Bombay High Court
Amol Atmaram Gawande vs State Of Mah. Thr. Pso Ps Khamgaon ... on 31 January, 2024
2024:BHC-NAG:1433
1 54appeal538.2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO. 538 OF 2023
APPELLANT: Amol Atmaram Gawande
Aged 32 years, Occupation- Service,
R/o Sutala (Khurd), Taluka- Khamgaon,
District Buldhana.
...V E R S U S...
RESPONDENTS 1] State of Maharashtra,
through Police Station Officer,
Khamgaon (Gramin) Police Station,
Taluka Khamgaon, District Buldhana.
2] Ankush Chindhaji Bangar,
Aged 22 years, Occupation- Labourer,
R/o Parkhed, Taluka Khamgaon,
District Buldhana.
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Mr. Swanand Khedkar, counsel h/f Mr. A.D. Bhate, counsel for
appellant.
Mr. A.G.Mate, APP for the respondent No.1.
Mr. M.V.Rai, counsel for the respondent No.2.
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CORAM : URMILA JOSHI-PHALKE, J.
DATE : 31/01/2024
ORAL JUDGMENT :
1. Heard. Admit.
2. Heard finally with the consent of the learned counsel
appearing for the parties.
3. By preferring this appeal, the appellant has
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challenged the order passed by the Additional Sessions Judge,
Khamgaon under the Scheduled Caste and Scheduled Tribes
(Prevention of Atrocities) Act, 1989, (for short ' the Act of 1989')
by which the application of the appellant has rejected.
4. The appellant is apprehending arrest at the hands of
police, as crime is registered against him on the basis of report
lodged by Ankush Bangar on an allegation that on 29/7/2023 at
about 9 p.m., when he was working on the Thresher Machine of
one Sachin Shinde and after finishing his work, he was proceeding
on his motorcycle, at that time, two persons were quarreling with
each other. Therefore, he stopped his vehicle near the place, at the
relevant time, two persons came on the motorcycle by Nandura
Road and assaulted him by slaps and fist blows. It is further
alleged that out of these two persons, present applicant is one of
them who has abused him, on his caste on the basis of said report,
police have registered the crime against the present appellant.
5. Learned counsel for the appellant submitted that even
from perusal of the First Information Report, there is no whisper
regarding the abuses which were attached by the present appellant
in the name of his caste within the public view. Therefore, no
prima-facie case is made out against the present appellant and
therefore, the bar under Section 18 or 18A is not attracted. The
physical custody of the present appellant is not required and he be
protected by granting anticipatory bail.
6. Learned APP strongly opposed the appeal on the
ground that learned trial Court has rightly considered that there is
a bar under Section 18 of the Act of 1989 and rightly rejected the
application. From recitals of the First Information Report, it reveals
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that the present appellant has abused the informant on his caste
and prima-facie case is made out against the present appellant. In
view of that, the appeal is devoid of merits and liable to be
dismissed.
7. Learned counsel for the respondent No.2 endorsed
the same contention and submitted that in view of the bar under
Section 18 of the Act of 1989, the application for anticipatory bail
is not maintainable. The learned trial Court has rightly appreciated
this fact and no interference is called for.
8. After hearing learned counsel for the appellant and
learned APP for the State as well as learned counsel for the
respondent No.2, perused the recitals of the FIR and the impugned
order. The learned trial Court has held that from the recitals of the
First Information Report, it reveals that the prima-facie case is
made out and in view of Section 18 of the Act of 1989, there is a
bar, as far as the applicability of Section 438 of the Code of
Criminal Procedure is concerned, rejected the application.
9. On perusal of the First Information Report, it reveals
that the allegation against the present appellant is that when the
informant was at Parkhed Phata, two motorcyclist came there and
abused and assaulted him. From recitals of the First Information
Report, it shows that 2 to 3 abuses were mentioned by the
informant in the First Information Report but as far as the abuses
on the caste is concerned, it is only mentioned that he was abused
on the caste. There is no specific allegation by mentioning the
exact words used by the present appellant.
