Bombay High Court
Shrawan @ Sawan Manohar Shende vs State Of Mah. Thr. Pso, Allipur,Tq. ... on 1 December, 2023
2023:BHC-NAG:16758
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.670 OF 2023
Sarang Manohar Shende,
Aged about - 26 years,
Occ- Business,
R/o Kapsi, Tq- Hinganghat,
Dist- Wardha. ....... APPELLANT
...V E R S U S...
1. State of Maharashtra, Through
Police Station Officer,
Allipur, Tq- Hinganghat,
Dist- Wardha.
2. Amol Jainrao Wasekar,
Aged about- 39 years,
Occu- Labourer,
R/o Kapsi, Tq.- Hinganghat,
Dist- Wardha. ....... RESPONDENTS
CRIMINAL APPEAL NO.671 OF 2023
Shrawan @ Sawan Manohar Shende,
Aged about - 21 years,
Occ- Student,
R/o Kapsi, Tq- Hinganghat,
Dist- Wardha. ....... APPELLANT
...V E R S U S...
1. State of Maharashtra, Through
Police Station Officer,
Allipur, Tq- Hinganghat,
Dist- Wardha.
2. Amol Jainrao Wasekar,
Aged about- 39 years,
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Occu- Labourer,
R/o Kapsi, Tq.- Hinganghat,
Dist- Wardha. ....... RESPONDENTS
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Mr. Imran Deshmukh, Advocate for Appellant.
Mr. N. R. Rode, APP with Ms. S. S. Dhote, APP for
Respondent No.1/State.
Mr. A. Z. Mirza, Advocate for Respondent No.2.
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CORAM: URMILA JOSHI PHALKE, J.
DATE: 1st DECEMBER, 2023.
ORAL JUDGMENT:
Heard finally with the consent of the learned counsel
appearing for the parties.
2. Admit.
3. By these appeals the appellants in both the appeals
have challenged the order passed by the Special Judge in Criminal
Bail Application No.135/2023 and Criminal Bail Application
No.136/2023 by which anticipatory bail application of the present
appellants in connection with Crime No.411/2023 registered at
Allipur Police Station, Tahsil Hinganghat, District Wardha under
section 294, 506 read with section 34 of the Indian Penal Code
and under section 3(1)(r)(s) of the Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Act, 1989 are
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registered.
4. The appellants are apprehending arrest at the hands
of police as First Information Report is lodged against them on the
basis of report lodged by Amol Jainrao Wasekar on an allegation
that he is the resident of village Kapsi Tahsil Hinganghat, District
Wardha belongs to the 'Mahar' caste. The present appellants
Sarang Manohar Shende and Shrawan Manohar Shende, are the
sons of Manohar Shende who is the trustee of Laxminarayan
Deosthan Trust. On 28.08.2023 at about 03:00 p.m. when his wife
alone was at the home both the appellants came in-front of the
house and abused her in a filthy language. It is further alleged that
they also referred his wife by her caste and abused them on their
caste. On the basis of said report police registered the crime
against the present appellants.
5. The present appellants have preferred application for
bail in the event of the arrest before the Special Court which was
not considered and rejected. Being aggrieved with the same
present appellants have preferred application on the ground that
the learned trial court has not considered that the allegations
prima facie shows that no offence is attracted against the present
appellants there is no bar under Section 18 or 18-A of the S.C. and
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S.T. Act to entertain the anticipatory bail application merely
referring any person by the caste is not sufficient to attract the
provisions of Scheduled Caste and Scheduled Tribe (Prevention of
Atrocities) Act. The physical custody of the present appellants is
not required. The learned counsel for the appellants reiterated the
said contention and submitted that prima facie no case is made out
against the present appellants even assuming that the appellants
have referred the wife of the informant by her caste is not
sufficient to attract the provisions of the special act. The physical
custody of the appellants are not required as far as the
interrogation is concerned. The appellants are ready to abide by all
the conditions.
6. The learned APP has strongly opposed the application
on the ground that there is a specific bar under section 18 and
18-A to entertain the application and the appeal. The recitals of
the FIR shows that both the appellants have abused the wife of the
informant by referring her caste and abused her on her caste.
