Bhagwan S/O Madhao Padghan vs State Of Mah. Thr. Pso ...
2021 Latest Caselaw 14129 Bom

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

                          CRIMINAL APPEAL NO. 265 OF 2021
                                       AND
                          CRIMINAL APPEAL NO. 266 OF 2021



                          CRIMINAL APPEAL NO. 265 OF 2021

               Bhagwan s/o Madhao Padghan
               (Complainant)
               Aged about 38 years, Caste Mahar,
               R/o Sawargaon (Jire), Tq. Distt. Washim,
               Mob. - 9850183859
                                                      ... APPELLANT

                                      VERSUS

       1.     State of Maharashtra,
              through Police Station Officer,
              Washim (Rural)/ Sub-Divisional
              Police Officer, Washim, Tq. Distt.
              Washim.

       2.     Vishal s/o Natthuji Tadas (accused No.1)
              aged about : 25 years,
              Occ.- Agrl and Labour

       3.     Shivaji s/o Namdeo Tadas (accused No.2)
              aged about : 45 years,
              Occ.- Agrl and Labour

       4.     Vilas s/o Namdeo Tadas (accused No.4)
              Aged about : 43 years,
              Occ.- Agrl and Labour

              No. 2 to 4 R/o Sawargaon (Jire)
              Tq. Distt. Washim.



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                                                      ... RESPONDENTS


                          CRIMINAL APPEAL NO. 266 OF 2021

               Bhagwan s/o Madhao Padghan
               (Complainant)
               Aged about 38 years, Caste Mahar,
               R/o Sawargaon (Jire), Tq. Distt. Washim,
               Mob. - 9850183859
                                                      ... APPELLANT
                                    VERSUS

       1.     State of Maharashtra,
              through Police Station Officer,
              Washim (Rural)/ Sub-Divisional
              Police Officer, Washim, Tq. Distt.
              Washim.

       2.     Natthuji s/o Namdeo Tadas (accused No.3)
              aged about : 50 years,
              Occ.- Agrl and Labour

       3.     Vitthal s/o Laxman Tadas (accused No.5)
              aged about : 42 years,
              Occ.- Agrl and Labour

       4.     Nagesh s/o Uddhav Tadas (accused No.6)
              Aged about : 43 years,
              Occ.- Agrl and Labour

              No. 2 to 4 R/o Sawargaon (Jire)
              Tq. Distt. Washim.
                                              ... RESPONDENTS
  _____________________________________________________________
         Advocate Priyanka M. Mane h/f Advocate Raju Kadu, for the
         appellant.
         Ms. T.H. Udeshi, A.P.P. for Respondent no.1-State.
         Shri Harshvardhan Dhumale, Advocate for Respondent nos. 2
         to 4.
  ______________________________________________________________



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                               CORAM   :       VINAY JOSHI, J.
                               DATED   :       30/09/2021

  JUDGMENT            :

Heard. ADMIT.

2. By consent of learned Counsel appearing for the parties, both

appeals are taken for final hearing.

3. By these appeals the informant - Bhagwan Padghan is

challenging the even dated orders passed by Additional Sessions Judge,

Washim in Misc. Criminal Application nos. 216/2021 and 217/2021 by

which pre-arrest bail was granted. Precisely, the informant is seeking

for cancellation of pre-arrest bail, in terms of Section 439(2) of the

Code of Criminal Procedure.

4. At the instance of report dated 04.06.2021 lodged by the

informant, crime was registered vide Crime No.201 of 2021 with the

Washim Rural Police Station for the offence punishable under Sections

143, 232, 234, 336, 147, 148, 149, 294 read with 506 of the Indian

Penal Code, Sections 3(1)(r), 3(1)(s) and 3(2)(va) of the Scheduled

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

short 'the SC and ST Act'). Apprehending arrest in said Crime,

respondent nos. 2 to 4 of both appeals have approached to the Sessions

Court for grant of pre-arrest protection by two separate applications

bearing Misc. Criminal Application Nos.216/2021 and 217/2021.

Initially, the Special Court has protected the liberty of all respondents

(accused) vide even dated ad-interim orders dated 09.06.2021. After

hearing both sides, the Special Court was pleased to grant anticipatory

bail to the respondents (accused) vide even dated impugned orders

dated 19.06.2021.

5. Learned Counsel for the appellant (informant) has strongly

criticized both impugned orders. He would submit that though the

Police report specifies the role of each accused, the Special Court has

ignored the same. It is argued that there are specific allegations in the

First Information Report about humiliation and abuses in the name of

caste. It is brought to the notice that the informant has stated in the

First Information Report itself, that he belongs to scheduled caste

whilst the applicant did not. According to the appellant, the caste of the

informant was within the knowledge of the respondents (accused) at

the time of committing offence. He would submit that the Special Court

in total disregard to the factual aspect and statutory bar created under

Section 18-A of the SC and ST Act has granted pre-arrest protection,

without assigning reasons, which is wholly unjustifiable.

