Bombay High Court
Sayog Sanjay Oganiya vs State Of Mah. Thr. Pso, Ps, Wardha And ... on 21 December, 2023
2023:BHC-NAG:9095
J.62.cri.appeal.627.2023.odt 1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.627 OF 2023
Sayog Sanjay Oganiya
Aged 20 years,
Occupation - Labour Work,
R/o Sant Kavaram Dharmshala
...APPELLANT
VERSUS
1. State of Maharashtra,
through Police Station Officer,
Police Station, Wardha
2. Victim, through Natural guardian in
Crime No.159/2023 in P.SO., P.S.,
Wardha
...RESPONDENTS
_______________________________________________________
Mr. A.S. Shukla, Advocate for the appellant.
Mr. A.G. Mate, APP for the State.
_______________________________________________________
CORAM : URMILA JOSHI-PHALKE, J.
DATED : DECEMBER 21, 2023.
ORAL JUDGMENT :
ADMIT. Heard finally with the consent of learned Counsel for
the parties.
2. Present appeal is preferred against the order passed by the
Special Judge and Additional Sessions Judge, Wardha in Criminal Bail
J.62.cri.appeal.627.2023.odt 2/9
Application No.327/2023 by which the anticipatory bail application of
the appellant in Crime No.159/2023, is rejected.
3. Learned Counsel for the appellant submitted that as far as the
bar under Section 18 or 18A is concerned is not attracted as the present
appellant was not aware that the victim belongs to the Scheduled Caste.
The recitals of the First Information Report nowhere shows that there is
any averment that the appellant is knowing that the victim belongs to
the Scheduled caste and the Scheduled tribe. He further submitted that
as far as the allegation to attract the Section 354 of the Indian Penal
Code is concerned and the incriminating material shown to be the
mobile phone of the present appellant which is already handed over to
the police for the investigation purpose and is forwarded for the analysis.
Regarding the rest of the allegation, the custodial interrogation of the
present appellant is not required. Learned trial Court had not considered
the said aspect and erroneously rejected the application. The impugned
order passed by the learned Special Court deserves to be set aside. In
support of his contention he placed reliance on Jairam and anr. Vs. State
of Maharashtra, through Police Inspector and anr. [2019 SCC OnLine
Bom 603] and submitted that the facts of the cited case are squarely
applicable to the present case and prays for releasing the appellant on
anticipatory bail.
J.62.cri.appeal.627.2023.odt 3/9
4. Per contra, learned Additional Public Prosecutor strongly
opposed the appeal on the ground that considering the victim belongs to
the Scheduled caste, the bar under Section 18 or 18A is attracted. The
alleged offence is committed by the present appellant with an intention
to humiliate and insult the victim. As the ingredients of the Section 3(1)
and 3(2) of the Scheduled Caste and Scheduled Tribe (Prevention of
Atrocities) Act, 1989 (hereinafter referred to as 'the Atrocities Act' for
short) are established by the investigating agency, the application for
anticipatory bail is not maintainable and liable to be dismissed.
5. After giving thoughtful considerations to the submissions
made by the learned Counsel and on perusal of the investigation papers,
the recitals of the FIR shows that the allegation against the present
appellant is that the victim is resident of village Borgaon (Meghe),
District Wardha and studying in 9th standard. The applicant/accused
resides on the backside of her house and having love affair with her
since last one month. She used to go outside along with accused No.2
i.e. the present appellant. On 27/01/2023, at about 11.00 a.m. when she
was along with her brother and the applicant and they went to Urban
Town Layout, at that time, friend of the applicant i.e. accused No.1 -
Roshan Surkar was present there. The accused No.1 - Roshan Surkar
prepared video on mobile phone of the victim showing that she and the
present appellant kissing each other while sitting on a swing. Thereafter
J.62.cri.appeal.627.2023.odt 4/9
accused No.1 told the victim that she does not know how to do the said
act and uttered the filthy language. On the next day, it revealed to her
that the video made viral on the social media as well as on the Instagram
story by the present applicant, therefore, she approached to the police
station and lodged the FIR. Considering the allegations, the
incriminating article i.e. the mobile phone which is already seized by the
Investigating agency.
6. As far as the bar under Section 18 or 18A of the Atrocities Act
is concerned, it is now well settled 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 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
J.62.cri.appeal.627.2023.odt 5/9
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.
