Bombay High Court

Sachin S/O. Tryambakrao Hade vs State Of Mah. Thr. Pso, Ps Walgaon, Tq. ... on 5 March, 2024

2024:BHC-NAG:2880


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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               NAGPUR BENCH, NAGPUR.

                               CRIMINAL APPEAL NO.792 OF 2023
                           Sachin s/o Tryambakrao Hade
                           Aged about 39 years,
                           Occupation - Labour,
                           R/o. Deori Nipani,
                           Tq. Bhatkuli, District Amravati
                                                                          ...APPELLANT
                                                   VERSUS

               1.          State of Maharashtra,
                           through Police Station Officer,
                           Police Station Walgaon,
                           Tq. and District Amravati
               2.          Sarita Krishnarao Ukey
                           Aged about 50 years,
                           Occupation - Household,
                           R/o. Deori Nipani, Walgaon,
                           Tq. Bhatkuli, District Amravati
                                                                      ...RESPONDENTS
               _______________________________________________________
                           Mr. A.M. Chandekar, Advocate for the appellant.
                           Mrs. H.S. Dhande, APP for the State.
                           Ms Radha Mishra, Advocate (appointed) for respondent No.2.
               _______________________________________________________

                                              CORAM : URMILA JOSHI-PHALKE, J.
                                              DATED : MARCH 05, 2024.

               ORAL JUDGMENT :

ADMIT. Heard finally with the consent of learned Counsel for

the parties.

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2. By preparing this appeal, the appellant has challenged the

order passed by the Special Judge and Additional Sessions Judge-2,

Amravati in Criminal Bail Application No.1214 of 2023.

3. The appellant is apprehending arrest at the hands of police in

connection with Crime No.294 of 2023 registered at police station

Walgaon, Tq. Bhatkuli, District Amravati for the offence punishable

under Section 294 and 295 of the Indian Penal Code read with Section

3(1)(r), 3(1)(s) of the Scheduled Caste and Scheduled Tribe (Prevention

of Atrocities) Act, 1989 (hereinafter referred as 'the Atrocities Act' for

short).

4. The accusation against the present appellant is on the basis of

report lodged by one Sarita Krushnarao Ukey on an allegation that on

10/09/2023 at about 8:30 p.m. when she along with other ladies of the

village were praying in Buddha Vihar, at that time present applicant

came outside the Buddha Vihar and started abusing. He was under the

influence of liquor and they were abused on their caste and in a filthy

language. The appellant has also pelted the cow dung on the Buddha

Vihar and humiliated and insulted them. On the basis of said report

police have registered the crime against the present appellant.

J.52.cri.appeal.792.2023.odt 3/11

5. As the appellant was apprehending arrest at the hands of

police, he approached to the Sessions Court by filling criminal bail

application for grant of anticipatory bail which was rejected by passing

order on 26/10/2023.

6. Being aggrieved and dissatisfied with the same, present

appeal is preferred by the appellant on the ground that learned trial

Court has erroneously held that there is a bar under Section 18 of the

Atrocities Act to entertain the application for anticipatory bail. It is

further submitted by the learned Counsel for the appellant that the

learned trial Court has not considered that the possibility of false

implication is there on the basis of the various documents which are filed

on record. He invited my attention towards the FIR lodged by the

present appellant against the son of the informant namely Vikas Ukey

alleging that on 10/09/2023 at about 8:00 p.m. when the appellant was

present at Dahihandi festival at that time Shubham Ukey met him and

abused him and also threatened him. Thereafter he reached at about

8:30 p.m. near the village at that time son of the informant and other

persons of the same community came near to him and threatened him

why he has removed the encroachment and assaulted him by fists and

kick blows.

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7. Learned Counsel for the applicant submitted that previously

also present appellant has filed one NCR against the son of the

informant. He also invited my attention towards one application which is

filed by the villagers alleging that present appellant is implicated falsely

as he has removed the encroachment in the village. He submitted that,

that is the reason to implicate the present appellant falsely after the

present appellant has lodged report against the son of the informant. As

far as custodial interrogation of the present appellant is concerned which

is not required. He submitted that even assuming the allegations as it is

mere reference of the caste is not sufficient to attract the provisions of

the Atrocities Act. In support of his contention, he placed reliance on

N.B. Gungarakoppa and ors. Vs. State of Karnataka [2002 Cri.L.J. 3311]

and submitted that the question raised before the Karnataka High Court

was Whether the Courts entertaining the petitions under Section 438,

Cr.P.C. can meticulously examine the material on record and attempt to

find out a prima facie case under the provisions of the Act at this stage?

