Bombay High Court
Sadhana W/O. Subhash Mehsare And ... vs State Of Mah. Thr. Pso, Ps Civil Lines, ... on 29 January, 2024
2024:BHC-NAG:1396
1 54appeal747.2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO. 747 OF 2023
APPELLANTS: 1] Sadhana w/o Subhash Mehsare,
Aged about 55 years,
Occupation - Service.
2] Shubham s/o Subhash Mehsare,
Aged about 22 years,
Occupation - Computer Repairing.
Both R/o. Gayatri Nagar, Mothi Umari,
Akola, Tah. and District Akola
...V E R S U S...
RESPONDENTS 1] State of Maharashtra,
through Police Station Officer,
Police Station Civil Liners, Akola,
Tah. and District Akola.
2] Dipika w/o Sheshrao Tajne,
Aged about 47 years,
Occupation - Housewife,
R/o Gayatri Nagar, Mothi Umari, Akola,
Tah. and District - Akola.
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Mr. A.M. Tirukh, counsel for appellants.
Ms. T.H. Udeshi, APP for the respondent/State.
Mr. Sumit G. Joshi, counsel (appointed) for respondent No.2.
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CORAM : URMILA JOSHI-PHALKE, J.
DATE : 29/01/2024
ORAL JUDGMENT :
2 54appeal747.2023.odt
1. Heard. Admit.
2. Heard finally with the consent of the learned
counsel appearing for the parties.
3. By preferring this appeal, the appellants have
challenged the order passed by the Special Judge, Akola
under the Scheduled Caste and Scheduled Tribes (Prevention
of Atrocities) Act, 1989(for short 'the Act of 1989'), in
Criminal Bail Application No. 755/2023, dated 03/11/2023,
by which the application of the appellants were rejected.
4. The appellants are apprehending arrest, in
connection with Crime No. 389/2023 registered with Civil
Lines Police Station, Akola for the offences punishable under
Sections 354-A, 324, 504, 506 read with Section 34 of the
Indian Penal Code and under Sections 3(1)(w)(i), 3(1)(w)
(ii), 3(2)(va) of the Act of 1989. The crime is registered on
the basis of report lodged by the victim, on an allegation that
the present appellants and other co-accused are her
neighbors. On 24/10/2023 at about 9 to 10 a.m. there was a
quarrel between them on trifle reason when the informant
was cleaning the land of the present appellants. She was
assaulted and abused by the present appellants and another
co-accused. As per her allegations, all the co-accused abused
her and one of the accused has outraged her modesty. On
the basis of said report, the police have registered the crime
against the present appellants.
3 54appeal747.2023.odt
5. Learned counsel for the appellants vehemently
submitted that as far as the provisions of the Act of 1989 are
concerned which is not applicable, as vague allegations are
made against the present appellants. There is no single
sentence showing that the informant was abused on her caste
by the appellants. Therefore, the bar under Section 18 or 18A
of the Act of 1989 is not applicable.
6. Moreover, as the bar under Section 18 or 18A of
the Act of 1989 is not attracted and the prima-facie case is
not made out, the learned trial Court without application of
mind, erroneously rejected the application. The learned trial
Court ought to have considered the settled law that if prima-
facie case is not made out, the application for anticipatory
bail is maintainable. Therefore, the order passed by the
learned trial Court deserves to be quashed and set aside.
7. Learned APP for the State strongly opposed the
present application on the ground that there is a bar under
Section 18A of the Act of 1989 is attracted. He further
submitted that during the investigation, the statement of the
witnesses were recorded which shows that the present
appellants were involved in the crime and abused/assaulted
the informant. Therefore, the order passed by the learned
trial Court is legal and proper one and liable to be
maintained.
8. Learned counsel Mr. S.G. Joshi, for the informant
4 54appeal747.2023.odt
also endorsed the same contention and submitted that the
bar under Section 18-A of the Act of 1989 is attracted and the
application is not maintainable. He further submitted that the
offence under Section 3(2)(va) is also attracted, as there is
allegations of outrage of modesty.
9. As far as the bar under Section 18 is concerned, it
is now well settled that while considering the anticipatory
bail application and bar under Section 18, it has to be borne-
in-mind that if a person is even alleged of accusation of
committing an offence under the Act of 1989, the language of
Section 18 is clear to debar the applicant from seeking
remedy of anticipatory bail and it is only in the circumstances
where there is absolutely no material to infer as to why
Section 3 has been applied to implicate a person for an
offence under the Act of 1989. The Court would be justified
in a very limited sphere to examine whether the application
can be rejected on the ground of its maintainability.
