Bombay High Court
Hariom Munnalal Solanki vs State Of Maharashtra And Anr on 22 January, 2024
Author: M. S. Karnik
Bench: M. S. Karnik
2024:BHC-AS:3326
Darshan Patil 19-apeal-1220-23.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1220 OF 2023
HARIOM MUNNALAL SOLANKI ..APPELLANT
VS.
THE STATE OF MAHARASHTRA AND ANR. ..RESPONDENTS
------------
Mr. S.R. Samel i/b Adv. Rajeev Sawant and Associates for
the Appellant.
Mr. Jaymangal Dhanraj for Respondent No.2.
Ms. S.D. Shinde, APP for the State.
------------
CORAM : M. S. KARNIK, J.
DATE : JANUARY 22, 2024
ORAL JUDGMENT:
1. Heard learned counsel for the appellant, learned
counsel for respondent No.2 and learned APP for the State.
2. This appeal challenges the order dated 18/10/2023
passed by the Sessions Court, Kalyan. The appellant prays
that he be enlarged on bail in the event of his arrest in
connection with First Information Report (FIR) No. 127 of
2023 registered with Bazarpeth Police Station, Kalyan for
the offences punishable under Sections 506 and 34 of the
Indian Penal Code and Sections 3(1)(r), 3(1)(s), 3(1)(u),
Darshan Patil 19-apeal-1220-23.docx
3(1)(v) of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (hereafter referred to as
"Atrocities Act" for short).
3. The appellant was working as a General Manager. The
appellant was a superior officer of respondent No.2. The
appellant is accused No.2 in respect of the aforesaid
offence. Accused No.1 was an Assistant General Manager.
In brief, it is alleged by respondent No.2 that on account of
the complaint under the Atrocities Act filed against some
other officer/s of Bharat Sanchar Nigam Limited (BSNL) at
Goa, the accused who were his superior officers at Kalyan
were pressurising him to withdraw the complaint at Goa.
As respondent No.2 was not willing to withdraw the
complaint, the accused started harassing respondent No.2
by transferring him to different places and even making him
work under his junior. They were creating hurdles in his
work.
4. There are 2 instances cited in FIR by the respondent
No.2 alleging abuse by the accused in the name of caste.
The first instance is on 28/06/2022 and the second is on
Darshan Patil 19-apeal-1220-23.docx
04/08/2022. The present appellant is concerned with the
second incident. It is alleged that accused No.1 Pradeep
Ramanbhai Patel took respondent No.2 into the cabin of the
appellant when the respondent No.2 was being forced to
withdraw the complaint. He was abused by the accused in
the name of the caste. So far as the accused No.1 Pradeep
Patel is concerned, this Court by order dated 26/10/2023 in
Criminal Appeal No. 1025 of 2023 has allowed the appeal
thereby granting anticipatory bail to the accused No.1.
Learned counsel for the appellant submitted that even on
the ground of parity with the co-accused Pradeep Patel the
appellant can be granted anticipatory bail. For
convenience, the relevant portion of the order dated
26/10/2024 passed by this Court in respect of the co-
accused Pradeep Patel is reproduced and the same reads
thus:
"3. The Complainant, Mr.Suresh Bhosle, working as
Junior Telecome Officer, Department of
Telecommunication, lodged a complaint on
01/06/2023 with Bazarpeth Police Station, Thane city
against the two officers of BSNL, Kalyan; being
Mr.Pradeep Patel, Deputy General Manager and
Mr.Hari Om Solanki, General Manager, complaining
about their humiliating and intimidating behaviour,
Darshan Patil 19-apeal-1220-23.docx
knowing well that he belongs to Scheduled Caste, by
pressurizing him to withdraw the complaint filed by
him against the superior officers of BSNL in Porvorim
Police Station, Goa, Panaji and also with an intent to
deprive him of the necessary facilities, so that he
shall not be in a position to perform his duties
effectively and this would offer them an opportunity
to find fault with him as regards his official duties,
which would result in adverse action against him,
including the action of transfer.
