Full Judgment Text
1 934-CriAl-703-19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 703 OF 2019
1. Ram @ Rambhau Baburao Lakade,
Age: 60 years, Occu. Agril.,
R/o : Khamaswadi, Tq. Kallam,
Dist. Osmanabad.
2. Mahadeo Rambhau Lakade,
Age: 27 years, Occu: Agril.,
R/o : As above.
3. Uttam Krushna Nilakhe,
Age: 50 years, Occu: Agril.,
R/o : Nagzarwadi, Tq. Kallam,
Dist. Osmanabad.
4. Akash Subhash Zori,
Age : 20 years, Occu.: Agril.,
R/o : Khamaswadi, Tq. Kallam,
Dist. Osmanabad.
5. Umesh @ Ishwar Shivaji Chandane,
Age : 37 years, Occu. Agril.,
R/o : As above.
6. Sunil Mohan Sawant,
Age : 30 years, Occu: Agril.,
R/o : As above. ...APPELLANTS
(Ori. Accused Nos.1 to 6 )
VERSUS
1. The State of Maharashtra,
Through Police Station, Shiradhon,
Dist. Osmanabad.
2. Jyotiram s/o Mahadeo Kharatmal,
Age: 30 years, Occu. Agril., & Labour,
R/o: Khamaswadi, Tq. Kallam,
Dist. Osmanabad. ...RESPONDENTS
(Respdt. No. 2 Ori. Informant)
…
Mr. Pramod Mule, Advocate for appellants
Mr. P.K. Lakhotiya, APP for respondent No. 1-State
Mr. Angad L. Kanade, Advocate for respondent No. 2
...
::: Uploaded on - 11/11/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
2 934-CriAl-703-19
CORAM : K.K. SONAWANE, J.
th
DATE : 6 NOVEMBER, 2019.
JUDGMENT :-
1. Heard. Admit. The matter is taken up for its finality on merit
with the consent of both sides.
2. This appeal is directed against the impugned Order of
rebuffing the relief of pre-arrest bail to the appellants in Crime No.
91 of 2019 registered with Shiradhon Police Station, Taluka Kallam,
District Osmanabad, under Sections 141, 142, 143, 146, 147, 323,
504 and 506 read with Section 149 of the Indian Penal Code (IPC)
and under Sections 3(2)(va), 3(1)(f), 3(1)(g), 3(1)(r) and 3(1)(s) of
the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (hereinafter, referred to as “Act of 1989”, for
the sake of brevity). The appellants-accused preferred the present
appeal by invoking remedy under Section 14-A(2) of the Act of
1989.
3. Genesis of the appeal culled-out in brief is that on
29-06-2019, complainant - Jyotiram Mahadeo Khartmal, resident of
Khamaswadi, Taluka Kallam, District Osmanabad, approached to the
Police of Shiradhon Police Station, District Osmanabad, and filed the
report that he is residing in Khamaswadi along with his father, uncle
and brothers. He is having land Gut No.75 admeasuring 1 Hectare
60 Are located within the vicinity of Nagzarwadi, Taluka Kallam,
District Osmanabad. It has been alleged that on 29-06-2019, at
::: Uploaded on - 11/11/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
3 934-CriAl-703-19
about 3.00 p.m., the appellants and other persons with vehicle -
Tractor barged into his land Gut No. 75 and started activites of
sowing the crops. At that time, the complainant made enquiry with
them for what reason they are toiling the land. The appellants
reprimanded the complainant and hurled casteist abuses to him and
his father, uncle etc. with intention to insult and humiliate them on
their caste within a public view. They have also given threats of life
to the complainant etc.. There are allegations about assault causing
hurt with the help of weapon sickle, Axe, etc., and intimidation to
the complainant and others.
4. Pursuant to FIR, the Police of Shiradhon Police Station
registered the Crime bearing No. 91 of 2019 and set the penal law
in motion. The appellants, apprehending their arrest, filed Criminal
Bail Application bearing No. 230 of 2012 under Section 438 of Code
of Criminal Procedure, 1973 (Cr.P.C.) before the learned Additional
Sessions Judge, Osmanabad. The learned Additional Sessions Judge
considered the circumstances on record and rejected the application
of the appellants on the ground that there are allegations sufficient
to make out the offence under the Act of 1989 and in view of bar
under Section 18 of the Act of 1989, the appellants are not entitled
for relief of anticipatory bail in this case. The impugned order of
rejection of application for anticipatory bail of the appellants is the
subject-matter of present appeal.
