Bombay High Court
Akash S/O. Pralhad Pulate vs State Of Mah. Thr. Its Pso, Ps Pusad City, ... on 17 January, 2024
2024:BHC-NAG:800
52.cri.apeal.744.2023.judgment.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.744 OF 2023
Akash S/o Pralhad Pulate,
Age about : 29 Years,
Occ : Agriculturist, R/o Kakadati,
Tah. Pusad, Dist. Yavatmal. ..... APPELLANT
// VERSUS //
1. State of Maharashtra,
Through its Police Station Officer,
Police Station, Pusad City,
District Yavatmal.
2. Bharat Bhaurao Wankhede,
Age about : 41 Years,
Occu : Business, R/o Kakadati Pusad,
District Yavatmal. .... RESPONDENTS
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Mr. V. M. Vishwarupe, Advocate for appellant.
Mrs. M. H. Deshmukh, APP for respondent No.1/State.
Ms. F. N. Haidari, appointed Advocate for respondent No.2.
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CORAM : URMILA JOSHI-PHALKE, J.
DATED : 17.01.2024
ORAL JUDGMENT :
1. Heard.
2. Admit.
3. The appellant has preferred this appeal challenging the
order dated 25/10/2023 passed by the Special Court under the
Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act,
52.cri.apeal.744.2023.judgment.odt
Pusad in Criminal Bail Application No.373/2023 rejecting the
anticipatory bail application of the appellant.
4. The appellant has preferred this appeal on the ground
that one Bharat Bhaurao Wankhede has filed FIR against him on an
allegation that he is resident of Pusad and doing the private job.
There was a quarrel on account of installation of the statue of
Ganpati on the Ganpati festival and present appellant and other co-
accused abused him on his caste and also assaulted him by means of
one utensil. On the basis of said report, police have registered the
crime against the present appellant and other co-accused.
5. The present appellant approached to the Sessions Court
by referring an application for anticipatory bail on the ground that
the provisions of Atrocities Act are not applicable against him
therefore, there is no bar under Section 18 or 18A of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
(hereinafter referred to as 'the Act of 1989' for short). The custodial
interrogation of the present appellant is not required and hence, he
be protected by granting anticipatory bail. The Special Court
considered the recitals of the FIR and observed that an act which is
committed by the accused persons in presence of public at large and
there are abuses on the caste, therefore, prima facie case is made out
52.cri.apeal.744.2023.judgment.odt
from the recitals of the FIR bar under Section 18 is attracted and
rejected the application.
6. Being aggrieved and dissatisfied with the same, present
appeal is preferred by the appellant on the ground that learned trial
Court had not considered that for attracting the provisions under the
Act of 1989. There should be specific allegation against the
appellant. The abuses are not narrated by the informant in the FIR.
So from the recitals of the FIR, prima facie the offence under the
provision of Atrocities Act is not made out and, therefore, bar under
Section 18 of the Act of 1989, is not attracted. In view of that, the
appellant be released on anticipatory bail, in the event of his arrest.
7. Heard learned Counsel for the appellant. He submitted
that the observation of the trial Court that bar under Section 18 is
attracted itself is illegal and arbitrary and liable to be quashed and
set aside. He further submitted that mere reference of the informant
by his caste is not sufficient to attract the provisions but there should
be specific allegation and the abuses should be with intent to
humiliate or insult the informant. The said ingredient is absent in the
FIR. Thus, prima facie case is not made out. It is an omnibus
allegation against the appellant, which is not sufficient to reject the
application of the appellant for anticipatory bail. In view of that,
52.cri.apeal.744.2023.judgment.odt
appeal be allowed and appellant be released on bail in the event of
his arrest.
8. In support of his contention he placed reliance on Papu
Ashok Supekar and others Vs. State of Maharashtra reported in 2020
SCC OnLine Bom 831 and Vijaymala and others Vs. State of
Maharashtra reported in 2020 SCC OnLine Bom 278 and Prathvi Raj
Chauhan Vs. Union of India and others reported in (2020) 4 SCC
727.
9. Per contra, learned APP strongly opposed the appeal on
the ground that the provisions of Atrocities Act are applicable, as
there is a specific allegation against the present appellant, which
shows that the appellant has abused the informant with intention to
humiliate and insult and the alleged incident has occurred within the
public view. Therefore, bar under Section 18 of the Act of 1989, is
attracted and the application for anticipatory bail is not maintainable
and, therefore, appeal deserves to be dismissed.
10. Learned Counsel for the respondent No.2 also reiterated
the same contention and submitted that there is specific allegation
against the present appellant, who has not only referred the caste of
the informant but also abused him on his caste, which is sufficient to
attract the provisions of Atrocities Act and, therefore, the application
52.cri.apeal.744.2023.judgment.odt
for anticipatory bail is not maintainable. The learned trial Court has
rightly rejected the application and no interference is called for.