He submitted that mere reference of the caste is not sufficient to attract

the provisions of Atrocities Act especially the bar under Section 18A of

the Atrocities Act. He submitted that now it is well settled that mere

reference of the caste is not sufficient and moreover the anticipatory bail

application can be entertained when there is no prima facie case made

out. In view of that the appeal deserves to be allowed.

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8. Learned Additional Public Prosecutor and learned Counsel for

respondent No.2 vehemently submitted that the statements of the

various witnesses and the recitals of the FIR shows that the informant

and other ladies of the village were abused by the present appellant

under the influence of liquor in a filthy language. Considering the same,

the bar under Section 18A is attracted and the application for

anticipatory bail is not maintainable. Learned Sessions Court has

considered the same and rightly rejected the application. Hence, no

interference is called for.

9. I have heard the learned Counsel for the parties. Perused the

investigation papers. As far as the allegations are concerned which

shows that the present appellant has referred their caste while abusing

them. As far as the abuses are concerned which are not specifically

mentioned in the FIR. The record which is filed on record by the learned

Counsel for the appellant shows that regarding the same incident,

appellant has also filed the FIR in which it is alleged that the son of the

informant and other villagers have assaulted him, abused him on

10/09/2023 at about 8.30 p.m. on account of removing the

encroachment from the village. The informant has narrated the same

date and time of the present incident. Thus, there is a substance in the

contention raised by the learned Counsel for the appellant. The J.52.cri.appeal.792.2023.odt 6/11

contention of the appellant is further substantiated by the application

filed by the villagers which shows that as the appellant has removed the

encroachment, and therefore, he is falsely implicated in the alleged

offence. The said application is addressed to the Police Commissioner,

Amravati City bears the signature of almost 33 villagers.

10. In the background of the above facts and circumstances, it is

necessary to see whether the bar under Section 18 of the Atrocities Act is

attracted to entertain the application of anticipatory bail. The Full

Bench of the Rajasthan High Court in Virendra Singh Vs. State of

Rajasthan [2000 CRI.L.J.2899] dealt with this issue and held that if a

person is even alleged of accusation of committing an offence under the

Act of 1989 the intention of Section 18 is clearly to debar him from

seeking the 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 Courts would be justified in a very limited sphere to

examine whether the application can be rejected on the ground of its

maintainability. What is intended to be emphasized is that while dealing

with an application for anticipatory bail, the Courts would be justified in

merely examining as to whether there is at all an accusation against a

person for registering a case under Section 3 of the Act of 1989 and once J.52.cri.appeal.792.2023.odt 7/11

the ingredients of the offence are available in the FIR or the complaint,

the Courts would not be justified in entering into a further inquiry by

summoning the case diary or any other material as to whether the

allegations are true or false or whether there is any preponderance of

probability of commission of such an offence. Such an exercise is

intended to put a complete bar against entertainment of application of

anticipatory bail which is unambiguously laid down under Section 18

which is apparent from the perusal of the Section itself and thus, the

Court at the most would be required to evaluate the FIR itself with a

view to find out if the facts emerging there from taken at their face value

disclosed the existence of the ingredients constituting the alleged

offence. The same issue is dealt by this Court also in Ratnakala

Martandrao Mohite Vs. The State of Maharashtra and anr. [2020 ALL

MR (Cri) 334], Navnath s/o Dalsing Rathod @ Aade and ors. Vs. State

of Maharashtra thr. Police Inspector Karmad Police Station, Aurangabad

and anr. in Criminal Appeal No.968 of 2018 decided on 25.04.2019 and

Jagdish Sajjankumar Banka Vs. State of Maharashtra and anr. [2023 ALL

MR Cri. 2911] wherein by referring the judgment of the Full Bench of

the Rajasthan High Court, it is held that the issue of applicability of

Section 18 of the Act elaborately and held that the provisions of Section

18 as well as newly amended Section 18 of the Act of 1989 create a bar

for exercising jurisdiction under Section 438 of the Cr.P.C. However, it J.52.cri.appeal.792.2023.odt 8/11

would not preclude the concerned Court from examination of allegations

made in the FIR on its face value to determine whether prima facie case

is made out or not. In Vilas Pandurang Pawar and anr. Vs. State of

Maharashtra and ors. [2012 ALL MR (Cri.) 3743 (S.C.)] wherein the

Hon'ble Apex Court held that no Court shall entertain application for

anticipatory bail in the offence registered under the provisions of the Act

of 1989, unless it prima facie finds that such an offence is made out.

