Ashok Ramnath Nage vs The State Of Maharashtra And ...
2023 Latest Caselaw 2598 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                     CRIMINAL APPEAL NO.53 OF 2023



 Ashok Ramnath Nage,
 Age-43 years, Occu:Business/Agri.,
 R/o-Bokud Jalgaon, Tq-Paithan,
 Dist-Aurangabad
                                                      ...APPELLANT

        VERSUS

 1) The State of Maharashtra,
    At the instance of Bidkin,
    Police Station, Dist-Aurangabad,

 2) Bhausaheb S/o Baburao Lokhande,
    Age-42 years, Occu:Agri/Business,
    R/o-Bokud Jalgaon, Tq-Paithan,
    Dist-Aurangabad.
                                                      ...RESPONDENTS

                 ...
    Mr. N.N. Desale Advocate h/f. Mr. A.K. Bhosle Advocate
    for Appellant.
    Mr. A.V. Deshmukh, A.P.P. for Respondent No.1.
    Mr. S.G. Kawade Advocate for Respondent No.2.
                 ...

                CORAM: SMT. VIBHA KANKANWADI AND
                       Y.G. KHOBRAGADE, JJ.

 DATE OF RESERVING JUDGMENT                   :   8 th MARCH 2023

 DATE OF PRONOUNCING JUDGMENT :                   17th MARCH 2023





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 JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :



 1.       Admit.

2. Present Appeal has been filed under Section 14-A(2) of the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act (for short "the Atrocities Act") to challenge the rejection of

the anticipatory bail application under Section 438 of the Code of

Criminal Procedure filed by the present appellant before the

learned Special Judge under the Atrocities Act, Aurangabad on

10th January 2023 in bail application No.18 of 2023. Present

appellant has been posed as accused No.5 in Crime No.1 of 2023

registered with Bidkin Police Station, Taluka-Paithan, District-

Aurangabad (Rural), for the offence punishable under Sections

307, 324, 323, 143, 147, 148, 149, 504, 506 of the Indian Penal

Code and under Sections 3(1)(r), 3(1)(s), 3(2), 3(2)(va) of the

Atrocities Act and under Sections 4 and 25 of the Arms Act.

3. Heard learned Advocate Mr. Desale holding for learned

Advocate Mr. Bhosle for appellant, learned APP Mr. Deshmukh for

respondent No.1 and learned Advocate Mr. Kawade for

respondent No.2. Perused the affidavit in reply filed by

respondent No.2 with the documents annexed thereto, further

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affidavit of the appellant dated 2nd March 2023 and the other

documents which are the copies of some posts on social media.

4. It has been submitted on behalf of the appellant that

perusal of the First Information Report (for short "FIR") would

show that informant's brother had contested Gram Panchayat

election from the panel of one Bhausaheb Subhas Tarmale.

Bhausaheb's mother and wife of present appellant were

contesting for the post of Sarpanch. Bhausaheb's mother was

declared as elected. Informant then states that he had asked the

present appellant to clear the outstanding bill of his hotel for the

expenses which occurred during election. At that time the

appellant had abused him in the name of caste by saying that:-

" या चांभारडाचाची झोपडाची फुकून टाकील ". The elections had taken place on

18th December 2022. There was no FIR lodged by respondent

No.2 - informant regarding the alleged abuses / insult in the

name of the caste nor he give the details as to where he had

demanded the said amount and where those abuses were given,

who were the persons present at the said spot etc.

5. It has been further submitted that in the FIR thereafter the

details of the incident dated 31st December 2022 have been

stated which is stated to have occurred at 10.45 p.m. However,

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while describing it, the informant has not stated that the present

appellant was present at the spot, but then he says that when he

went back to the home and asked his son Vikas what had

happened, then Vikas told that around 10.30 p.m. co-accused

Aniket Nage came to hotel and told him that he has been called

by Pandurang Nage. When Vikas came out of the hotel, he found

accused Aniket Nage, Raju Bankar, Akash Nage, Dinesh Rathod,

Ashok Nage (appellant), Sunil Kharat, Pandurang Nage and all of

them had assaulted him by giving abuses by kicks and fist blows.

Vikas was rescued by his friend, but still the persons who had

gathered, gave threat to kill and abused him in the name of

caste. This shows that informant was not present at the time of

alleged incident showing the appellant as party to the abuses.

