Bombay High Court
Keshav S/O. Ganpat Kakade And Others vs The State Of Mah. Thr. Pso, Ps Washim ... on 17 January, 2024
2024:BHC-NAG:786
55.apeal.810.2023.judgment.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.810 OF 2023
1. Keshav s/o Ganpat Kakade,
Aged 63 years, Occu. Agriculturist,
2. Raju s/o Keshav Kakade,
Aged about 40 years,
Occu. Agriculturist.
3. Vijay s/o Keshav Kakade,
Aged about 35 years,
Occupation : Driver,
All R/o. Toe, Tah. and
District - Washim. ..... APPELLANTS
// VERSUS //
1) The State of Maharashtra,
Through Police Station Officer,
Police Station, Washim (Rural),
District -- Washim.
2) Ganesh S/o Dhondu Ingle,
Aged about 30 Years,
Occupation : Agriculturist,
R/o Toe, Tah. and Distt - Washim. .... RESPONDENTS
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Mr. R. N. Ghuge, Advocate for appellants.
Mr. A. R. Chutke, APP for respondent No.1/State.
Mr. B. D. Khandare, Advocate for respondent No.2.
---------------------------------------------------------------------------------------
CORAM : URMILA JOSHI-PHALKE, J.
DATED : 17.01.2024
ORAL JUDGMENT :
1. Heard.
2. Admit.
55.apeal.810.2023.judgment.odt
3. The present appeal is preferred by the appellants against
the order passed by the Special Court under the Scheduled Castes
and the Scheduled Tribes (Prevention of Atrocities) Act, by which
anticipatory bail application of the appellants is rejected in Misc.
Criminal Bail Application No.403/2023.
4. The appellants are prosecuted on the basis of report
lodged by the informant Ganesh Dhondu Ingale vide Crime No.
505/2023 for the offences punishable under Sections 323, 504, 506
read with Section 34 of the Indian Penal Code and under Sections
3(1)(r)(s), 3(2)(va) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act (hereinafter referred to as 'the said Act'
for short), registered with Washim Rural Police Station.
5. As the appellants were apprehending arrest at the hands
of police, they approached to the Special Court for grant of bail in the
event of their arrest. The learned trial Court has rejected the
application, considering there is a bar under Section 18 of the said
Act.
6. Being aggrieved and dissatisfied with the said order,
present appeal is preferred on the ground that learned trial Court has
not considered that there was previous dispute on account of
boundaries of the agricultural lands, initially also the informant has
55.apeal.810.2023.judgment.odt
lodged the report which was registered as NC report. Being
aggrieved with the same, the informant has approached to the
District Court and filed an application under Section 156(3) of the
Code of Criminal Procedure (Cr.P.C.) but the District Court by passing
order it is observed that on perusal of the report given to the police it
reveals, there is no whisper about the abuses in respect of the caste,
on the contrary, there appears to be civil dispute and damaging the
boundary between the field and, therefore, police have rightly
registered the offence and rejected the application. The said order of
the learned Additional Sessions Judge, Washim was not challenged at
the relevant time. It is further contention of the appellants that now
present FIR is lodged on the basis of report on 29.11.2023, prior to
that complainant approached to the police and his statement was
recorded but no cognizance was taken therefore, complainant
approached to the Higher Authority and in view of the observations
by the Commission, which is constituted for the Scheduled Castes
and Scheduled Tribes, the FIR was registered. It is further contended
that in the first statement dated 16.07.2023 there was only allegation
against the appellant No.1, but subsequently while lodging the
report, general allegation is made against all the appellants. Thus,
the statement of the informant before the police Authority are not
consistent. Moreover, mere reference of the caste is not sufficient to
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attract the provisions of the said Act. The order passed by the
learned Special Court is erroneous and liable to be set aside.
7. Learned Counsel for the appellants reiterated the said
contentions and submitted that there is no dispute that since long the
civil disputes are pending between the present appellants and the
informant on account of boundary. In the year 2017 also, the present
complainant filed a report with the Police Station dated 02.06.2017
on the basis of said report, police have registered the offence, which
is a non-cognizable offence under Sections 504 and 506 read with
Section 34 of the Indian Penal Code. Being aggrieved with the same,
the informant approached to the District and Sessions Court, Washim
by filing application under Section 156(3) of the Cr. P.C. The learned
Sessions Court considered the report of the applicant lodged by him
on 02.06.2017 at Police Station, Washim and observed that there was
no whisper about the abuses in respect of his caste and rejected the
application under Section 156(3) of Cr. P. C. Present FIR is lodged
regarding the incident dated 21.06.2023 and 16.07.2023. As per the
allegations, on 21.06.2023 the measurement of land of the present
appellants and the informant was carried out and it reveals as per the
allegation that present appellants have encroached 7 R land of the
informant. It is alleged that on 16.07.2023, when informant along
with his parents had been to his agricultural field, he found that
55.apeal.810.2023.judgment.odt
present appellants were removing the boundary marks which were
affixed by the land record officials and there was hot exchange of
words between them and then the present appellants abused him on
the caste. On the basis of said report, police have registered the
crime.
