Mahadev Vitthal Jagadale vs The State Of Maharashtra
2017 Latest Caselaw 4330 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY

              CRIMINAL APPELLATE JURISDICTION

                 CRIMINAL APPEAL NO. 523 OF 2017



Mahadev Titthal Jagadale
Age : 39 years, Occ - Advocate
R/at - Flat No.13 (Old Flat No.08)
Third Floor, Building No.04,
Champaratna No.01 Co-op Housing
Society, S. No.83/B, Wanawadi,
Pune                               ......Appellant

         V/s.


1. The State of Maharashtra
(Through Wanawadi Police Station)

2. Adinath Pralhad Bhise
Age : 45 years, Occ : Business
R/o. Flat No.1, Rahul
Co-operative Housing Society,
Lotus B, Vidyanagar,
Pune-411 032.                               .......Respondents


                                  ------

Mr. Abhijeet A. Desai a/w. Ms. Vrushali Maindad, i/by.
Mr. Ajinkya Badar, Advocate for the appellant.

Mr. H.J. Dedhia, APP for respondent, State.

Mr. Ravi G. Shinde, Advocate for the complainant.




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                 CORAM :-         SMT. V.K. TAHILRAMANI, &

                                  SANDEEP K. SHINDE, JJ.

DATE :- 11 th JULY, 2017.

ORAL JUDGMENT (PER :- SMT. V.K. TAHILRAMANI, J) :

1. Heard Learned Counsel for the appellant,

Learned Counsel for the complainant and Learned APP.

2. The appellant, original accused no.1 has

preferred this Appeal against the order dated 4th May,

2017 passed by the Learned Sessions Judge, Pune in C.R.

No. 214 of 2016 of Wanavari Police Station which is under

Sections 448, 354, 380, 342, 427 and 504 read with

Section 34 of the Indian Penal Code (IPC) and under

Sections 3(1)(g), (r), (s), (w), (ii), and (z) of the

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989 (hereinafter referred to as "The

Atrocities Act"). By the said order, the anticipatory bail

application of the appellant in C.R. No. 214 of 2016 came

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to be rejected.

3. At the outset, it needs be stated that, the

appellant had earlier approached the Sessions Court

seeking anticipatory bail by preferring Criminal Bail

Application No. 1911 of 2016. The said application came

to be rejected. Being aggrieved thereby, the appellant

preferred Anticipatory Bail Application No.1175 of 2016

before this Court. This Court (Coram : A.M. Badar, J) by

detailed order dated 20th July, 2016 rejected the

application for anticipatory bail.

4. Thereafter, the appellant again approached the

Sessions Court seeking anticipatory bail and as stated

earlier, the Sessions Court by order dated 4th May, 2017

rejected the application for anticipatory bail. Perusal of

the FIR clearly shows that, the appellant abused the

mother of the complainant in relation to her caste. In

addition, the appellant put his hand on the chest of the

mother of the complainant and pushed her into a corner

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and held her there. In view of the allegations made in the

FIR, Sections 3(1)(r) and 3(1)(s) of the Atrocities Act,

are attracted. Hence, Section 18 of the said Atrocities Act

would come into force.

5. The Learned Counsel for the appellant,

submitted that, there is inordinate delay in lodging the

FIR which shows that the complainant has falsely

implicated the appellant in this case. Hence, anticipatory

bail ought to be granted to the appellant. In support of his

contention that on account of delay in lodging the FIR,

anticipatory bail can be granted, he has placed reliance on

the decision of the Learned Single Judge of this Court in

the case of Pravin S/o. Shrimant Bhutekar V/s.

State of Maharashtra & anr. reported in 2010 0

All MR (Cri) 1223 : 2010 (3) Bom.C.R. (Cri) 678 .

We have gone through the said decision. In relation to

this decision, it is seen that, the incident therein occurred

on 4th January, 2010 and FIR was lodged on 7th

January, 2010. The FIR, itself shows that, the delay in

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lodging the complaint was caused due to consultation with

the senior political leader of the area. It is in these

circumstances, that anticipatory bail was granted to the

accused therein. In the present case, it is seen that the

incident occurred on 15th May, 2016 at 4.45 p.m. and the

FIR is lodged on the very next day i.e. 16th May, 2016.