Considering the same the appeal deserves to be dismissed.
The learned counsel for the respondent No.2 advanced the same
contention and submitted that the order passed by the trial court
sufficiently shows that prima facie case is made out against the
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present appellants. There is a bar under section 18 and 18-A to
entertain the application. The reasoned order is passed by the trial
court. There is no merit in the appeal and appeal deserves to be
dismissed.
7. Having heard the learned counsel for the appellants,
the learned APP for the State and the learned counsel for the
informant, perused the investigation papers. From the recitals of
the FIR it reveals that the informant has received some message on
his whatsapp showing that the father of the present appellants are
involved in a corruption being a trustee of Laxminarayan
Deosthan. Therefore, dispute arose between the parties. As per the
allegation the appellant Sarang Shende has abused the wife of the
informant by referring her caste As far as the appellant Shrawan
Shende is concerned there is no allegation that either he referred
the caste of the informant or his wife or abused them.
During investigation the Investigating Officer has recorded the
statements of the witnesses. The statement of the wife of the
informant is also recorded and thereafter provisions of Special Act
are made applicable. As far as the custodial interrogation of the
present appellants is concerned, there is no allegation that they
have not used any weapon.
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8. While considering the bar under section 18 and
considering the maintainability of the application it is necessary to
refer the settled law in view of the judgment of the Rajasthan High
Court. The full bench of Rajasthan High Court in the case of
Virendra Singh v. State of Rajasthan 2000 CRI. L. J. 2899 wherein
it is held that if a person is even alleged of accusation of
committing an offence under the Act of 1989 the intention of
section 18 is clearly to debar him from seeking a remedy of
anticipatory bail and it is only in the circumstances where there is
absolutely no material to inter as to why section 3 has been
applied to implicate a person for an offence under the Act of 1989
the courts would be justified in a very limited sphere to examine
whether the application can be rejected on the ground of its
maintainability. What is intended to be emphasized is that while
dealing with an application for anticipatory bail, the courts would
be justified in merely examining as to whether there is at all an
accusation against a person for registering a case under section 3
of the Act of 1989 and once the ingredients of the offence are
available in the FIR or the complaint, the courts would not be
justified in entering into a further inquiry by summoning the case
diary or any other material as to whether the allegations are true
or false or whether there is any prepondence of probability of
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commission of such an offence. Such an exercise in our view is
intended to put to a complete bar against entertainment of
application of anticipatory bail which is unambiguously laid down
under section 18 of the Act of 1989, which is apparent from the
perusal of the section itself and thus the court at the most would
be required to evaluate the FIR itself with a view to find out if the
facts emerging therefrom taken at their face value disclose the
existence of the ingredients constituting the alleged offence.
The full bench of Rajasthan High Court further considered that it
has to be borne in mind that if a person is even alleged of
accusation of committing an offence under the S.C. S.T. Act of
1989 the intention of section 18 is clearly to debar him from
seeking the remedy of anticipatory bail and it is only in the
circumstances where there is absolutely no material to inter as to
why section 3 has been applied to implicate a person for an
offence under the Act of 1989 the courts would be justified in a
very limited sphere to examine whether the application can be
rejected on the ground of its maintainability. It is held that from
the FIR itself the ingredients of the offence as laid down under
section 3 of the Act itself is to be ascertain the bar created by
section 18 would not be allowed to operate against an accused and
only in that event his application for anticipatory bail would be
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dealt with by the concerned court to determine whether the Act of
1989 can be said to be rightly applicable against the accused any
other interpretation, would go against the letter and spirit of the
clear provision of section 18 of the Act of 1989 which has already
stood the test of reasonableness and constitutional validity upto
the level of the Apex Court.
9. The observation of the Rajasthan High Court are
considered by this Court also in the case of (i) Ratnakala
Martandrao Mohite v. The State of Maharashtra & Anr. 2020 ALL
MR (Cri) 334, (ii) Navnath s/o. Dalsing Rathod @ Aade and
others v. State of Maharashtra Through Police Inspector Karmad
Police Station, Aurangabad and another Law Finder Doc Id #
1486431, (iii) Jagdish Sajjankumar Banka v. State of Maharashtra
and another 2023 SCC OnLine Bom 581. Thus, it is clear from the
observation of the full bench of the Rajasthan High Court from
which it reveals that if the court forms an opinion that there is
such material then bar under section 18 comes into play if the
material is not sufficient to make out prima facie case of
commission of the offence punishable under the act against the
acquittal the court is expected to consider the application as
provided under section 438 of the Criminal Procedure Code.
