Dr. Premshankar Vidyadhar Bhatt ... vs The State Of Maharashtra And Anr
2022 Latest Caselaw 4987 Bom

                                                                     CRIAPEAL4-22.DOC

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


                                     CRIMINAL APPEAL NO. 4 OF 2022

                      1.   Dr. Premshankar Vidyadhar Bhatt
                           Age : 45 years, Occu. Doctor,
                           R/at: Kasarvadavli, Thane, Maharashtra
                      2.   Dr. Taranum Jamil Sardar
                           Age: 30 years, Occu. Doctor
                           R/at: Mahatma Phule Chowk, Kalyan(W)        ...Appellants
                                             Versus
SANTOSH               1.   The State of Maharashtra
SUBHASH
KULKARNI              2.   Smt. Tanuja Jivak Ghadge
Digitally signed by
SANTOSH
SUBHASH
                           Age: 38 years, Occu. Doctor
KULKARNI
Date: 2022.06.06
16:47:08 +0530
                           R/at: 303, A/2, Clover Mohan Pride
                           Vayalenagar, Kalyan (West), Dist. Thane   ...Respondents

                      Mr. Mahendra Mukund Agavekar, a/w Shraddha Chavan, for
                            the Appellants.
                      Mr. Aliabbas Delhiwala, (Appointed Advocate by Legal Aid
                            Committee), for Respondent no.2.
                      Mr. S. R. Agarkar, APP for the State/Respondent no.1.

                                                  CORAM: N. J. JAMADAR, J.

RESERVED ON: 19th APRIL, 2022 PRONOUNCED ON: 6th JUNE, 2022 JUDGMENT:-

1. This appeal is directed against an order dated 23rd

December, 2021 passed by the learned Special Judge, Kalyan, in

Anticipatory Bail Application No.2124 of 2021, whereby the

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

connection with CR No.767/2021 registered with Mahatma

Phule Chowk Police Station, for the offences punishable under

CRIAPEAL4-22.DOC

Sections 392, 354, 509, 323, 504, 506 r/w 34 of the Indian

Penal Code, 1860 ("the Penal Code") and under Sections 3(1),(r),

(s), (w), (w)(i) and (w)(ii) of the Scheduled Castes and Scheduled

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

1989), came to be rejected.

2. The background facts leading to this appeal can be stated

in brief as under:

(a) The prosecutrix is a member of the Scheduled

Castes. She is a Dietitian. Her husband is an Orthopedic

consultant. They run a hospital "Kalptaru" at Desai Shopping

Centre, Bail Bazar, Kalyan (West). Desai Shopping Centre is a

three storied building comprising "A" and "B" wings. The

prosecutrix and her husband have been running Kalptaru

Hospital from the ground, first and second floor of the "B" wing

of Desai Shopping Centre since the year 2013. In April - 2022

they acquired the third floor as well. Appellant no.1 Dr.

Premshankar Bhatt runs a hospital "Sarth Hospital" on the

second floor of "A" Wing. He started a franchisee of Metropolis

Laboratory thereat. Appellant no.1 has, however, installed the

hoardings of the Metropolis Laboratory all over the said

building.

CRIAPEAL4-22.DOC

(b) On 7th August, 2021 in between 2.00 to 2.30 pm. the

prosecutrix was informed by her maintenance supervisor Mr.

Dipak Sawant that some persons went to the terrace of the said

building to install the hoardings of Metropolis Laboratory and a

dispute arose as those persons tried to install the board on the

premises in the occupation of the prosecutrix. In the

meanwhile, appellant no.1 Dr. Premshankar Bhatt and

appellant no.2 Dr. Taranum Sardar passed from in front of the

office of the prosecutrix while hurling abuses at the husband of

the prosecutrix. Appellant no.1 abused the receptionist and

demanded the key. After noticing the prosecutrix threat,

appellant no.1 abused her in a filthy language. She was

allegedly abused with reference to her caste. Appellant no.1

allegedly stated that the members of her community did not

deserve to become doctors. At the instigation of appellant no.2

Dr. Taranum, appellant no.1 allegedly made indecent gesture

towards the prosecutrix and thereby outraged her modesty and

charged upon the person of the prosecutrix.

(c) After the prosecutrix went back to her office,

appellant nos.1 and 2 forcefully barged into her cabin.