8. Learned Counsel for the appellants submitted that the
reply filed by the respondent No.2 is considered, wherein the
statement of the informant dated 16.07.2023 was recorded by the
Investigating Officer which shows that at the initial time, he has only
made allegation against the appellant No.1, by alleging that he has
abused him on his caste. Whereas, in the subsequent FIR, he made
allegation against all the appellants. Thus, the statement of the
informant is not consistent. Moreover, the alleged incident has not
taken place within the public view and, therefore, the provisions of
Atrocities Act are not applicable. He further submitted merely
reference of the caste is also not sufficient to attract the provisions.
Now, in catena of decision it is held that when prima facie case is not
made out against the appellants, then application for anticipatory bail
is maintainable and no bar under Sections 18 or 18A of the said Act
is attracted. In view of that, appeal deserves to be allowed.
9. Learned APP strongly opposed the appeal on the ground
that not only the statement of the informant but the statement of one
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of the eye witness also supports the contention of the informant, thus
there is prima facie case against the present appellants and,
therefore, bar under Section 18 of the said Act, is attracted and the
appeal deserves to be dismissed.
10. Learned Counsel for the respondent No.2 also endorsed
the same contention and submitted that the present informant is
continuously victim at the hands of the present appellants of the
Atrocities and the informant has made various complaints against
them, till the Commission which is constituted for the Scheduled
Caste and Scheduled Tribes and, therefore, considering the prima
facie case against the present appellants, the appeal deserves to be
dismissed.
11. Having heard the learned Counsel for the appellants, the
learned APP for the State and learned Counsel for the respondent
No.2. Perused the documents on record and the investigation papers.
It appears from the investigation papers that since long there is a
dispute between the informant and the present appellants, on
account of agricultural land boundary. The agricultural land of the
present appellants and the land of the informant is adjacent to each
other. One civil suit is also filed by the appellants for declaration and
injunction. Previously also, the informant has lodged the report
dated 02.06.2017. Initially, he has not alleged any abuses on the part
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of the present appellants and, therefore, only NC report was lodged.
Subsequently, he filed the application under Section 156(3) of Cr.P.C.
which was rejected by the Court by observing that there was no
whisper about the abuses on the caste. The alleged incident
according to the informant occurred on 16.07.2023, regarding the
alleged incident, he initially approached to the Police and Police have
recorded his statement. The statement is on record, in the said
statement, he made allegation against the appellant No.1 that he
abused him on his caste by referring his caste. Whereas, in a
subsequent FIR, which was registered on 29.11.2023, he made a
general allegation against all the appellants that they have abused
him on his caste by referring his caste. During investigation, the
Investigating Officer has recorded the statement of the witnesses.
The statement of the witnesses including the statement of the eye
witnesses, who also disclosed that it was the appellant No.1, who
abused the informant - respondent No.2 on his caste. Thus, it
appears that while lodging the FIR with intent to implicate all the
family members, the general allegations is made by the informant
against all the appellants.
12. Whether the bar is attracted or not attracted is to be
ascertained from the well settled law. It is well settled that if a
person is even alleged of accusation of committing an offence under
55.apeal.810.2023.judgment.odt
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. The issue was dealt by the Full Bench of the
Rajasthan High Court in the case of Virendra Singh Vs. State of
Rajasthan reported in 2000 Cri. L. J. 2899 and while discussing the
issue it is held by the Rajasthan High Court that the question
therefore which has been referred for consideration by this Full
Bench is whether the Court while dealing with an application for
anticipatory bail can scrutinize and examine the material to see if a
prima facie case is made out constituting an offence under the Act of
1989 or whether it would be justified in rejecting the application
merely because the case has been registered under the said Act or it is
registered alongwith some other Sections of the IPC. Before it is
elaborated further, we wish to make it clear at the outset before we
proceed to answer this reference even at the risk of repetition that we
are acutely conscious of Section 18 of the Act of 1989 which
explicitly bars grant of anticipatory bail to any person who is even
accused of an offence under the Act of 1989 and there would be no
55.apeal.810.2023.judgment.odt
difficulty in rejecting their application once it is disclosed that the
person can be said to be an accused of having committed an offence
under the Act of 1989, since the clear bar of Section 18 would
instantly operate against him, but the difficulty arises where the
ingredients constituting an offence under the Act of 1989 is totally
missing and the Court is confronted with the question as to whether
the same would merit rejection merely due to the fact that the case
has been registered under the S.C.S.T. Act of 1989. While answering
the issue raised it is held by the Full Bench of Rajasthan High Court
that if 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 to determine whether the
Act of 1989 can be said to be rightly applicable against the accused
and not to enter into further enquiry into the matter so as to
determine whether the allegations levelled against the accused in the
FIR are true or false and there would be no justification to enter into
the matter further in order to examine whether the allegations
levelled against the accused are even prima facie correct or incorrect.