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10. After giving additional consideration to the rival
submissions advanced on behalf of both the sides, I find it
necessary to discuss the recitals of the FIR, the recitals of the FIR
have only to the extent that the appellant Shrawan has referred
the wife of the informant by her caste. It is well settled that merely
calling a person by his caste name though may amount to insult or
abuse to him, it cannot be said to be with intent to humiliate such
person.
11. In the instant case the first informant in his first
information report refers that the appellant Shrawan has abused
his wife by her caste and insulted and humiliated her.
The informant has not stated in the FIR the mode and the manner,
in which, the appellants not intentionally insulted or intimidated
with intent to humiliate them being a member of Scheduled
Castes. The allegations about the abuses are also general in nature
no specific words are mentioned in the FIR. It is specifically
observed by the full bench of the Rajasthan High Court which
subsequently considered by this court also that while considering
the allegations the allegation in the FIR are to be taken into
consideration and not the subsequent statements. The observations
of the Rajasthan High Court shows that the application for grant of
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anticipatory bail can be entertained only on the ground of
inapplicability of provisions of the Act of 1989 due to the facts of
the case which will have to be gathered only from the FIR and not
beyond that because once it is gathered from the FIR that the
applicant is an accused of committing an offence laid down under
section 3 of the Act of 1989, the bar of section 18 would instantly
operate against the person who has been made an accused of the
offence under the Act of 1989. To put it differently, once it is
apparent from the FIR that an offence under the Act of 1989 is
even alleged, the courts would not be justified at all in weighing or
scrutinizing the preponderance of the probability of commission of
the offence by the accused, but if from the FIR itself the
ingredients of offence as laid down under section 3 of the Act itself
is found to be missing, the bar created by section 18 would not be
allowed to operate against an accused and only in that event the
application for anticipatory bail would be dealt with by the
concerned court.
12. In regard to the offences registered under the IPC
against the appellants are concerned no specific words are
mentioned in the FIR in what manner abuses were hurled.
Taking into consideration overall factual circumstances, I am of the
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opinion that despite of the bar under section 18 and 18-A of the
Act of 1989 for invocation of the powers under section 438 of the
Cr.P.C., it is still open to this court to find out by looking to the FIR
of the case itself as to whether the prima facie case is made out
against the present appellants. The recitals of the FIR are only to
the extent that the wife of the informant was referred by the caste.
The sweeping and ominous allegation are made in the FIR appears
to be based on whole perception of the first informant complainant
and it would not match with the very ingredients of section 3(1)(r)
(s). In view of that the appeals deserves to be allowed.
Accordingly, I proceed to pass following order:
[i] The impugned orders rejecting the bail
application dated 03.10.2023 are quashed and
set aside. The applications of the appellants
filed under section 438 of Cr.P.C. for pre-arrest
bail are allowed. The appellants are released on
anticipatory bail in the event of their arrest in
connection with Crime No.411/2023 registered
under section 294, 506 read with section 34 of
the Indian Penal Code, on executing of the P.R.
bond in the sum of Rs.20,000/- each with one
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solvent surety in the like amount.
[ii] The appellants shall produce iron rod which
alleged to be in the hands of the appellants at
the time of the incident. The appellants are
directed to produce the same before the
Investigating Officer the said production will be
considered as a recovery under Section 27 of
the Indian Evidence Act by treating the said
period as their custody.
[iii] The appellants have remain present as and
when required for the investigation purpose
and shall co-operate with the investigating
agency.
[iv] The appellants shall furnish their mobile
number and address along with his address
proof.
13. Both these appeals are disposed of.
JUDGE
NSN
Signed by: Mr. N.S. Nikhare
Designation: PA To Honourable Judge
Date: 05/12/2023 17:46:58