Similar principles also laid down by this Court. In such circumstances, it

is evident that in spite of bar under Section 18 or 18A of the Act of 1989

for involving the powers under Section 438 of the Cr.P.C., it is still open

to this Court to find out by looking into FIR as to whether prima facie

case is made out by the complainant against the appellant. Thus, the

application under Section 438 of the Cr.P.C. needs to be considered for

ascertaining whether there is material to make out prima facie case for

offence punishable under the Act of 1989.

11. The point of controversy in the present appeal is on the

question of pre-arrest bail by exercising power under Section 438 of the

Cr.P.C. The present appellant has preferred present appeal by resorting

the remedy under Section 14-A(2) of the Atrocities Act, 1989 and

submitted that prima facie case is not made, and therefore, bar under

Section 18A is not attracted. The allegations against the present J.52.cri.appeal.792.2023.odt 9/11

appellant that he abused the informant and other ladies by referring

their caste. It is well settled that mere reference of the caste is not

sufficient to attract the provisions of Atrocities Act. In Shantabai Vs.

State of Maharashtra [1982 Cri.L.J. 872] wherein it has been held that

merely calling a person by his caste name though may amount to insult

or abuse to him, it cannot be said to be with intent to humiliate such

person.

12. After perusal of the recitals of the FIR and the relevant

documents which filed on record by the learned Counsel of the appellant

it is apparent that the present appellant has also lodged the FIR

regarding the same incident which took place on the same date and at

the same time. The allegation made by the present appellant in the FIR

lodged by him is also substantiated by the application which is filed by

various villagers which shows that the appellant is falsely implicated in

the alleged offence. Considering the allegations made against the present

appellant in the background of these circumstances and there is no

specific abuses mentioned by the informant which would show that said

abuses are uttered by the present appellant with intent to humiliate or

insult the informant and other ladies within a public view. The

allegations are to be considered in the background of the previous

complaint lodged by the present appellant against the son of the J.52.cri.appeal.792.2023.odt 10/11

informant. Even accepting the allegations as it is, no prima facie case is

made out against the present appellant as mere reference of the caste is

not sufficient. Recently, in the case of Prathvi Raj Chauhan Vs. Union of

India and ors. [(2020) 4 SCC 727] wherein the Hon'ble Apex Court held

that grant of anticipatory bail under Section 438 Cr.P.C. is barred in

respect of the offences under the 1989 Act, however prima facie case is

not made out, anticipatory bail can be granted in appropriate

circumstances with a cautious exercise of powers. Section 18 and 18A of

the 1989 Act have no application where prima facie case is not made

out. However, for evaluating the prima facie case re-appreciation of

evidence is not required.

13. In the light of the above well settled law and after considering

the facts on record, the observation of the Special Court that bar under

Section 18A is erroneous, and therefore, the order passed by the Special

Court deserves to be set aside. In view of that, I proceed to pass

following order :

            (i)          The appeal is allowed.

            (ii)         The order passed by the Special Judge and

Additional Sessions Judge-2, Amravati in Criminal Bail

Application No.1214 of 2023 is hereby quashed and set aside.

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            (iii)        In the event of arrest, the appellant - Sachin s/o

Tryambakrao Hade in connection with Crime No.294 of 2023

registered at police station Walgaon, Tq. Bhatkuli, District

Amravati for the offence punishable under Section 294 and

295 of the Indian Penal Code read with Section 3(1)(r), 3(1)

(s) of the Scheduled Caste and Scheduled Tribe (Prevention

of Atrocities) Act, 1989, be released on anticipatory bail on

executing P.R. Bond in the sum of Rs.25,000/- (Rs. Twenty

five thousand) with one surety in the like amount.

(iv) The appellant shall attend concerned Police

Station once in a week i.e. on every Sunday between 10.00

a.m. and 1.00 p.m. and shall cooperate with the investigating

agency.