7. Learned Counsel placed reliance on the decision of this Court
in Jairam and anr. (supra) wherein this Court has considered the various
judgments and bar under Section 18 of the act. Now, it is well settled
that in regard to Section 3(2)(v); it is necessary to show that they
committed offence under IPC, punishable with imprisonment for term of
ten years or more against person belonging from Scheduled Castes or
Scheduled Tribes category or his property. It is further held that if there
is no reference in the FIR that the appellants-accused were aware or they
had a knowledge about the caste of first informant which are the main
and basic ingredients of offence under Section 3(1) and 3(2) of the Act
of 1989 for its consideration at this initial stage pertains to pre-arrest
bail of the appellants-accused under section 438 of Cr.P.C. It is further
held that bare lodging the FIR of the incident of assault on first
J.62.cri.appeal.627.2023.odt 6/9
informant and his mother do not itself attract the provisions of the Act of
1989 and the appellant was released on bail.
8. Learned Counsel for the appellant submitted that similar is
the case in the present case. Considering the submissions made by the
learned Counsel for the appellant 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 to be taken into
consideration. The Full Bench of Rajasthan High Court has considered
this issue and held that 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 his application for anticipatory bail would
be dealt with by the concerned court. Any other interpretation would go
against the letter and spirit of the clear provision of Section 18 of the Act
of 1989. The similar view is expressed by this Court in Ratnakala
Martandrao Mohite Vs. The State of Maharashtra and anr. [2020 ALL
MR (Cri) 334] wherein it is held that scope and ambit of applicability
of Sections 18 as well as 18A of the Act of 1989 create 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 and its face value to determine whether prima facie case is made
out or not? In Vilas Pandurang Pawar and another Vs. State of
J.62.cri.appeal.627.2023.odt 7/9
Maharashtra [2012 Cri.L.J. 4520] wherein the Hon'ble Apex Court
reiterated the similar principle of law and observed that no Court shall
entertain the application for anticipatory bail in the offence registered
under the provisions of the Act of 1989, unless it prima facie find that
such offence is made out. Similar principles/rule also delineated by this
Courts of Law in the aforesaid case laws referred on behalf of appellants.
In such circumstances, it is evident that, in spite of bar under Section 18
of the Act of 1989 for invocation of powers under Section 438 of the
Cr.P.C., it is still open to this Court to find out by looking into FIR as to
whether prima facie case is made out by the complainant against
appellants. Thus, the application under Section 438 of Cr.P.C. needs to
be considered for ascertaining, whether there is material to make out
prima facie case for offence punishable under the Act of 1989.
9. In the light of the above principles, if the facts of the present
case are taken into consideration, admittedly, there is no whisper or
averment in the FIR that the present appellant was aware that the victim
belongs to the Scheduled Castes or Scheduled Tribes. In view of that bar
under Section 18 or 18A is not attracted and the appeal is maintainable.
10. Considering the material, only allegation against the present
appellant is that he made the said video viral. The incriminating article
i.e. mobile phone is already seized and forwarded to the forensic
J.62.cri.appeal.627.2023.odt 8/9
analysis. The analysis report would be received in a due time. Only for
the interrogation purpose, physical custody of the present appellant is
not required, however, considering the allegations levelled against the
present appellant, the appeal deserves to be allowed by imposing certain
conditions. Hence, I proceed to pass the following order :
(i) The appeal is allowed.
(ii) In the event of arrest, the appellant - Sayog Sanjay
Oganiya in connection with Crime No.159/2023 registered at
police station Wardha for the offences punishable under
Sections 354A, 501 of the Indian Penal Code, Section 8 and
11 of the Protection of Children from Sexual Offences Act,
2012, Section 67 and 67(A) of the Information Technology
Act, 2000 and Section 3(1)(w)(i)(ii), 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) with one surety in the like amount.
(iii) The appellant shall attend concerned Police
Station as and when required for the investigation purpose.
(iv) The appellant shall not directly or indirectly make
any inducement, threat or promise to any person acquainted
J.62.cri.appeal.627.2023.odt 9/9
with the facts of the case and shall not tamper the
prosecution evidence.
(v) The appellant shall furnish his Cell phone number
and address along with the address proof before the
Investigating Officer.
11. The appeal is disposed of accordingly.
(URMILA JOSHI-PHALKE, J.)
*Divya