Appellant no.1 forcefully opened the drawer of her table. When

the prosecutrix resisted, appellant no.1 used criminal force with

CRIAPEAL4-22.DOC

intent to outrage her modesty. Appellant no.2 Dr. Taranum

twisted the right hand of the prosecutrix and abused her with

reference to her caste and threatened her that she would be

assaulted after disrobing her. Appellant no.1 allegedly removed

a plastic bag containing key and cash amount of Rs.50,000/-

from the drawer. After a while, appellant nos.1 and 2 again

came on the third floor and abused the prosecutrix and her

husband with reference to their caste. They allegedly

humiliated Deepak Sawant and Mr. Bhise, the security guard,

who are also the members of scheduled caste, being fully

cognizant of the said fact.

(d) The prosecutrix thus approached the police and

lodged a complaint in writing on 10 th August, 2021. Eventually,

after an inquiry, crime came to be registered on 23 rd November,

2021 vide CR No.767 of 2021, for the offences punishable under

under Sections 392, 354, 509, 323, 504, 506 r/w 34 of the

Penal Code and under Sections 3(1),(r),(s), (w), (w)(i) and (w)(ii) of

the SC & ST Act, 1989.

(e) Apprehending the arrest, the appellants preferred an

application for pre-arrest bail before the Special Judge, Kalyan.

It was contended that there have been disputes between

appellant no.1 and the husband of the prosecutrix leading to

CRIAPEAL4-22.DOC

lodging of a private complaint and number of NC complaints

and the instant prosecution was lodged with a view to wreak

vengeance.

By the impugned order, the learned Special Judge declined

to exercise the discretion under Section 438 of the Penal Code

opining inter alia that the offences punishable under SC & ST

Act were prima facie made out and thus the bar under Section

18 of the SC & ST Act became operative. Being aggrieved, the

appellants have preferred this appeal.

3. Admit.

4. Heard finally, with the consent of the learned Counsels for

the parties.

5. I have heard Mr. Agvekar, the learned Counsel for the

appellants, Mr. Agarkar, the learned APP for the State and Mr.

Delhiwala, the learned Counsel appointed to espouse the cause

of respondent no.2 - prosecutrix. With the assistance of the

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

record including the First Information Report ("FIR").

6. Mr. Agvekar submitted that the instant prosecution is an

instance of abuse of the special enactment to wreak private

vengeance. It was submitted that there is a delay of almost four

months in lodging FIR. This delay has not been properly

CRIAPEAL4-22.DOC

explained. Secondly, according to Mr. Agvekar, the allegations

in the FIR are required to be appreciated in the context of the

enmity between the appellants, and the prosecutrix and her

husband. In a situation like the one at hand, the Court cannot

be swayed solely by the motivated allegations in the FIR so as to

arraign the adversary under stringent provisions of law. Laying

emphasis on a number of complaints, which clearly establish

the inimical nature of the relationship between the parties, Mr.

Agvekar would urge that the learned Special Judge committed a

manifest error in recording a finding that the offences were

prima facie made out. Thirdly, even if the allegations in the FIR

are taken at par, the offences under Section 3(1)(r)(s) and (w)(i)

(ii) of the SC & ST Act, 1989, cannot be said to have been made

out as the prosecutrix was not abused and humiliated in a

public view and no case of outraging the modesty of the

prosecutrix is even remotely made out.

7. To lend support to these submissions, Mr. Agvekar placed

reliance on the judgments of the Supreme Court in the cases of

Union of India vs. State of Maharashtra and others, 1 Prathvi Raj

1 AIR 2019 Supreme Court 4917.

CRIAPEAL4-22.DOC

Chauhan vs. Union of India and others2 and Hitesh Verma vs.

State of Uttarakhand and another.3

8. Per contra, the learned APP stoutly supported the

impugned order. It was urged that there are grave allegations in

the FIR of not only humiliating the prosecutrix by hurling

abuses with reference to her caste but also intentionally

outraging her modesty. In the circumstances of the case,

according to the learned APP, it cannot be said that the offences

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

out.

9. Mr. Delhiwala would submit that the primary question, in

the backdrop of the allegations in the FIR, that wrenches to the

fore is of the applicability of the interdict contained in Section

18 and 18A of the SC & ST Act, 1989. If the Court comes to the

conclusion that the interdict operates, further inquiry as to the

entitlement of the appellants for pre-arrest bail is wholly

unwarranted. Mr. Delhiwala submitted that, in the case at

hand, in the light of the specific and grave allegations in the

FIR, no other view than that of the offences punishable under

SC & ST Act having been prima facie made out, is conceivable.

