Bombay High Court

Ramrao Kashinath Rathod vs The State Of Maharashtra And Anr on 26 April, 2022

Bench: N. J. Jamadar

                                                                    CRIAPEAL229-22-.DOC

                                                                                 Santosh
                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CRIMINAL APPELLATE JURISDICTION


                                    CRIMINAL APPEAL NO. 229 OF 2022

                      Ramrao Kashinath Rathod                             ...Appellant
                                            Versus
                      The State of Maharashtra, through P.I. CBD
                      Belapur Police Station, Navi Mumbai & anr.       ...Respondents


SANTOSH               Mr. Aniket Nikam, i/b Icham Amit Ratankumar, for the
SUBHASH
KULKARNI                    Appellant.
Digitally signed by
SANTOSH SUBHASH
KULKARNI
                      Mr. A. R. Patil, APP for the State/Respondent no.1.
Date: 2022.04.26
14:34:54 +0530        Ms. Savita Yadav, Appointed Advocate.

                                                CORAM:       N. J. JAMADAR, J.

                                                DATED :      26th APRIL, 2022
                      JUDGMENT:-

1. This appeal under Section 14A of the Scheduled Caste and

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

and ST Act") is directed against an order dated 24 th February,

2022, in Criminal Appeal No.526 of 2022, whereby the learned

Special Judge, Thane, was persuaded to reject the application of

the applicant - accused for pre-arrest bail in connection with

CR No.19 of 2002 registered with CBD Belapur Police Station,

Thane, for the offences punishable under Sections 3(1)(r) and

3(1)(s) of the SC and ST Act.

2. Admit.

3. Heard finally.

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4. The indictment against the appellant - accused is that the

appellant had known the prosecutrix, who is a member of the

scheduled caste, as the appellant had an occasion to interview

the prosecutrix for the post of Tele-Caller with the Five Bridge

Company, Belapur, Navi Mumbai. The prosecutrix was informed

that she was not selected. However, the appellant tried to

establish rapport with the prosecutrix and made advances

towards her. The prosecutrix did not cave in to the advances of

the appellant with ill motive.

5. In the month of January, 2022, the prosecutrix was

offered appointment on the post of Tele-caller in Nearby Plut

Company. The prosecutrix alleges that on 25 th January, 2022,

at about 11.30 am. while she was working as a receptionist, the

appellant came to the office accompanied by four persons. She

requested the appellant and his associates to enter their names

in the visitors book. Without paying heed to her request, the

appellant and his associates barged into the cabin of Chief

Managing Director (CMD). There was exchange of words in high

tone. After her employer, Devidas Rathod asked the appellant

and his associates to leave the CMD's cabin, they came in the

waiting area. At that time, the prosecutrix asked the appellant

to make an entry in the visitors book. The appellant humiliated

CRIAPEAL229-22-.DOC

the prosecutrix by uttering the words, "Tuzi layaki kay ahe, tu

chambhar kuthali, tula me jawal karnyacha praytna kela tar

tula maj ala". The appellant humiliated the prosecutrix with

reference to her caste, in the presence of the other office staff,

Devidas Rathod, and the persons who accompanied the

appellant. Hence, the prosecutrix lodged report.

6. Apprehending arrest, the appellant preferred an

application for pre-arrest bail. By the impugned judgment and

order, the learned Special Judge rejected the application. The

learned Special Judge was of the view that there was prima

facie material to support the allegation of commission of the

offences punishable under the SC and ST Act, and thus the bar

under Section 18 and 18-A of the SC and ST Act came into play

and, therefore, the appellant did not deserve exercise of

discretion under Section 438 of the Code of Criminal Procedure,

1973 ("the Code").

7. Being aggrieved the appellant is in appeal.

8. I have heard Mr. Nikam, the learned Counsel for the

appellant, Mr. Patil, the learned APP for the State and Ms.

Yadav, the learned Advocate appointed from the Legal Aid Panel,

to espouse the cause of the respondent no.2 - prosecutrix.

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9. Mr. Nikam would urge that the offences punishable under

Sections 3(1)(r) and 3(1)(s) of the SC and ST Act, are not prima

facie made out. The learned Special Judge, according to Mr.

Nikam, committed an error in arriving at a finding that in the

facts of the case, the offences are prima facie made out and,

therefore, the provisions of Section 438 of the Code had no

application.

