Namdev Shriram Sarwade vs The State Of Maharashtra And ...
2022 Latest Caselaw 7442 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD


             ANTICIPATORY BAIL APPLICATION NO.826 OF 2022

                      NAMDEV SHRIRAM SARWADE
                                VERSUS
              THE STATE OF MAHARASHTRA AND ANOTHER
                                  ...
             Advocate for Applicant : Mr. Pramod N. Muley
           APP for Respondent No.1/State : Ms. V. S. Choudhari
           Advocate for Respondent No.2 : Mr. Nikhil D. Jaiswal
                                  ...

                                       CORAM :        S. G. MEHARE, J.

                                       DATE       : 01-08-2022

Order :-

1. Heard the learned counsel for the applicant, the learned APP

for the State, and the learned counsel for respondent No.2/victim.

2. The applicant has a case that there were boundary disputes

in his family and the family of the victim. Therefore, false

allegations have been levelled against the applicant that he has

intentionally insulted the victim to humiliate her being a Scheduled

Caste member.

3. The learned counsel for the applicant has argued that

considering the place of the incident as alleged, it cannot be said

that it is a place in public view. The prosecution has no case that

any person had witnessed the incident; therefore, prima facie

material does not warrant his arrest. Therefore, though there is a

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bar under Section 18A of the Scheduled Castes and the Scheduled

Tribes (Prevention of Atrocities) Act, 1989 [in short, "the Act"], this

Court may exercise discretion granting anticipatory bail. He relied

on the decision of this Court, dated 25.09.2019, delivered in the

case of Salim Abdul Shaikh vs The State Of Maharashtra

[Criminal Appeal No. 1030 of 2018].

4. The learned APP and the learned counsel for the victim have

vehemently argued that the victim was 13 years old. She was not

concerned with any family dispute, but the applicant uttered words

about her caste. The incident happened in a place within public

view. The victim is a minor, and she can not be disbelieved.

Therefore, the application cannot be considered as there is a bar

under Section 18A of the Act. Besides the above, the offence is

serious; therefore, the applicant has no case for anticipatory bail.

5. In view of the allegations levelled against the applicant in

the FIR, the police has registered the FIR for the offence

punishable under Sections 354, 504 and 506 of the Indian Penal

Code with Sections 3(1)(w)(i), 3(1)(w)(ii), 3(1)(r) and 3(2)(va) of

the Act and Section 12 of the Protection of Children from Sexual Offences

Act, 2012. It has been alleged against the accused that on the day

of the incident, the victim was on the turn of the village road. The

accused went close and said he wanted to talk to her, and she

allowed him to talk. He said that he liked her. Then the victim

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replied that he should think before speaking to a girl who belongs

to SC/ST, and thereafter, he uttered the words about her caste.

6. This Court, in the case of Balu s/o. Bajirao Galande vs.

State of Maharashtra and another, 2006 (6) AIR (Bom) 251,

has observed in paragraph No. 19, as under -

"19. Considering the judicial pronouncements on the subject, the expression within public view must be construed to mean that the insult or humiliation must take place in the presence of or in the proximity of at least one independent person. The test of audibility and visibility can be taken to have been satisfied if an independent person is actually present or is at a place where the utterances are clearly audible and reaches the scene of occurrence while the incidence is still in progress."

7. The Honourable Apex Court in the case of Prathvi Raj

Chauhan vs Union of India, [WRIT PETITION [C] NO. 1015 OF 2018]

decided on 10.02.2020, (paragraph 19) has laid down the law that

"as far as the provision of Section 18A and application for

anticipatory bail is concerned, the judgment of Mishra J. where no

prima facie has stated that where no material exists warranting

the arrest in complaint, the Court has inherent power to direct the

pre-arrest bail". The power Section 438 of the Code of Criminal

Procedure is to be used sparingly, and such orders are made in

exceptional cases where no prima facie case is made out as shown

in the FIR. That the power is not so used as to convert the

jurisdiction into that under Section 438 of the Criminal Procedure

Code, but that it is used sparingly and such orders made in very

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exceptional cases where no prima facie offence is made out as

shown in the FIR.

8. The learned Apex Court, in the case of Hitesh Verma

Versus State of Uttarakhand and another, (2020) 10 SCC

710 has observed in paragraph no. 18 that the parties are

litigating over possession of the land. The allegation of hurling of

abuses is against a person who claims title over the property. If

such person happens to be a scheduled caste, the offence under

Section 3(1)(r) of the Act is not made out.

9. In the present case, the specific words have been allegedly

uttered against the victim on her caste at the turn of the village

road. However, the prosecution has no case that the said incident

took place in the presence of or in the proximity of at least one

independent witness. The applicant has a case where there was a

family and boundary dispute. The offence does not appear to be

established merely because the informant is a member of

Scheduled Caste since the families have boundary disputes. The

intention to humiliate the victim being a member of a Scheduled

caste cannot be believed at this juncture.

10. Considering the law laid down by the Honourable Apex Court

and this Court in the cases cited supra. In the absence of the

presence of or in the proximity of at least one independent

witness, this Court is of the view that the applicant is entitled to be

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protected. Hence, the following order -

i)       The application is allowed.

ii)      In the event of arrest, applicant Namdev Shriram Sarwade

be released on bail, on furnishing P.B. and S.B. of Rs.15,000/-

with one solvent surety of the like amount, in connection

with C.R.No. 122 of 2022 registered with Police Station

Majalgaon Rural, District Beed, for the offence punishable

under Sections 354, 504 and 506 of the Indian Penal Code

and Sections 3(1)(w)(i), 3(1)(w)(ii), 3(1)(r) and 3(2)(va) of

the Scheduled Castes and the Scheduled Tribes (Prevention

of Atrocities) Act, 1989 and Section 12 of the Protection of

Children from Sexual Offences Act, 2012.

( S. G. MEHARE ) JUDGE

rrd