Neutral Citation No. ( 2024:HHC:4140 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) No. 754 of 2024 to 761
of 2024 and Cr.MP(M) Nos. 932 to
934 of 2024.
Reserved on: 13.06.2024
Date of Decision: 28.06.2024.
1. Cr.MP(M) No. 754 of 2024
Ram Lal ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
2. Cr.MP(M) No. 755 of 2024
Umesh ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
3. Cr.MP(M) No. 756 of 2024
Susheel ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
4. Cr.MP(M) No. 757 of 2024
Om Prakash ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
2
5. Cr.MP(M) No. 758 of 2024
Harish ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
6. Cr.MP(M) No. 759 of 2024
Ram Chand ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
7. Cr.MP(M) No. 760 of 2024
Bhanu ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
8. Cr.MP(M) No. 761 of 2024
Rajesh ...Petitioner
Versus
State of Himachal Pradesh ...Respondent.
9. Cr.MP(M) No. 932 of 2024
Lakshay ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
10. Cr.MP(M) No. 933 of 2024
Nitin ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
3
11. Cr.MP(M) No. 934 of 2024
Nikhilesh ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
Hon’ble Mr. Justice Rakesh Kainthla, Judge.
1
Whether approved for reporting?
For the petitioners : Mr Ajay Kochhar, Senior Advocate,
with M/s Varun Chauhan, Gaurav
Kochhar and Bhairav Gupta,
Advocates, in all the petitions.
For the Respondents : Mr. Lokender Kutlehria, Additional
Advocate General, for respondent/
State, with Dy.SP Manvendra
Thakur, DSP City, Shimla with ASI
Suresh Kumar, IO, Police Station
West Shimla, H.P.
Rakesh Kainthla, Judge
The informant made a complaint to the police on
1.4.2024 stating that her son Tikkam Chand alias Nittu (since
deceased) was working as a labourer in the house of Sewa Nand
in Village Khalyar. Prabha Devi, wife of Sewa Nand, called the
informant on 22.3.2024 and said that Tikkam Chand had fallen.
Sewa Nand also called her and told her that Tikkam Chand had
died due to a fall. The informant was coming to her home on a
bus. She told Sewa Nand that she would call him after getting off
1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
4
the bus. However, she could not call him back, as she was unable
to locate his mobile number. She told her other son Med Ram
about the call. The police also called her and inquired whether
she had authorized any person to burn the dead body to which
she replied in negative. Med Ram along with his relations went
to the village and found that the dead body was burnt by the
villagers. His ash was handed over to him (Med Ram) with
₹5,000/-. The informant subsequently discovered that Tikkam
Chand had committed a theft in a temple and the villagers had
beaten him to death. The police registered the FIR. It was found
that a call was received in Police Post Jutogh on 21.3.2024 that
police should contact Rajiv Sharma. The police called Rajiv
Sharma who said that one person had lit a fire near the temple.
He was a thief and heavily intoxicated. He was being taken to the
police post. The police waited for the person but nobody came to
the police post. The police again contacted Rajiv Sharma in the
morning and he said that the person was sent to his home after
counselling him. Tikkam Chand was found dead at a distance of
60-70 mtrs. from the temple. His dead body was seen by Tara
Chand. Tara Chand informed other villagers who were present
near Sheetla Mata Temple about the death of Tikkam Chand. The
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villagers gathered in the house of Jagdish Chand. He called
Pradhan Ranjana Thakur, Up-Pradhan Rajinder Sharma and
other members of the Panchayat. The villagers informed the
Member of the Panchayat about the arson and theft committed
by Tikkam Chand. They also told that Tikkam Chand was sent to
his home. He was heavily intoxicated and he fell in a state of
intoxication. Forensic experts inspected the spot and preserved
the samples. The police went to the spot and seized the remains
of the dead body. Rahul made a statement under Section 164 of
Cr.P.C. that Umesh Kumar had dragged him (Rahul) out of his
home and taken him to Sheetla Mata Temple. Umesh, Tara
Chand and Rajiv Sharma gave beatings to Rahul and Tikkam
Chand. The call details record were also checked and the persons
were found in touch with each other during the night and in the
morning. Rajiv Sharma, Vinay Sharma, Ashish and Hemant saw
that Sheetla Mata Temple was put on fire on 21.3.2024 at 10.30
PM. They went to the temple and found Tikkam Chand putting
the temple on fire. He also informed the police about this fact.