It is the narration of the Complainant that, he is in
the service of BSNL, since the year 2000 and during
his various postings, he was subjected to mental
harassment by his superiors and by misusing the
powers, he was transferred from time to time and his
adverse reports were prepared and this resulted in a
complaint being filed by him on 17/07/2017 against
the senior officials, the Chief Engineer and the
Superintendent Engineer at Goa and the proceedings
are in progress.
Thereafter, in the month of November 2020, when
he was transferred to Kalyan, the Appellant, working
as Deputy General Manager and Mr. Hari Om
Solanki, working as General Manager, though having
knowledge that he belongs to Scheduled Caste,
questioned him as to why he had filed complaint
against the superior officers under atrocities and
from time to time pressurised him to withdraw the
same. When he did not wriggle out, he was posted to
work under his junior Mr.Amit Patil in Electric Wing.
Being aggrieved by this act, he filed a representation
with the Chief Managing Director, Delhi. Being
unpleased on this issue, punitively he was placed as
Junior Telecom Officer in the month of May, 2021
and on 07/06/2022, he was assigned the work of
Special Exclusive BBC for area under Divisional
Engineer, Kalyan and this required him to undertake
travel in Shahapur, Murbad, Kalyan. Although he was
expected to carry out his official duties faithfully, he
was not provided the required facilities like car,
cabin, computer, printer etc., is the grievance
highlighted in the complaint.
Darshan Patil 19-apeal-1220-23.docx
4. In specific, the complaint refers to two incidents;
the first is alleged to have occurred on 28/06/2022,
when the Appellant called the Complainant in his
cabin to report on the progress of the work, but
when he complained that the necessary and basic
facilities like the vehicle was not made available to
him, as per the Complainant, he was told that he has
to work in the existing conditions, which are
provided, but nonetheless he must give the
necessary output. Once again he was threatened that
the complaint, which was filed by him at Goa, should
be withdrawn or else, he will have to repent. It is
also alleged by him that abusive words were uttered
against the father of the nation and what was
indicated in insulting manner was, that the
community is given long rope, but they will never
improve and move ahead.
Another incident dated 04/08/2022 also find mention
in the complaint, when it is alleged that the Appellant
once again called the Complainant in his chamber in
presence of the General Manager, Mr.Hari Om
Solanki and at that time, even he uttered somehow
similar words, by referring to Dr.Babasaheb
Ambedkar, a person held in high esteem by the
Scheduled Caste community and the utterances,
according to the Complainant, were intended to
humiliate, insult and intimidate him as well as high
figure on the ground of caste.
5. The above referred accusations resulted in
invoking Sections 3(1)(r), 3(1)(s), 3(1)(u) and 3(1)
(v) of the Act of 1989 alongwith Section 506 read
with Section 34 of the IPC.
The occurrence of the events mentioned in the
complaint are for a period commencing from
07/06/2022 to 01/06/2023.
6. The learned counsel for the Appellant, at the
outset, would submit that Respondent No.2 is
persistent in his habit of lodging false complaints, by
Darshan Patil 19-apeal-1220-23.docx
invoking the provisions of the special Act of 1989 and
at the outset, he would submit that as far as the
complaint filed at Goa is concerned, the Division
Bench of the High Court at Goa, on 21/08/2023, has
quashed the same (F.I.R.No.98 of 2017), when it
clearly recorded as under :-
"37. ....The First Informant complained about
alleged harassment against his reporting officers.
If such complaints are entertained, the reporting
officers will not be able to give the correct opinion
of the employee working under him or her, as the
case may be, and more specifically, belonging to
the Scheduled Caste or Scheduled Tribe
community. The reporting officers are duty-bound
to give their genuine and correct opinion while
reporting about the employees working under
them for the specified period. Thus, when a
correct opinion is given which is found to be
adverse, it cannot be considered as given with an
intention to harass the employee belonging to a
particular caste."
