Bombay High Court
Dnyaneshwar S/O. Wasudeo Morkhade And ... vs State Of Mah. Pso Ps Hiwarkhed Tah. ... on 14 December, 2023
2023:BHC-NAG:17262
Judgment 1 57-Cri.Appeal 738.2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 738 OF 2023
1) Dnyaneshwar S/o Wasudeo Morkhade,
Aged about 36 years,
Occu.-Agriculturist and Tractor owner,
2) Nivrutti S/o Wasudeo Morkhade,
Aged about 30 years, Occu.- Agriculturist.
3) Wasudeo S/o Changdev Morkhade,
Aged about 59 years, Occu.- Agriculturist.
4) Rajendra S/o Mahadeo Morkhade,
Aged about 35 years, Occu.- Agriculturist.
5) Ravi @ Ravindra S/o Namdeo Morkhade,
Aged about 32 years, Occu.- Agriculturist.
6) Shyam S/o Gajanan Morkhade,
Aged about 25 years, Occu.- Education.
7) Ram S/o Gajanan Morkhade,
Aged about 25 years,
Occu.- Business &Agriculturist.
All R/o. Umra Bhise, Tah. Khamgaon,
District Buldhana. .... APPELLANTS
// VERSUS //
1) State of Maharashtra,
Police Station Officer,
Police Station Hiwarkhed,
Tah. Khamgaon, District Buldhana.
2) Dhammapal S/o Ramkrushna Hiwrale,
Aged about 40 years, Occu.-Agriculturist,
R/o. Umra Bhise, Tah. Khamgaon,
District Buldhana. .... RESPONDENTS
Judgment 2 57-Cri.Appeal 738.2023.odt
----------------------------
Mr. Anil Mardikar, Senior Advocate a/b. Mr. V.R. Deshpande,
Advocate for Appellants.
Ms. Deepa Charlewar, Additional Public Prosecutor for
Respondent No.1/State.
Mr. V.S. Wankhade, Advocate for Respondent No.2.
----------------------------
CORAM : URMILA JOSHI-PHALKE, J.
DATED : DECEMBER 14, 2023
ORAL JUDGMENT :
1. Heard. Admit. Heard finally by consent of the learned
counsel appearing for the parties.
2. The present appeal is preferred by the appellants under
Section 14(A) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (hereafter referred to as "the Act
of 1989" for short) against the order dated 30.10.2023, by which the
Anticipatory Bail Application No.336/2023 is rejected by the Special
Court, Khamgaon.
3. The present appellants have filed an application for grant
of anticipatory bail under Section 438 of the Code of Criminal
Procedure in connection with Crime No.191/2023 registered with
Hiwarkhed Police Station, District Buldhana for the offence punishable
under Sections 143, 147, 148, 452, 354, 294, 323, 352, 506 read with
Section 149 of the Indian Penal Code and Section 3(1)(w)(i),
Judgment 3 57-Cri.Appeal 738.2023.odt
3(1)(w)(ii) and 3(2)(va) of the Act of 1989. The appellants are
apprehending arrest at the hands of the police as crime is registered on
the basis of report lodged by Dhammapal Hivrale on an allegations
that on 28.9.2023 at about 08.45 am, when he had been to the terrace
of his house, he witnessed that there was a digging by JCB on the land
of Gairan's e-Class land of the village. He immediately brought this fact
to the notice of Police Patil Suresh Bhise by calling him at the said
place, as a Sarpanch when he enquired with the appellant
Dnyaneshwer Morkhade, was arrogant and abused him on his caste. It
is alleged that he has also called his brother and they both have abused
the informant on his caste and also assaulted him by fist and kick
blows and threatened him. It is further alleged that after some time,
they have called their other relatives i.e. appellant Nos.3 to 7, who also
came at his home and abused him on his caste and came on his person
therefore, he got scared, his wife pulled him inside the house but the
appellant No.1 touched the breast of his wife and also gave a kick to
his wife therefore, his wife fallen on the ground and they left by
abusing them on their caste. On the basis of said report, police have
registered the crime against the present appellants and other accused.
4. It is submitted by the learned Senior Counsel Mr. Mardikar
that bar under Section 18 is not attracted as there is nothing on record
to show that the alleged incident had occurred within the public view.
Judgment 4 57-Cri.Appeal 738.2023.odt
He further submitted that as far as the allegations are concerned,
which are general in nature and no specific role is attributed to the
present appellants. He also submitted that the appellants have
approached to this Court for quashing of the First Information Report
(FIR) wherein, the Court has directed the Investigating Agency not to
file the charge-sheet and admitted the appeal. He further submitted
that the Division Bench of this Court in the case of Ramesh S/o
Yashwant Bajirao and Ors. Vs. The State of Maharashtra and Anr. , in
Criminal Application(APL) No.1014/2019, decided on 12.10.2023 had
considered the issue and held that in order to constitute the offence
under the provisions of the Act of 1989, there must be intentional
insult or intimidation with intent to humiliate a member of a particular
community. The abuses must be within the public view. He submitted
that in view of the observation of the Division Bench of this Court and
the recitals of the FIR in the present case, admittedly, nothing is on
record to show that there were abuses on the caste with intent to
humiliate the informant therefore, bar under Section 18 or 18A of the
Act of 1989 is not attracted and the appellants are entitled to be
released on anticipatory bail in the event of their arrest.