5. The learned counsel for appellants vehemently submits that
::: Uploaded on - 11/11/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
4 934-CriAl-703-19
the appellants are innocent of the charges pitted against them. They
have not committed any crime, but they are falsely embroiled in this
case to wreak vengeance on account of land dispute. According to
learned counsel, the allegations made in the FIR are not sufficient to
constitute the offence under the Act of 1989. Therefore, statutory
bar under Section 18 and 18-A of the Act of 1989 would not be
made applicable to preclude the appellants for availing benefit of
Section 438 of the Cr.P.C. in this case. The learned counsel
contends that the alleged contentious land Gut No. 75 admeasuring
1H. 60 R located at village Nagzarwadi Taluka Kallam is in
possession of appellants. The first informant or his family members
have no any concerned with it. The learned counsel drawn attention
of this Court towards document of civil litigation bearing RCS No.
642 of 2001 instituted on behalf of father, uncle etc., of the first
informant. The civil litigation was preferred for declaration of
ownership and perpetual injunction against family members of the
appellants in respect of land Gut No. 75 admeasuring 1H. 60R
located at village Nagzarwadi Taluka Kallam. The learned Civil
Judge, Junior Division, Kallam found reluctant to favour the father,
uncle of the first informant for any sort of relief and observed that
the family members of the first informant are not in possession of
contentious land and they are also not entitled for relief of injunction
into the matter. Accordingly, RCS No. 642 of 2001 came to be
dismissed with cost. The learned counsel for appellants submitted
that the provisions of Sections 3(1)(f)(g)(r)(s) and 3(2)(va) of the
::: Uploaded on - 11/11/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
5 934-CriAl-703-19
Act of 1989 are not attracted to the facts and circumstances of the
present case. Therefore, there is no any impediment to entertain
the application for relief of pre-arrest bail filed on behalf of
appellants. The learned counsel further submitted that there is no
any recovery nor custodial interrogation of the appellants are
essential for the sake of investigation. Therefore, impugned order
rejecting application for bail by learned trial Court be set aside and
appeal be allowed. He relied upon the judgment in Criminal Appeal
No. 6 of 2019 (Shaikh Musa S/o Shaikh Hussain Vs. State of
Maharashtra and another) and Criminal Appeal No. 05 of 2019
(Krishna Vs. State of Maharashtra and connected matter)
6. Learned APP and learned counsel for respondent No. 2 raised,
the objection and submitted that the Section 18-A of the Act of
1989 put embargo on the Court for exercise of discretion under
Section 438 of the Cr.P.C.. The first informant and his family
members are from SC/ST community. The appellants committed
crime against them by wrongfully dispossessing and occupying their
contentious land Gut No. 75. The appellants hurled casteist abuses
and assaulted the first informant, his father and uncle to humiliate
and insult them within a public view. The learned trial Court rejected
the application for bail after considering the statutory bar under
Sections 18 and 18-A of the Act of 1989. There is no error or
illegality committed by learned trial Court. There is no propriety to
entertain the appeal.
::: Uploaded on - 11/11/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
6 934-CriAl-703-19
7. This Court on earlier occasion dealt with the issue of
applicability of Sections 18 and 18-A of the Act of 1989 to entertain
the application for pre-arrest bail filed under Section 438 of the
Cr.P.C. In the proceeding of Criminal Appeal No. 787 of 2018
(Kiran Madhukar Ingle Versus State of Maharashtra and another),
this Court in paragraphs No. 13 and 15 of said Judgment elaborately
discussed the scope of statutory bar under Section 18 of the Act of
1989. It has also been observed that the application for anticipatory
bail could be entertained only on the ground of inapplicability of
provisions of Act of 1989 and it would be ascertained only on the
basis of recitals of the FIR or complaint and not embarking upon an
roving enquiry as to the reliability or genuineness or otherwise of
the allegation made in the FIR. Paragraphs No. 13 and 15 of
aforesaid judgment are reproduced as under:
“13. It is explicitly made clear that the Court of
Sessions or High Court can entertain the application
for pre-arrest bail to ascertain its maintainability. The
law does not permit to reject the application for
anticipatory bail merely because the case has been
registered under section 3 of the Act of 1989. But, it
is incumbent on the part of the Court to examine as to
whether the applicant at all is a fit person to be
treated as accused of the crime registered under the
Act of 1989. Section 18 of the Act of 1989 does not
bar judicial scrutiny of the accusation made in the
complaint. When the Court is held competent to enter
into scrutiny of the allegations to determine whether
the person can be treated as accused of commission
of offence under the Act of 1989, then question would
arise as to what extent the Court would be justified to
examine material to determine the prima facie case
against him.