It is specifically submitted by the counsel for the
Appellant that the present complaint, lodged against
the Appellant as well as Mr.Solanki, the General
Manager, is nothing but an attempt to vindicate
them, as they are his superior officers and it is a
regular modus operandi adopted by the Complainant
to implicate his superiors, whenever they make
grievance. As far as the accusation that he was made
to work under Mr.Amit Patil is concerned, it is
pointed out to me that by order dated 30/05/2018,
the charge of the post of SDE(Elect) on "Look After
Arrangement basis" is assigned to the JTO(Elect) and
Mr.Amit Patil was chosen as one of these officers
and, hence, there is no question of the Complainant
being made to work under him and in any case, he
has already made a grievance as regards this, to the
appropriate forum, by addressing a representation.
It is also the specific submission of the Appellant that
his posting at Kalyan is by the Assistant General
Darshan Patil 19-apeal-1220-23.docx
Manager, by an office order and so is the case when
he was assigned the duty of Exclusive BBC for area
under DE KYN by the Assistant General Manager
(Admin) and the Appellant has no role to play in such
transfer and postings.
It is also specifically submitted that the allegations
made against the two officers, including the
Appellant were inquired into at departmental level
and this covered the atrocity complaint and it was
reported that they are not factual.
7. Alongwith the Appeal, the investigation report
about the complaint preferred against the Appellant
and the General Manager under the signature of the
Committee Members, is placed on record and the
fact finding report has made the following
observations :-
D. Finding/General Observations :
1 Arguments/hot discussions occurred between
both parties was confirmed
2 Caste and abusive language used could not be
determined as witnesses did not confirm.
3 However, the expressions during investigation
was found to be a little sluggish, as the possibility
of withdrawal of truth by witnesses could not be
ruled out completely, as some were found to be
not very open to discuss.
4 His working nature was however accepted as
satisfactory by his colleagues and controlling
officer.
5 Behaviour and character was found to be
satisfactory with other staff.
E. Recommendation :
Shri.S.B.Bhosle is apparently frustrated and
isolated may be due to delay in getting promotion
Darshan Patil 19-apeal-1220-23.docx
since last 25 years and associated tribulations.
Therefore, he may be encouraged & provided with
empathy, so as to mitigate the feeling of
negligence and humiliation that he carries with
him till this day.
8. In order to ascertain whether the offences, which
are invoked are made out on reading of the
complaint, it is necessary to reproduce the relevant
provisions.
"3(1)(r) intentionally insults or intimidates with
intent to humiliate a member of a Scheduled
Caste or a Scheduled Tribe in any place within
public view;
3(1)(s) abuses any member of a Scheduled Caste
or a Scheduled Tribe by caste name in any place
within public view;
3(1)(u) By words either written or spoken or by
signs or by visible representation or otherwise
promotes or attempts to promote feelings of
enmity, hatred or ill-will against members of the
Scheduled Castes or the Scheduled Tribes;
3(1)(v) by words either written or spoken or by
any other means disrespects any late person held
in high esteem by members of the Scheduled
Castes or the Scheduled Tribes."
9. As per the complaint on 28/06/2022, the abuses
with an intention to insult and humiliate him, since
he belongs to a particular caste, were hurled at him
by the Appellant, but on 04/08/2022, though he was
called in his chamber, the objectionable remarks are
alleged to have been uttered by the co-accused.
When asked, whether any statements are recorded
to support the version of the Complainant, the
learned A.P.P. has placed before me the statements
of five witnesses, who were present in the office on
the date and when the statements are perused, in
Darshan Patil 19-apeal-1220-23.docx
unison, the witnesses have stated that on
28/06/2022, some altercation took place between
the Appellant and the Complainant as regards the
work and, in particular, it was focused on
infrastructure and demand of vehicle by the
Complainant. None of the witness has corroborated
the version of the Complainant that the casteist
words or the insult to the respected and revered
person of the community were uttered to insult him
or to cause insult the father of the nation.
