Babasaheb Sampatrao Wagh And ... vs The State Of Maharashtra And ...
2021 Latest Caselaw 10173 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                         CRIMINAL APPEAL NO. 323 OF 2021

1.     Babasaheb Sampatrao Wagh,
       Age : 50 years, Occu. Agriculture

2.     Vinayak Sampatrao Wagh,
       Age : 55 years, Occu. Agriculture

3.     Manik Sampatrao Wagh,
       Age : 45 years, Occu. Agriculture

       All are r/o Gondegaon,
       Tq. and District Jalna                               APPELLANTS
                                                  (Orig. Accused Nos.1 to 3)

       VERSUS

1.     The State of Maharashtra
       through Police Station Taluka Jalna,
       District Jalna

2.     Govind Ambadas Pakhare,
       Age : 69 years, Occu. Agriculture,
       R/o Gondegaon, Tq. & Dist. Jalna                     RESPONDENTS
                                                         (Respdt. No.2 - Orig.
                                                              Informant)
                                     ----
Mr. J.J. Salunke, Advocate for the appellants
Mr. R.D. Sanap, A.P.P. for the respondent/State
Mr. Amol S. Gandhi, Advocate for respondent No.2
                                     ----

                                    CORAM :    MANGESH S. PATIL, J.

DATE : 03.08.2021

ORAL JUDGMENT :

Heard.

                                           2                         CRIAPL323-2021


2.                Admit.

3. With the consent of learned Advocates for the parties and the

learned A.P.P., heard finally at the stage of admission.

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

and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 ("Atrocities

Act", for short), being aggrieved and dissatisfied by the rejection of

applications filed by the appellants under Section 438 of the Code of Criminal

Procedure seeking anticipatory bail in connection with Crime No.232of 2021,

registered with Jalna Taluka Police Station, District Jalna for the offences

punishable under Sections 324, 323, 327, 336, 504, 506 read with Section 34

of the Indian Penal Code and Sections 3(1)(g) and 3(1)(s) of the Atrocities

Act.

5. The allegations, as can be made out from the FIR and the police

papers, are to the effect that respondent No.2 belongs to a Scheduled Cste

and possesses a land Gut No.162. There has been a dispute between the

appellants and him in respect of possession over that land. The civil dispute

has been going on since long. Since the appellants were obstructing his

possession, he had filed a complaint with police on 25.05.2021. As per the

instructions of the superior police officer, couple of police officers namely Mr.

Wadate and Mr. Doiphode were sent for spot inspection. It is then alleged

that the appellants were present there as also the respondent No.2 and his

3 CRIAPL323-2021

family members. The two groups indulged in a scuffle. The appellants

allegedly hurled abuses on caste-lines and a gold ornament was snatched

from the neck of his wife. It is, therefore, alleged that the appellants

committed the aforementioned offences.

6. The learned Advocate for the appellants would take me through

the papers showing that respondent No.2 has been filing similar complaints

not only against the appellants, but even against other villagers. One such

complaint has also been found to be false one and final report to that effect

was filed by the concerned police officer. This is yet another attempt by the

informant to falsely implicate the appellants. There has been long standing

civil dispute between the two sides. However, he has been taking advantage

of his being a Scheduled Caste for giving a colour of criminality by invoking

the provisions of the Atrocities Act. The learned Advocate would, therefore,

submit that all the necessary ingredients for constituting the offences under

the Atrocities Act cannot be made out and consequently, in view of the

decision in the case of Prathviraj Chauhan Vs. Union of India and others;

(2020)4 SCC 727, the bar under Sections 18 and 18-A of the Atrocities Act

would not be applicable. Custodial interrogation of the appellants is not

necessary and they may be granted anticipatory bail, which the learned

Special Judge has illegally refused.

7. The learned A.P.P. and the learned Advocate for respondent No.2

would oppose the appeal. They would submit that at this juncture, there is

4 CRIAPL323-2021

enough material to disclose all the necessary ingredients for constituting the

offences punishable under Sections 3(1)(g) and 3(1)(s) of the Atrocities Act

and consequently, in view of the bar under Sections 18 and 18-A of that Act,

the appellants are not entitled to claim anticipatory bail. The learned Special

Judge has rightly rejected the application.