Looking to the facts of this case, it cannot be said that the

delay is such, as would lead us to the conclusion that the

appellant has been falsely implicated in this case. The

delay in the case of Pravin Bhutekar (supra) was 3 days.

Moreover, it is seen that the FIR in the case of Pravin

Bhutekar was lodged only after consultation with senior

political leader of that area which was evident from the

FIR itself. The facts in the present case, are entirely

different. Hence, this decision cannot be made applicable

to the present case.

6. Thereafter, the Learned Counsel for the

appellant, submitted that, the incident has not taken

place within public view. Hence, Sections 3(1)(r) and

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3(1)(s) of the Atrocities Act are not attracted. To

buttress his submission, he has placed reliance on a

decision of the Learned Single Judge of this Court in the

case of Mahesh Sakharam Patole and Ors. V/s.

State of Maharashtra reported in 2010 (1)

Crimes 673 (Bom) . The Learned Counsel for the

appellant pointed out, that in the said case, the accused

persons entered into the courtyard of the house of the

complainant and in the presence of his family members

and resident servants, gave abuses to the complainant in

relation to his caste. The Learned Counsel for the

appellant, pointed out, that in the present case also, the

incident has occurred inside the house. Hence, it cannot

be said that the incident took place within public view. On

perusal of the decision in the case of Mahesh (supra), we

find that it is observed therein that, if words were audible

and/or members of public had viewed the incident even if

incident occurred in a private place, it would attract the

offence. No doubt, in the present case, the incident has

taken place inside the flat but the FIR itself shows that 18

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to 20 boys had also entered into the flat. Thus, the

incident of the appellant abusing the mother of the

complainant, has taken place in public view, hence,

Section 3(1)(r) & 3(1)(s) are attracted.

7. The Supreme Court in the case of Swaran

Singh & Ors. V/s. State through Standing Counsel

& anr. reported in 2008 (Cri.) L.J. 4369 has

observed that "place within public view" must not be

confused with the expression "public place". It has further

been observed that, in the case of Swaran Singh (supra)

that, abusing a person of schedule caste in relation to his

caste, within public view, is certainly an offence under the

Atrocities Act. As stated earlier, the Supreme Court has

observed that the expression "place within public view"

must not be confused with "public place". A place can be a

private place but yet be within public view. In the present

case, about 18 to 20 boys were present in the flat when

the incident occurred, hence it can certainly be said to be

a place within public view. Hence, Sections 3(1)(r) and

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3(1)(s) would be attracted.

8. Thereafter, the Learned Counsel for the

appellant submitted that there must be specific

accusation alleged against each of the accused and

Section 34 of IPC cannot be pressed into service. On

perusal of the FIR, it is seen that the word "Tyane " in

marathi is stated in reference to the appellant alone. This

word, in the context of the FIR, does not mean that, all the

persons who were present in the room had abused the

mother of the complainant in relation to her caste. Thus,

as there is specific allegation against the appellant of

having abused the mother of the complainant in relation

to her caste, again Section 3(1)(r) and Section 3(1)(s)

would be attracted.

9. Thereafter, the Learned Counsel for the

appellant, submitted that this FIR has been lodged as a

counter-blast on account of a property dispute between

the complainant and the appellant. He placed reliance on

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the proceedings under Section 145 Criminal Procedure

Code ("Cr.P.C." for short) which was initiated by the

mother of the complainant. He pointed out, that in the

said proceedings, the application of the mother of the

complainant under Section 145 Cr.P.C. came to be

rejected and it is observed in the said order that it cannot

be stated that, she was in possession of the property. As

stated earlier, the application of the appellant for

anticipatory bail came to be rejected by this Court, by

order dated 20th July, 2016. No change in circumstances

has been brought to our notice, except that, the

application under Section 145 Cr.P.C. preferred by the

mother of the complainant came to be rejected. Only

because application under Section 145 Cr.P.C. filed by the

mother of the informant came to be rejected by the Sub-

Divisional Magistrate, it cannot be said to be change in the

circumstances and cannot be a ground to grant

anticipatory bail.

10. Perusal of the FIR, clearly makes out an offence

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under Sections 3(1)(r) and 3(1)(s) of the Atrocities Act.

Hence, anticipatory bail cannot be granted to the

appellant. The Appeal is dismissed.

(SANDEEP K. SHINDE, J) (SMT. V.K. TAHILRAMANI, J)