Bombay High Court
Sham Bhagwanrao Ingale And Anr vs The State Of Maharashtra And Anr on 25 April, 2019
Equivalent citations: AIRONLINE 2019 BOM 1460, (2019) 5 MH LJ (CRI) 494
(1) criappeal875.18
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.875 OF 2018
1. Sham Bhagwanrao Ingale,
Age-37 years, Occu - Service,
2. Vishwanath Rajendra Aaranye,
Age-35 years, Occu-Agri,
Both R/o. Hathral, Tq. Mukhed,
Dist. Nanded
...APPELLANTS
VERSUS
1. The State of Maharashtra
Through Vazirabad Police Station,
Nanded.
2. Vanita Dhanaji Marakwad,
Age-30 years, Occu-Household,
R/o. Hathral, Tq. Mukhed,
Dist. Nanded
...RESPONDENTS
Mr.Anil M. Gaikwad, Advocate for the appellants
Mr.S.N. Morampalle, APP for respondent No.1/State
Mr.Ganesh R.Jadhav, Advocate for respondent No.2.
CORAM : S.M.GAVHANE,J.
RESERVED ON : 01/04/2019
PRONOUNCED ON : 25/04/2019
J U D G M E N T :-
. Heard, the appeal is admitted. Notice after admission is made returnable forthwith. Appeal is ::: Uploaded on - 25/04/2019 ::: Downloaded on - 26/04/2019 06:56:15 ::: (2) criappeal875.18 taken up for final hearing with the consent of both sides.
2. By this appeal the appellants/accused Nos.1 and 2 have assailed order dated 30/11/2018 in Misc. Criminal Application No.894 of 2018 passed by the Additional Sessions Judge-4, Nanded, thereby rejecting said application of the appellants for anticipatory bail. By order dated 15/01/2019 interim protection that, "no coercive action be taken against the appellants till the next date", was granted and it was continued from time to time.
3. Facts relevant to decide this appeal, in short, are that respondent No.2-Vanita Dhanaji Marakwad has filed the complaint with Vazirabad Police Station against the appellants and on the basis of the said complaint Crime No.333/2018 came to be registered against the appellants on 04/11/2018 for the offences punishable under Sections 3(1)(r)
(s), 3(2)(va) of the Scheduled Castes and Scheduled ::: Uploaded on - 25/04/2019 ::: Downloaded on - 26/04/2019 06:56:15 ::: (3) criappeal875.18 Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the "Atrocities Act") and under Sections 504 and 506 read with Section 34 of the Indian Penal Code (for short "IPC"). It was alleged that on 30/10/2018 in the office of Collector at Nanded the appellants purposely picked up the quarrel with the husband of respondent No.2 and appellant No.2/accused No.2 abused husband of respondent No.2 on his caste. So also while going out of the office of Collector at Nanded near the gate they had threatened to kill respondent No.2 and her husband.
4. Mr. Gaikwad, learned counsel for the appellants submitted that in the Grampanchayat elections of 2015 the respondent No.2 got elected as a member and Sarpanch of village Hathral, Tq. Mukhed, Dist. Nanded and she belongs to 'Mannervarlu' Scheduled Tribe. As she belongs to Scheduled Tribe she was required to file tribe validity certificate within six months of her election as a Sarpanch as ::: Uploaded on - 25/04/2019 ::: Downloaded on - 26/04/2019 06:56:15 ::: (4) criappeal875.18 per Section 10-1A of the Maharashtra Village Panchayats Act. But respondent No.2 did not submit said certificate and as such she incurred disqualification. Therefore, appellant No.1 filed complaint with the Collector, Nanded on 03/10/2016. The Collector, Nanded vide letter dated 24/10/2016 (Exh.'A') informed appellant No.1 that his application dated 03/10/2016 has been disposed of stating that he should file grampanchayat dispute as per Section 10-1A of the Maharashtra Village Panchayats Act, 1958. Thereafter, appellant No.2- Vishwanath Rajendra Aaranye and one Prakash Gyanoba Tembhurne have filed election dispute/appeal bearing No.277/2016 on 15/12/2016 against present respondent No.2 and two others praying that the present respondent No.2 who is respondent No.1 in the said election dispute and respondent No.2 in the said dispute have incurred disqualification, as they have not submitted their tribe validity certificates within six months of their election, as per Section 10-1A of the Maharashtra Village Panchayats Act and ::: Uploaded on - 25/04/2019 ::: Downloaded on - 26/04/2019 06:56:15 ::: (5) criappeal875.18 claimed declaration that present respondent No.2 is disqualified to be a Sarpanch and respondent No.2 in the said dispute is disqualified to be a member of the Grampanchayat and said dispute was pending before the Collector, Nanded on 30/10/2018 and therefore the appellants as well as respondent No.2 and her husband had come in the Collector office, Nanded on 30/10/2018.