10. A three-pronged submission was canvassed by Mr. Nikam.

First, the FIR does not disclose the caste of the appellant. Since

Section 3 of the SC and ST Act begins with the expression,

"Whoever, not being a member of Scheduled Caste or a Schedule

Tribe', it is incumbent on the prosecution to demonstrate that

the appellant does not belong to Scheduled Caste or Scheduled

Tribe. In the absence of such positive assertion in the First

Information Report ("FIR"), the offences punishable under

Section 3(1)(r) and 3(1)(s) cannot be said to have been prima

facie made out. To lend support to this submission, Mr. Nikam

placed reliance on an order passed by this Court in Criminal

Appeal No.75 of 2020 (Santosh Damu Bhgat & Anr. vs. The

State of Maharashtra & Anr.), dated 28th February, 2020.

11. In the case of Santosh Bhagat (supra) a learned Single

Judge observed as under:

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"5. At the outset, the first information report although indicates that the appellants had abused the first informant and her husband by saying "tumhi Thakurde majale. Tumhala aata jasta zhale aahe" yet there is no compliance of Section 3(1) of the S.C. and S.T. (Prevention of Atrocities) Act, which contemplates that the offender should not belong to a member of Scheduled Castes or a Scheduled Tribe. There is no such mention in the first information report. The learned Counsel for the appellant has drawn my attention to the order passed by this Court in Criminal Appeal No. 1752 of 2019wherein in paragraph 7 it is observed that the record of the said case does not reveal whether the appellants belong to the community which is not either a Scheduled Caste or Scheduled Tribes."

12. Relevant part of Paragraph 7 of the judgment in Criminal

Appeal No.1752 of 2019 (Mohan Pandurang Gajare vs. The State

of Maharashtra & anr.), which was relied upon by the learned

Single Judge, reads as under:

"7. ....... A perusal of record does not reveal as to whether the Appellant belong to community which cannot be termed to be Scheduled Caste or Scheduled Tribes. ........"

13. I have carefully perused the aforesaid orders. With

respect, the aforesaid pronouncements do not lay down a

correct proposition of law. Undoubtedly, a person who is a

member of Scheduled Caste and Scheduled Tribe cannot be

prosecuted for commission of atrocities on the other members of

Scheduled Caste and Scheduled Tribe. The prosecution is

enjoined to establish that the perpetrator of the alleged offence

under Section 3 of the SC and ST Act is not a member of

Scheduled Caste and Scheduled Tribe. However, this burden on

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the prosecution does not necessarily support a proposition that

the fact that the accused does not belong to Scheduled Caste

and Scheduled Tribe must be mentioned in the first information

report and failure to do so entails the consequence of drawing

an inference that no prima facie offence is made out, or for that

matter, quashing the prosecution. At multiple stages in the

course of prosecution for the offence punishbale under Section

3 of the SC and ST Act, the said question can be agitated,

addressed and determined.

14. The controversy has been resolved by the judgment of the

Supreme Court in the case of Ashabai Machindra Adhagale vs.

State of Maharashtra1. The observations in paragraphs 2, 14,

16 and 18 make the position abundantly clear. They read as

under:

"2. An interesting question of law arises in this appeal. Background facts in a nutshell are as follows:

Appellant filed First Information Report (in short the `FIR') under Section 154 of the Code of Criminal Procedure, 1973 (in short the `Code') at Newasa Police Station, District Ahmednagar, alleging commission of offence punishable under Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short the `Act'). A petition under Section 482 of Code was filed by respondent No.3 (hereinafter referred to as the 'accused'). The basic stand was that in the FIR the caste of accused was not mentioned and therefore the proceedings cannot be continued and deserved to be quashed. The High Court placing reliance on earlier decisions of the High Court allowed the petition.

...........

1     AIR 2009 SCC 1973.

                                                       CRIAPEAL229-22-.DOC

14. It needs no reiteration that the FIR is not expected to be an encyclopedia. As rightly contended by learned counsel for the appellant whether the accused belongs to scheduled caste or scheduled tribe can be gone into when the matter is being investigated. It is to be noted that under Section 23(1) of the Act, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (in short the `Rules') have been framed.

..........

16. After ascertaining the facts during the course of investigation it is open to the investigating officer to record that the accused either belongs to or does not belongs to scheduled caste or scheduled tribe. After final opinion is formed, it is open to the Court to either accept the same or take cognizance. Even if the charge sheet is filed at the time of consideration of the charge, it is open to the accused to bring to the notice of the Court that the materials do not show that the accused does not belong to scheduled caste or scheduled tribe. Even if charge is framed at the time of trial materials can be placed to show that the accused either belongs or does not belong to scheduled caste or scheduled tribe.

........

18. Above being the position, the view taken by the Bombay High Court does not appear to be the correct view while that of the Orissa High Court is the correct view. Accordingly, we allow this appeal. Needless to say during investigation or at the time of framing of charge or at the time of trial it is open to respondent No.3 to show that he either belongs to scheduled caste or scheduled tribe so that applicability of Section 3(1)(xi) of the Act is ruled out."

