Kishor Trembakraoji Deshmukh vs State Of Mah.T Hr. Pso Arvi And ...
2021 Latest Caselaw 6362 Bom

Judgment                                                          0904apeal155.21
                                         1

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.


                       CRIMINAL APPEAL NO. 155/2021.


           Kishor Trembakraoji Deshmukh,
           Aged about 58 years, Occupation
           Cultivator, resident of Sai Naar,
           Arvi, Tahsil Arvi, District Wardha.        ...         Appellant.


                                      Versus

           1.State of Maharashtra,
           through PSO Arvi.

           2.Sudha Deepak Deshmukh,
           Aged 65 years, Occupation
           Cultivator, resident of Wadhona,
           Tah. Arvi, District Wardha.                ...         Respondents.

                                     ..............

                               Shri M.B. Naidu, Advocate for the Appellant.
                               Ms. N. Mehta, A.P.P. for Respondent No.1.
                               Shri M.P. Kariya, Advocate for Respondent No.2.

                                     ..............


                                             CORAM : VINAY JOSHI, J.

DATE : APRIL 09, 2021.

ORAL JUDGMENT.

Heard learned Counsel for the parties through video Judgment 0904apeal155.21

conference.

Admit. Heard finally by consent of the parties.

2. This is an appeal under Section 14-A of the Scheduled

Caste / Scheduled Tribes (Prevention of Atrocities) Act,

challenging the order dated 12.03.2021, passed by the Additional

Sessions Judge, Wardha in Criminal Bail Application No.103/2021,

by which the pre-arrest bail has been rejected. Consequently, the

appellant is seeking for pre-arrest bail in terms of Section 428 of

the Code of Criminal Procedure.

3. At the instance of a report lodged by the informant -

lady on 03.03.2021, a crime bearing Crime No.200/2021 came to

be registered. The appellant is brother-in-law of the informant.

The informant belongs to backward class category got married

with one Deepak, who does not belong to backward class. The

appellant is real brother of Deepak. The informant contended that

on 01.03.2021, there happen to be a dispute in between two

brothers i.e. husband of the appellant - Deepak and his brother

Kishore [applicant]. Upon said incident, the appellant lodged a

report in which the husband of the informant - Deepak came to be

arrested. Thereafter on 02.03.2021, around 4 p.m. the appellant

came to her house and criminally intimidated her on the point of Judgment 0904apeal155.21

knife. He had uttered abusive castiest remark against the

informant. After hearing the noise, one lady namely Sindhu came

to the place of occurrence on which the appellant left the place.

The informant in so many words stated as to how the appellant

gave various castiest abuses, due to which she was allegedly

humiliated.

4. The learned Counsel for the appellant while claiming

bail has submitted that the first information report is nothing but,

a counter blast to the earlier report lodged by the appellant against

the husband of the informant. He would submit that at the

instance of the earlier report, the husband of the informant came

to be arrested and is in jail. In order to pressurize the appellant,

the informant cooked a false story, and accordingly has lodged the

report. Further it is contended that as per the report, the alleged

incident took place in the house of the informant, and therefore, it

was not within the public view, hence the provisions of the

Atrocities Act would not apply. The appellant stated that he is

ready to cooperate with the police, and urged for grant of

protection.

5. The State has resisted the bail by submitting reply Judgment 0904apeal155.21

reiterating the contents of the first information report. So also the

learned counsel for the informant also objected to grant of pre

arrest protection.

6. It is a dispute between two brothers. The appellant has

produced copy of first information report dated 28.02.2021,

lodged by his son alleging that the husband of the informant

namely Deepak came to his ginning factory. He came with a

sword and attempted to commit murder of applicant's son.

Moreover, the husband of the informant poured petrol on the

person of the son of the appellant and tried to set him on fire. At

the same time, husband of the informant has set fire to the ginning

mill for which crime has been registered for offence punishable

under Sections 307, 436, 427, 506[2] read with Section 34 of the

Indian Penal Code and under Sections 4 and 25 of the Arms Act.

In connection with the said offence, the husband of the informant

was arrested and is in jail. According to the appellant, only to

pressurize him, the existing false report has been lodged. Certainly

said aspect is to be taken into account while considering the

entitlement of the appellant for grant of protection.

7. Perusal of the report reveals that the informant in so Judgment 0904apeal155.21

many words has stated the abusive words which runs into near

about entire page. The informant may be a genius lady, as she has

remembered all long abuses which are reflected in the first

information report. Had it been the fact that the appellant had

given so many abuses, it must have been taken considerable time

giving opportunity to strangers to arrive on the spot. The report

indicates that at relevant time the appellant came to the

residential house of the informant, where the incident took place.

The informant stated that after hearing noise, a lady of her

acquaintance namely Sindhu Ingle came to the place on which the

applicant ran away. The statement of Sindu has been recorded

by the police.

8. The learned counsel for the appellant would submit

that in order to attract the provisions of Section 3[1][r] and [s] of

the Atrocities Act, the occurrence must be in public view.

