Bombay High Court
Nilesh Jaydeo Wagh vs State Of Maharashtra, Thr. Pso Ps ... on 28 August, 2024
2024:BHC-NAG:9842
42.apeal.191.2024 & 47.2024.Judgment.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.191 OF 2024
Nilesh s/o Jaydeo Wagh,
Aged about 36 Years,
Occupation : Agriculturist,
R/o. Aamkhed, Taluka - Chikhli
District - Buldhana. ..... APPELLANT
// VERSUS //
1. State of Maharashtra,
Through its Police Station Officer,
Police Station, Chikhali,
Taluka Chikhali,
District - Buldhana.
2. Bhimrao s/o Kacharu Gawai,
Aged - 40 Years,
Occupation : Labour,
R/o Aamkhed, Taluka - Chikhali,
District - Buldhana. .... RESPONDENTS
----------------------------------------
Mr. S. V. Sirpurkar, Counsel for the appellant.
Ms. H. N. Prabhu, APP for the respondent No.1/State.
Mr. M. P. Kariya, Counsel for the respondent No.2.
----------------------------------------
WITH
CRIMINAL APPEAL NO.47 OF 2024
Rameshkumar s/o Kisan Malode,
Aged about 45 Years,
Occupation : Teacher,
R/o. Chikhali, Tahsil - Chikhali,
District - Buldhana. ..... APPELLANT
// VERSUS //
42.apeal.191.2024 & 47.2024.Judgment.odt
(2)
1. State of Maharashtra,
Through its Police Station Officer,
Police Station, Chikhali,
Tahsil - Chikhali,
District - Buldhana.
2. Bhimrao s/o Kacharu Gawai,
Aged - 40 Years,
Occupation : Labour,
R/o Aamkhed, Taluka - Chikhali,
District - Buldhana. .... RESPONDENTS
----------------------------------------
Mr. S. V. Sirpurkar, Counsel for the appellant.
Ms. H. N. Prabhu, APP for the respondent No.1/State.
Mr. M. P. Kariya, Counsel for the respondent No.2.
----------------------------------------
CORAM : URMILA JOSHI-PHALKE, J.
DATED : 28.08.2024
ORAL JUDGMENT :
1. Heard.
2. Admit.
3. By preferring this appeal, the appellants have
challenged the order passed by the Additional Sessions
Judge, and the Special Judge under the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act in
Anticipatory Bail Application Nos. 27/2024 and 423/2023
dated 13.02.2024 and 16.01.2024 respectively.
42.apeal.191.2024 & 47.2024.Judgment.odt
4. The appellants are apprehending arrest at the
hands of police as the crime is registered on the basis of
report lodged by Bhimrao Kacharu Gawai, on an allegation
that the co-accused Sunil Jaydeo Wagh and Nilesh Jaydeo
Wagh had come to the first informant and the appellant
namely Rameshkumar Malode and the another appellant
Nilesh instigated the co-accused Sunil to assault the first
informant. The co-accused Sunil had inflicted a blow of iron
thing on the head of first informant. The appellant Nilesh
gave a blow of iron rod on the legs of the informant, due to
which he sustained the fracture injuries. On the basis of the
said report, police have registered the crime against the
present appellants.
5. After registration of the crime, both the
appellants approached to the learned Special Court by
preferring an Application No.27/2024 and 423/2023 for
grant of anticipatory bail. The Special Court rejected both
the applications, in view of bar under Section 18 of the said
Act.
6. Being aggrieved and dissatisfied with the same,
present appeals are preferred by the appellants.
42.apeal.191.2024 & 47.2024.Judgment.odt
7. Learned Counsel Mr. Shirpurkar for the appellants
submitted that there was a previous disputes between the
family of the present appellants and the informant. The Civil
Suit bearing No.110/2023 is pending which was filed by the
wife of the appellant Rameshkumar Kisan Malode wherein
the learned trial Court granted the injunction. Being
aggrieved with the same, this false report came to be filed.
He further submitted that as far as the custodial
interrogation is concerned, which is not required as the
investigation is practically completed. The weapons are
already recovered. The informant, who is injured in the said
incident, is already discharged from the hospital and now
there is no apprehension of death. He submitted that as far
as the applications of the provisions of the Scheduled Castes
and the Scheduled (Prevention of Atrocities) Act are
concerned, which is not attracted as there is no allegation in
the FIR that present appellants have abused the informant
on his caste. After thought that allegation is made in the
subsequent statement, but from the recitals of the FIR, it
nowhere reveals that the present appellants have used any
abusive words to insult or humiliate the informant and
thereby committed an offence. He submitted that as far as
42.apeal.191.2024 & 47.2024.Judgment.odt
the appellant Rameshkumar Malode is concerned, except
the instigation, there is absolutely no allegation against him
to attract the provision of Atrocities. In view of that they
both be released on bail in the event of their arrest.