Laying emphasis on the object of SC & ST Act, 1989

2 (2020) 4 Supreme Court Cases 727.

3      (2020) 10 Supreme Court Cases 710.

                                                 CRIAPEAL4-22.DOC

Mr. Delhiwala submitted that the grant of pre-arrest bail to the

appellant, in the instant case, would frustrate the very object of

the special enactment.

10. At the outset, it is necessary to note that the ground of

delay in lodging the FIR appears to be not well-grounded on

facts. The prosecutrix, as indicated above, had lodged a

complaint in writing on 10th August, 2021. The record reveals

that as the investigating agency did not act with reasonable

dispatch, the prosecutrix and her husband addressed

communications to the authorities seeking action on the

complaint of the prosecutrix. Eventually, the FIR was registered

on 23rd November, 2021. The substance of the prosecution

version which finds mention in the FIR was disclosed in the

written complaint. In this view of the matter, the appellants can

not draw mileage from the fact that the FIR was registered on

23rd November, 2021.

11. On the aspect of the exercise of the jurisdiction under

Section 438 of the Code, in the context of the accusation for the

offence punishable under SC & ST Act, the legal position is

fairly well-recognized. Though Section 18 of the SC & ST Act

provides an interdict in the matter of grant of pre-arrest bail

where the person is accused of the offences punishable under

CRIAPEAL4-22.DOC

SC & ST Act, 1989, yet, where no prima facie case for the

offence punishable under the said Act, 1989 is made out, the

Courts are not denuded of the authority to grant pre-arrest bail.

In such an eventuality, it has been consistently held that, the

bar under Section 18 of the SC & ST Act, 1989 does not operate

as the very premise for its operation namely a prima facie case

for the offence punishable under SC & ST Act, 1989 is non-

existent. It would be suffice to note that in the case of Prathvi

Raj Chauhan (supra), wherein the constitutional validity of

Section 18A of the SC & ST Act, 1989 was challenged, a Three-

Judge Bench of the Supreme Court, inter alia, observed that

concerning the applicability of provisions of Section 438 of the

Code, it shall not apply to the cases under the SC & ST Act,

1989. However, if the complaint does not make out a prima

facie case for applicability of provisions of the SC & ST Act, the

bar created by Section 18 and 18A(i) shall not apply.

12. In view of the aforesaid exposition of law, when a Court is

confronted with an application for pre-arrest bail of a person,

who is arraigned for the offence under SC & ST Act, the primary

duty of the Court is to ascertain whether a prima facie case for

those offences is made out. Once such a prima facie view is

recorded, interdict contained in Section 18 and 18(A) of the SC

CRIAPEAL4-22.DOC

& ST Act must be allowed to have full play. Lest, the legislative

intendment would be defeated.

13. This leads to a further question as to the nature of the

inquiry to ascertain the existence of a prima facie case. In the

case of Vilas Pandurang Pawar vs. State of Maharashtra4 the

Supreme Court delineated the approach to be adopted in an

application for pre-arrest bail where the accusation is of the

commission of the offence under SC & ST Act as under:

"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."

(emphasis supplied)

4(2012) 8 SCC 795.

CRIAPEAL4-22.DOC

14. A profitable reference can also be made to the

observations of Hon'ble Mr. Justice S. Ravindra Bhat, in the

concurring opinion, in the case of Prathvi Raj Chauhan (supra),

which read as under:

"33. I would only add a caveat with the observation and emphasize that while considering any application seeking pre-arrest bail, the High Court has to balance the two interests: i.e. 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 exceptional cases where no prima facie offence is made out as shown in the FIR, and further also that if such orders are not made in those classes of cases, the result would inevitably be a miscarriage of justice or abuse of process of law. I consider such stringent terms, otherwise contrary to the philosophy of bail, absolutely essential, because a liberal use of the power to grant pre- arrest bail would defeat the intention of Parliament."

(emphasis supplied)

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

case, I am afraid to accede to the submissions on behalf of the

appellants that no prima facie case for the offences punishable

under SC & ST Act, 1989 is made out. The allegations in the

FIR, (a gist of which is referred to in the narration of facts above)

would indicate that the prosecutrix made specific and concrete

allegations of intentional insult and intimidation with a view to

humiliate her for being a member of the Scheduled Caste. The

allegations are not bald and omnibus. The prosecutrix has

adverted to the specific utterance, gestures and acts on the part

of both appellant no.1 and appellant no.2. There are allegations

CRIAPEAL4-22.DOC

to the effect that appellant no.1 outraged her modesty by

making indecent gestures, coupled with abusive words, and

used criminal force with a view to outrage her modesty. The

allegations in the FIR further indicate that the incident in

question was not one of a fleeting moment. The prosecutrix was

allegedly pursued to her office and intentionally insulted and

intimidated in the presence of persons, who were not the staff

members and relatives.

