Bombay High Court
Vaibhav Santosh Shinde vs State Of Mah., Thr. Pso Ps Janefal ... on 15 September, 2021
Bench: V. G. Joshi
Judgment 1 31apeal533.19+2.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 533/2019
with
CRIMINAL APPEAL NO. 537/2019
with
CRIMINAL APPEAL NO. 541/2019
****
CRIMINAL APPEAL NO. 533/2019
1. Dattatray Vithoba Gaikwad (Named in FIR
as Datta Vithoba Gaikwad, aged 32 years,
Occ. Agriculturist, R/o. Hiwra Khurd,
Tal. Mehkar, Dist. Buldhana.
2. Omprakash Nivrutti Gaikwad (Named in FIR
as Umesh Nivrutti Gaikwad, Aged 20 years,
Occ. Student, R/o. Hiwra Khurd,
Tal. Mehkar, Dist. Buldhana.
3. Shivshankar Nivruti Gaikwad (Named in FIR
as Shankar Nivrutti Gaikwad), aged 23 years,
Occ. Agriculturist, R/o. Hiwra Khurd,
Tal. Mehkar, Dist. Buldhana.
.... APPELLANTS
// VERSUS //
1. State of Maharashtra,
through Police Station Officer,
Police Station, Janefal, Tal, Mehakar,
Dist. Buldhana.
2. Ravi S/o Vilas Jadhav,
Aged Major, R/o. Hiwra (Khurd),
Tal. Mehkar, Dist. Buldhana.
.... RESPONDENTS
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with
CRIMINAL APPEAL NO. 537/2019
1. Vikas Arjun Wakle (Named in FIR
as Vilas Arjun Wakle), Aged 28 years,
Occ. Agriculturist/Driver, R/o. Hiwra Khurd,
Tal. Mehkar, Dist. Buldhana.
2. Gopal Murlidhar Shinde,
aged 28 years, Occ. Agriculturist,
R/o. Hiwra Khurd,
Tal. Mehkar, Dist. Buldhana.
3. Uddhav Tukaram Gaikwad,
aged 43 years, Occ. Agriculturist,
R/o. Hiwra Khurd,
Tal. Mehkar, Dist. Buldhana.
4. Vishnu Nivrutti Gaikwad,
aged 26 years, Occ. Agriculturist,
R/o. Hiwra Khurd,
Tal. Mehkar, Dist. Buldhana.
5. Umesh Uddhav Gaikwad,
Aged 21 years, Occ. Student,
R/o. Hiwra Khurd,
Tal. Mehkar, Dist. Buldhana.
6. Vishnu Rajendra Khadke,
aged 23 years, Occ. Agriculturist,
R/o. Hiwra Khurd,
Tal. Mehkar, Dist. Buldhana.
.... APPELLANTS
// VERSUS //
1. State of Maharashtra,
through Police Station Officer,
Police Station, Janefal, Tal, Mehakar,
Dist. Buldhana.
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2. Ravi S/o Vilas Jadhav,
Aged Major, R/o. Hiwra (Khurd),
Tal. Mehkar, Janefal, Dist. Buldhana.
.... RESPONDENTS
with
CRIMINAL APPEAL NO. 541/2019
1. Vaibha Santosh Shinde,
aged 21 years, Occ. Agriculturist,
R/o. Hiwra Khurd,
Tal. Mehkar, Dist. Buldhana.
2. Devanand Arun Shinde,
Aged 30 years, Occ. Agriculturist,
R/o. Hiwra Khurd,
Tal. Mehkar, Dist. Buldhana.
3. Eknath Devidas Gaikwad,
aged 40 years, Occ. Agriculturist,
R/o. Hiwra Khurd,
Tal. Mehkar, Dist. Buldhana.
4. Arjun Trymbak Wakle,
aged 68 year, Occ. Agriculturist,
R/o. Hiwra Khurd,
Tal. Mehkar, Dist. Buldhana.
5. Dynaneshwar Parmeshwar Pathade,
aged 20 years, Occ. Education,
R/o. Hiwra Khurd,
Tal. Mehkar, Dist. Buldhana.
.... APPELLANTS
// VERSUS //
1. State of Maharashtra,
through Police Station Officer,
Police Station, Janefal, Tal, Mehakar,
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Dist. Buldhana.
2. Ravi S/o Vilas Jadhav,
Aged Major, R/o. Hiwra (Khurd),
Tal. Mehkar, Janefal, Dist. Buldhana.
.... RESPONDENTS
___________________________________________________________________
Shri Amit D. Bhate, Advocate for appellants.
Shri S. A. Ashirgade, Additional Public Prosecutor for respondent No.1/State.
___________________________________________________________________
CORAM : VINAY JOSHI, J.
DATED : 15.09.2021
JUDGMENT
Heard.
2. Admit. By consent of the learned counsel present for the
parties, appeals are taken up for final disposal.