(emphasis supplied)

15. Mr. Nikam nextly submitted that mere reference to the

caste of the prosecutrix in the allegations attributed to the

accused is not sufficient to bring the conduct of the accused

within the dragnet of Section 3(1)(r) and 3(1)(s) of the SC and ST

Act.

16. Reliance was sought to be placed on two judgments of this

Court delivered by a learned Single Judge at Aurangabad in

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Criminal Appeal No.866 of 2018 dated 6th March, 2019 (Shyam

s/o Laxman Nawale and others vs. The State of Maharashtra

and anr.) and Criminal Appeal No.1084 of 2019 dated 5 th

December, 2019 (Vasantrao S/o Madhavrao Vhadgir and others

vs. The State of Maharashtra and anr.). The learned Single

Judge, observed that use of the words, " chambhar -

chamatyaho" during the course of altercation was not with

intent to humiliate the complainant therein with reference to her

caste in public view. If those words referring to the caste were

eschewed from consideration, at best, the allegation would fall

in the realm of 'threat' or 'intimidation' only.

17. It is imperative to note that, the question essentially turns

on the intent of the accused to insult or humiliate the victim

with reference to her caste or tribe. The use of the words, with

reference to the caste of the victim, is required to be considered

in the entire setting and context of the matter. It would be

hazardous to lay down a broad proposition of law that mere

reference to the caste or tribe of the victim, does not fall within

the dragnet of the offences punishable under Section 3(1)(r) and

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

18. In this context, a profitable reference can be made to the

judgment of the Supreme Court in the case of Swaran Singh

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and others vs. State through Standing Counsel and another 2,

wherein the Supreme Court had an occasion to consider the

general derogatory and humiliating fashion in which the word

'chamar' is used in addressing a member of the Scheduled

Caste. The observations in paragraphs 23 to 25 are material

and hence extracted below.

"23. This is the age of democracy and equality. No people or community should be today insulted or looked down upon, and nobody's feelings should be hurt. This is also the spirit of our Constitution and is part of its basic features. Hence, in our opinion, the so-called upper castes and OBCs should not use the word `Chamar' when addressing a member of the Scheduled Caste, even if that person in fact belongs to the `Chamar' caste, because use of such a word will hurt his feelings. In such a country like ours with so much diversity

- so many religions, castes, ethnic and lingual groups, etc. - all communities and groups must be treated with respect, and no one should be looked down upon as an inferior. That is the only way we can keep our country united.

24. In our opinion, calling a member of the Scheduled Caste 'Chamar' with intent to insult or humiliate him in a place within public view is certainly an offence under section 3(1)(x) of the Act. Whether there was intent to insult or humiliate by using the word `Chamar' will of course depend on the context in which it was used.

25. A perusal of the FIR clearly shows that, prima facie, an offence is made out against the appellants 2 and 3. As already stated above, at this stage we have not to see whether the allegations in the FIR are correct or not. We have only to see whether treating the FIR allegations as correct an offence is made out or not. In our opinion, treating the allegations in the FIR to be correct an offence under section 3(1)(x) of the Act is prima facie made out against appellants 2 and 3 because it prima facie seems that the intent of the appellants was to insult or humiliate the first informant, and this was done within the public view."

(emphasis supplied)

2 (2008) 8 SCC 435.

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19. Reverting to the facts of the case, it is pertinent to note

that apart from the specific allegations in the FIR lodged by the

prosecutrix, statements of three more witnesses were recorded

under Section 164 of the Code. The statement of the prosecutrix

has also been recorded under Section 164 of the Code. The

witnesses have consistently stated that the appellant humiliated

the prosecutrix by uttering words with reference to her caste. In

this view of the matter, it would be difficult, at this stage, to

draw an inference that the offences punishable under Section

3(1)(r) and 3(1)(s) of the SC and ST Act are not prima facie made

out.

20. Mr. Nikam lastly attempted to wriggle out of the situation

by asserting that the offences were not committed in public

view. This submission is simply not borne out by the material

on record. The prosecutrix was allegedly humiliated in the

presence of her colleagues and employer as well as the

associates of the appellant.

21. A useful reference can be made to the judgment of the

Supreme Court in the case of Vilas Pandurang Pawar and

another vs. State of Maharashtra and others 3, wherein the

approach to be adopted by the Courts while deciding

3 (2012) 8 SCC 795.

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applicability of the bar under Section 18 of the SC and ST Act

was delineated. Paragraphs 9 and 10 are instructive and hence

extracted below:

"9. Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail.

10. The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ ST Act, no Court shall entertain application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. Court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence."

22. In the aforesaid view of the matter, the learned Special

Judge, in my considered view, committed no error in declining

to exercise the jurisdiction under Section 438 of the Code.

23. The appeal thus fails.

24. Hence, the following order: