Bombay High Court
Pandurang Jagan Wabale vs State Of Mah. Thr. Pso Ps Ansing Washim ... on 1 February, 2024
2024:BHC-NAG:1576
1 55appeal770.23.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO. 770 OF 2023
APPELLANTS: 1] Pandurang Jagan Wabale,
Aged about 31 years, Occu: Agriculturist.
2] Vitthal Maruti Khandare,
Aged about 39 years, Occu: Agriculturist,
R/o Ekamba Tah. and District Washim.
...V E R S U S...
RESPONDENTS 1] State of Maharashtra,
through Police Station Officer,
Police Station Ansing, Washim.
2] Bhavana Vijayrao Sabale,
Aged 48 Occu- Household,
R/o Ekamba Tah. and Dist. Washim.
--------------------------------------------------------------------------------------------
Mr. Mir Nagman Ali, counsel for appellants.
Mrs. M.A.Barbde, APP for the respondent No.1.
Ms. Varsha Warade, counsel h/f Mr. S.D. Chande, counsel
respondent No.2.
--------------------------------------------------------------------------------------------
CORAM : URMILA JOSHI-PHALKE, J.
DATE : 01/02/2024
ORAL JUDGMENT :
1. Heard. Admit.
2. Heard finally with the consent of the learned counsel
appearing for the parties.
2 55appeal770.23.odt
3. By preferring this appeal, the appellants have
challenged the order passed by the Sessions Judge, Washim under
the Scheduled Caste and Scheduled Tribes (Prevention of
Atrocities) Act, 1989, (for short 'the Act of 1989') by which the
Sessions Judge has rejected the application filed by the appellants.
4. The present appellants have preferred the application
under Section 438 of the Code of Criminal Procedure, 1973 for
pre-arrest bail before the learned trial Court, as the accusation is
made against the appellants on the basis of report lodged by the
informant- Bhavna Vijayrao Sable. On 08/11/2023 alleging that
on 14/10/2023, she had been to the village Ekamba with her
husband to attend the ceremony at the house of her relative.
Thereafter, they went to the agriculture field of their relative at
about 11.30 to 12.00 p.m., wherein the accused were cultivating
'Soybean' in their field. The appellants loudly laughed upon her
and appellant No.1 referred to her by her caste and abused her on
her caste, so also, the appellant No.2 referred her on her caste. It is
further alleged that other co-accused have assaulted her and the
present appellant No.1 assaulted her by fist and kick blows. On the
basis of said report, the police have registered the crime against
the present appellants and therefore, they approached to the
3 55appeal770.23.odt
learned trial Court for grant of anticipatory bail. The learned trial
Court rejected the bail application by assigning the reason that
there is a specific bar under Section 18 of the Act of 1989 for grant
of anticipatory bail. In view of the specific bar, the application is
not maintainable and the same was rejected. Being aggrieved with
the same, the present appeal is preferred by the appellants.
5. Learned counsel for the appellants submitted that
mere reference of the caste is not sufficient to attract the
provisions of the Act of 1989, as far as the present appellants are
concerned, and the allegation made against them, they have
abused the informant and her husband by the caste. The abuses
are not on the caste of the present informant, thus the prima-facie
case is not made out against the present appellants. In support of
his contention, he placed reliance in the cases of Pradnya Pradeep
Kenkare and another V/s State of Maharashtra1, Pravin Shrimant
Bhutekar V/s State of Maharashtra and another2 and Rashidkha
Anwarkha Pathan and another Vs State of Maharashtra and
another3 and submitted that in view of the above cited decisions
and in the present case also, it is crystal clear that mere reference
of the caste is not sufficient to attract the provisions of the Act of
1 2005 (2) Bom. C.R. (Cri.) 431
2 2010 (3) Bom. C.R. (Cri.)678
3 2019 All. M.R. (Cri) 3200
4 55appeal770.23.odt
1989. Moreover, the alleged incident has not taken place within
the public view and therefore, the provisions are not applicable. In
view of that, the bar under Section 18 of the Act of 1989 is not
attracted and the application for grant of anticipatory bail is
maintainable.
6. Per contra, learned APP for the State strongly opposed
the application and submitted that considering the allegations in
the First Information Report, a specific case is made out against
the present appellants who not only referred the informant by her
caste but also abused her on her caste and therefore, the bar under
Section 18 or 18-A of the Act of 1989 is attracted. In view of that,
the appeal is devoid of merits and liable to be dismissed.
7. Learned counsel appearing for respondent No.2 also
endorsed the same contention and submitted that the delay in
lodging First Information Report is properly explained by the
informant. The specific case is made out against the present
appellants who have not only referred the caste but abused the
informant on her caste, therefore, the bar is attracted under
Section 18 and the appeal deserves to be dismissed.
8. After hearing both the sides and on perusal of the
investigation papers and in view of the settled law, the recitals of
5 55appeal770.23.odt
the First Information Report are to be looked into. Learned counsel
for the appellants submitted that the alleged incident has taken
place on 14/10/2023 whereas the First Information Report is
lodged on 08/11/2023 i.e. after an inordinate delay and the delay
is not explained by the informant. He further submitted that mere
reference of the caste is not sufficient to attract the provisions.