As far as the incident dated 04/08/2022 is
concerned, there is no person, who has overheard or
witnessed the said incident. The said statements
recorded by the Investigating Officer under Section
161 of the Criminal Procedure Code (for short, "the
Cr.P.C.") necessarily will form part of the charge-
sheet.
10. In the wake of the above, the offences under
Sections 3(1)(r) and 3(1)(s) are, prima facie, not
made out, as they contemplate intentional insult or
intimidation, with intent to humiliate a member of a
Scheduled Caste or a Scheduled Tribe in any place
within "public view".
The concept of "public view" is by now well settled
and the Hon'ble Apex Court in the case of Hitesh
Verma Vs. State of Uttarakhand & Anr. has drawn a
line of distinction in the two terms, "place in public
view" and "public view", by offering a clarification,
that presence of the members of the public inside the
building or enclosed place would render such place a
"place in public view" due to presence of members of
the public. But in any case, when the insult or
humiliation is within the four walls of the building
and if the abuses were not heard, by any member of
the public, then the ingredient of the offence that the
words were uttered in "any place within public view"
is not made out.
At this stage, there is no witness to the incidents of
28/06/2022 and 04/08/2022 and, hence, prima
Darshan Patil 19-apeal-1220-23.docx
facie, no offence could be said to have been made
out under the said provision. Similarly as far as the
offences under Sections 3(1)(u) and 3(1)(v) are
concerned, it is only the version of the
Complainant/Respondent No.2 that the Appellant
spoke words, by which he has expressed disrespect
towards the person held in high esteem by the
members of a particular caste. However, even to
prove the ingredients of the said Sections, except the
bare words of the Complainant, there is no other
material at this stage and in any case, it is open for
him to establish the ingredients of Sections 3(1)(u)
and 3(1)(v) at the time of trial, by adducing evidence
to that effect.
However, at this stage of grant of protection from
arrest and for the purpose of custodial interrogation,
the Court will have to take into account a prima facie
case and where such case is not made out, the Court
would always be justified in exercising the power to
grant anticipatory bail, despite existence of bar
under Sections 18 and 18A of the Act of 1989. The
parameters of exercise of the power under Section
438 of the Cr.P.C. and, in particular, as regards the
accusations levelled under the Act of 1989 are
concerned, the Court is expected to necessarily
balance the two interest, i.e. the power is not so
used, as to convert the jurisdiction into that under
Section 438 of the Cr.P.C., but that it is used
sparingly and such orders are made in very
exceptional cases, where no prima facie offence is
made out, as shown in the F.I.R. and further also
that if such orders are not made in those class of
cases, the result would inevitably be miscarriage of
justice or abuse of process of law.
11. The Apex court in the case of Prathvi Raj
Chauhan Vs. Union of India & Ors., has expressed a
word of caution in exercise of this power in the
following words :-
"Such stringent terms, otherwise contrary to the
philosophy of bail, absolutely essential, because a
Darshan Patil 19-apeal-1220-23.docx
liberal use of the power to grant pre- arrest bail
would defeat the intention of Parliament."
By applying the aforesaid principle of law, flowing
from the authoritative pronouncement, when the
complaint filed by Respondent No.2, when read as it
is, prima facie does not make out offence under the
special statute and can be expressed to have
custodial interrogation of the Appellant, as prima
facie reading of the FIR does not justify invocation of
Sections 3(1)(r), 3(1)(s), 3(1)(u) and 3(1)(v).
Needless to state that the observations made above
are, prima facie, in nature and limited to the extent
of adjudication of the present Appeal and the learned
Judge trying the Appellant for the offences with
which he is charged, shall not be influenced by the
above observations, in any manner."
