Bombay High Court
Vijay Ramu Chavan And Another vs The State Of Maharashtra And ... on 8 January, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.560 OF 2020
1) Vijay s/o Ramu Chavan
Age: 40 Yrs. Occu. Agril.
R/o Ambu Naik Tanda, Khandavi
Tq.Georai Dist.Beed.
2) Ramu @ Rameshwar s/o Prakash
Chavan.
(Appeal stood withdrawn as against
appellant No.2, vide order dated
27th Oct. 2020)
3) Nitin s/o Uttam Chavan
Age: 22 Yrs., occ. Agril.
R/o as above. .. APPELLANTS
(Orig.Accused No.9 and 16)
VERSUS
1) The State of Maharashtra,
Through Police Station Georai
Dist. Beed.
2) The Superintendent of Police,
Beed, Tq. & Dist. Beed.
2) Santosh s/o Mohan Bhosle,
Age 32 years, Occupation Agri.,
R/o Ambu Naik Tanda, Khandavi
Tq.Georai Dist.Beed. .. RESPONDENTS
.....
Adv.for Appellants : Mr.PP Mandlik, Adv. h/for Mr. Amol
S.Gandhi, .
APP for Resp.Nos.1 & 2 : Mrs. VS Choudhari
Adv.for Respondent No.3 : Mr. ZH Farooqui.(Appointed)
...
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2 560-2020cral
CORAM : SMT.VIBHA KANKANWADI, J.
DATE :08-1-2021.
JUDGMENT :
1. Heard learned Advocate for appellants.
2. Since arguable points are raised, the appeal is
Admitted.
3. By consent, the appeal is taken up for final
disposal.
respectively.
5. The appeal is filed under Section 14 of the
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act. (hereinafter referred to as
'Atrocities Act' for the sake of brevity), to
challenge the order dated 13th October, 2020 passed
by learned Additional Sessions Judge / Special Judge,
Beed, rejecting Misc. Criminal Application No.
675/2020 filed by the appellants under Section 438 of
3 560-2020cral
Code of Criminal Procedure.
7. Heard learned Advocates and learned APP appearing
for respective parties.
8. Perusal of the First Information Report, which
has been lodged lodged by present respondent No.3
against as many as 24 persons would show that all of
them had barged in "Pardhi Vasti" with deadly
weapons, and it is stated that, without any inquiry,
they started assaulting the person they could notice.
They did not bother as to whether that person is
gents, ladies or a small child. It is further stated
that the informant was assaulted with a stick by
accused Sudam Bhau Chavan. It is also stated that
one Kajal has been severely beaten on her thigh. One
Rukminbai sustained injury to her head. It has been
contended that the informant belongs to Pardhi
community and the accused persons are of Banjara
community.
9. When the FIR shows that large number of persons
4 560-2020cral
had attacked the informant, his family members and
others, yet the FIR is silent regarding verbal
exchanges those have been made. In fact, the FIR
does not mention that any abuses/ insult was made to
the informant or either of his family member in the
name of his caste. The allegations about assault, at
this stage, would disclose the offence under Section
324 of Indian Penal Code which is bailable. If at
all it is to be connected to Section 3 (1) (r), 3 (1)
(s), 3 (2) (va) of the Atrocities Act, then it will
have to be shown by the prosecution that the said act
was done by the mob only because the informant and
his family members were of a particular caste or
tribe. The FIR does not show the said fact,
therefore prima facie offence under the Atrocities
Act was not made out. There was absolutely no bar
under Section 18 of the Atrocities Act for the
learned Special Judge to entertain the said
application under Section 438 of the Code of Criminal
Procedure. We are guided by the catena of Judgments
5 560-2020cral
of this Court as well as the Hon'ble Apex Court,
especially vide pronouncement of Prithviraj Chavan
v. Union of India, Writ Petition No.1015 of 2018,
decided by Hon'ble Apex Court on 10-02-2020, wherein
it has been observed that : -
"10. Concerning the applicability of
provisions of Section 438 Cr.P.C., it
shall not apply to the cases under Act of
1989. However, if the complaint does not
make out a prima facie case for
applicability of the provisions of the
Act of 1989, the bar created by Section
18 and 18A(i) shall not apply. We have
clarified this aspect while deciding the
review petitions."
10. As the learned Special Judge has erred and the
fact that the investigation appears to have been
almost complete, further it is stated that the
alleged weapons have been seized from the spot, the
physical custody of the appellants is not required.
The appeal therefore, deserves to be allowed.
11. Earlier, the interim protection has already been
6 560-2020cral
granted to the respective appellants. That interim
relief deserves to be made absolute. Hence, following
order.
ORDER
1) The appeal is hereby allowed.
2) The order passed by learned Additional
Sessions Judge, Beed, in Misc. Criminal
Application No.675 of 2020, dated 13-10-
2020, is hereby set aside. Said
application stands allowed.
3) The ad-interim protection, granted by
this Court earlier to appellants in Criminal
Appeal No.560 of 2020 vide orders dated 27th
October, 2020 is hereby confirmed and made
absolute.
4) In the event of arrest of the
appellants in connection with Crime No.420
of 2020, registered with Georai Police
Station Tq. Georai Dist. Beed, for the
offences punishable under Section 324, 323,
143, 147, 148, 149, 427 of Indian Penal
Code, under Section 3 (1) (r), 3(1) (s),
7 560-2020cral
3(2)(va) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities)
Act, the appellants be released on PR and SB
of Rs.15000/- each (fifteen thousand).
5) The appellants shall not indulge in any
criminal activity and nor they shall tamper
with the evidence of prosecution in any
manner.
6) The appellants shall attend the Police
Station, Georai Tq. Georai Dist. Beed, on
every Monday and Wednesday between 10.00
a.m. to 02.00 p.m., till filing of charge
sheet and shall co-operate with the
investigation.
7) The fees of appointed Advocate ZH
Farooqui, is quantified at Rs.5,000/- to be
paid to him.
(SMT. VIBHA KANKANWADI)
JUDGE
BDV