Rajiv Sharma called Tara Chand, Geeta Ram, Shankar Lal, Ram
Lal, Rajesh, Jagdish Harish etc. about the incident. They reached
the temple and gave beatings to Tikkam Chand, who revealed
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that Rahul was also involved in the theft. He was brought from
his home by Ram Lal, Umesh, Bhanu, Nikhilesh, Nikhil, Nitin,
Lakshay and Jagdish Chand. They gave beatings to Rahul. Rahul
also saw Tikkam Chand lying on the floor. His head and face
were bleeding. Rajiv, Hemant, Ashish, Vinay, Tara Chand, Geeta
Ram, Shankar Lal, Harish and Sushil were present and gave
beatings to Rahul and Tikkam Chand. The villagers also took
their photographs and prepared the video. Subsequently,
Tikkam Chand died and his dead body was burnt. The police
arrested Vinay, Ashish, Shankar Lal, Geeta Ram, Rajiv Sharma,
Tara Chand and Hemant. As per the opinion of the Medical
Officer, Tikkam Chand could have died with a stick recovered by
the police. The investigation was continuing. The mobile phones
were sent to FSL and the result is awaited. It was further found
that the deceased belonged to a Scheduled Caste; hence Section
3(2)(v) of the Schedule Caste and Schedule Tribes (Prevention of
Atrocities) Act, (in short ‘the Act’) was added.
2. The petitioners filed the present petitions seeking
their pre-arrest bail. It is asserted that they are apprehending
their arrest. No overt act has been attributed to them. False
allegations were made by the police against the petitioners. The
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petitioners were not involved in the commission of the offence.
Petitioners would abide by all the terms and conditions, which
the Court may impose. Hence, it was prayed that the present
petitions be allowed and the petitioners be released on bail.
3. The police filed a status report asserting that as per
the investigation conducted by the police, the involvement of
Ram Lal, Umesh Kumar, Sushil Kumar, Harish Kumar, Bhanu,
Rajesh Kumar, Nikhilesh, Nitin and Lakshay was found in the
commission of the offence, however, Ram Chand and Om
Prakash were not found involved in the commission of the
offence.
4. I have heard Mr. Ajay Kochhar, learned Senior
Counsel assisted by M/s Varun Chauhan, Gaurav Kochhar and
Bhairav Gupta, learned Counsel for the petitioners and
Mr. Lokender Kutlehria, learned Additional Advocate General for
the respondent-State.
5. Mr. Ajay Kochhar, learned Senior Counsel for the
petitioners submitted that the petitioners were not involved in
the commission of the offence and they were falsely implicated.
Mere presence at the time of the cremation is not sufficient to
8
impute the common intention to the petitioners. Therefore, he
prayed that the present petitions be allowed and the petitioners
be released on bail. He relied upon the judgments of Hitesh
Verma Vs. State of Uttrakhand and another, Cr. Appeal No. 707 of
2020, decided on 5.11.2020, Rameshwar Singh Vs. State of H.P.,
Cr.MP(M) No. 2360 of 2022, decided on 21.11.2022, Parul Thakur
Vs. State of H.P., Cr.MP(M) No. 2419 of 2022, decided on 22.11.2022,
Ashwani Kumar Vs. State of H.P., 2019 STPL 4437 HP and Khuman
Singh Vs. State of H.P. Cr. Appeal No. 1283 of 2019, decided on
27.8.2019 in support of his submission. He further submitted
that the offence punishable under Section 3(2)(v) of the Act is
not made out because the accused had not beaten the deceased
because he belonged to the Scheduled Caste, in the absence of
which of the Scheduled Caste and Scheduled Tribes (Prevention
of Atrocities) Act is not attracted.