5. Mr. Gaikwad, learned counsel further submitted that the husband of respondent No.2 is serving in Police department. He threatened the appellants on account of filing election dispute by them against his wife respondent No.2, on 30/10/2018. Therefore, immediately appellant No.2 made complaint (Exh.'B') to the District Superintendent of Police, Nanded against the husband of respondent No.2 about the aforesaid incident happened in the office of District Collector, Nanded. It is after five days of the said compliant filed by appellant No.2, the respondent No.2 filed complaint dated 04/11/2018 with ::: Uploaded on - 25/04/2019 ::: Downloaded on - 26/04/2019 06:56:15 ::: (6) criappeal875.18 Vazirabad Police Station regarding the so called incident dated 30/10/2018 on the basis of which the present crime against the appellants came to be registered. According to learned counsel the FIR lodged by respondent No.2 is after thought and the same has been lodged to give counter blast to the complaint dated 30/10/2018 prior in time filed by appellant No.2 with the Superintendent of Police, Nanded against the husband of respondent No.2. It is submitted that the entire complaint/FIR against the appellants does not show about caste of respondent No.2 and caste of the appellants.
6. Mr. Gaikwad, learned counsel submitted that in the above circumstances the appellants filed Misc. Criminal Application No.894 of 2018 in the Court of Sessions Judge, Nanded under Section 438 of the Code of Criminal Procedure, in the crime registered against them, for anticipatory bail. There is nothing on record to show that respondent No.2 was insulted referring her caste. There is nothing on record to ::: Uploaded on - 25/04/2019 ::: Downloaded on - 26/04/2019 06:56:15 ::: (7) criappeal875.18 show that respondent No.2 was humiliated and said incident was witnessed by the public. So also, there is nothing on record to show that respondent No.2 was abused on her caste by the appellants in a place within public view. As such, according to the learned counsel for the appellants when prima-facie offences under Section 3(1)(r) and 3(1)(s) of the Atrocities Act are not attracted, bar contemplated under Section 18A of the Atrocities Act is not applicable to the present case and therefore the appellants were required to be granted anticipatory bail by the learned Additional Sessions Judge, but the learned Additional Sessions Judge has wrongly rejected application of the appellants for anticipatory bail by the impugned order though the learned Additional Sessions Judge observed that it is doubtful whether offence under Section 3(1)(s) of the Atrocities Act is applicable or not. As such, according to the learned counsel the impugned order is not proper and sustainable. It is submitted that after filing this appeal interim protection has been granted to the ::: Uploaded on - 25/04/2019 ::: Downloaded on - 26/04/2019 06:56:15 ::: (8) criappeal875.18 appellants and they have not misused the liberty granted to them by this Court. Thus, learned counsel submitted that the impugned order be set aside and application of the appellants be allowed by allowing the present appeal.
7. To support his submissions Mr. Gaikwad, learned counsel has placed reliance upon the following decisions:
(i) Pradnya Pradeep Kenkare and another Vs. State of Maharashtra, 2005 All M.R. (Cri)1948, and
(ii) Subhash Kashinath Mahajan (Dr.) Vs. State of Maharashtra and another, 2018 AIR (SC) 1498.