10. The Hon'ble Full Bench of the Rajasthan High
Court in the case of Virendra Singh Vs State of Rajasthan 1
has considered this issue and held that from the FIR itself the
ingredients of the offences as laid down under Section 3 of
the Act of 1989 are found to be missing. The bar created by
Section 18 would not be allowed to operate against an
accused and only in that event the application of the
applicant for anticipatory bail would be dealt with concerned
1 2000 Cri. L.J. 2899
5 54appeal747.2023.odt
Court to determine whether the Act of 1989 can be said to be
rightly applicable against the accused.
11. The same is followed by this Court in the case of
Ratnakala Martandrao Mohite Vs The State of Maharashtra
and another2, wherein this Court has referred the various
statements to the Hon'ble Apex Court as well as this Court
and held that in the light of the aforesaid judicial authority, it
is evident that application under Section 438 of the Cr.P.C. for
the relief of pre-arrest bail can be entertained only on the
ground of in-applicability of provisions of Act of 1989 and it
would be verifiable only after perusal of recitals of the FIR or
complaint itself and not beyond that. Thus, it is a rule of law
that once it is gathered from the FIR that the appellants are
the accused of committing an offence as prescribed under
Section 3(1)(r),(s) or (w)(ii) of the Act of 1989, the bar
under Section 18A of the Act of 1989 would instantly come
into operation against them. In contrast, if the contents of
FIR do not constitute ingredients of offence under the Act of
1989, there would not be any embargo or statutory bar
engrafted under Section 18 or 18A of the Act of 1989. It is
not permissible for the Court to enter into roving enquiry in
regard to sustainability of accusation nurtured on behalf of
complainant.
12. In the case of Prathvi Raj Chauhan vs Union of
2 2020 ALL MR (Cri) 334
6 54appeal747.2023.odt
India and others3 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.
13. Thus, in view of the settled position of law, if the
facts of the present case are reconsidered there is general
allegations even there is no reference of caste in the FIR. It is
also not mentioned in the FIR that the appellants were
knowing that the victim belongs to the Scheduled Caste or
the Scheduled Tribe.
14. The recitals of the FIR show that co-accused
Subhash Tukarm Mehsare has outraged the modesty of
victim and the allegation against the Bhushan and Shubham
regarding the assault, as far as the present appellants are
concerned, there is no specific allegations against them.
Thus, to attract the provisions of the Act of 1989, against the
appellants, a prima-facie case is required to be made out.
Considering the allegations made against the
present appellants, it is apparent that learned trial Court has
not considered the role of the present appellants and has also
3 (2020) 4 SCC 727
7 54appeal747.2023.odt
not considered whether the provisions of Act of 1989 are
attracted or not. The learned trial Court has also ignored the
well settled law that if prima-facie case is not made out, on
the basis of FIR, the bar under section 18 or 18A is not
attracted. Thus, the order passed by the learned trial Court
needs to be quashed and set aside and the same is quashed
and set aside. In view of above, the appeal deserves to be
allowed. Accordingly, I proceed to pass the following order:
a) The criminal appeal is allowed.
b) The order passed by the learned Special
Judge, Akola in Criminal Bail Application
No. 755/2023 rejecting the anticipatory bail
application is quashed and set aside.
c) The appellants- Sadhana w/o Subhash
Mehsare and Shubham s/o Subhash
Mehsare, in the event of their arrest, in
connection with Crime No. 389/2023
registered with Civil Lines Police Station,
Akola for the offence punishable under
Sections 354-A, 324, 504, 506 read with
Section 34 of the Indian Penal Code, 1860
and under Sections 3(1)(w)(i), 3(1)(w)(ii),
3(2) (va) of the Scheduled Caste and
Scheduled Tribes (Prevention of
Atrocities)Act, 1989, shall be released on
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bail on executing P.R. Bond 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 the
purpose of investigation.
e) The appellants shall not tamper with the
prosecution evidence or shall not induce,
threat or pressurize any witnesses who are
connected with the crime.
f) The fees of the appointed counsel be
quantified as per the Rule.
Criminal appeal is disposed of accordingly.
[URMILA JOSHI-PHALKE, J.]
rkn
Signed by: Mr. R.K. NANDURKAR
Designation: PA To Honourable Judge
Date: 05/02/2024 16:43:21
