Bombay High Court
Anil S/O. Dilip Shinde And Another vs State Of Mah. Thr. Pso, Ps Borgaon Manju ... on 23 January, 2024
2024:BHC-NAG:975
1 53-J-APPEAL-571-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 571 OF 2023
APPELLANTS : 1. Anil S/o Dilip Shinde,
Aged about 39 years, Occu - Labour
2. Akashay S/o Prakash Shinde,
Aged about 27 years, Occu. Labour.
All R/o : Dhotardi, Tq. and Dist. Akola.
VERSUS
RESPONDENTS : 1. State of Maharashtra
Through P. S. O. P. S. Borgaon Manju,
Dist. Akola.
2. Chandrakant Niranjan Wankhade,
Dhotardi, Tq. and Dist. Akola.
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Shri A. S. Londhe, Advocate for appellants.
Shri S. S. Hulke, A. P. P. for respondent No.1-State.
Mrs. Kirti Deshpande, Advocate (Appointed) for respondent No.2.
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CORAM: URMILA JOSHI-PHALKE, J.
DATED : 23/01/2024.
ORAL JUDGMENT :
1. Heard. Admit. Heard finally with the consent of learned
counsel appearing for the parties.
2. By preferring this appeal, the appellants have
challenged the order passed by the Special Court rejecting the
anticipatory bail of present applicants in connection with Crime
No.291/2023 registered under Sections 323, 504, 506 r/w Section
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34 of the Indian Penal Code and Sections 3(1)(r) and 3(2)(va) of
the Scheduled Castes and the Schedules Tribes (Prevention of
Atrocities) Act, 1989 (For short, "Atrocities Act").
3. The appellants are apprehending arrest at the hands of
police as crime is registered on the basis of report lodged by the
complainant alleging that he belongs to Scheduled Caste and on
the day of incident i.e. on 28/07/2023 at 8.00 p.m. when he was
proceeding towards his home after attending the labour work, the
present appellants abused him on his caste and also, manhandled
him by fists and slaps. On the basis of said report, police have
registered a crime.
4. Shri Londhe, learned counsel for the appellants
appeared through Video Conferencing and submitted that he has
filed on record his written submissions. He submitted that the
offence under Sections 3(1)(r) and 3(2)(va) of Atrocities Act is not
made out. Mere reference of the caste of a person of the scheduled
caste is not sufficient to attract the provisions of the Atrocities Act
as no prima facie case is made out. Therefore, bar under Sections
18 and 18-A of the Atrocities Act is not attracted against the
present appellants. Considering the allegation made against them,
no offence is made out against the present appellants. Their
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custodial interrogation is not required and they be granted bail by
granting anticipatory bail.
5. Learned Additional Public Prosecutor strongly opposed
the said application on the ground that the appellants have
referred the informant by his caste and also, abused him on his
caste. Thus, prima facie case is made out against the present
appellants. The intention of the present appellants appears from
the recitals of the FIR that with intent to humiliate and insult the
informant, they have abused on his caste within the public view.
Thus, offence is made out and therefore, there is bar under Section
18-A of the Atrocities Act. In view of that, application deserves to
be rejected.
6. Heard learned counsel for the respondent No.2 and she
reiterated the said contention and endorsed that as the informant
was humiliated and insulted within public view, the offence is
made out against the present appellants and therefore, the appeal
is devoid of merit and is liable to be dismissed.
7. Having heard learned counsel for the appellants,
learned APP for the State, as well as Ms. Kiriti Deshpande, learned
counsel for the respondent No.2, perused the order passed by
learned Trial Court. The learned Trial Court has considered that
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there is bar under Sections 18 and 18-A of the Atrocities Act and
rejected the application. Being aggrieved with the same, the
appellants have challenged the order before this Court on the
ground that from the recitals of the FIR itself, the offence is not
made out against the present appellants. Therefore, the
observations of the Trial Court that bar under Section 18 or 18-A
of the Atrocities Act is attracted, is erroneous and liable to be set
aside and quashed. On perusal of the FIR, it reveals that as per the
allegation, the appellants have referred the informant by his caste
by saying that "Dhedgya". It is well settled that mere referring the
person by his caste is not sufficient to attract the provisions of the
Atrocities Act. There should be intention to humiliate or insult the
person who belongs to the Scheduled Castes and Scheduled Tribes.
Admittedly, nothing is mentioned in the FIR regarding the abuses
uttered by the present appellants. From the recitals also, it is
difficult to ascertain that whether the incident is happened within
the public view. Considering that no offence is made out against
the present appellants as far as the applicability of the provisions
of the Atrocities Act are concerned, it is now well settled that in
view of the Judgment of the Hon'ble Apex Court that when there is
no prima facie case is made out in appropriate circumstances,
anticipatory bail can be granted.
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8. The Hon'ble Apex Court recently in the case of Prathvi
Raj Chauhan Vrs. Union of India and others, reported in (2020) 4
SCC 727 observed that grant of anticipatory bail under Section
438 of Cr.P.C. is barred in respect of the offences under the
Atrocities Act. However, prima facie case is not made out,
anticipatory bail can be granted in appropriate circumstances with
cautious exercise of power. Sections 18 and 18-A of Atrocities Act
have no application where prima facie is not made out, however,
for evaluating prima facie case, re-appreciation of evidence is not
required.
9. In the light of above observations of the Hon'ble Apex
Court, there is no allegation that the appellants have abused the
informant on his caste. Thus, no prima facie case is made out.
From the recitals of the FIR, appeal deserves to be allowed. In
view of that, I proceed to pass the following order :-
ORDER
i] The appeal is allowed.
ii] The appellants, in the event of arrest in connection
with Crime No.291/2023 registered under Sections
323, 504, 506 r/w Section 34 of the Indian Penal Code
and Sections 3(1)(r) and 3(2)(va) of the Scheduled
Castes and the Schedules Tribes (Prevention of
Atrocities) Act, 1989, be released on anticipatory bail
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on executing P. R. Bond of Rs.25,000/- each with one
solvent surety of the like amount.
iii] The appellants shall attend the concerned police
station as and when required for the investigation
purpose.
iv] The appellants shall not induce, threat or promise
to any witnesses, who are acquainted with the facts of
the present case.
v] Fess of Mrs.Kirti Deshpande, learned counsel
(Appointed) for respondent No.2 be quantified, as per
the Rules.
10. The appeal is disposed of.
[URMILA JOSHI-PHALKE, J.]
Choulwar
Signed by: V.M. Choulwar (VMC)
Designation: PS To Honourable Judge
Date: 24/01/2024 18:34:29
