Kavita Mahendra Mahakal And Ors vs The State Of Maharashtra And Anr
2022 Latest Caselaw 4597 Bom

                                                                                    13-apeal-1047-2021.doc




                                     -IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            CRIMINAL APPELLATE JURISDICTION
                                             CRIMINAL APPEAL NO. 1047 OF 2021

                          1. Mrs. Kavita Mahendra Mahakal
SHRADDHA
KAMLESH                   & 2 Ors.                                        ...Appellants
TALEKAR
Digitally signed by
                               Vs.
SHRADDHA
KAMLESH TALEKAR
Date: 2022.04.29          1. The State of Maharashtra
20:25:05 +0530
                          (At the instance of Badlapur Police Station in
                          C.R.No. 178 of 2021)
                          2. Nilam Vivek Sawant                         ... Respondents

                                                        ****
                          Mr.Saurabh Butala for appellants.
                          Ms.Anamika Malhotra, APP for respondent No.1-State.
                          Mr.Dhiraj B. Bansode for respondent No.2-Original Complainant.
                          PI -Mr. S.A. Petkar Badlapur (East), Police Station present.

                                                CORAM : N. J. JAMADAR, J.
                                                DATE   : 29th APRIL, 2022
                          ORDER :

1. This appeal under section 14-A of the Scheduled Castes and

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

& ST Act, 1989') is directed against the orders dated 16 th

December 2021 in Anticipatory Bail Application Nos.1821 of 2021

and 1825 of 2021, passed by the learned Sessions Judge, Kalyan,

whereby the prayer of the appellants for pre-arrest bail in

connection with C.R.No.178 of 2021, registered with Badlapur

Police Station for the offences punishable under sections 354,

Shraddha Talekar, PS 1/12 13-apeal-1047-2021.doc

452, 253, 341, 504 and 506 read with 34 of the Indian Penal

Code, 1860 ('the Penal Code') and sections 3(1)(r), 3(1)(s), 3(1)(za)

(C) and 3(2)(va) of the SC & ST Act, 1989 came to be rejected.

2. Admit.

3. Heard fnally.

4. Shorn of superfuities, the background facts can be stated

as under :

4.1 Sau. Nilam Vivek Sawant, the frst informant-respondent

No.2, is a resident of Amit Complex Housing Society, Yadav Nagar,

Shirgaon, Badlapur (West), Dist. Thane ('Housing Society). She is

a member of scheduled caste. She resides on the frst foor.

Appellant Nos.1 and 2 reside on the ground foor. The appellant

No.3-Bhalchandra Pillai resides on the upper foor.

4.2 The appellant No.1-Mrs. Kavita Mahakal was working as a

Secretary of the Society. The appellant Nos.1 and 2 allegedly

restrained the frst informant from carrying out any sort of

work/repairs, in her fat. False complaints were made to the

Chairperson of the Society regarding the essential work carried

out by the frst informant. The appellant No.1 did not allow the

frst informant and her family members to participate in the

functions of the society as the frst informant belonged to

Shraddha Talekar, PS 2/12 13-apeal-1047-2021.doc

scheduled caste. The appellant No.3 - Bhalchandra Pillai had

allegedly thrown the cigarette butt into the house of the frst

informant resulting in fre to the curtains. The appellants

allegedly harassed the frst informant and her family members in

myriad ways.

4.3 On 14th August 2021, a meeting was arranged by the lady

members of the Housing Society regarding organizing a program

on the ensuing independence day. The appellant No.1-Kavita came

thereat and after noticing that the members of the backward

classes were in the forefront of organizing the program, threatened

that she would not allow the function to be organized. Whilst

shouting in a rage, the appellant No.1 allegedly stated that she

had not allowed the frst informant to participate in any of the

functions for the past three years and that the members of the

scheduled caste were marching ahead of the members of the

upper caste and they were required to be restrained in time, and

she was performing the said task. (?kksM;kauk ekxs Vkdwu t;fHke okyh

xk<o iq<s pkyyh ;kauk osGhp jks[kya ikfgts rs jks[k.;kps dke vkEgh djrks- ).

The appellant No.1 allegedly charged on the person of the frst

informant while hurling abuses. Two other ladies came to the

rescue of the frst informant.

Shraddha Talekar, PS                                                                          3/12
                                                                           13-apeal-1047-2021.doc




               4.4     The frst informant, thus, approached the police and lodged

report on 11th October 2021 with the aforesaid allegations. It was

further alleged that the appellant No.2-Mahendra and appellant

No.3-Bhalchandra also subjected the frst informant to mental

harassment for the reason that she was a member of the

scheduled caste.

4.5 The appellants approached the learned Special Judge by

preferring applications for pre-arrest bail. By the impugned order,

the learned Special Judge was persuaded to reject the

applications as prima-facie case for the offences punishable the

SC & ST Act, 1989 was made out and, consequently, bar under

section 18 of the SC & ST Act, 1989 came into play. Being

aggrieved, the appellants are in appeal.

