Nandkishor Haribhau Kadam And ... vs The State Of Maharashtra And ...
2021 Latest Caselaw 4098 Bom

                                           (1)
                                                                     918 Appeal 51-21

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD


                       918 CRIMINAL APPEAL NO.51 OF 2021

 1)      Nandkishor S/o Haribhau Kadam,
         Age 40 years, Occ. Agriculture,

 2)      Sunil S/o Haribhau Kadam,
         Age 42 years, Occ. Agriculture,

 3)      Kapil S/o Haribhau Kadam,
         Age 36 years, Occ. Agriculture,

 4)      Dipak S/o Haribhau Kadam,
         Age 40 years, Occ. Agriculture,

         All R/o. Futana, Taluka-Kalamnuri,
         District - Hingoli.                                       ...Appellants

                  Versus

 1)      State of Maharashtra,
         Through Police Station Officer,
         Akhada Balapur Police Station,
         Hingoli, District - Hingoli.

 2)      Shivaji Ramrao Narwade,
         Age 68 years, Occ. Agriculture
         R/o. Futana, Taluka-Kalamnuri,
         District - Hingoli.                                       ...Respondents

                                      ...
                Advocate for Appellants : Mr. Swapnil S. Rathi
               APP for Respondent No.1-State : Mr. V.S. Badakh
             Advocate for Respondent No.2 : Mr. M.B. Sandanshive
                                      ...
                                          CORAM : MANGESH S. PATIL, J.

                                           DATE      : 05 MARCH 2021

 PER COURT :

The learned Advocate for the original informant /

918 Appeal 51-21

respondent tenders across the bar affidavit-in-reply. It is taken on

record.

2. Heard. With the consent of the parties heard finally.

Admit.

3. This is an Appeal under Section 14-A of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

(hereinafter, "the Atrocities Act"), seeking anticipatory bail and being

aggrieved and dissatisfied by the rejection of their such request by the

learned Special Judge in connection with Crime No.438/2020

registered with Akhada Balapur Police Station, Hingoli, Dist. Hingoli for

the offences punishable under Section 143, 147, 149, 324, 323 and 506

of the Indian Penal Code and Section 3(1) (r) and 3(1) (s) of the

Atrocities Act.

4. Stated in brief, the allegations as can be discerned from the

FIR and the papers of the investigation are to the effect that on 28

December 2020, a quarrel had taken place, wherein, the accused

persons-appellants are stated to have abused the informant's son. With

a view not to escalate the things, no complaint was lodged immediately.

5. It is then alleged that on the next day in the morning hours

while the informant was going for answering nature's call, all the

accused persons accosted him, threatened him, hurled abuses on caste

918 Appeal 51-21

lines and assaulted him. It is then alleged that the accused persons then

assaulted his son Balaji as well. The three women from the accused

side, also assaulted Balaji with a foot-wear. When the informant tried to

rescue him, he was again assaulted by the appellant Nandu. The FIR

was lodged on 31.12.2020 and the offence was registered.

6. The learned Advocate for the appellants would submit that

mere hurling of abuses by calling the caste name is not an offence

punishable under Section 3(1) (r) or 3(1) (s) of the Atrocities Act. The

allegations about the son of the informant having been assaulted by

foot-wear are against the woman accused, who are not the appellants

herein. Except the offences under the Atrocities Act no other offences

under the Indian Penal Code, being levelled against the appellants, are

bailable ones. There are complaints and cross-complaints between the

two sides, when no serious injuries have been sustained by either the

informant or his son. The incident having taken place without any pre-

meditation, the appellants prima facie cannot be attributed with either

the knowledge or intention so far as the action of the co-accused

women, who had assaulted Balaji with foot-wear. He would therefore,

submit that the learned Special Judge has grossly erred in appreciating

all these facts and circumstances and has illegally refused to grant bail

in the event of arrest.

7. The learned APP and the learned Advocate for the

918 Appeal 51-21

respondent-informant submit that the offence is serious. In fact, one

more offence of similar kind is registered against Appellant No.1. He is

habituated in committing such crimes. Even the police were reluctant

to register the offence promptly. The informant and his family members

had to put-up a grievance with the Superintendent of Police and it is

thereafter that the offence was registered belatedly. Registration of

several other crimes against the informant by the appellants and their

associates clearly show that there is a hostile environment in the village

and the informant is at the receiving end. Granting anticipatory bail to

the appellants is certain to cause further prejudice not only to the

Investigating Officer but even to the informant. Specific allegation is

levelled against the appellants in carrying out the assault and no fault

can be found with impugned judgment and order refusing to grant

anticipatory bail.

8. I have carefully gone through the papers of the

investigation. Accepting the allegations in the FIR, there were several

incidents one after the other. The initial one had taken place on 28

about which no grievances was made. It is the second episode, which

has taken place on the next day, wherein, the allegations about assault

are made against the present appellants and the other accused.

Pertinently, the injuries sustained by the informant and his son are

simple. The offences is being levelled against the appellants under the

Indian Penal Code are bailable ones.

918 Appeal 51-21

9. So far as the offences under Section 3(1) (r) and 3(1) (s) of

the Atrocities act are concerned, though it has been asserted that the

informant and his son were abused on caste lines by calling name of the

caste, as has been rightly observed by the Special Judge, mere calling a

person by the name of his caste would not constitute an offence under

Section 3 (1) (s) of the Atrocities Act.

10. The three women accused are stated to have assaulted son

of the informant by name Balaji with a foot-wear causing him severe

insult and annoyance, which would constitute an offence under Section

3(1) (r) of the Atrocities Act. However, those women are not before this

Court in the present Appeal.

11. As far as the nexus between the actions attributable to

these three women accused and the present appellants are concerned, it

is apparent that the incident had not taken place with pre-meditation.

It is when the accused were allegedly assaulting the informant that

Balaji arrived on the spot of scene incidentally, while coming back home

from his field. It is then alleged that when Balaji arrived, he was also

assaulted and the three women accused had hit him with foot-wear by

dragging him. It is, therefore, apparent that the knowledge and

intention of the actions of these three women cannot be prima facie

attributable to the present appellants. If such is the state of affairs,

irrespective of the antecedents of the Appellant No.1, following the

918 Appeal 51-21

principles laid down in the case of Prathvi Raj Chauhan Vs. Union of

India and Others, (2020)4 SCC 727, the offences being levelled against

the appellants under the Atrocities Act are not made out. Consequently,

the the bar contained under section 18 and 18-A of the Atrocities Act

would not be applicable as laid down in the case of Prathvi Raj

Chauhan (supra).

12. The learned Special Judge has not appreciated the

allegations in the proper perspective, mainly to reveal the exact role of

the appellants and the act of the women accused in assaulting the

informant's son Balaji by a foot-wear.

13. The Appeal is allowed and the impugned judgment and

order is quashed and set aside.

14. In the event of arrest of the appellants in connection with

Crime No.438/2020 registered with Akhada Balapur Police Station,

Hingoli, Dist. Hingoli for the offences punishable under Section 143,

147, 149, 324, 323 and 506 of the Indian Penal Code and Section 3(1)

(r) and 3(1) (s) for the Atrocities Act, 1989, they shall be released on

bail on their executing personal recognizance for an amount of

Rs.20,000/- (Rupees twenty thousand) each and furnishing a solvent

surety in the like amount each, subject to following conditions.

(a) They shall attend the concerned Police Station as and

918 Appeal 51-21

when called by the Investigating Officer and shall co-operate him.

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

(c) They shall shall not repeated the crime.

( MANGESH S. PATIL, J. )

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