11. After hearing the learned Counsel for the appellant,
learned APP for the State and learned appointed Counsel for the
respondent No.2 and perused the recitals of the FIR. As per the
allegation, there was dispute between the informant and the present
appellant and other co-accused on account of donation for the
Ganesh festival. It is alleged in the FIR that there was hot exchange
of words between the informant and the appellant on that count and
the appellant and other co-accused Rohan Korde referred the caste of
the informant and abused him by saying ' pkaHkkÚ;k rq ybZ ektyk rq mM;k
ekjk;yk'. Thus, there is a specific allegation against the present
appellant that they have not only referred the caste of the informant
but also abused him by referring the said caste. Admittedly, the
alleged incident has taken place within the public view i.e. in front of
Jai Bajrang Ganpati Mandal, wherein the celebration of Ganesh
festival was going on. Thus, there is no dispute as to the fact that the
alleged incident has occurred in presence of the public, who was
present at the spot. For attracting the provisions under the Atrocities
Act, there should be abuses on the caste and the alleged incident
should be within the public view.
52.cri.apeal.744.2023.judgment.odt
12. Learned Counsel for the appellant placed reliance on
Vijaymala and others Vs. State of Maharashtra (supra), after
considering the para No.10, it reveals that in the said decision the
caste of the person was referred and there was no further abuses.
Whereas, in the case of Papu Ashok Supekar and others (supra) only
caste of the person was referred and there were no abuses and,
therefore, the appellants therein were protected by the Court.
13. Learned Counsel further placed reliance on the decision
of the Apex Court in Prathvi Raj Chauhan Vs. Union of India (supra)
wherein the Hon'ble Apex Court held that grant of anticipatory bail
under Section 438 of Cr. P.C. is barred in respect of offences under the
1989 Act. However, where prima facie case is not made out,
anticipatory bail can be granted in appropriate circumstances, with a
cautious exercise of power. Sections 18 and 18-A of the 1989 Act
have no application where prima facie case is not made out.
However, for evaluating prima facie case, reappreciation of evidence
is not required. The observation of the Hon'ble Apex Court further
shows that the clear intention of Parliament in inserting Section 18-A
into the 1989 Act was to undo the effect of the Supreme Court's
declaration in Subhash Kashinath Mahajan case. The provisions of
the amendment expressly override the directions in Subhash
Kashinath Mahajans case, that a preliminary inquiry within seven
52.cri.apeal.744.2023.judgment.odt
days by the Deputy Superintendent of Police concerned, to find out
whether the allegations make out a case under the Act, and that
arrest in appropriate cases may be made only after approval by the
Senior Superintendent of Police. The Parliamentary intent was to
allay the concern that this would delay registration of First
Information Report (FIR) and would impede strict enforcement of the
provision of the Act.
14. It is further held by the Hon'ble Apex Court these facts
ought to be kept in mind by courts which have to try and deal with
offences under the Act. It is important to keep oneself reminded that
while sometimes false accusations are made, those are not necessarily
reflective of the prevailing and widespread social prejudices against
members of these oppressed classes. Significantly, the amendment of
2016, in the expanded definition of "atrocity", also lists pernicious
practices including forcing the eating of inedible matter, dumping of
excreta near the homes or in the neighbourhood of members of such
communities and several other forms of humiliation, which members
of such Scheduled Caste communities are subjected to. All these
considerations far outweigh the petitioners' concern that innocent
individuals would be subjected to what are described as arbitrary
processes of investigation and legal proceedings, without adequate
safeguards.
52.cri.apeal.744.2023.judgment.odt
15. It is further held that there is right to live with dignity
and also right to die with dignity. For violation of human rights under
Article 21 grant of compensation is one of the concomitants which
has found statutory expression in the provisions of compensation, to
be paid in case an offence is committed under the provisions of the
1989 Act. A good reputation is an element of personal security and is
protected by the Constitution equally with the right to the enjoyment
of life, liberty, and property. Therefore, it has been held to be an
essential element of the right to life of a citizen under Article 21 as
observed by this Court in Umesh Kumar v. State of A.P ., reported in
(2013) 10 SCC 591.
16. After discussing the various earlier judgments Hon'ble
Apex Court held that where prima facie case is not made out, the
anticipatory bail can be granted in appropriate circumstances, but
said discretion is to be exercised by cautiously and at the time of
exercising the jurisdiction reappreciation of the evidence is not
required. So what is required to be seen is whether there is a prima
facie case or not. After considering the allegations in the FIR,
admittedly, there is a specific allegation against the present appellant
alleging that he has not only referred the caste of the informant but
also abused him by referring the said caste, which is at this stage
sufficient to show that, the sentence was uttered by the appellant in
52.cri.apeal.744.2023.judgment.odt
order to insult and humiliate the informant. Thus, prima facie case is
made out in the present case and, therefore, bar under Section 18 of
the 1989 Act, is attracted and application for anticipatory bail is not
maintainable. In view of that, the appeal deserves to be dismissed
being devoid of merits. Accordingly appeal is dismissed.
17. The fees of the appointed Counsel for respondent No.2 be
quantified as per rules.
(URMIL A JOSHI-PHALKE, J.)
Sarkate.
Signed by: Mr. A.R. Sarkate
Designation: PA To Honourable Judge
Date: 20/01/2024 13:33:52