::: Uploaded on - 11/11/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
7 934-CriAl-703-19
14. xx xx xx xx xx xx xx
15. The exposition of law as referred above
unequivocally pointer to the inference that the
application for anticipatory bail can be entertained only
on the ground of in applicability of the provisions of Act
of 1989 and it would be ascertainable only on perusal
of recitals of the FIR or complaint and not beyond that,
because once it is gathered from the FIR that the
applicant is accused of committing the offence
prescribed under section 3 of the Act of 1989, a bar
under section 18 of the Act of 1989 would instantly
operate against him. Therefore, the Courts are not
permitted to enter into roving enquiry in regard to
sustainability of accusation nurtured on behalf of
complainant. Moreover, further scrutiny by summoning
the case diary or other material to test veracity of the
allegations made in the FIR also not permissible under
the law.”
8. In the present appeal, the prosecution applied the provisions
of sections 3(2)(va) 3(1)(f)(g)(r)(s) of the Act of 1989 against the
present appellants which reads as under:
“3. Punishments for ofennes of atronities :-
(2) Whoever, not being a member of a
Snheduled Caste or a Snheduled Tribe :-
[(va) nommits any ofenne spenifed in the
Snhedule, against a person or property,
knowing that sunh person is a member of a
Snheduled Caste or a Snheduled Tribe or
sunh property belongs to sunh member, shall
be punishable with sunh punishment as
spenifed under the Indian Penal Code (45 of
1860) for sunh ofennes and shall also be
liable to fne..
3. Punishments for ofennes of atronities :-
(1) Whoever, not being a member of a
Snheduled Caste or a Snheduled Tribe :-
(a) xxxxxxxx to
(e) xxxxxxxx
::: Uploaded on - 11/11/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
8 934-CriAl-703-19
(f) wrongfully onnupies or nultivates
any land, owned by, or in the possession of
or allotted to, or notifed by any nompetent
authority to be allotted to, a member of a
Snheduled Caste or a Snheduled Tribe, or
gets sunh land transferred.
(g) Wrongfully dispossesses a
member of a Snheduled Caste of a Snheduled
Tribe from his land or premises or interferes
with the enjoyments of his rights, innluding
forest rights, over any land or premises or
water or irrigation fanilities or destroys the
nrops or takes away the produnes therefrom.
Explanation – For the purpose of nlause (f)
and this nlause the expression “wrongfully”
innludes-
(A) against the persons' will;
(B) without the person's nonsent;
(n) with the person's nonsent, where sunh
nonsent has been obtained by putting the
person, or any other person in whom the
person is interested in fear of death or of
hurt; or
(D) fabrinating renords of sunh land;
(h) xxxxxxxx to
(q) xxxxxxxx
(r) Intentionally insults or intimidates
with intent to humiliate a member of a
Snheduled Caste or a Snheduled Tribe in any
plane within publin view ;
(s) abuses any member of a Snheduled
Caste or a Snheduled Tribe by naste name in
any plane within publin view;
Explanation : For the purposes of this nlause,
the expression “objent” means and innludes
statue, photograph and portrait.”
9. Intense scrutiny of the factual aspects of the present matter
reveals that prima facie ingredients of penal provisions of the Act of
::: Uploaded on - 11/11/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
9 934-CriAl-703-19
1989 do not match with the allegation nurtured on behalf of first
informant in this case. The basic ingredients of Section 3(1)(r)(s)
are that there must be “intentional insult” or “intimidation” with
“intent” to humiliate a member of Scheduled Caste and Scheduled
Tribe in any place within “public view”. It is imperative to appreciate
that mensrea is the decisive factor in the offence under Act of
1989. In the case of Shantabai Vs. State of Maharashtra reported in
1982 Cr.L.J. 872, it was 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 within a public
view. In the matter in hand, it has been alleged that the appellants
hurled abuses to the first informant, his father, uncle by uttering the
word “ Dhorgya”. If the word “Dhorgya” is taken out from FIR for
moment, then rest of the conversation appears from the recitals of
FIR demonstrate the threat or intimidation but does not indicate
that there was any mensrea or intention to humiliate the
complainant-first informant on his caste within public view.