10. As far as the observation of the learned trial Court
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regarding the bar is concerned, now it is well settled that the 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 the
prima-facie case is not made out and anticipatory bail can be
granted in appropriate circumstances which a cautious exercise of
power. The Section 18 and 18-A of the Act of 1989 have no
application where prima-facie case is not made out. It is observed
by the Hon'ble Supreme Court of India in the case of Prathvi Raj
Chauhan vs Union of India and others reported in (2020) 4 SCC
727 by referring the various judgments that the scope of Section
18 of the Scheduled Caste and Scheduled Tribes Act read with
Section 438 of the Code is such that it creates a specific bar in the
grant of anticipatory bail. When an offence is registered against a
person under the provisions of the SC/ST Act, no Court shall
entertain an application for anticipatory bail, unless it prima facie
finds that such an offence is not made out. Moreover, while
considering the application for bail, scope for appreciation of
evidence and other material on record is limited. The Court is not
expected to indulge in critical analysis of the evidence on record.
When a provision has been enacted in the Special Act to protect
the persons who belong to the Scheduled Castes and the
Scheduled Tribes and a bar has been imposed in granting bail
under Section 438 of the Code, the provision in the Special Act
cannot be easily brushed aside by elaborate discussion on the
evidence
11. The Hon'ble Apex Court has referred the judgment in
the case of Shakuntla Devi Vs Baljinder Singh reported in (2014)
15 SCC 521 has held that the High Court has not given any finding
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in the impugned order that an offence under the aforesaid Act is
not made out against the respondent and has granted anticipatory
bail, which is contrary to the provisions of Section 18 of the
aforesaid Act as well as the aforesaid decision of this Court in the
case of Vilas Pandurang Pawar & Anr vs State Of Maharashtra &
Ors reported in 2012 (8) SCC 795. Hence, without going into the
merits of the allegations made against the respondent, we set aside
the impugned order of the High Court granting bail to the
respondent.
12. It is further observed by the Hon'ble Apex Court that
concerning the provisions contained in Section 18A, suffice it to
observe that with respect to preliminary inquiry for registration of
First Information Report, we have already recalled the general
directions (iii) and (iv) issued in the case of Dr. Subhash Kashinath
Mahajan vs The State Of Maharashtra reported in 2018 (6) SCC
454. A preliminary inquiry is permissible only in the circumstances
as per the law laid down by a Constitution Bench of this Court in
Lalita Kumari Vs. State of U.P. reported in (2014) 2 SCC 1.
13. Thus, the Hon'ble Apex Court after referring the
various decisions held that the Court can, in exceptional cases,
exercise power under Section 482 of the Cr.P.C. for quashing the
cases to prevent misuse of provisions on settled parameters, as
already observed while deciding the review petitions, and it is 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 is not made out, anticipatory bail can be
granted in appropriate circumstances with a cautions exercise of
power.
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14. Relying upon the observations of the Hon'ble Apex
Court if the facts of the present case are perused, it is general a
statement made by the informant that the appellant has abused
him on his caste. The words uttered by the present appellant is not
mentioned. Thus, it is a vague allegation.
15. In view of that, the prima-facie case is not made out
and therefore, the Scheduled Caste and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 is not attracted. The custodial
interrogation of the present appellant is also not required. In view
of that, the interim protection granted to the present appellant
deserves to be confirmed. Accordingly, I proceed to pass following
order:
a) The criminal appeal is allowed.
b) The order passed by the learned Additional
Sessions Judge, Khamgaon in Criminal Bail
Application No. 233/2023 rejecting the
anticipatory bail application is quashed and set
aside.
c) In the event of his arrest, the appellant -Amol
Atmaram Gawande, shall be released on ad-
anticipatory bail, on executing PR Bond in the
sum of Rs. 25,000/- with one solvent surety in
the like amount, in connection with Crime No.
269/2023 registered with Police Station
Khamgaon (Gramin) Tq. Khamgaon, District
Buldhana for the offences punishable under
Sections 143, 294 and 323 of the Indian Penal
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Code, 1860 and Sections 3(1)(r) and 3(1)(s) of
the Scheduled Caste and Scheduled Tribes
(Prevention of Atrocities) Act, 1989.
d) The appellant shall attend the concerned
Police Station as and when required for the
investigation purpose.
e) The appellant shall furnish his cellphone
number(s) and address with address proof.
The criminal appeal is disposed of accordingly.
[URMILA JOSHI-PHALKE, J.]
rkn
Signed by: Mr. R.K. NANDURKAR
Designation: PA To Honourable Judge
Date: 06/02/2024 14:39:10