Therefore, it was wrong on the part of learned Judge to reject

the application by saying that it is barred by Section 18 and 18-A

of the Atrocities Act. That order deserves to be set aside.

6. Per contra, the learned APP as well as learned Advocate

appearing for respondent No.2 strongly opposed the Appeal and

supported the reasons given by the Special Judge under the

Atrocities Act. In the affidavit in reply, respondent No.2 has

given further details as to under which circumstance he filed the

FIR. He has filed the photographs of Bhausaheb Tarmale who

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was assaulted with knife and it was with an intention to kill him.

Said Bhausaheb Tarmale is the District President of Nationalist

Congress Party and he was hospitalized from 31st December

2022 to 14th January 2023 in Intensive Care Unit and thereafter

from 15th January 2023 to 20th January 2023 in General Ward.

Bhausaheb is still undergoing treatment, which shows that the

injuries to said Bhausaheb Tarmale were life threatening. Not

only this, but even today the threats are given on social media in

the form of Facebook and therefore, this Court had asked the

appellant to file affidavit stating that he has no connection with

the people whose social media photographs have been produced.

Accordingly the said affidavit has been produced, still after that

affidavit also threats have been given and therefore non-

cognizable offence under Section 506 of the Indian Penal Code

has been registered on 19 th February 2023 with same police

station by Bhausaheb Tarmale against one Lahu Bhimrao Nage.

If appellant is released on bail, then it will lead to some other

offence.

7. At the outset, we would like to say that role of each of the

accused is required to be considered when he files bail

application. In the nutshell the offence may be serious but it

depends upon the role attributed to a particular accused. Here,

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in Paragraph No.8 of the impugned order, the learned Special

Judge has categorically stated that offence under the Atrocities

Act is not attracted to co-accused applicant - Sunil Kharat as he

himself is member of Scheduled Caste. While considering the

relief sought by another accused Akash and present appellant, it

is stated that they are not the members of the Scheduled Caste

or Scheduled Tribe, they are residing in the same village and

therefore, they have sufficient knowledge about the caste of the

informant. However, it appears that the learned trial Judge failed

to consider the role attributed to the present appellant. It can be

seen that the Gram Panchayat elections had taken place on 18 th

December 2022 and informant says that during the period of

campaigning he had asked the appellant to clear the outstanding

bill of his hotel. That means this demand would have been prior

to Gram Panchayat election as it was during campaign i.e. prior

to 18th December 2022. Informant says that after such demand

was made by him to the appellant, appellant has abused him in

the name of caste. First of all the FIR is filed on 1 st January 2023

and that delay in respect of that part of the FIR is not explained.

Secondly, it is absolutely not stated where the informant had

asked the appellant that he should clear the outstanding bill

amount of the hotel, whether it was a place within public view

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and who were the persons who heard those abuses is not stated

in the FIR. Therefore, the ingredients of offence under Section

3(1)(r) and 3(1)(s) of the Atrocities Act are absolutely not

attracted against the appellant in respect of that incident.

8. As regards the incident dated 31st December 2022 is

concerned, informant states that around 6.30 p.m. he asked his

son Vikas to manage the hotel affairs and then he went to

house. Thereafter, he received phone call from one Sayaji Kolhe

around 10.45 p.m. stating that Vikas was assaulted by Akash,

Aniket, Ashok and Dinesh and therefore Vikas has left the hotel

and fled. Informant says that he along with his wife and sister-

in-law went to see Vikas in the hotel. They found Vikas coming

running near Masjid. When Vikas was being asked as to what

has happened, at that time one four wheeler vehicle came near

them from which Akash, Aniket, Dinesh and Raju got down.

Bhausaheb Tarmale, Sayaji Kolhe and Rameshwar Lokhande had

gone there to settle the dispute. The informant thereafter says

as to what those four persons i.e. Akash, Aniket, Dinesh and

Raju had done with them. It is including the act of assaulting

Bhausaheb with knife so also assault on the informant by knife

by Aniket. Then informant says that those four persons had

abused him in the name of the caste and then he says that when

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the dispute was settled, all of them went to house. That means

at the spot near the Masjid informant is not disclosing presence

of present appellant.