3. All these appeals are arising out of rejection of pre-arrest
bail in connection with Crime No. 120/2019 registered with the Police
Station Janefal, Taluka Mehakar, District Buldhana for the offence
punishable under Sections 324, 294, 504, 506, 143, 144, 146, 147,
148, 149 of the Indian Penal Code and Sections 3(1)(r), 3(1)(s), 3(1)
(u), 3(2)(va) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 ("SC and ST Act') and Section 135
Judgment 5 31apeal533.19+2.odt
of the Bombay Police Act. At the instance of report dated 06.06.2019
lodged by the informant Ravi Jadhav, crime was registered. It is
prosecution case that on 05.06.2019 around 03.00 p.m., while the
informant was proceeding on public road, applicant Vikas accosted and
slapped at his face. The informant stated that on the same day in the
late evening around 09.00 p.m. while he was at his house, his maternal
uncle and aunt informed that Vikas Wakale, Ram Wakle, Udhav
Gaikwad and Laxmibai Kharat came to their house, abused in filthy
language as well as abused in the name of caste. So also, they beat
them by means of fist blows and kicks. The informant stated that
within short time, all applicants with some others came to his house
and started to beat. Particularly, applicant Vikas dealt a blow by iron
rod at his head whilst applicant Gopal dealt axe blow. At that time,
applicant Vishnu Gaikwad also dealt stick blow to Laxmi. The
informant stated that since he belongs to backward community, the
applicants assaulted him and therefore, the report.
4. The State resisted bail by filing separate reply-affidavits. It
is contended that prim facie ingredients to constitute offence
punishable under the provisions of SC and ST Act are made out. There
are specific allegations of assault against most of the applicants.
Judgment 6 31apeal533.19+2.odt
Considering the seriousness of the offence, application is prayed to be
rejected.
5. Having regard to the prima facie submission, this Court
has grated interim protection to all applicants vide order dated
01.08.2019, meaning thereby for last two years interim protection is
prevailing. Due to mandate of Section 15-A(3) of the SC and ST Act,
every endevour was made to serve notice of this appeal to the
informant, however he avoided the service. Noting said fact, specific
directions were given to re-serve the notice by substitute mode which
was complied. Despite service, informant remained absent.
6. Reading of First Information Report (FIR) postulates that
there are three instances. As regards to first instance took place
around 03.00 p.m. in the afternoon, the allegation was only against
applicant Vikas of slapping. The second instance is about hearsay
information of abuses in the name of caste. According to the
informant, his maternal uncle and aunt informed that assailants came
to their house, abused in the name of caste and beat them. The
prosecution is unable to point out statement of any person who has
witnessed the incident. The allegation about abusing in the name of
caste are of general nature levelled against several persons. Learned
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counsel for the applicants by placing reliance on the decision of this
Court in case of Vijaymala and ors. Vs. The State of Maharashtra and
ors. 2020 ALL MR (Cri) 1835, would submit that if the allegation of
giving abuse in chorus are made then prima facie, it makes out a case
of giving benefit. Moreover, it is argued that the essential ingredients
to constitute the offence under the provisions of SC and ST Act are
missing. According to the applicants, there is no material to infer that
alleged occurrence took place within the "public view". In this regard
reliance has been placed on the decision of Delhi High Court in case of
Mukesh Kumar Saini and ors. Vs. State (Delhi Administration), (2002)
ALL MR (Cri) (JS) 41. In the said case, it has been observed that
merely calling a person by caste would not attract the provisions of the
SC and ST Act. There must be specific accusation alleged against the
each of the accused. In case at hand, omnibus statement that too on
hearsay information was made about the general utterance in the name
of caste. Moreover, there is no material to indicate that the occurrence
of humiliation or abuses took place in presence of independent witness
and was within the "public view".
7. Prima facie there is no material to indicate that the
assailants were knowing that informant and his party were members of
Judgment 8 31apeal533.19+2.odt
the Scheduled Castes or of Scheduled Tribes. In absence of essential
ingredients, the bar under Section 18-A of the SC and ST Act would not
attract. As regards to the third instance is concerned, it is alleged that
several persons came to the house of informant and beat by fist blows,
iron rod and axe. Perused the injury report and related documents.
Learned counsel for the applicants would submit that the informant
himself has appeared in the Trial Court and filed a pursis stating that
out of anger, he has lodged report. Moreover, it can be seen from the
impugned order that informant had appeared in the Trial Court and
gave no objection for grant of bail. Besides that, it is brought to the
notice that at the time of occurrence, informant party has assaulted the
applicants for which offence punishable under Section 307 of the
Indian Penal Code etc. was registered on the very day. Apparently,
counter cases are registered against both sides. The prosecution is
unable to make out a case about necessity to have custodial
interrogation. There is no complaint that during last two years, the
applicants have misused the liberty.
8. Having regard to all above facts a case for grant of pre-
arrest protection has been made out. In view of that, following order:-
Judgment 9 31apeal533.19+2.odt
(I) All appeals stand allowed and disposed of. Common
impugned orders dated 11.07.2019 passed by the Additional Sessions
Judge, Mehkar in Anticipatory Bail Application (Misc.) Nos. 109/2019,
110/2019 and 108/2019 respectively is hereby quashed and set aside.
(II) Common ad-interim order dated 01.08.2019 passed by
this Court is hereby made absolute upon same terms and conditions.
JUDGE
Gohane .