10. Admittedly, there was land dispute in between families of the
appellants and first informant. It is worth to mention that family
members of first informant did not succeed in the civil litigation. In
contrast, the Civil Court observed that the plaintiffs i.e. family
members of the first informant failed to prove their title and
possession over the contentious land Gut No. 75. Therefore, it
cannot be perceived that the appellants attempted wrongfully to
dispossess or occupy the agricultural land of family members of the
::: Uploaded on - 11/11/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
10 934-CriAl-703-19
first informant. In such circumstances, ingredients of Sections 3(1)
(f)(g), prima facie, could not be made applicable in the present case
against the appellants.
11. The provisions of Section 3(2)(va) of the Act of 1989
contemplate commission of offence against the persons or property
belong to the member of Scheduled Caste and Scheduled Tribe. As
referred above, the decree passed by the Civil Court in the suit
bearing RCS No. 642 of 2001 reflects that the contentious property
was owned and in possession of family members of the appellants.
In such circumstances, the provision of Section 3(2)(va) of the Act
of 1989 would not create statutory embargo as prescribed under
Sections 18 and 18-A of the Act of 1989 in this case.
12. Taking into consideration all the circumstances discussed
above, there is no impediment to conclude that in spite of bar under
Section 18 of the Act of 1989, for invocation of powers under
Section 438 of the Cr.P.C. it is still open to this Court to find out by
looking to the recitals of FIR of the case itself, as to whether prima
facie case is made out by the first informant against present
appellants. As referred supra, the scrutiny of factual score reveals
that there are no sufficient material available on record prima facie
to arrive at the conclusion that the allegations nurtured on behalf of
prosecution constitute offence under the Act of 1989 against
appellants. Therefore, there is no impediment to entertain the
application filed under Section 438 of Cr.P.C. for relief of pre-arrest
::: Uploaded on - 11/11/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
11 934-CriAl-703-19
bail on behalf of appellants.
13. In regard to offences levelled against the appellants under
Sections 141, 142, 143, 146, 147, 323, 504 and 506 read with
Section 149 of the IPC, it is to be noted that custodial interrogation
of the appellants is not essential as well as there would not be any
recovery from appellants for the sake of investigation. However, the
appellants has shown inclination to co-operate with the
Investigating Officer during the course of investigation. In such
circumstances, it would justifiable to allow the bail application filed
before learned trial Court on behalf of the appellants.
14. In sequel, the appeal stands allowed. The impugned order
dated 11-07-2019 passed by the learned Additional Sessions Judge,
Osmanabad, in Criminal Bail Application No. 230 of 2019 is hereby
quashed and set aside. The application of the appellants filed under
Section 438 of Cr.P.C. for their pre-arrest bail before the learned
Sessions Court is hereby granted. The present appellants be
released on bail in the event of their arrest in connection with Crime
No. 91 of 2019 registered with Shiradhon Police Station, Taluka
Kallam, District Osmanabad for the offence punishable under
Sections 141, 142, 143, 146, 147, 323, 504 and 506 read with
Section 149 of the Indian Penal Code and under Sections 3(2)(va),
3(1)(f), 3(1)(g), 3(1)(r) and 3(1)(s) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989, on furnishing
PR bond of Rs.20,000/-(Rupees Twenty Thousand) with one solvent
::: Uploaded on - 11/11/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
12 934-CriAl-703-19
surety of like amount each. It is stipulated that appellants-
applicants shall not indulged, directly or indirectly, in any kind of
activities of tampering with the evidence of the prosecution witness.
The appellants-applicants shall attend the Police Station Shiradhon,
tahsil Kallam, District Osmanabad, on every Sunday in between
11.00 a.m. to 3.00 p.m. till filing of the charge-sheet and co-
operate the Investigating Officer for the sake of investigation into
the crime. Inform the concerned Investigating Officer accordingly.
15. The present Criminal Appeal stands disposed of in above
terms. No order as to costs.
Sd/-
[ K. K. SONAWANE ]
JUDGE
MTK.