9. The FIR further says that when informant and his family

members along with Vikas came to home, they asked Vikas as to

what had happened and then Vikas told them what had

happened in front of hotel. At that time he says that apart from

other persons appellant was present and he had assaulted Vikas

with kicks and fist blows and also it is stated that those persons

had abused him by saying that:- " हे चांभारडे जास् माजले, याचाची हाची झोपडाची

फुकून टाकू ". That means as regards that incident which is alleged

to have been occurred with Vikas, presence of present appellant

is stated and as regards abuses in the name of caste is

concerned, it is stated that he had uttered those words along

with other co-accused. That means it is in chorus, which is highly

impossible. Abuses cannot be given in chorus as the intention of

every person differs and same words cannot be uttered at one

and the same time by many persons. Definitely there was

political rivalry. Though the wife of present appellant appears to

have lost the election, it was against the mother of Bhausaheb

Tarmale and why there would have been any intention to insult

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informant or his family members, would be a question.

Therefore, prima facie we do not see that the application of the

appellant was barred under Section 18 or 18-A of Atrocities Act.

10. Now it is stated that something is going on in the nature of

threats on the social media and it is causing fear in the mind of

the informant and the witnesses. In connection with this,

whatever has been produced on record cannot be so considered

unless the connection of those social media posts is explained

and shown to be connected to the appellant. No doubt it appears

that said Bhausaheb Tarmale had received severe injuries, but

the appellant is not the author of those injuries nor he had taken

part in the said incident which had occurred near Masjid. The

learned Special Judge ought to have considered the role

attributed to the appellant and ought to have allowed the

application of the appellant.

11. Important point to be noted is that the investigating officer

has now objected the application by saying that statement of

said Bhausaheb Tarmale is taken under Section 161 of the Code

of Criminal Procedure and in his said statement he has stated

that the present appellant had supplied the weapons to his sons

Aniket and Akash and even the present appellant had used gupti

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and therefore seizure of that gupti is necessary. This is surprising

because informant is totally silent on the presence of present

appellant, supply of any weapon to his sons and even use of

gupti. Statement of Vikas under Section 161 of the Code of

Criminal Procedure taken on 1st January 2023 would show

presence of present appellant but he has not at all assigned any

role to the appellant, much less assault by gupti on Bhausaheb

Tarmale. The statement of wife of the informant taken on the

next day i.e. 2nd January 2023, as she has also been posed as

eye witness, would show that she is not stating that appellant

was present near the Masjid where the incident causing severe

injuries to Bhausaheb Tarmale had taken place. The other

witnesses have conveniently said about the presence of the

appellant but have not assigned any role. Statement of

Bhausaheb Tarmale has been taken on 14 th January 2023 and

then he is assigning certain role to the present appellant. Thus,

it appears that it is to settle the personal score and also there is

political rivalry.

12. Under such circumstance the Appeal deserves to be

allowed, however, with stringent conditions. Hence the following

order:-

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ORDER

(I) The Appeal stands allowed.

(II) The order passed by the learned Special Judge under the Atrocities Act, Aurangabad in Bail Application No.18 of 2023 dated 10th January 2023 stands set aside, to the extent of present appellant. The said application of the present appellant stands allowed.

(III) In the event of arrest of appellant - Ashok S/o Ramnath Nage, in connection with Crime No.1 of 2023 registered with Bidkin Police Station, District- Aurangabad (Rural), for the offence punishable under Sections 307, 324, 323, 143, 147, 148, 149, 504, 506 of the Indian Penal Code and under Sections 3(1)(r), 3(1)(s), 3(2), 3(2)(va) of the Scheduled Castes and Scheduled Tribes Act and under Sections 4 and 25 of the Arms Act, he be released on bail on his furnishing PR Bond of Rs.50,000/- with two solvent sureties of Rs.25,000/- each.

(IV) The appellant shall not reside and visit the jurisdiction of village Bokud Jalgaon, Taluka-Paithan, District-Aurangabad till conclusion of the trial. Appellant should reside elsewhere, and he should give complete address of his proposed residence with his Mobile Number to the Investigating Officer.

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(V) Appellant shall remain present before the Investigating Officer as and when called and co-operate with the investigation.

(VI) Appellant shall not tamper with the evidence of the prosecution in any manner.

(VII) Appellant shall not indulge in any criminal activity.

 [Y.G. KHOBRAGADE]                        [SMT. VIBHA KANKANWADI]
       JUDGE                                       JUDGE

 asb/MAR23