9. The bar under Section 18 of the Act of 1989 is
applicable when there is prima-facie material to show that the
appellants have committed the offence under the provisions of the
Act of 1989. This fact is considered by the Full Bench of the
Rajasthan High Court in the case of Virendra Singh Vs State of
Rajasthan4, wherein the full bench of the Rajasthan High Court
held that, if a person is even alleged of accusations 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 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.
4 2000 Cr.L.J.2899
6 55appeal770.23.odt
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
First Information Report 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 the 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 First Information Report 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.
10. Moreover, this aspect is also considered by this Court
in the cases of Ratnakala Martandrao Mohite Vs. The State of
Maharashtra and another5, Navnath s/o Dalsing Rathod @ Aade
5 2020 ALL MR (CRI)334
7 55appeal770.23.odt
and ors. Vs. State of Maharashtra thr. Police Inspector Karmad
Police Station, Aurangabad and another6, and Jagdish
Sajjankumar Banka Vs. State of Maharashtra and another7 wherein
by referring the judgment of 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 First Information Report 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 others8, wherein the Hon'ble Apex Court held that no Court
shall entertain an 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 the above-said decisions.
11. Recently, the Hon'ble Apex Court in the case of
Prathvi Raj Chauhan vs Union of India and others9, it is held that
6 Criminal Appeal No. 968/18 dt. 25/04/2019.
7 2023 SCC OnLine Bom 581
8 2012 ALL MR (CRI) 3743 (S.C.)
9 (2020) 4 SCC 727
8 55appeal770.23.odt
wherein also the Hon'ble Apex Court held that grant of
anticipatory bail under Section 438 of the Cr.P.C. is barred in
respect of the offences under the Act of 1989. However, where
prima-facie case is not made out, anticipatory bail can be granted
in appropriate circumstances, with a cautious exercise of power.
Section 18 and 18A of the Act of 1989 has no application where
the prima-facie case is not made out. However, for evaluating
prima-facie case, re-appreciation of evidence is not required.
12. In the light of the above well settled legal position, if
the facts of the present case are considered, the role attributed to
the appellant No.1 shows that he has assaulted the informant by
means of fist and kick blows and as far as the applicability of the
provisions of the Act of 1989 is concerned, it refers that both the
appellants have referred the informant by her caste. It is well
settled that mere reference of the caste is not sufficient to attract
the provisions of the Act of 1989. Thus, in view of the well settled
law and on consideration of the recitals of the First Information
Report, prima-facie case is not made out against the present
appellants to attract the provisions of the Act of 1989 and in view
of that, anticipatory bail application is maintainable. On taking
into consideration, the facts of the case, admittedly the recitals of
9 55appeal770.23.odt
the First Information Report nowhere shows that the present
appellants have abused the informant on her caste. There is the
only reference of the caste which is not sufficient as merely calling
a person by his caste though may amount to insult or abuse to
him, it can be said to be with intent to humiliate such person to
show that the intentional insults or intimidates, intimidation was
with intent to humiliate a person, some more material is required
which is absent and not revealed from the recitals of the First
Information Report. The allegations only referred that the present
appellants have referred the informant by her caste. Thus, the
basic ingredients of the offence appears to be absent as the alleged
incident only discloses about the reference of the caste by the
present appellants. In view of that bar under Section 18 of the Act
of 1989 is not attracted. The learned trial Court has ignored the
said facts while rejecting the bail application.
13. In view of the contents of the First Information Report
which do not constitute the ingredients of the offence and
therefore, the appeal deserves to be allowed by imposing certain
conditions. Accordingly, I proceed to pass following order:
a) The criminal appeal is allowed.
b) The order passed by the learned the Sessions Judge,
10 55appeal770.23.odt
Washim under the Scheduled Caste and Scheduled
Tribes (Prevention of Atrocities) Act, 1989, in
Criminal Bail Application No. 386/2023 dated
01/12/2023 is quashed and set aside.
c) In the event of his arrest, the appellants - Pandurang
Jagan Wabale and Vitthal Maruti Khandare are
released on ad-anticipatory bail, in connection with
crime No.305/2023 for the offences punishable under
Sections 506 of the Indian Penal Code and Sections
3(1)(r), 3(1)(s), 3(2)(va) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989
registered with Ansing Police Station, District Washim,
on executing PR Bond in the sum of Rs. 25,000/- each
with one solvent surety in the like amount.
d) The appellants shall attend the concerned Police
Station as and when required for investigation
purpose.
e) The appellants shall not directly or indirectly induce,
threat or pressurize any witnesses who are acquainted
with the facts of the present case.
The Criminal Appeal is disposed of accordingly.
[URMILA JOSHI-PHALKE, J.]
rkn
Signed by: Mr. R.K. NANDURKAR
Designation: PA To Honourable Judge
Date: 08/02/2024 19:06:47
