Bombay High Court
Punjabrao Wasudeo Kokate And Others vs State Of Mah. Thr. Pso Of Ps Khamgaon ... on 18 December, 2023
2023:BHC-NAG:17366
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.464 OF 2023
WITH
CRIMINAL APPEAL NO.475 OF 2023
CRIMINAL APPEAL NO.464 OF 2023
1. Punjabrao Wasudeo Kokate
Age about 52 years,
Occupation - Agriculture
2. Kishor Trambak Kokate
Age about 41 years,
Occupation - Agriculture
3. Haridas Vishwanath Kokate
Age about 57 years,
Occupation - Agriculture
4. Balu @ Ramesh Wasudeo Kokate
Age about 55 years,
Occupation - Agriculture
5. Madhukar Jagganath Kokate
Age about 73 years,
Occupation - Agriculture
6. Lokesh Shrikrishna Kokate
Age about 24 years,
Occupation - Agriculture
7. Gaurav Mahadeo Kokate
Age about 22 years,
Occupation - Agriculture
All R/o. Warud, Taluka Khamgaon,
District Buldhana
...APPELLANTS
J.65+65A.cri.appeals.475.23+464.23.odt 2/12
VERSUS
1. State of Maharashtra,
through PSO of PS Khamgaon (Rural),
Tq. Khamgaon, District Buldhana
2. Lalita Bhimrao Sonawane
Age about 60 years,
R/o. Warud, Gram Panchayat Warud,
Tq. Shegaon, District Buldhana
...RESPONDENTS
CRIMINAL APPEAL NO.475 OF 2023
1. Eknath Ramdas Kokate
Age about 41 years,
Occupation - Agriculture
2. Maroti Wasudeo Kokate
Age about 50 years,
Occupation - Agriculture
3. Vickky @ Rushikesh Punjabrao Kokate
Age about 28 years,
Occupation - Agriculture
All R/o. Warud, Taluka Khamgaon,
District Buldhana
...APPELLANTS
VERSUS
1. State of Maharashtra,
through PSO of PS Khamgaon (Rural),
Tq. Khamgaon, District Buldhana
2. Lalita Bhimrao Sonawane
Age about 60 years,
R/o. Warud, Gram Panchayat Warud,
Tq. Shegaon, District Buldhana
...RESPONDENTS
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_______________________________________________________
Mr. J.B. Gandhi, Advocate for the appellants.
Mr. N.R. Rode, APP for respondent No.1/State.
Mr. S.G. Joshi, Advocate (appointed) for respondent No.2.
_______________________________________________________
CORAM : URMILA JOSHI-PHALKE, J.
DATED : DECEMBER 18, 2023.
ORAL JUDGMENT :
ADMIT. Heard finally with the consent of learned Counsel for
the parties.
2. By these appeals, the appellants have challenged the order
dated 28/06/2023 passed by the Special Court in Criminal Bail
Application No. 172 of 2023 by which the Special Judge, Khamgaon has
rejected the anticipatory bail application of the present appellants.
3. The appellants are apprehending arrest at the hands of police
as crime is registered against them on the basis of report lodged by Lalita
Bhimrao Sonawane on an allegations that on 12 th June, 2023 at about
6:00 p.m. on the occasion of birthday of her son they are proceeding
towards the statue of Dr. Babasaheb Ambedkar. At the relevant time the
present applicant and other co-accused restrained them and assaulted by
means of stick, iron pipe and the sword. It is specifically alleged that the
appellant Eknath Kokate has given a blow of sword on the head of
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Mangesh Tayade. Sagar Sonaware has given a blow of iron pipe on the
head of Vickky Kokate and Eknath Kokate has assaulted her by means of
stick, due to which they have sustained the injuries.