13. On the basis of the judgment of the Full Bench of the
Rajasthan High Court, this Court also in case of Ratnakala
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Martandrao Mohite Vs. The State of Maharashtra and another
reported in 2020 ALL MR (Cri.) 334, Navnath s/o Dalsing Rathod @
Aade and others Vs. State of Maharashtra Through Police Inspector
Karmad Police Station, Aurangabad and another decided on
25.04.2019 in Criminal Appeal No.968/2018 observed that the
application under Section 438 of the Cr.P.C. needs to be considered
for ascertaining whether there is a material to make out a prima facie
case for offence punishable under the Act 1989. The basic
ingredients of Section 3(1)(r)(s) are that there must be intentional
insult or intimidation with intent to humiliate a member of
Scheduled Caste and Scheduled Tribes in any place within public
view. It is abundantly clear that mens rea in the deceive factor in the
offence under the Act. There must be intentional insult or
intimidation with intent to humiliate member of Scheduled Caste and
Scheduled Tribes in any place within the public view.
14. The Hon'ble Apex Court in the case of Prathvi Raj
Chauhan Vs. Union of India and others reported in (2020) 4 SCC 727
wherein also it is held that where prima facie case is not made out
anticipatory bail can be granted in appropriate circumstances with a
cautious exercises of powers Section 18 and 18A of the 1989 Act have
no application where prima facie case is not made out however for
55.apeal.810.2023.judgment.odt
evaluating the prima facie case reappreciation of the evidence is not
required.
15. In the light of the above well settled principle, if the facts
of the present case are considered, admittedly the investigation
papers shows that there was previous disputes between the
appellants and the informant. Previously also the complaints were
lodged by the present informant against the present appellants. As
far as the present FIR is concerned, admittedly initially the
complainant has alleged only against the appellant No.1 but
subsequently, while lodging the FIR, he has made allegation against
all the appellants by making general statement. During investigation,
the Investigation Officer has also recorded the statement of one of the
eye witness, who has also attributed the role of the abuses to the
appellant No.1 only. Thus, it is apparent that with intent to implicate
all the appellants the subsequent statement is made by the informant
alleging against all the appellants that, they have abused the
informant by referring his caste. Thus, considering the investigation
papers and the recitals of the FIR, it is crystal clear that some incident
taken place, as the appellant No.1 has abused the informant, however
no case is made out against the appellant Nos.2 and 3, only general
allegations are made in the FIR, against them. In view of that, the
55.apeal.810.2023.judgment.odt
appeal deserves to be allowed partly. Accordingly, I proceed to pass
following order.
ORDER
(i) The appeal is allowed partly.
(ii) The order dated 19.12.2023 passed by the learned
Additional Sessions Judge (Special Court), Washim in
Misc. Criminal Bail Application No.403/2023, is quashed
and set aside.
(iii) The appellant No.(2) Raju S.o Keshav Kakade and
No.(3) Vijay S/o Keshav Kakade be released on
anticipatory in the event of their arrest in connection
with Crime No.505/2023 registered with Police Station
Washim Rural for the offences punishable under Sections
323, 504, 506 read with Section 34 of the Indian Penal
Code and under Sections 3(1)(r)(s), 3(2)(va) of the
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, on executing PR bond in the sum of
Rs.25,000/- each with one solvent surety in the like
amount.
(iv) The appellant Nos.2 and 3 shall remain present
before the Investigating Officer as and when required for
the investigation purpose.
(v) The appellant Nos. 2 and 3 shall not induce, threat
or promise any witnesses who are acquainted with the
facts of the present case.
(vi) The prayer of the appellant No.1 for releasing
anticipatory bail is rejected. The appeal to the extent of
appellant No.1 is hereby dismissed.
(URMIL A JOSHI-PHALKE, J.)
Signed by: Mr. A.R. Sarkate
Sarkate.
Designation: PA To Honourable Judge
Date: 19/01/2024 17:53:16