*
::: Uploaded on - 11/11/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 703 OF 2019
1. Ram @ Rambhau Baburao Lakade,
Age: 60 years, Occu. Agril.,
R/o : Khamaswadi, Tq. Kallam,
Dist. Osmanabad.
2. Mahadeo Rambhau Lakade,
Age: 27 years, Occu: Agril.,
R/o : As above.
3. Uttam Krushna Nilakhe,
Age: 50 years, Occu: Agril.,
R/o : Nagzarwadi, Tq. Kallam,
Dist. Osmanabad.
4. Akash Subhash Zori,
Age : 20 years, Occu.: Agril.,
R/o : Khamaswadi, Tq. Kallam,
Dist. Osmanabad.
5. Umesh @ Ishwar Shivaji Chandane,
Age : 37 years, Occu. Agril.,
R/o : As above.
6. Sunil Mohan Sawant,
Age : 30 years, Occu: Agril.,
R/o : As above. ...APPELLANTS
(Ori. Accused Nos.1 to 6 )
VERSUS
1. The State of Maharashtra,
Through Police Station, Shiradhon,
Dist. Osmanabad.
2. Jyotiram s/o Mahadeo Kharatmal,
Age: 30 years, Occu. Agril., & Labour,
R/o: Khamaswadi, Tq. Kallam,
Dist. Osmanabad. ...RESPONDENTS
(Respdt. No. 2 Ori. Informant)
…
Mr. Pramod Mule, Advocate for appellants
Mr. P.K. Lakhotiya, APP for respondent No. 1-State
Mr. Angad L. Kanade, Advocate for respondent No. 2
...
::: Uploaded on - 11/11/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
2 934-CriAl-703-19
CORAM : K.K. SONAWANE, J.
th
DATE : 6 NOVEMBER, 2019.
JUDGMENT :-
1. Heard. Admit. The matter is taken up for its finality on merit
with the consent of both sides.
2. This appeal is directed against the impugned Order of
rebuffing the relief of pre-arrest bail to the appellants in Crime No.
91 of 2019 registered with Shiradhon Police Station, Taluka Kallam,
District Osmanabad, under Sections 141, 142, 143, 146, 147, 323,
504 and 506 read with Section 149 of the Indian Penal Code (IPC)
and under Sections 3(2)(va), 3(1)(f), 3(1)(g), 3(1)(r) and 3(1)(s) of
the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (hereinafter, referred to as “Act of 1989”, for
the sake of brevity). The appellants-accused preferred the present
appeal by invoking remedy under Section 14-A(2) of the Act of
1989.
3. Genesis of the appeal culled-out in brief is that on
29-06-2019, complainant - Jyotiram Mahadeo Khartmal, resident of
Khamaswadi, Taluka Kallam, District Osmanabad, approached to the
Police of Shiradhon Police Station, District Osmanabad, and filed the
report that he is residing in Khamaswadi along with his father, uncle
and brothers. He is having land Gut No.75 admeasuring 1 Hectare
60 Are located within the vicinity of Nagzarwadi, Taluka Kallam,
District Osmanabad. It has been alleged that on 29-06-2019, at
::: Uploaded on - 11/11/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
3 934-CriAl-703-19
about 3.00 p.m., the appellants and other persons with vehicle -
Tractor barged into his land Gut No. 75 and started activites of
sowing the crops. At that time, the complainant made enquiry with
them for what reason they are toiling the land. The appellants
reprimanded the complainant and hurled casteist abuses to him and
his father, uncle etc. with intention to insult and humiliate them on
their caste within a public view. They have also given threats of life
to the complainant etc.. There are allegations about assault causing
hurt with the help of weapon sickle, Axe, etc., and intimidation to
the complainant and others.
4. Pursuant to FIR, the Police of Shiradhon Police Station
registered the Crime bearing No. 91 of 2019 and set the penal law
in motion. The appellants, apprehending their arrest, filed Criminal
Bail Application bearing No. 230 of 2012 under Section 438 of Code
of Criminal Procedure, 1973 (Cr.P.C.) before the learned Additional
Sessions Judge, Osmanabad. The learned Additional Sessions Judge
considered the circumstances on record and rejected the application
of the appellants on the ground that there are allegations sufficient
to make out the offence under the Act of 1989 and in view of bar
under Section 18 of the Act of 1989, the appellants are not entitled
for relief of anticipatory bail in this case. The impugned order of
rejection of application for anticipatory bail of the appellants is the
subject-matter of present appeal.