4. Learned Counsel Mr. Gandhi for the appellants submitted that
in fact, the present appellants are assaulted by the prosecution
witnesses. Regarding the said incident, Vaishnavi Rushikesh Kokate who
is the wife of the younger brother of Eknath Kokate has lodged report
vide Crime No.209/2023. In fact, the injured Vickky Kokate and others
pelted stones and bricks towards their house and immediately she has
filed the report. He further submitted that one more crime bearing
No.211/2023 is also registered against the injured witnesses as they
were pelting the stones and bricks at the house of her and other
relatives. He submitted that as two FIR's are registered against the
injured Sagar Sonawane and Vickky Kokate with the assistance of the
present informant, these false report is lodged. He further submitted that
as far as the allegation regarding the applicability of the Scheduled Caste
and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter
referred to as 'the SC and ST Act' for short) is concerned it is only
against Yogesh Kokate and Maroti Kokate. Yogesh Kokate is already
released on bail and Maroti Kokate is the appellant in Criminal Appeal
No.475/2023. He further submitted that even taking into consideration
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the allegations as it is, merely referring the persons by their caste is not
an offence. He further submitted that though it is alleged that weapon
like sword is used by Eknath Kokate however, the injuries sustained by
the injured are not the incised wound or the wound caused by the sharp
weapons but the wounds are in the nature of contused lacerated wound
which are simple in nature. Their custodial interrogation is not required,
and therefore, they be protected by granting anticipatory bail. He further
submitted that bar under Section 18 or 18A of the SC and ST Act is not
attracted as there is a general allegation and merely reference by the
caste is not sufficient. In view of that, both the appeals deserve to be
allowed.
5. Learned Additional Public Prosecutor strongly opposed the
appeals on the ground that there is specific allegations against Yogesh
Kokate and Maroti Kokate that they have abused the informant and the
other prosecution witnesses by referring their caste, therefore, bar under
Section 18 or 18A of the SC and ST Act is attracted. Moreover, the
weapons are to be recovered from the present appellants and prays for
dismissal of the appeals.
6. Learned Counsel for the informant Mr. Joshi submitted that
in view of the bar under Section 18 of the SC and ST Act, both the
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appeals deserve to be rejected as it is not maintainable. He further
submitted that the alleged weapons are yet to be recovered, and
therefore, custodial interrogation of the present appellants are required
and prays for dismissal of the appeals.
7. After hearing the learned Counsel for the parties and on
perusal of the investigation papers, it is not in dispute that scuffle took
place between the two parties and two FIR's are registered against the
injured Sagar Sonaware and Vickky Kokate and on the basis of report
lodged by Lalita Sonawane, the present crime is registered against the
present appellants. It is also revealed from the FIR's which are placed on
record by the learned Counsel that the injured witnesses Sagar
Sonawane and Vickky Kokate as well as the present appellants have also
sustained the injuries in the alleged incident.
8. Now, question is whether the application of the present
appellants is maintainable in the light of bar under Section 18 of the SC
and ST Act. Now, it is well settled that even 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
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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 preponderance of probability of commission of
such an offence. Such an exercise 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 the Rajasthan High Court in the case of Virendra Singh Vs.
State of Rajasthan [2000 Cri.Law Journal 2899] dealt with this issue and
held 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
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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 further held
that 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. This judgment is considered by this Court also in the
case of Ratnakala Martandrao Mohite Vs. The State of Maharashtra and
anr. 2020 ALL MR (Cri) 334 and 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 18 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. By referring the judgment of Kiran s/o Madukar
Ingle Vs. State of Maharashtra and anr. 2019 ALL MR (Cri.) 2825 it is
held that it is explicitly made clear that the Court of Sessions or High
Court can entertain the application for pre-arrest bail to ascertain its
maintainability. The law does not permit to reject the application for
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anticipatory bail merely because the case has been registered under
Section 3 of the Act of 1989. But, it is incumbent on the part of the Court
to examine as to whether the applicant at all is a fit person to be treated
as accused of the crime registered under the Act of 1989. Section 18 of
the Act of 1989 does not bar judicial scrutiny of the accusation made in
the complaint. When the Court is held competent to enter into scrutiny
of the allegations to determine whether the person can be treated as
accused of commission of offence under the Act of 1989, then question
would arise as to what extent the Court would be justified to examine
material to determine the prima facie case against him.