6. Mr. Lokender Kutlehria, learned Additional Advocate
General for the respondent-State submitted that the petitioners
were involved in the commission of a heinous offence. Their
involvement is established by the statement of Rahul, the call
details record and the statements of other witnesses. The
investigation is continuing and custodial interrogation of the
9
petitioners is required. Therefore, he prayed that the present
petitions be dismissed.
7. I have given considerable thought to the submissions
at the bar and have gone through the records carefully.
8. It was laid down by the Hon’ble Supreme Court in P.
Chidambaram vs. Directorate of Enforcement 2019 (9) SCC 24 that
the power of pre-arrest bail is extraordinary and should be exer -
cised sparingly. It was observed:
“67. Ordinarily, arrest is a part of the procedure of the
investigation to secure not only the presence of the
accused but several other purposes. Power under Section
438 Cr.P.C. is an extraordinary power and the same has to
be exercised sparingly. The privilege of pre-arrest bail
should be granted only in exceptional cases. The judicial
discretion conferred upon the court has to be properly
exercised after application of mind as to the nature and
gravity of the accusation; the possibility of the applicant
fleeing justice and other factors to decide whether it is a
fit case for grant of anticipatory bail. Grant of
anticipatory bail to some extent interferes in the sphere
of investigation of an offence and hence, the court must
be circumspect while exercising such power for the grant
of anticipatory bail. Anticipatory bail is not to be granted
as a matter of rule and it has to be granted only when the
court is convinced that exceptional circumstances exist to
resort to that extraordinary remedy.”
9. This position was reiterated in Srikant Upadhyay v.
State of Bihar, 2024 SCC OnLine SC 282 wherein it was held:
10
“25. We have already held that the power to grant
anticipatory bail is extraordinary. Though in many cases
it was held that bail is said to be a rule, it cannot, by any
stretch of the imagination, be said that anticipatory bail is
the rule. It cannot be the rule and the question of its grant
should be left to the cautious and judicious discretion of
the Court depending on the facts and circumstances of
each case. While called upon to exercise the said power,
the Court concerned has to be very cautious as the grant
of interim protection or protection to the accused in
serious cases may lead to a miscarriage of justice and may
hamper the investigation to a great extent as it may
sometimes lead to tampering or distraction of the
evidence. We shall not be understood to have held that the
Court shall not pass interim protection pending
consideration of such application as the Section is
destined to safeguard the freedom of an individual
against unwarranted arrest and we say that such orders
shall be passed in eminently fit cases.”
10. It was held in Pratibha Manchanda v. State of Haryana,
(2023) 8 SCC 181: 2023 SCC OnLine SC 785 that the Courts should
balance individual rights, public interest and fair investigation
while considering an application for pre-arrest bail. It was
observed:
“21. The relief of anticipatory bail is aimed at
safeguarding individual rights. While it serves as a crucial
tool to prevent the misuse of the power of arrest and
protects innocent individuals from harassment, it also
presents challenges in maintaining a delicate balance
between individual rights and the interests of justice. The
tightrope we must walk lies in striking a balance between
safeguarding individual rights and protecting public
interest. While the right to liberty and presumption of
innocence are vital, the court must also consider the
11
gravity of the offence, the impact on society, and the need
for a fair and free investigation. The court's discretion in
weighing these interests in the facts and circumstances of
each case becomes crucial to ensure a just outcome.”
11. In the present case, the police have specifically
asserted that the involvement of the petitioners Ram Chand and
Om Prakash was not found. Thus, they have no reasonable
apprehension of their arrest and the petitions filed by them have
become infructuous and are dismissed as infructuous.