According to him, as per the contents of the first information

report, the incident took place within the house of the informant

and therefore, it was not within public view. In order to support

said submission, he relied on the decision of this Court in case of

Dr. Manali Makrand Kshirsagar and another .vrs. State of Judgment 0904apeal155.21

Maharashtra and another (2020 All MR (Cri) 945). In said case

the Division Bench of this Court has observed that to attract the

provisions of Section 3[1][r] and [s] of the Atrocities Act, it is

absolutely essential that the same should take place within public

view. In the said case this Court has referred to the earlier

decision in case of Pradnya Pradeep .vrs. State of Maharashtra

(2005 (3) Mh.L.J. 368), wherein this Court has expressed that, in

order to attract the offence of insulting or intimating a member of

Scheduled Caste, must be in any place within a public view. It is

explained that the expression "public view" has been prefixed by

the proposition "within", which infact follows the impression in

any place. Moreover, it is held that the act of insult or intimation

must be visible and audible to public in order to constitute the

offence. Therefore, it is apparent that the word "public" not only

relates to the location defined by the word "place", but, also to the

witnesses of the occurrence. Therefore, the incidence of insult or

intimidation has to occur in a place accessible to and in the

presence of the public. The presence of both these ingredients

would be absolutely necessary to constitute an offence under the

said provision of law.

Judgment 0904apeal155.21

9. In the light of said position, the matter requires

examination. The informant stated that occurrence took place at

her house. Though she stated that one Shindu Ingle arrived on the

spot, however, she never stated that Sindhu heard the abuses. She

only stated that after hearing noise, Sindhu arrived, on which the

applicant left the place. Therefore, a serious question regarding

applicability of the provisions of the Atrocities Act would arise on

the point whether the occurrence took place within a public view,

as required by Section 3[1][r] and [s] of the Atrocities Act.

10. The learned counsel for the appellant by relying on

the decisions of this Court in cases of Janardhan Rambhau Tawde

and others .vrs. State of Maharashtra and others (2020 Cri LJ

1692) and Sapna Korde .vrs. The State of Maharashtra and

another (2019 Sll MR (Cri) 1512), has submitted that if the

ingredients constituting offence under Section 3[1][r] and [s] of

the Atrocities Act are not made out, then the bar under Section 18

of the Act would not attract. While looking the matter from the

view point whether prima facie case has been made out, besides

the first information report, all the circumstances have to be

looked into. The submission of the appellant that detailed

narration of so many abuses itself creates doubt regarding Judgment 0904apeal155.21

occurrence, needs consideration.

11. Admittedly the parties are having rival terms since few

days prior to the alleged occurrence, at the instance of the report

lodged by the son of the appellant, husband of the informant is

behind bars. Moreover, as per the first information report, the

offence took place at her residential house. Merely because a Bank

situated in said tenement, it does not mean that the place of

occurrence was within pubic view. As referred above, dual

requirement regarding accessible place and presence of witness

have to be met with. The informant has not stated that the lady

namely Sindhu has arrived on the spot during abuses and heard

them. The Hon'ble Supreme Court in case of Prathiv Raj

Chavan .vrs. Union of India and others (2020) 4 SCC 727, has held

that in the cases where no prima facie material exists, the Court

has inherent power to grant pre arrest bail. Considering the

peculiar facts of this case, the bar created under Section 18 of the

Atrocities Act would not apply.

12. On the background of rivalry and prior complaint by

son of the appellant, the possibility of false implication cannot be Judgment 0904apeal155.21

ruled out. Having regard to the nature of accusation, there is no

necessity of custodial interrogation. The purpose would suffice if

the appellant is directed to attend the police station to facilitate

the process of investigation. In view of above, circumstances, the

appellant is entitled to grant of pre-arrest bail. Hence, the

following order.

           (i)          Criminal Appeal is allowed.

           (ii)         The impugned judgment and order dated 12.03.2021

passed by the Additional District Judge, Wardha in

Criminal Bail Application No.103/2021 is quashed and

set aside.

(ii) In the event of arrest, the appellant/accused - Kishor

Trembakraoji Deshmukh, be released on bail in

connection with Crime No.200/2021, registered by the

respondent no.1 Police Station for the offence

punishable under Sections 504, 506 of the Indian Penal

Code and Section 3[1][r] and [s] of the the Scheduled

Caste / Scheduled Tribes (Prevention of Atrocities) Act,

on his furnishing P.R. Bond of Rs. 25,000/- with one or

two sureties in the like amount.

  Judgment                                                                   0904apeal155.21


                  (iii)        The appellant shall attend concerned Police Station on

every Monday in between 10.00 a.m. to 12.00 noon till

the filing of the charge sheet.

(iv) The appellant shall not directly or indirectly make any

inducement, threat or promise to any person

acquainted with the facts of the case, as also shall not

tamper with the evidence.

(v) The appellant shall provide his residential address and

cell number to concerned Investigating Officer and shall

not change his place of residence without prior

intimation to the concerned Investigating Officer.

JUDGE Rgd.

            Digitally signed
Rakesh      by Rakesh
            Dhuriya
Dhuriya     Date: 2021.04.09
            19:27:05 +0530