5. Learned counsel for respondent No.2 and learned APP
opposed the appeal. It is submitted that there are specific
allegations in the complaint against the present appellant
that he abused the respondent No.2 in the name of the
caste. It is submitted that merely because the witnesses do
not say anything about caste-based abuse cannot be a
ground to enlarge the appellant on anticipatory bail, as it
needs to be kept in mind that the witnesses are subordinate
officials of the appellant and therefore, the possibility of
they being under pressure cannot be ruled out. Learned
counsel for respondent No.2 also relied upon the
Darshan Patil 19-apeal-1220-23.docx
investigation report by Circle Liaison Officer (SC/ST)
Maharashtra Circle, Mumbai, which observes that witnesses
were not forthcoming. I find it pertinent to note that
further observation is made in such report that caste and
abusive language used could not be determined as
witnesses did not confirm this fact. The report has to be
read as a whole and not in bits and pieces.
6. Learned counsel further submitted that the appellant
is not entitled to bail on the ground of parity alone as the
specific role of the appellant is to be dealt with before any
decision can be taken in this appeal. Reliance is placed on
the decision in Ramesh Bhavan Rathod Vs. Vishanbhai
Hirabhai Makwana (Koli) and Another 1. The relevant
observations of Their Lordships in paragraph No.26 reads
thus:
"The High Court has evidently misunderstood the
central aspect of what is meant by parity. Parity
while granting bail must focus upon the role of the
accused. Merely observing that another accused who
was granted bail was armed with a similar weapon is
not sufficient to determine whether a case for the
grant of bail on the basis of parity has been
established. In deciding the aspect of parity, the role
attached to the accused, their position in relation to
1 (2021) 6 Supreme Court Cases 230
Darshan Patil 19-apeal-1220-23.docx
the incident and to the victims is of utmost
importance. The High Court has proceeded on the
basis of parity on a simplistic assessment as noted
above, which again cannot pass muster under the
law."
7. Learned counsel submitted that the Court cannot
proceed on the basis of parity on the simplistic assessment
that the role of the appellant is similar to that of the co-
accused Pradeep Ramanbhai Patel who has been enlarged
on bail as this would not pass muster under law.
8. I have carefully perused the allegations in the FIR. It
is the accused No.1 who had taken respondent No.2 in the
cabin of the appellant when the allegations are made by the
complainant about the abuse in the name of the caste.
None of the employees who are cited as witnesses support
the version of respondent No.2 that the appellant abused
the complainant in the name of caste. The alleged incident
happened in the cabin of the appellant in the presence of
the co-accused Pradeep Ramanbhai Patel who is also
alleged to have abused respondent No.2 in the name of the
caste and has been enlarged on bail by this Court. These
observations are prima facie in nature. Considering the role
Darshan Patil 19-apeal-1220-23.docx
of the appellant, the nature of the allegations and the fact
that there are no independent witnesses corroborating the
version of respondent No.2, I am of the opinion that the
observations of this Court in respect of co-accused Pradeep
Ramanbhai Patel squarely apply to the present appellant
apart from even otherwise entitling the appellant the facility
of pre-arrest bail for the reasons aforesated as well. Hence,
I do not find any merit in the submission of learned APP and
learned counsel for respondent No.2. The appeal, therefore,
deserves to be allowed. Hence, the following order.
ORDER
(a) The appeal is allowed.
(b) The order passed by the Sessions Court, Kalyan dated
18/10/2023 in Anticipatory Bail Application No. 933 of 2023
is quashed and set aside.
(c) In the event of arrest in connection with C.R. No. 127
of 2023 registered with Bazarpeth Police Station, Kalyan,
Appellant - Hariom Munnalal Solanki shall be released on
bail on furnishing P.R. Bond to the extent of Rs. 50,000/-
with one or more sureties in the like amount.
(d) The appellant shall report to the Investigating Officer
as and when called and shall co-operate with the
investigation.
Darshan Patil 19-apeal-1220-23.docx
(e) The appellant shall not directly or indirectly make any
inducement, threat or promise to any person acquainted
with the facts of the case so as to dissuade him from
disclosing the facts to the Court or any Police Officer and
shall not tamper with evidence.
9. The appeal is disposed of in the above terms.
(M. S. KARNIK, J.)
Signed by: Darshan Patil
Designation: PA To Honourable Judge
Date: 23/01/2024 14:57:58