12. The police have added Section 3(2)(v) of the Act. It
was submitted that the said offence is not attracted since as per
the case of the prosecution, the petitioner had not given
beatings to the deceased because he was a member of Scheduled
Caste. Reliance was also placed upon the judgments of the
Hon’ble Supreme Court in Khuman Singh Vs. State of Madhya
Pradesh, Cr. Appeal No. 1283 of 2019, decided on 27.8.2019 and
Hitesh Verma Vs. State of Uttrakhand and another, Cr. Appeal No.
707 of 2020, decided on 5.11.2020. This submission is not
acceptable. Section 3(2)(v) of the Act provides that if any person
commits an offence under the IPC punishable with
imprisonment for a term of 10 years or more against a person
knowing that such person is a member of the Scheduled Caste,
12
the person committing the offence shall be liable. Earlier the
offence was required to be committed because of a person’s
caste but now after amendment, it is sufficient that the accused
knew the victim’s caste. Hence, the judgments cited will not
assist the petitioners.
13. It was found out by the police that the victim resided
in the village of the petitioners; therefore, the petitioners knew
the deceased and as per Section 8 of the Act, the petitioners are
presumed to know his caste. Hence, the essential requirement
laid down under Section 3(2)(v) of the Act is fully satisfied. It
was held by the Hon’ble Supreme Court in Patan Jamal Vali v.
State of A.P., (2021) 16 SCC 225: 2021 SCC OnLine SC 343 that after
the amendment of the Act, it is not necessary that the offence
should have been committed on the grounds of the caste of the
victim, it is sufficient if the offence is committed with the
knowledge of the victim’s caste. It was observed:
“63. It is pertinent to mention that Section 3(2)(v) was
amended by the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Amendment Act, 2015,
which came into effect on 26-1-2016. The words “on the
ground of” under Section 3(2)(v) have been substituted
with “knowing that such person is a member of a Scheduled
Caste or Scheduled Tribe”. This has decreased the
threshold of proving that a crime was committed on the
13
basis of caste identity to a threshold where mere
knowledge is sufficient to sustain a conviction. Section 8
which deals with presumptions as to offences was also
amended to include clause (c) to provide that if the
accused was acquainted with the victim or his family, the
court shall presume that the accused was aware of the
caste or tribal identity of the victim unless proved
otherwise. The amended Section 8 reads as follows:
“8. Presumption as to offences.—In a prosecution for an
offence under this Chapter, if it is proved that—
(a) the accused rendered any financial assistance in
relation to the offences committed by a person
accused of, or reasonably suspected of, committing,
an offence under this Chapter, the Special Court
shall presume unless the contrary is proved, that
such person had abetted the offence;
(b) a group of persons committed an offence under
this Chapter and if it is proved that the offence
committed was a sequel to any existing dispute
regarding land or any other matter, it shall be
presumed that the offence was committed in
furtherance of the common intention or
prosecution of the common object.
(c) the accused was having personal knowledge of
the victim or his family, the Court shall presume
that the accused was aware of the caste or tribal
identity of the victim unless the contrary is
proved.”
64. The Parliament Standing Committee Report on
Atrocities Against Women and Children has observed that
“high acquittal rate motivates and boosts the confidence
of dominant and powerful communities for continued
perpetration” and recommends inclusion of provisions of
the SC & ST Act while registering cases of gendered
violence against women from the SC & ST communities
[ “Parliament Standing Committee Report on Atrocities
Against Women and Children”, 15-3-2021, 107 available
at<https://rajyasabha.nic.in/rsnew/Committee_site/Com
14
mittee_File/ReportFile/15/143/230_2021_3_14.pdf>.].
However, as we have noted, one of the ways in which
offences against SC & ST women fall through the cracks is
due to the evidentiary burden that becomes almost
impossible to meet in cases of intersectional oppression.