8. Learned APP and learned Counsel for the
respondent No.2 strongly opposed the applications on the
ground that the informant was assaulted mercilessly and
prima facie material against the present appellants shows
that due to the assault at the hands of Nilesh, the informant
has sustained the fracture injury and he was under
treatment for seven days. Thus, the vital role is played by
the appellant Nilesh in assaulting the informant and
therefore, bar under Section 18 is attracted and therefore,
the appeals deserves to be dismissed.
9. After hearing the learned Counsel for the
appellants and learned APP for the State, perused the
recitals of the FIR. As far as appellant namely
Rameshkumar Kisan Malode is concerned, only allegation
against him is that he has instigated the co-accused and
due to the instigation, the co-accused have assaulted the
informant. As far as the abuses on the caste are concerned,
42.apeal.191.2024 & 47.2024.Judgment.odt
admittedly, from the recitals of the FIR it nowhere reveals
that the informant has made an allegation that he was
abused on his caste on the day of incident. Subsequently,
when the supplementary statement of the informant was
recorded on 24.12.2023, first time this allegation was made
by the informant that he was abused on his caste and
therefore, the provisions of the Atrocities Act are applied. It
is well settled that when prima facie case is not made out,
the bar under Section 18 is not attracted.
10. Recently, in the case of Shajan Skaria Vs. The
State of Kerala and another in Criminal Appeal
No.2622/2024 [Arising out of SLP (Crl.) No.8081 of
2023] decided on 23.08.2024. The Hon'ble Apex Court
has considered that whether Section 18 of the Act imposes
an absolute bar on the grant of anticipatory bail in cases
registered under the said Act. By referring the statement of
objects and reasons accompanying the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Bill, 1989.
The Hon'ble Apex Court observed that "It is evident from
the aforesaid that the purpose of the Act, 1989 is to prevent
the commission of offences of atrocities against the
members of the Scheduled Castes and Scheduled Tribes, to
42.apeal.191.2024 & 47.2024.Judgment.odt
provide for establishment of special courts for the trial of
such offences and to make provisions for the relief and
rehabilitation of the victims of such offences."
11. It is further observed that "The Act, 1989 could
be said to have been enacted to improve the social and
economic conditions of the vulnerable sections of the society
as they have been historically subjected to various
indignities, humiliations and harassment besides deprivation
of life and property on account of their caste identity. The
legislation, thus, intends to punish the acts committed
against the vulnerable sections of the society for the reason
that they belong to a particular community. Section 18 of
the Act, 1989 which makes the remedy of anticipatory bail
unavailable in cases falling under the Act, 1989 reads thus:
"18. Section 438 of the Code not to apply to
persons committing an offence under the Act.--
Nothing in Section 438 of the Code shall apply in
relation to any case involving the arrest of any
person on an accusation of having committed an
offence under this Act."
42.apeal.191.2024 & 47.2024.Judgment.odt
12. By referring the above said provision, it is
observed that it is manifest from a plain reading of Section
18 referred to above that it bars the applicability of Section
438 of the CrPC in respect of offences under the Act, 1989.
The legislature in its wisdom thought fit that the benefit of
anticipatory bail should not be made available to the
accused in respect of offences under the Act, 1989, having
regard to the prevailing social conditions which give rise to
such offences and the apprehension that the perpetrators of
such atrocities are likely to threaten and intimidate the
victims and prevent or obstruct them in the prosecution of
such offences, if they are allowed to avail the benefit of
anticipatory bail.
13. By referring the various decisions rendered by the
Hon'ble Apex Court it is held that "The provisions inserted
by way of carving out Section 18-A of the Act, 1989 referred
to above were made the subject matter of challenge in
Prathvi Raj Chauhan (supra). In the said case, it was argued
that Section 18-A inserted by way of amendment was only
with a view to nullify the judgment in DR Subhash
Kashinath Mahajan Vs. State of Maharashtra and
Anr., reported in (2018) 6 SCC 454. This Court has noted
42.apeal.191.2024 & 47.2024.Judgment.odt
that it was not in dispute that the bar of Section 18-A in the
Act, 1989 had been enacted because of the judgment
passed by this Court in Subhash Kashinath (supra) more
particularly in view of the directions contained in paragraphs
79.3 and 79.5 therein. The court also noted that the review
petitions filed by the Union of India in Subhash Kashinath
(supra) were allowed and the directions contained in
paragraphs 79.3 to 79.5 referred to above were ordered to
be recalled.
