCR (Criminal) 217, to state that in case, it is not specifically averred in the FIR that the petitioner had knowledge that the complainant belonged to a Scheduled Caste, then the offence would not be made out and the bar under Ss. 18 and 18-A of the SC/ST Act would not operate. Reliance has also been placed upon the judgment of Coordinate Bench of this Court in CRM-30576-M-2002 decided on 1/8/2002 titled as "Jasir Chand vs. State of Punjab" as well as in CRM-M-3956-2020 decided on 27/2/2020 titled as "Baliinder Kaur vs. State of Punjab" to contend that in case the FIR is a counter blast to the complaint given by the petitioner or if the ingredients of the provisions are not met with, then the bar under Sec. 18 cannot come in the way of the petitioner being granted the concession of anticipatory bail. It is further contended that in fact, the alleged eye-witness namely Karan, in his statement under Sec. 161 of Cr.P.C, has not even named the present petitioner. He has further submitted that co-accused of the petitioner namely Hamidi has also been granted the concession of anticipatory bail by this Court vide order dtd. 18/11/2021 passed in CRM-M-48375-2021.