5. The learned counsel for appellants vehemently submits that
::: Uploaded on - 11/11/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
4 934-CriAl-703-19
the appellants are innocent of the charges pitted against them. They
have not committed any crime, but they are falsely embroiled in this
case to wreak vengeance on account of land dispute. According to
learned counsel, the allegations made in the FIR are not sufficient to
constitute the offence under the Act of 1989. Therefore, statutory
bar under Section 18 and 18-A of the Act of 1989 would not be
made applicable to preclude the appellants for availing benefit of
Section 438 of the Cr.P.C. in this case. The learned counsel
contends that the alleged contentious land Gut No. 75 admeasuring
1H. 60 R located at village Nagzarwadi Taluka Kallam is in
possession of appellants. The first informant or his family members
have no any concerned with it. The learned counsel drawn attention
of this Court towards document of civil litigation bearing RCS No.
642 of 2001 instituted on behalf of father, uncle etc., of the first
informant. The civil litigation was preferred for declaration of
ownership and perpetual injunction against family members of the
appellants in respect of land Gut No. 75 admeasuring 1H. 60R
located at village Nagzarwadi Taluka Kallam. The learned Civil
Judge, Junior Division, Kallam found reluctant to favour the father,
uncle of the first informant for any sort of relief and observed that
the family members of the first informant are not in possession of
contentious land and they are also not entitled for relief of injunction
into the matter. Accordingly, RCS No. 642 of 2001 came to be
dismissed with cost. The learned counsel for appellants submitted
that the provisions of Sections 3(1)(f)(g)(r)(s) and 3(2)(va) of the
::: Uploaded on - 11/11/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
5 934-CriAl-703-19
Act of 1989 are not attracted to the facts and circumstances of the
present case. Therefore, there is no any impediment to entertain
the application for relief of pre-arrest bail filed on behalf of
appellants. The learned counsel further submitted that there is no
any recovery nor custodial interrogation of the appellants are
essential for the sake of investigation. Therefore, impugned order
rejecting application for bail by learned trial Court be set aside and
appeal be allowed. He relied upon the judgment in Criminal Appeal
No. 6 of 2019 (Shaikh Musa S/o Shaikh Hussain Vs. State of
Maharashtra and another) and Criminal Appeal No. 05 of 2019
(Krishna Vs. State of Maharashtra and connected matter)
6. Learned APP and learned counsel for respondent No. 2 raised,
the objection and submitted that the Section 18-A of the Act of
1989 put embargo on the Court for exercise of discretion under
Section 438 of the Cr.P.C.. The first informant and his family
members are from SC/ST community. The appellants committed
crime against them by wrongfully dispossessing and occupying their
contentious land Gut No. 75. The appellants hurled casteist abuses
and assaulted the first informant, his father and uncle to humiliate
and insult them within a public view. The learned trial Court rejected
the application for bail after considering the statutory bar under
Sections 18 and 18-A of the Act of 1989. There is no error or
illegality committed by learned trial Court. There is no propriety to
entertain the appeal.
::: Uploaded on - 11/11/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
6 934-CriAl-703-19
7. This Court on earlier occasion dealt with the issue of
applicability of Sections 18 and 18-A of the Act of 1989 to entertain
the application for pre-arrest bail filed under Section 438 of the
Cr.P.C. In the proceeding of Criminal Appeal No. 787 of 2018
(Kiran Madhukar Ingle Versus State of Maharashtra and another),
this Court in paragraphs No. 13 and 15 of said Judgment elaborately
discussed the scope of statutory bar under Section 18 of the Act of
1989. It has also been observed that the application for anticipatory
bail could be entertained only on the ground of inapplicability of
provisions of Act of 1989 and it would be ascertained only on the
basis of recitals of the FIR or complaint and not embarking upon an
roving enquiry as to the reliability or genuineness or otherwise of
the allegation made in the FIR. Paragraphs No. 13 and 15 of
aforesaid judgment are reproduced as under:
“13. It is explicitly made clear that the Court of
Sessions or High Court can entertain the application
for pre-arrest bail to ascertain its maintainability. The
law does not permit to reject the application for
anticipatory bail merely because the case has been
registered under section 3 of the Act of 1989. But, it
is incumbent on the part of the Court to examine as to
whether the applicant at all is a fit person to be
treated as accused of the crime registered under the
Act of 1989. Section 18 of the Act of 1989 does not
bar judicial scrutiny of the accusation made in the
complaint. When the Court is held competent to enter
into scrutiny of the allegations to determine whether
the person can be treated as accused of commission
of offence under the Act of 1989, then question would
arise as to what extent the Court would be justified to
examine material to determine the prima facie case
against him.