8. The learned A.P.P. and the learned Advocate for respondent No.2

would further point out that there has been a long standing civil dispute and

an order was passed by the revenue authority in his favour holding him to

entitle to protect possession. He had legitimately approached the police and

pointed out that the appellants were bent upon to obstruct his possession. It

is pursuant to his such grievance that Mr. Wadate and Mr. Doiphode were

sent to the spot and the incident has taken place during that process. At this

juncture, this much of material is sufficient to reveal complicity of the

appellants in commission of the offences under the Atrocities Act and the

appeal may be dismissed.

9. I have carefully gone through the papers.

10. It does appear that the two sides have been indulged in long

standing civil dispute touching the extent of their possession over the

disputed portion. It also appears that pursuant to a written complaint filed

by respondent No.2 that Mr. Wadate, API and Mr. Doiphode, Police Naik were

sent to the spot and the incident seems to have taken place in their presence.

5 CRIAPL323-2021

It is pertinent to note that even respondent No.2 has been provided with a

bodyguard, police constable R.D. Ambhore who was also present at the

scene. Interestingly, Police Naik Doiphode has also simultaneously lodged an

FIR on the basis of which Crime No.231/2021 is registered under Section 160

of the IPC and Section 56 of the Disaster Management Act.

11. It appears that in that FIR, it has been alleged that respondent

No.2 himself tried to inflict injuries on himself and had even refused to take a

notice under Section 149 of the Code of Criminal Procedure, which the

appellants accepted. However, simultaneously, it is important to note that

even a statement of police constable Ambhore, who is the bodyguard of

respondent No.2 has been recorded under Section 161 of the Code of

Criminal Procedure. Unlike FIR lodged by Police Naik Doiphode, Ambhore

has stated about the appellants having assaulted respondent No.2 but

conspicuously he has also stated that nobody had insulted respondent No.2

by hurling abuses on caste-lines.

12. It is in the backdrop of such state-of-affairs, it appears that it is

only pursuant to a long standing dispute that the parties had indulged in the

scuffle and prima facie there was no element of insult or annoyance being

caused on caste-lines. In view of such a long standing dispute, there is a

serious doubt as to if the offence under Section 3(1)(g) of the Atrocities Act

can be made out when both the sides are before the Civil Court, asserting

their possession over the disputed area. This is precisely what has been

6 CRIAPL323-2021

observed and concluded in the case of Hitesh Verma v. State of Uttarakhand

and another; 2021 CRI.L.J.1, holding that the offence under Section 3(1)(g)

of the Atrocities Act was not involved in that case. The observations in that

case are eloquent enough and clearly point out that when the persons are

engaged in a civil dispute over possession of an immovable property, when

they are already before the Civil Court, the offence under the Atrocities Act

cannot be invoked.

13. In view of the above state-of-affairs, when the ingredients for

constituting the offences under the Atrocities Act cannot be prima facie made

out, the bar under Sections 18 and 18-A of the Atrocities Act would not come

into picture as has been laid down in the case of Prathviraj Chauhan (supra).

14. The learned Special Judge does not seem to have indulged in

and discussed all the aforementioned facts and circumstances and

interestingly has not even invoked the bar under Sections 18 and 18-A of the

Atrocities Act in so many words, while refusing to grant anticipatory bail to

the appellants.

15. The appeal is allowed. The impugned order is quashed and set

aside. In the event of arrest of the appellants in connection with Crime

No.232 of 2021, registered with Jalna Taluka Police Station, District Jalna

for the offences punishable under Sections 323, 323, 327, 336, 504, 506 read

with Section 34 of the Indian Penal Code and Sections 3(1)(g) and 3(1)(s) of

7 CRIAPL323-2021

the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act,

1989, they shall be released on bail on their executing personal recognizance

for an amount of Rs.15,000/- (Rupees Fifteen Thousand) each and furnishing

a solvent surety each in the like amount subject to following conditions:-

(i) They shall attend the concerned Police Station on every

Saturday starting from 07.08.2021 between 10.00 a.m. and

12.00 noon and shall cooperate the Investigating Officer till

filing of the final report.

(ii) They shall not tamper the evidence or influence the witnesses.

(iii)              Bail before the Trial Court.



                                                        [MANGESH S. PATIL]
                                                            JUDGE


npj/CRIAPL323-2021