5. I have heard Mr.Saurabh Butala, the learned counsel for the

appellants; Ms.Anamika Malhotra, the learned APP for the State

and Mr. Dhiraj Bansode, the learned counsel for the respondent

No.2-frst informant, at some length. With the assistance of the

learned counsels for the parties, I have perused the material on

record.

6. Mr.Butala, the learned counsel for the appellants submitted

that the learned Special Judge committed a manifest error in

Shraddha Talekar, PS 4/12 13-apeal-1047-2021.doc

recording a fnding that the offences punishable under sections

3(1)(r), 3(1)(s), 3(1)(za)(C) and 3(2)(va) of the SC & ST Act, 1989

were made out. Taking the Court through the allegations in the

frst information report, and the documents which bear upon the

veracity of those allegations, Mr. Butala would urge that, frstly,

there are no allegations whatsoever against the appellant Nos.2

and 3 so as to bring their acts, omissions or conduct within the

dragnet of any of the offences punishable under the SC & ST Act,

1989. And, secondly, the allegations against the appellant No.1,

even if construed rather generously, do not sustain a fnding that

the offences are prima-facie made out.

7. Mr.Butala further submitted that if the allegations in the

frst information report ('FIR') are considered in the light of the

attendant circumstances, especially the fact that before the FIR,

in question came to be lodged, the appellant No.1 had lodged a

complaint with Police Inspector, Badlapur Police Station on 17 th

September 2021 for the alleged mental harassment and criminal

intimidation at the hands of the frst informant and her husband,

an inference becomes inescapable that the instant prosecution is

nothing but a counterblast to the said action. Mr.Butala would

further submit, that in this context, the delay of almost two

Shraddha Talekar, PS 5/12 13-apeal-1047-2021.doc

months in lodging the FIR erodes the veracity of the frst

informant's version.

8. In contrast, Ms. Malhotra, the learned APP submitted that

the allegations in the FIR, if read as a whole, clearly make out the

offences punishable under the SC & ST Act, 1989. Copies of the

statement of the witnesses recorded under section 164 of the Code

of Criminal Procedure, 1973 ('the Code') were pressed into service

to lend support to the claim of the frst informant.

9. Mr.Bansode, the learned counsel for respondent No.2

strenuously submitted that the harassment at the hands of the

appellants was continuous one. Laying emphasis on the object of

SC & ST Act, 1989, Mr.Bansode submitted that the Court, at this

juncture, cannot delve into the veracity of the allegations and has

to confne the enquiry to ascertain as to whether the offences are

prima-facie made out. Lest the interdict contained in section 18 of

the SC & ST Act, 1989 would become illusory.

10. I have given my anxious consideration to the rival

submissions. Sections 18 and 18-A of the SC & ST Act, 1989

declare in emphatic terms that the provisions of section 438 shall

not apply in relation to any case involving the arrest of any person

on an accusation of having committed offences under the said Act,

Shraddha Talekar, PS 6/12 13-apeal-1047-2021.doc

notwithstanding any judgment, order or direction of any Court.

This edict of the legislature, however, does not operate if the

offences punishable under SC & ST Act, 1989 are not prima-facie

made out.

11. In the case of Prathvi Raj Chauhan Vs. Union of India &

Ors. 1 , a three Judge Bench of the Supreme Court, while

upholding the constitutional validity of section 18-A has reiterated

that the provisions of section 438 shall not apply to the cases

under under the SC and ST Act, 1989. However, if the complaint

does not make out a prima facie case for applicability of the

provisions of the SC & ST Act, 1989, the interdict contained in

sections 18 and 18-A will not apply.

12. Resultantly, when a Court is called upon to exercise the

jurisdiction under section 438 of the Code, in relation to an

accusation for the offences punishable under the SC & ST Act,

1989, it is obligatory to frst ascertain whether the alleged offences

under the SC & ST Act, 1989 are prima-facie made out.

Undoubtedly, at such nascent stage of the proceeding, the scope

of enquiry is limited. If upon the perusal of the allegations in the

FIR and consideration of the attendant circumstances, the Court

1 (2020) 4 SCC 727

Shraddha Talekar, PS 7/12 13-apeal-1047-2021.doc

has the reason to believe that prima-facie case is made out, the

bar under sections 18 and 18-A must be permitted to operate with

full force and vigor as it would advance the object of the

enactment of the SC & ST Act, 1989. Conversely, if no case under

the SC & ST Act, 1989 is made out, the accused cannot be

deprived of the exercise of discretion under section 438 of the

Code.

