Top News Headlines 23rd Apr 2022: When The Offence Under SC/ST Act Appears To Be Misuse Of Law

When The Offence Under SC/ST Act Appears To Be Misuse Of Law, Anticipatory Bail Can Be Granted: Chhattisgarh HC

• In the case of Jawed Khan vs State of Chhattisgarh the Hon’ble HC of Chhattisgarh has held that when an offence under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 appears to be a misuse of law , the Court has the power to grant anticipatory bail. 
• In the instant case, the appellant/accused had filed an application under section 14A(2) of the SC/ST Act for the grant of anticipatory bail, in connection with an offence punishable under sections 294, 323 and 506 of IPC read with section 3(1)(r), 3(1)(s) and 3(2)(va) of the SC/ST Act. 
• The prosecution had alleged that the victim, who is a Panchayat Secretary had lodged the FIR against the appellant/accused who is an Up-Sarpanch in Village Pnididhala. On 22-1-2022 a Panchayat meeting was held where after some altercations the appellant abused the complainant in filthy language, abused him in the name of his caste and grabbed his collar, and threatened to kill him in front of other people.
• The Learned Counsel for the appellant had argued that the appellant is innocent and that the said FIR had been lodged only to create pressure upon the appellant to withdraw the complaints lodged by him regarding embezzlement of Government funds by the Sarpanch and the victim/Panchayat Secretary.
• The Learned Counsel for the State had vehemently opposed the grant of anticipatory bail and had submitted that there is a bar on the same by virtue of sections 18 and 18A of the SC/ST Act. He also relied upon a judgement of the Apex Court in Swaran Singh and ors. vs. State through Standing Counsel (2008) SCC in which it was held that calling a person ‘chamar’ with intent to insult or humiliate him in public view is an offence under the Act.
• The Learned Counsel for the Appellant, in turn, relied upon the decision of the Apex Court in Union of India vs State of Maharashtra and ors (2020) SCC wherein it was held that in case there is no prima facie case made out in the 1989 Act, anticipatory bail can be granted. 
• The Hon’ble HC thus, taking into consideration the arguments advanced and the cases relied upon, held that when the offence under SC/ST Act appears to be a misuse of the law, the Court has the power to grant anticipatory bail, and section 18 would not be a bar to the same. 
• Thus, the appeal was allowed. 

Non-Payment Of Maintenance: Warrant For The Levy Of Fine To Be Issued Before Issuance Of Arrest Warrant : Allahabad HC

• In the case of Vipin Kumar vs State of UP and anr. the Allahabad HC has held that in cases of non-payment of maintenance allowance, the Magistrate has no jurisdiction to issue a warrant of arrest straightaway, without first levying the amount due as fine under section 421 of CrPC. 
• In the instant case, the wife of the applicant, alongwith her daughter, had filed an application under section 125 of CrPC before the Family Court, Kasganj seeking maintenance from the applicant/husband. The Applicant, being handicapped could not comply with the order and thus, a recovery warrant was issued against him for a sum of Rs.1,65,000/- to be paid to the wife and in pursuance of the recovery warrant, the applicant was sent to jail. 
• This order of the Family Court was challenged by the husband and he moved the HC under section 482 CrPC.
• The Counsel for the applicant argued that the order passed by the lower Family Court was made without complying with the provisions of section 125(3) CrPC which provides for the issuance of warrant for levying the amount in the manner as is provided for the levying of fines under section 421 of CrPC, and was liable to be quashed. 
• The Hon’ble HC that the provisions of section 125(3) CrPC clearly state that if a default has been made in the payment of maintenance, then the Court is empowered to issue a warrant for the levy of fine, and further noted that section 421(1)(a) clearly states that the amount could be realised by the attachment and sale of any movable property belonging to the offender. 
• Thus, the Court categorically held that the Magistrate has no jurisdiction to issue a warrant of arrest straightaway without first levying the amount due as fine and without making any attempt for the realisation of that fine in the modes provided in section 421 of CrPC. 
• In view of the same, the HC observed that the Family Court had not followed the correct procedure for the issuance of recovery warrant in default of payment of maintenance and therefore, the order was set aside. 

DV Act Doesn't Prevent Family Court From Permitting Husband To Visit His Child Even If He Has Received An Order Of Restraint: Delhi HC

• In Shilpa Singh vs. Vikas Khanna (2022), Justice Yashwant Varma stated that to prevent disputes and repugnancy, the two conflicting acts, the Protection of Women from Domestic Violence Act, 2005 and the Family Courts Act, 1984, must be interpreted harmoniously.
• In this case, an application challenging order on the ground of the restraint, levied by the Court dealing with the application made under the DV Act, 2005, was filed by the wife. The Family Judge issued the order as the charges made against the husband were made by the wife under the DV Act, and no cruelty or physical abuse claims were made against the husband concerning the children. Furthermore, it was observed that the respondent was barred from contacting his children or the complainant in any way due to the order issued in the PWDV proceedings. It was also stated that the respondent would not interfere with the custody of the children.
• The PWDV Act 2005, adopted in 2005, was enacted to protect women from domestic violence. 
• The Family Courts Act of 1984 was created to allow for the formation of Family Courts to encourage conciliation and ensure the prompt resolution of disputes relating to marriage and family issues and topics related to it.
• In a relevant case, Amit Kumar and another v. Charu Makin, it was observed that the Act of 1984 was specifically created so that matters referred to in the explanation to Section 7 of the Act could be dealt with by the Special Courts established for that purpose. In contrast, the object of enactment of the Act of 2005 was to protect women from becoming victims of domestic violence and to avoid the occurrence of domestic violence in society.
• In another notable case, Payal Agarwal v. Kunal Agarwal, it was ruled that the purview of the Act of 1984 is substantially broader than Section 21 of the Act of 2005. Since the non-obstante phrase employed in Section 21 of the Act of 2005 does not refer to any specific legislation of a particular act but rather is generic in nature, the Court must narrowly assess the limit of its application. Furthermore, the legislation states that when a non-obstante clause is employed in the aforementioned manner, the degree of its influence must be determined by taking into account the aim and purpose of inserting such a phrase.
• Thereafter, the Hon'ble Court held that the order would not interfere with the Family Court's jurisdiction to consider the temporary visiting rights of the minor child's father. Furthermore, it noted that the provisions of the PWDV do not deprive the Family Judge of the authority to make the arrangements stated in the contested order. Therefore, the scope of the two conflicting legislation must be understood in a way that avoids dispute.
• Thus, the Hon'ble Delhi HC dismissed the plea.