16. Mr. Agvekar made an endeavour to demonstrate that the

prosecutrix was not abused and/or humiliated in public view.

Thus, the offence punishable under Section 3(1)(r) of the SC &

ST Act, 1989 according to Mr. Agvekar, is not prima facie made

out. Reliance was placed on the following observations of the

Supreme Court in the case of Hitesh Verma (supra):

"12. The basic ingredients of the offence under Section 3(1)

(r) of the Act can be classified as "1) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe and 2) in any place within public view".

13. The offence under Section 3(1)(r) of the Act would indicate the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe. All insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. The object of the Act is to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes as they are denied number of civil rights. Thus, an offence under the Act would be made out when a member of the vulnerable section of the Society is subjected to indignities, humiliations and harassment. The assertion of title over the land by either of the parties is not

CRIAPEAL4-22.DOC

due to either the indignities, humiliations or harassment. Every citizen has a right to avail their remedies in accordance with law. Therefore, if the appellant or his family members have invoked jurisdiction of the civil court, or that respondent No.2 has invoked the jurisdiction of the civil court, then the parties are availing their remedies in accordance with the procedure established by law. Such action is not for the reason that respondent No.2 is member of Scheduled Caste.

14. Another key ingredient of the provision is insult or intimidation in "any place within public view". What is to be regarded as "place in public view" had come up for consideration before this Court in the judgment reported as Swaran Singh & Ors. v. State through Standing Counsel & Ors.5. The Court had drawn distinction between the expression "public place" and "in any place within public view". It was held that if an offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen 5 (2008) 8 SCC 435 by someone from the road or lane outside the boundary wall, then the lawn would certainly be a place within the public view. On the contrary, if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then it would not be an offence since it is not in the public view. The Court held as under:

"28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by Appellants 2 and 3 (by calling him a "chamar") when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression "place within public view" with the expression "public place". A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha

CRIAPEAL4-22.DOC

or an instrumentality of the State, and not by private persons or private bodies."

17. There can be no qualm over the aforesaid proposition of

law, which spells out the ingredients of the offence punishable

under Section 3(1)(r) of the SC & ST Act, 1989. However, in the

facts of the case, all the elements which constitute the offence

punishable under Section 3(1)(r) appears to have been, prima

facie, made out. The allegations in the FIR prima facie reveal

that the prosecutrix was intentionally insulted and intimidated

with a view to humiliate her for being a member of Scheduled

Caste. The incident occurred near the lift of "A" Wing of Desai

Shopping Centre. It would be difficult to draw an inference at

this stage that the incident did not occur in public view.

18. It is true that appellant no.1 and the husband of the

prosecutrix appear to be at the loggerheads. Appellant no.1

claimed to have lodged a private complaint against the husband

of the prosecutrix and few non-cognizable reports in the year

2016. It is trite, enmity is a double edged tool. On the one

hand, it furnishes a ground for false implication. On the other

hand, it also constitutes a motive for the crime. In the facts of

the case at hand, the inimical nature of the relationship cannot

be extolled to such a pedestal as to throw the prosecution case

overboard despite there being specific allegations which make

CRIAPEAL4-22.DOC

out the offences punishable under SC & ST Act, 1989. Moreover,

the fact that the appellant no.2 lodged a report against the

prosecutrix and her associates, in respect of the same

occurrence on 25th November, 2021, apparently post registration

of the instant FIR against the appellants, underscores the fact

that, at best, there are two versions of one and same

occurrence. Which one of them is correct is essentially a matter

for investigation and trial.

19. For the foregoing reasons, I am persuaded to hold that the

interdict contained in Section 18 and 18A of the SC & ST Act,

1989 applies with full force and vigour in the facts of the instant

case. The learned Special Judge, in the circumstances of the

case, thus cannot be said to have committed any error in

declining to entertain the prayer for pre-arrest bail. No

interference is thus warranted in the impugned order.

Resultantly, the appeal deserves to be dismissed.

20. Hence, the following order:

:ORDER:

The Appeal stands dismissed.

[N. J. JAMADAR, J.]