::: Uploaded on - 11/11/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
7 934-CriAl-703-19
14. xx xx xx xx xx xx xx
15. The exposition of law as referred above
unequivocally pointer to the inference that the
application for anticipatory bail can be entertained only
on the ground of in applicability of the provisions of Act
of 1989 and it would be ascertainable only on perusal
of recitals of the FIR or complaint and not beyond that,
because once it is gathered from the FIR that the
applicant is accused of committing the offence
prescribed under section 3 of the Act of 1989, a bar
under section 18 of the Act of 1989 would instantly
operate against him. Therefore, the Courts are not
permitted to enter into roving enquiry in regard to
sustainability of accusation nurtured on behalf of
complainant. Moreover, further scrutiny by summoning
the case diary or other material to test veracity of the
allegations made in the FIR also not permissible under
the law.”
8. In the present appeal, the prosecution applied the provisions
of sections 3(2)(va) 3(1)(f)(g)(r)(s) of the Act of 1989 against the
present appellants which reads as under:
“3. Punishments for ofennes of atronities :-
(2) Whoever, not being a member of a
Snheduled Caste or a Snheduled Tribe :-
[(va) nommits any ofenne spenifed in the
Snhedule, against a person or property,
knowing that sunh person is a member of a
Snheduled Caste or a Snheduled Tribe or
sunh property belongs to sunh member, shall
be punishable with sunh punishment as
spenifed under the Indian Penal Code (45 of
1860) for sunh ofennes and shall also be
liable to fne..
3. Punishments for ofennes of atronities :-
(1) Whoever, not being a member of a
Snheduled Caste or a Snheduled Tribe :-
(a) xxxxxxxx to
(e) xxxxxxxx
::: Uploaded on - 11/11/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
8 934-CriAl-703-19
(f) wrongfully onnupies or nultivates
any land, owned by, or in the possession of
or allotted to, or notifed by any nompetent
authority to be allotted to, a member of a
Snheduled Caste or a Snheduled Tribe, or
gets sunh land transferred.
(g) Wrongfully dispossesses a
member of a Snheduled Caste of a Snheduled
Tribe from his land or premises or interferes
with the enjoyments of his rights, innluding
forest rights, over any land or premises or
water or irrigation fanilities or destroys the
nrops or takes away the produnes therefrom.
Explanation – For the purpose of nlause (f)
and this nlause the expression “wrongfully”
innludes-
(A) against the persons' will;
(B) without the person's nonsent;
(n) with the person's nonsent, where sunh
nonsent has been obtained by putting the
person, or any other person in whom the
person is interested in fear of death or of
hurt; or
(D) fabrinating renords of sunh land;
(h) xxxxxxxx to
(q) xxxxxxxx
(r) Intentionally insults or intimidates
with intent to humiliate a member of a
Snheduled Caste or a Snheduled Tribe in any
plane within publin view ;
(s) abuses any member of a Snheduled
Caste or a Snheduled Tribe by naste name in
any plane within publin view;
Explanation : For the purposes of this nlause,
the expression “objent” means and innludes
statue, photograph and portrait.”
9. Intense scrutiny of the factual aspects of the present matter
reveals that prima facie ingredients of penal provisions of the Act of
::: Uploaded on - 11/11/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
9 934-CriAl-703-19
1989 do not match with the allegation nurtured on behalf of first
informant in this case. The basic ingredients of Section 3(1)(r)(s)
are that there must be “intentional insult” or “intimidation” with
“intent” to humiliate a member of Scheduled Caste and Scheduled
Tribe in any place within “public view”. It is imperative to appreciate
that mensrea is the decisive factor in the offence under Act of
1989. In the case of Shantabai Vs. State of Maharashtra reported in
1982 Cr.L.J. 872, it was 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 within a public
view. In the matter in hand, it has been alleged that the appellants
hurled abuses to the first informant, his father, uncle by uttering the
word “ Dhorgya”. If the word “Dhorgya” is taken out from FIR for
moment, then rest of the conversation appears from the recitals of
FIR demonstrate the threat or intimidation but does not indicate
that there was any mensrea or intention to humiliate the
complainant-first informant on his caste within public view.