9. In the light of the above observation, if the facts of the
present case are taken into consideration admittedly, in a scuffle both
the parties have sustained the injuries in the alleged incident. There is an
allegation vice versa against each other.
10. As per the informant in the present crime, the injured
witnesses Sagar Bhimrao Sonaware was assaulted by means of sword.
However, the injuries sustained by all the injured are in the nature of
contused lacerated wound and blunt trauma. All the injuries are simple
in nature and the injured are already discharged from the hospital.
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11. Learned Additional Public Prosecutor vehemently submitted
that the weapon of the offence are yet to be recovered, and therefore,
custodial interrogation of the present appellants is required. If the
submissions of the learned APP are taken into consideration and the fact
that the injured have sustained the injuries merely because the weapons
are yet to be recovered is not sufficient to dismiss the appeal. However,
Considering that recovery of the weapon is the material part of the
investigation, some directions can be given to the present appellants
regarding the production of the said weapons. As far as learned
Additional Public Prosecutor's submissions is concerned that one of the
appellant Maroti has abused the informant and other two injured
witnesses on their caste.
12. The recitals of the FIR shows that general allegations are
made stating that they have referred the caste of the informant and the
injured witnesses. It is well settled that mere reference of the caste by
the accused persons of the informant or other prosecution witnesses is
not sufficient to attract the provisions. There should be an intention to
humiliate such person. The intentional insult and humiliation is the basic
ingredients to attract the said provisions against the persons who have
uttered the said words which appears to be absent in the present case.
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13. In view of that both the appeals deserve to be allowed and
the appellants deserve to be released on bail by imposing certain
conditions. Accordingly, I proceed to pass the following order :
(i) Both the appeals are allowed.
(ii) In the event of arrest, the appellants namely 1)
Punjabrao Wasudeo Kokate, 2) Kishor Trambak Kokate, 3)
Haridas Vishwanath Kokate, 4) Balu @ Ramesh Wasudeo
Kokate, 5) Madhukar Jagganath Kokate, 6) Lokesh
Shrikrishna Kokate, 7) Gaurav Mahadeo Kokate in Criminal
Appeal No.464/2023 and the appellants 1) Eknath Ramdas
Kokate, 2) Maroti Wasudeo Kokate, 3) Vickky @ Rushikesh
Punjabrao Kokate in Criminal Appeal No.475/2023 in
connection with Crime No.210/2023 registered at police
station Khamgaon (Rural), District Buldhana for the offences
punishable under Sections 307, 143, 147, 148, 324, 504 and
506 read with Section 149 of the Indian Penal Code and
under Section 3(1)(r), 3(1)(s) and 3(2)(va) of the Scheduled
Caste and Scheduled Tribe (Prevention of Atrocities) Act,
1989, be released on anticipatory bail on executing P.R. Bond
in the sum of Rs.25,000/- (Rs. Twenty five thousand) each
with one solvent surety each in the like amount.
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(iii) The appellants Eknath Ramdas Kokate and Vickky
@ Rushikesh Punjabrao Kokate shall produce the sword, stick
and iron pipe before the Investigating Officer. The period of
production shall be considered as their custody in view of
Section 27 of the Indian Evidence Act, 1872.
(iv) The appellants shall attend concerned Police
Station as and when required for the investigation purpose.
(v) The appellants shall not directly or indirectly make
any inducement, threat or promise to any person acquainted
with the facts of the case and shall not tamper the
prosecution evidence.
14. Both the appeals are disposed of accordingly.
15. The fees of the appointed Counsel be quantified as per rules.
(URMILA JOSHI-PHALKE, J.)
*Divya