14. In such circumstances, the Hon'ble Apex Court
observed that the examination of the Constitutional validity
of Section 18-A brought by way of the amendment had
been rendered academic. However the decision in Prathvi
Raj Chauhan Vs. Union of India, reported in (2020) 4
SCC 727 makes it abundantly clear that even while
upholding the validity of Section 18-A of the Act, 1989, this
Court observed that if the complaint does not make out a
prima facie case for applicability of the provisions of the Act,
1989 then the bar created by Sections 18 and 18-A(i) shall
not apply and thus the court would not be precluded from
granting pre-arrest bail to the accused persons.
42.apeal.191.2024 & 47.2024.Judgment.odt
15. The Hon'ble Apex Court further dealt with the
issue regarding the applicability of Section 3(1)(r) of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act and observed that the basic ingredients to
constitute the offence under Section 3(1)(r) of the Act,
1989 are:
a. Accused person must not be a member of the
Scheduled Caste or Scheduled Tribe;
b. Accused must intentionally insult or intimidate a
member of a Scheduled Caste or Scheduled Tribe;
c. Accused must do so with the intent to humiliate
such a person; and
d. Accused must do so at any place within public
view.
16. The Hon'ble Apex Court further observed that all
insults or intimidations to a member of the Scheduled Caste
or Scheduled Tribe will not amount to an offence under the
Act, 1989 unless such insult or intimidation is on the ground
that the victim belongs to Scheduled Caste or Scheduled
Tribe.
42.apeal.191.2024 & 47.2024.Judgment.odt
17. It further observed that mere knowledge of the
fact that the victim is a member of the Scheduled Caste or
Scheduled Tribe is not sufficient to attract Section 3(1)(r) of
the Act, 1989. The offence must have been committed
against the person on the ground or for the reason that
such person is a member of Scheduled Caste or Scheduled
Tribe.
18. In the light of the above observations if the fact
of the present case are considered, admittedly, initially,
there was no allegation as to the abuses on the caste. It is
further apparent from the investigation papers that due to
the previous dispute on account of the agricultural land and
civil litigations are pending, the alleged incident has taken
place. Whether there was an intentional insult or not is a
matter of evidence. At this stage, the investigation is
completed and charge-sheet is already filed. As far as the
bar under Section 18 is concerned, which is not attracted as
there was no averment in the FIR as to the abuses on the
caste. From the investigation papers it nowhere reveals
that the informant was assaulted merely because he
belongs to the Scheduled Caste. On the contrary, it reveals
that due to the previous dispute between them, the alleged
42.apeal.191.2024 & 47.2024.Judgment.odt
incident had taken place. The incriminating weapons are
already seized by the investigating agency. As far as the
custodial interrogation is concerned, which is not required.
In view of that both the appeals deserves to be allowed.
Accordingly, I proceed to pass following order:
ORDER
(i) The Appeal bearing Nos.47/2024 and
191/2024 both are allowed.
(ii) The orders passed by the Special Court i.e.
Additional Sessions Judge, Buldhana in ABA
No.27/2024 and 423/2023 are hereby quashed and
set aside.
(iii) The appellants - Rameshkumar S/o Kisan
Malode and Nilesh S/o Jaydeo Wagh shall be
released on anticipatory bail in the event of arrest in
connection with Crime No.939/2023 registered
under Sections 326, 307, 506, 504, 143, 147, 148,
149 read with Section 34 of the Indian Penal Code
with Section 3(1)(r), 3(1)(s), 3(2)(v), 3(v)(va) of
the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities Act), 1989 on executing PR
Bond of Rs.25,000/- each with one solvent surety in
the like amount.
(iv) The appellants shall attend the concerned
Police Station as and when required for the
investigation purpose if any interrogation is
required.
(v) The appellants shall not induce, threat or
promise any witnesses who are acquainted with the
facts of the case.
42.apeal.191.2024 & 47.2024.Judgment.odt
(vi) The appellant Nilesh S/o Jaydeo Wagh shall
attend the concerned Police Station once in a week
on Sunday between 10.00 a.m. to 1.00 p.m., till the
investigation is completed.
(vii) As far as the role of the concerned appellant is
concerned, the appellant Nilesh S/o Jaydeo
Wagh shall not enter into the village Malipura,
Taluka Chikhali, till framing of the charge against
them by the Special Court.
Both the appeals are disposed of.
(URMILA JOSHI-PHALKE, J.)
Sarkate.
Signed by: Mr. A.R. Sarkate
Designation: PA To Honourable Judge
Date: 02/09/2024 19:08:11
