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Saturday, May 2, 2015

whether an offence punishable under Section 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short the Act) is bailable or non-bailable. - their lordships held that Section 4 of the Act postulates imposing punishment on a public servant not being a member of Scheduled Caste or a Scheduled Tribe, who willfully neglect his duties required to be performed, with imprisonment of not less than six months but which may extend to one year.- in view of the First Schedule to the Cr.P.C., the said offence has to be treated as bailable.- 2015 Telangana & A.P. msklawreports


The petitioner herein worked as Sub-Divisional Police Officer,
West Division, Guntur  from 28.11.2011 to 09.02.2012 and from
12.02.2014 to 05.09.2014.
 During the said period, he is alleged to
have given a depressing picture in investigating cases registered
under the provisions of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act.  
It is stated that on the date of his
transfer from the said station, he is alleged to have left behind 21
cases un-investigated without any reason.  
In the report, which is
lodged by the Superintendent of Police, Guntur, a table showing the
pendency of the cases is enclosed.
 In fact, the said report addressed
to the Director General of Police, Andhra Pradesh, Hyderabad is
recommending initiation of departmental action against the
petitioner.
However, the said letter written by the Superintendent
of Police to the Director General of Police was made the basis for
registering a case in Crime No.34 of 2015 of Narampalem Police
Station, Guntur District, for an offence punishable under Section 4 of
the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act.
The present application is filed seeking release in the event of
arrest in connection with the above crime.

Section 4 of the Act which reads as under:
4. Punishment for neglect of duties: Whoever, being a
public servant but not being a member of a Scheduled
Caste or a Scheduled Tribe, willfully neglects his duties
requires to be performed by him under this Act, shall be
punishable with imprisonment for a term which shall not
be less than six months but which may extend to one 
year.
      Section 4 of the Act postulates imposing punishment on a
public servant not being a member of Scheduled Caste or a
Scheduled Tribe, who willfully neglect his duties required to be
performed, with imprisonment of not less than six months but which
may extend to one year. 

 Since the Act is silent as to which of the offences are bailable
and which of the offences are non-bailable, one has to fall back on
to the Code of Criminal Procedure  to find out the same, as the Act
does not exclude the applicability of the Cr.P.C., except on certain
aspects.
As per Section 2 (a) of Cr.P.C., bailable offence means an
offence which is shown as bailable in first Schedule or which is made
bailable by any other law for the time being in force.
 Non-bailable
offence means any other offence.
The first schedule appended to
the Cr.P.C. contains two parts, 1) offence under IPC and (2) the
offence under other laws.
      In the second part of the first schedule to Cr.P.C., which deals
with classification of offences against other laws, it is stated that if
the offences are punishable with imprisonment for less than three
years or with fine only, the same is bailable, non-cognizable and
triable by any Magistrate.
 Section 18 of the Act states that nothing
in Section 438 Cr.P.C. shall apply in relation to any case involving the
arrest of any person  on an accusation of having committed an
offence under the Act.
 From a reading of Section 18 of the Act, it is
clear that bar under Section 438 Cr.P.C. shall apply when a person
commits offences under the Act in which he is liable to be arrested.
Arresting a person would arise only if he commits an offence which is
non-bailable. 
Since the punishment prescribed under Section 4 of
the Act is an imprisonment upto one year and in view of the First
Schedule to the Cr.P.C., the said offence has to be treated as
bailable.

whether first Schedule to
Cr.P.C. can be made applicable to the offences under the Act when
Part-II  of First Schedule to Cr.P.C. states that offences which are
punishable with imprisonment for less than three years are triable by
the Court of Magistrate only, as the case on hand is triable by a
Special Court constituted under the Act and presided over by the
Sessions Judge.  Section 26 (b) (ii) of Cr.P.C. gives an answer to this
query.  From a reading of the Section 26 (b) (ii), it is clear that if the
Special law prescribes or refers a particular Court to deal with the
case, the same shall be done exclusively by that Court though the
schedule prescribes the same to be tried by some other Court.  Ergo,
though the offence under Section 4 of the Act is made punishable
with a maximum imprisonment of one year and triable by a Special
Court presided over by a Sessions Judge, the same has to be treated
as a bailable offence in view of the findings recorded above.  Hence,
no application under Section 438 Cr.P.C. can be entertained.
        Accordingly, the Criminal Petition is dismissed.- 2015 Telangana & A.P. msklawreports

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