13. On the aforesaid touchstone, reverting to the facts of the

case, especially upon careful perusal of the allegations in the FIR,

it becomes abundantly clear that the FIR is singularly bereft of

any incriminating imputation against the appellant Nos. 2 and 3,

which fall within the tentacles of the provisions of SC and ST Act,

1989. Neither there are allegations that the appellant Nos. 2 and 3

abused the frst informant with regard to her caste or humiliated

her for being a member of the scheduled caste. The submission of

Mr.Butala that there are no allegations, worth their name, against

the appellant Nos.2 and 3, is well founded.

14. Mr.Bansode attempted to rope in the appellant Nos.2 and 3

by canvassing a submission that the appellant Nos. 2 and 3 had

also abetted and instigated the appellant No.1 in subjecting the

frst informant to atrocities. I am afraid to accede to this

Shraddha Talekar, PS 8/12 13-apeal-1047-2021.doc

submission as it is simply not borne out by the allegations in the

FIR. Indeed, there are allegations against the appellant Nos.2 and

3 which have their genesis in the disputes as members of the co-

operative housing society. But those general allegations have no

overtone of caste prejudices and atrocities.

15. From the perusal of the allegations in the FIR it also

becomes evident that the genesis of the dispute between the

parties is in the alleged unauthorized works/repairs and failure to

plug the leakages in the fat of the frst informant. The appellants

and the frst informant have placed documents on record to show

that there have been multiple complaints with the offce of the

housing society over the said issues. At this juncture, it is

unwarranted to delve into those aspects of the matter. However,

the fact remains that the parties have been at loggerheads over

the said issue for a considerable period.

16. In the aforesaid context, the allegations against the

appellant No.1 are required to be considered. The allegation that

the appellant No.1 obstructed and prevented the frst informant

from using the common facilities and taking part in the functions

of the housing society is of omnibus nature. The material on

record, especially the photographs, indicate that the frst

Shraddha Talekar, PS 9/12 13-apeal-1047-2021.doc

informant did indeed participate in the functions. In fact, the

incident of 14th August 2021, allegedly occurred when the frst

informant and other lady members of the housing society were

amidst a meet to organize Independence Day function.

17. At this stage, the aspect of delay assumes critical

signifcance. The alleged incident of abuses and humiliation

occurred on 14th August 2021. The report was evidently lodged on

11th October 2021. The delay is of almost two months. Another

factor which accentuates the situation is the lodging of the

complaint by the frst informant with the Police Inspector on 14 th

September 2021 making allegations of harassment and criminal

intimidation at the hands of the frst informant. The material

against the appellant No.1 is, thus, required to be appreciated in

the light of the aforesaid delay.

18. It all, in the ultimate analysis, boils down to the alleged

humiliating utterances made by the appellant No.1, falling within

the mischief of the offence punishable under section 3(1)(r) of the

SC & ST Act, 1989. Two of the witnesses, whose statements were

recorded under section 164 of the Code, have refused to subscribe

to the prosecution version as regards the insult and intimidation

with intent to humiliate the frst informant at the hands of

Shraddha Talekar, PS 10/12 13-apeal-1047-2021.doc

appellant No.1. The third witness, whose statement has been

recorded under section 164 of the Code, broadly supported the

claim of the frst informant. It is trite that all insult or

intimidation to a person do not fall within the tentacles of the

offences punishable under section 3(1)(r) of the SC & ST Act,

1989. What has to be seen is whether such insult or intimidation

was on account of the victim belonging to scheduled caste or

scheduled tribe.

19. In the case at hand, the material on record indicates that

the frst informant and the appellant No.1 had been in a feud over

the user of their respective premises. Complaints and cross-

complaints were made with regard to the works of

repairs/leakages with the Society. The alleged incident had

essentially the favor of the disputes between the members of the

co-operative housing society. From this stand point, it would be

diffcult to draw an inference that the offences punishable under

sections 3(1)(r), 3(1)(s), 3(1)(za)(C) and 3(2)(va) of the SC & ST Act,

1989 are prima-facie made out.

20. Hence, I am persuaded to hold that the bar under sections

18 and 18-A of the SC & ST Act, 1989 does not come into play.

The appellants appear to have roots in society. The possibility of

Shraddha Talekar, PS 11/12 13-apeal-1047-2021.doc

feeing away from the justice appears to be remote.

21. I am, therefore, inclined to confrm the ad-interim order

dated 23rd December 2021. Resultantly, the appeal deserves to be

allowed.

22. Hence, the following order :

ORDER

(i) The appeal stands allowed.

(ii) In the event of arrest in C.R. No.178 of 2021, registered

with Badlapur Police Station, the appellants be

released on bail, on furnishing a P.R. Bond in the sum

of Rs.20,000/- each, and one or more sureties in the

like amount.

(iii) The appellants shall report to the Investigating Offcer

as and when directed and co-operate with the

Investigating Agency.

(iv) The appellants shall not tamper with the prosecution

evidence and give threats or inducement to the

prosecution witnesses.

                                                             (N. J. JAMADAR, J.)




Shraddha Talekar, PS                                                                      12/12