5. Per contra, learned APP and learned Counsel for the
informant submitted that considering the allegations as it is, there are
specific avernment in the FIR. As far as appellant Nos.1 and 2 are
Judgment 5 57-Cri.Appeal 738.2023.odt
concerned, that they have insulted and humiliated the informant by
referring his caste and by abusing him on his caste. They further
submitted that from the recitals of the FIR, it is crystal clear that the
incident occurred within the public view as Police Patil and one
another villager were present when the initial incident was occurred
between the appellant Nos.1 and 2 and the informant. Thus, there is
prima facie material against the appellant Nos.1 and 2 to connect them
with the alleged offence and therefore, bar under Section 18 or 18A of
the Act of 1989 is attracted and appeal deserves to be rejected.
6. Having heard the learned Senior Counsel for the appellants
and learned APP for the State and learned Counsel for respondent
No.2 and on perusal of the FIR, it is necessary to mention whether the
bar under Section 18 or 18A is attracted or not. It is well settled law in
view of the judgment of the Full Bench of the Rajasthan High Court in
Virendra Singh Vs. State of Rajasthan , reported in 2000 Cri.L.J. 2899,
wherein the Rajasthan High Court 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 the remedy
of anticipatory bail and it is only in the circumstances where there is
absolutely no material to infer 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
Judgment 6 57-Cri.Appeal 738.2023.odt
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 preponderance of
probability of commission of such an offence. Such an exercise is
intended to put a complete bar against entertainment of an application
of anticipatory bail which is unambiguously laid down under Section
18 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 there from taken at their face
value disclosed the existence of the ingredients constituting the alleged
offence. This same ratio is laid down by this Court in the case of
Ratnakala Martandrao Mohite Vs. The State of Maharashtra and anr.
reported in 2020 ALL MR (Cri) 334, Navnath s/o Dalsing Rathod @
Aade and ors. Vs. State of Maharashtra thr. Police Inspector Karmad
Police Station, Aurangabad and anr. in Criminal Appeal No.968 of
2018 decided on 25.04.2019 and Jagdish Sajjankumar Banka Vs. State
Judgment 7 57-Cri.Appeal 738.2023.odt
of Maharashtra and anr. reported in 2023 SCC OnLine Bom 581
wherein by referring the judgment of the Full Bench of the Rajasthan
High Court, it is held that the issue of applicability of Section 18 of the
Act elaborately and held that the provisions of Section 18 as well as
newly amended Section 18A of the Act of 1989 create a bar for
exercising jurisdiction under Section 438 of the Cr.P.C. However, it
would not preclude the concerned Court from examination of
allegations made in the FIR on its face value to determine whether
prima facie case is made out or not. In the case of Vilas Pandurang
Pawar and anr. Vs. State of Maharashtra and ors. reported in 2012 ALL
MR (Cri.) 3743 (S.C.) wherein the Hon'ble Apex Court held that no
Court shall entertain application for anticipatory bail in the offence
registered under the provisions of the Act of 1989, unless it prima facie
finds that such an offence is made out. Similar principles are also laid
down by this Court. In such circumstances, it is evident that in spite of
bar under Section 18 of the Act of 1989 for invoking the powers under
Section 438 of the Cr.P.C., it is still open to this Court to find out by
looking into the FIR as to whether prima facie case is made out by the
complainant against the appellant. Thus, the application under Section
438 of the Cr.P.C. needs to be considered for ascertaining whether there
is a material to make out a prima facie case for offence punishable
under the Act of 1989.
Judgment 8 57-Cri.Appeal 738.2023.odt
7. In the light of the well settled principles, if the allegations
in the present matter are considered, admittedly, there are specific
allegations against the appellant Nos.1 and 2. The recitals of the FIR
shows that the initial incident has occurred within the public view, but
as far as second incident is concerned against the appellant Nos.3 to 7,
there is general allegations and no specific role is attributed to the
appellant Nos.3 to 7. By considering the allegations, admittedly, the
offence is made out against the appellant Nos.1 and 2, however, if the
contents of the FIR are taken into consideration, the contents of the
FIR do not constitute ingredients of the offence under the Act of 1989
against the appellant Nos.3 to 7 and therefore, there would not be any
embargo or statutory bar to entertain the application under Section
438 of the Cr.P.C. of the appellant Nos.3 to 7 are concerned.
8. Learned Senior Counsel submitted that he is seeking
permission to withdraw the appeal as far as the appellant Nos.1 and 2
are concerned. In view of that the appeal deserves to be allowed partly.
Accordingly I proceed to pass the following order :
i) The Criminal Appeal is partly allowed.
ii) In the event of arrest, the accused/appellants Nos.
(3) Wasudeo S/o Changdev Morkhade, (4) Rajendra S/o
Mahadeo Morkhade, (5) Ravi @ Ravindra S/o Namdeo
Morkhade, (6) Shyam S/o Gajanan Morkhade and
Judgment 9 57-Cri.Appeal 738.2023.odt
(7) Ram S/o Gajanan Morkhade are released on
anticipatory bail in connection with Crime No.191/2023
registered with Hiwarkhed Police Station, District
Buldhana for the offence punishable under Sections 143,
147, 148, 452, 354, 294, 323, 352, 506 read with Section
149 of the Indian Penal Code and Sections 3(1)(w)(i),
3(1)(w)(ii) and 3(2)(va) of the Act of 1989, on executing
P.R. bond in the sum of Rs.25,000/- each with one solvent
surety in the like amount.
iii) The appeal is withdrawn as far as the appellant Nos.1 and
2 are concerned therefore, it is disposed of to that extent.
iv) The appellant Nos.3 to 7 shall not directly or indirectly
induce, threat or pressurize any witnesses who are
acquainted with the facts of the present case.
v) The appellant Nos.3 to 7 shall attend the concerned Police
Station as and when required for the investigation
purpose.
The Criminal Appeal is disposed of.
(URMILA JOSHI-PHALKE, J.)
Kirtak
Signed by: Mr. B.J. Kirtak
Designation: PA To Honourable Judge
Date: 16/12/2023 16:03:53