6. Per conta, the learned Counsel for respondents (accused)

justified the impugned order. He would submit that after considering

the entire material, the Special Court has properly exercised judicial

discretion in granting pre-arrest bail. He would submit that, the Special

Court has assigned a specific reason that the dispute was political and

on that basis, has granted bail. In short the respondents have fully

supported both impugned orders.

7. I have gone through both interim orders dated 09.06.2021 as

well as impugned final orders dated 19.06.2021 passed by the Special

Court. It is surprising to note that both interim orders are converted

into the final orders by only deleting a word "ad-interim" in both

applications. It is apparent from both final orders that the Special Court

has neither considered the reply filed by the State nor by the informant

while deciding finally. Both final orders never bears a slightest

reference about facts nor the reasons for grant of bail. What was in the

mind of the Special Court in converting the interim orders into the final

orders by making insignificant changes is unknown.

8. It reveals that in both ad-interim and final orders, the Special

Court has referred eight reported judgments with a general note. It is

not clear as to which side has relied on those cases and for what

purpose. It appears that though none of the parties have referred the

citations, however in stereotype manner some precedents were quoted

in both interim orders and again reproduced in final orders without

imparting the facts and ratio of those cases. The cryptic note below the

citations, would not convey the ratio of those cases. The practice of

mentioning some stock citations without stating its ratio and the reason

for reference shall be avoided. Basically one has to primarily consider

the facts of the case and then the settled law and its applicability to the

facts. The Judge cannot scuttle from its duty of assigning reasons by

merely quoting number of citations without elaborating about its

applicability.

9. Basically the Special Court was entertaining applications for

anticipatory bail in crime registered under the SC and ST Act. The

special statute itself has created an inbuilt bar to the applicability of the

provisions of 438 of the Criminal Procedure Code. In the circumstances,

it is totally inappropriate to deal such applications by ignoring the bar

without assigning any reasons. Section 18-A (2) of the SC and ST Act,

specifically excludes the applicability of Section 438 of the Code of

Criminal Procedure. Without assigning any reason about non

applicability of statutory bar, the Special Court has decided both

applications. In case of Prathvi Raj Chauhan vs. Union of India and

ors. (2020) 4 SCC 727, the Supreme Court has observed that only in

cases where no prima facie material exists to constitute the offence

under the SC and ST Act, then only anticipatory bail can be granted in

appropriate circumstance, by cautiously exercising the power. While

lifting statutory bar the Special Court is expected to form an opinion

that no prima facie case is made out to constitute the offence under the

SC and ST Act. In that regard, the impugned order is totally silent. The

Special Court has merely stated that the dispute appears to be political

and nothing else.

10. Be that as it may, since the impugned orders are cryptic, sans

reason, there is nothing before this Court to reappreciate in appeal. No

doubt, the Special Court has complete freedom of reaching to a

particular conclusion. However, the impugned orders are the stereotype

one which does not spell anything at all. One of the essential feature of

judicial process is to assign reasons for the conclusions, otherwise it is

no adjudication in the eyes of law.

11. Perusal of First Information Report indicates that, it bears

detail narration of alleged incident. In the circumstance, it is

reasonably expected to consider the report and to express as to

whether on said facts the respondents (accused ) are entitled for pre-

arest bail that too, on the context of statutory bar created under Section

18-A of the SC and ST Act.

12. It pains to state that without any efforts in both Misc.

Criminal Applications, the Special Court has merely by deleting the

word "ad-interim" from the interim orders, converted them into final

orders. The said modus itself demonstrates total non-application of

mind and casual approach while deciding both applications. Since,

nothing is available for this Court to consider in appeal, the matter

requires rehearing and fresh adjudication. After remand, the Special

Court is expected to consider all above aspects and to pass reasoned

order in accordance with law. The practice of converting interim orders

into the final orders without application of mind, is deprecated. While

deciding both applications afresh, the Special Court shall not get

influenced by this order in any manner and decide it on its own merits

by keeping in mind the law laid down in the field.

13. Since both orders are not sustainable in the eyes of law, they

have to be remanded for fresh hearing with a hope of passing judicial

reasoned order in accordance with law. In view of that following

order :

(a) Criminal Appeal No. 265/2021 and 266/2021 stands allowed.

(b) Impugned order dated 19.06.2021 passed in Misc.

Criminal Application Nos.216/2021 and 217/2021 by the Additional Sessions Judge, Wahim, are quashed and set aside.

(c) Misc. Criminal Application Nos. 216/2021 and 217/2021 are restored on the file of the Special Court for fresh adjudication.

(d) Ad-interim orders dated 09.06.2021 passed in both applications shall stand continue till the final disposal of both applications, on merit.

(e) Both parties shall appear before the Special Court on 08.10.2021.

14. Registry to inform the Special Court, accordingly.

JUDGE

Trupti