This is especially the case when courts tend to read the
requirement of “on the ground” under Section 3(2)(v) as
“only on the ground of”. The current regime under the SC
& ST Act, post the amendment, has facilitated the conduct
of an intersectional analysis under the Act by replacing
the causation requirement under Section 3(2)(v) of the
Act with a knowledge requirement making the regime
sensitive to the kind of evidence that is likely to be
generated in cases such as these.”
14. This position was reiterated in Shashikant Sharma v.
State of U.P., 2023 SCC OnLine SC 1599 and it was held that the
offence punishable under section 3(2) (v) of the Act is
committed when the accused was aware of the caste of the
victim. It was observed:
14. From a bare perusal of the provision, it is crystal clear
that for the above offence to be constituted, there must be
an allegation that the accused not being a member of
Scheduled Caste or Scheduled Tribe committed an offence
under the IPC punishable for a term of 10 years or more
against a member of the Scheduled Caste or Scheduled
Tribe knowing that such person belongs to such
‘community’.
15. The investigation has found that Rajiv, Tara Chand,
Geeta Ram, Shankar Lal, Ram Lal, Rajesh, Jagdish, Harish,
Ashish, Hemant and Vinay were present in the temple and they
had given beatings to Tikkam Chand. Tikkam Chand died due to
15
the injuries sustained in a beating. Therefore, these persons are
prima facie involved in the commission of an offence punishable
under Section 302 of IPC. The police also found that Rajiv, Vinay,
Ashish, Hemant, Rajesh, Harish, Lakshay, Ram Chand, Om
Prakash, Jagdish etc. were present at the time of the cremation
of the dead body, which shows their involvement in the
commission of offence punishable under Section 201 of IPC.
16. The investigation is at an initial stage. The police
specifically asserted that the petitioners are not disclosing
anything and their custodial interrogation is required. Keeping
in view the gravity of the offence and how a person was beaten
to death, the plea of the police has to be accepted as correct. It
was laid down by Hon'ble Supreme Court in State Versus Anil
Sharma (1997) 7 SCC 187 that where custodial interrogation is
required, pre-arrest bail should not be granted. It was
observed:-
“6. We find force in the submission of the CBI that
custodial interrogation is qualitatively more elicitation-
orientated than questioning a suspect who is well-
ensconced with a favourable order under Section 438 of
the Code. In a case like this effective interrogation of a
suspected person is of tremendous advantage in
disinterring many useful information and also materials
which would have been concealed. Success in such
16
interrogation would elude if the suspected person knows
that he is well protected and insulated by a pre-arrest bail
order during the time he is interrogated. Very often
interrogation in such a condition would reduce to a mere
ritual. The argument that the custodial interrogation is
fraught with the danger of the person being subjected to
third-degree methods need not be countenanced, for,
such an argument can be advanced by all accused in all
criminal cases. The Court has to presume that responsible
Police Officers would conduct themselves in a responsible
manner and that those entrusted with the task of
disinterring offences would not conduct themselves as
offenders.”
17. A similar view was taken by the Delhi High Court in
Mukesh Khurana v. State (NCT of Delhi), 2022 SCC OnLine Del 1032
wherein it was observed:
“13. One of the significant factors in determining this
question would be the need for custodial interrogation.
Without a doubt, custodial interrogation is more effective
to question a suspect. The cocoon of protection, afforded
by a bail order insulates the suspect and he could thwart
interrogation reducing it to futile rituals. But, it must be
also kept in mind, that while interrogation of a suspect is
one of the basic and effective methods of crime solving,
the liberty of an individual also needs to be balanced out.”
18. Consequently, the petitioners cannot be released on
pre-arrest bail. Hence, the present petitions fail and the same
are dismissed.
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19. The observations made hereinbefore shall remain
confined to the disposal of the petitions and will have no
bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla)
Judge
th
28 June, 2024
(Chander)