10. Admittedly, there was land dispute in between families of the
appellants and first informant. It is worth to mention that family
members of first informant did not succeed in the civil litigation. In
contrast, the Civil Court observed that the plaintiffs i.e. family
members of the first informant failed to prove their title and
possession over the contentious land Gut No. 75. Therefore, it
cannot be perceived that the appellants attempted wrongfully to
dispossess or occupy the agricultural land of family members of the
::: Uploaded on - 11/11/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
10 934-CriAl-703-19
first informant. In such circumstances, ingredients of Sections 3(1)
(f)(g), prima facie, could not be made applicable in the present case
against the appellants.
11. The provisions of Section 3(2)(va) of the Act of 1989
contemplate commission of offence against the persons or property
belong to the member of Scheduled Caste and Scheduled Tribe. As
referred above, the decree passed by the Civil Court in the suit
bearing RCS No. 642 of 2001 reflects that the contentious property
was owned and in possession of family members of the appellants.
In such circumstances, the provision of Section 3(2)(va) of the Act
of 1989 would not create statutory embargo as prescribed under
Sections 18 and 18-A of the Act of 1989 in this case.
12. Taking into consideration all the circumstances discussed
above, there is no impediment to conclude that in spite of bar under
Section 18 of the Act of 1989, for invocation of powers under
Section 438 of the Cr.P.C. it is still open to this Court to find out by
looking to the recitals of FIR of the case itself, as to whether prima
facie case is made out by the first informant against present
appellants. As referred supra, the scrutiny of factual score reveals
that there are no sufficient material available on record prima facie
to arrive at the conclusion that the allegations nurtured on behalf of
prosecution constitute offence under the Act of 1989 against
appellants. Therefore, there is no impediment to entertain the
application filed under Section 438 of Cr.P.C. for relief of pre-arrest
::: Uploaded on - 11/11/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
11 934-CriAl-703-19
bail on behalf of appellants.
13. In regard to offences levelled against the appellants under
Sections 141, 142, 143, 146, 147, 323, 504 and 506 read with
Section 149 of the IPC, it is to be noted that custodial interrogation
of the appellants is not essential as well as there would not be any
recovery from appellants for the sake of investigation. However, the
appellants has shown inclination to co-operate with the
Investigating Officer during the course of investigation. In such
circumstances, it would justifiable to allow the bail application filed
before learned trial Court on behalf of the appellants.
14. In sequel, the appeal stands allowed. The impugned order
dated 11-07-2019 passed by the learned Additional Sessions Judge,
Osmanabad, in Criminal Bail Application No. 230 of 2019 is hereby
quashed and set aside. The application of the appellants filed under
Section 438 of Cr.P.C. for their pre-arrest bail before the learned
Sessions Court is hereby granted. The present appellants be
released on bail in the event of their arrest in connection with Crime
No. 91 of 2019 registered with Shiradhon Police Station, Taluka
Kallam, District Osmanabad for the offence punishable under
Sections 141, 142, 143, 146, 147, 323, 504 and 506 read with
Section 149 of the Indian Penal Code and under Sections 3(2)(va),
3(1)(f), 3(1)(g), 3(1)(r) and 3(1)(s) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989, on furnishing
PR bond of Rs.20,000/-(Rupees Twenty Thousand) with one solvent
::: Uploaded on - 11/11/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::
12 934-CriAl-703-19
surety of like amount each. It is stipulated that appellants-
applicants shall not indulged, directly or indirectly, in any kind of
activities of tampering with the evidence of the prosecution witness.
The appellants-applicants shall attend the Police Station Shiradhon,
tahsil Kallam, District Osmanabad, on every Sunday in between
11.00 a.m. to 3.00 p.m. till filing of the charge-sheet and co-
operate the Investigating Officer for the sake of investigation into
the crime. Inform the concerned Investigating Officer accordingly.
15. The present Criminal Appeal stands disposed of in above
terms. No order as to costs.
Sd/-
[ K. K. SONAWANE ]
JUDGE
MTK.
*
::: Uploaded on - 11/11/2019 ::: Downloaded on - 02/06/2024 02:53:48 :::