8. Mr. Morampalle, learned APP appearing for respondent No.1/State submitted that Advocate for respondent No.2/complainant was present at the time of incident and as such, he is eye witness to the incident. Statement under Section 164 of the Code of Criminal Procedure of the respondent No.2 was recorded and in the said statement caste of ::: Uploaded on - 25/04/2019 ::: Downloaded on - 26/04/2019 06:56:15 ::: (9) criappeal875.18 respondent No.2 is mentioned. Thus, the learned APP supported the impugned order.
9. Mr. Jadhav, learned counsel for respondent No.2 submitted that interim relief is granted in favour the appellants. They are misusing the liberty as mentioned in reply affidavit of respondent No.2 dated 31/03/2019. The appellants may hamper and tamper the witnesses if they are released on bail. The husband of respondent No.2 is in service and he is residing at Nanded and the complainant alone is residing in the village Hathral and as the appellants are trying to disturb her, the appeal needs to be dismissed. According to learned counsel appellants are strong. They may interfere in the investigation. Thus, the learned counsel for respondent No.2 has prayed to dismiss the appeal.
10. I have carefully considered the submissions made by the learned counsel for the appellants, the learned APP and the learned counsel appearing for ::: Uploaded on - 25/04/2019 ::: Downloaded on - 26/04/2019 06:56:15 ::: ( 10 ) criappeal875.18 respondent No.2. I have perused the copies of documents produced on record by the appellants, the reply affidavit of respondent No.2 and the impugned order.
11. At the outset, it would be appropriate to refer some facts in respect of which there appears no dispute between the parties and the said facts are that in the year 2015 there was election of village Grampanchayat, Hathral of the appellants and respondent No.2/complainant and in the said election respondent No.2 was elected as Sarpanch. She had filed her nomination for the post of Sarpanch for the seat reserved for Scheduled Tribe claiming that she belongs to 'Mannervarlu' Scheduled Tribe. Respondent No.2 failed to submit tribe validity certificate within six months as per the provisions of the Maharashtra Village Panchayats Act. Appellant No.1 had filed application dated 03/10/2016 before the Collector, Nanded stating that respondent No.2 has incurred disqualification under Section 10-1A of the ::: Uploaded on - 25/04/2019 ::: Downloaded on - 26/04/2019 06:56:15 ::: ( 11 ) criappeal875.18 Maharashtra Village Panchayats Act as she failed to file tribe validity certificate within six months of her election as a Sarpanch and said application was disposed of by the Collector and appellant No.1 was informed vide letter dated 24/10/2016 (Exh.'A') that he has to file election dispute in the matter. Thereupon appellant No.2 and one Prakash Gyanoba Tembhurne have filed election dispute/appeal No. 277/2016 on 15/12/2016 against the present respondent No.2 and two others to declare that the present respondent No.2 and respondent No.2 in the said dispute have incurred disqualification as they did not submit tribe validity certificates, in view of Section 10-1A of the Maharashtra Village Panchayats Act and said dispute was pending on 30/10/2018 before the Collector, Nanded when the alleged incident in the present crime against the appellants had taken place, and on the said date the appellants as well as respondent No.2/original complainant and her husband had attended the Collector office, Nanded for aforesaid election dispute.
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12. To see whether anticipatory bail application is maintainable after provision under Section 18A of the Atrocities Act after the amendment in the Act, it would be useful to refer observation in paragraphs No. 20 and 21 of the judgment dated 03/04/2019 of the Division Bench of this Court in Criminal Appeal No. 194 of 2019. Said paragraph Nos.20 and 21 are as under:-
"20) In the landmark case reported as AIR 2007 SC 1450 [D.K. Ganesh Babu Vs. P.T. Manokaran & Ors.], the Apex Court has discussed the provision of section 438 and it is laid down that in exceptional circumstances anticipatory bail can be granted. In section 438 of Cr.P.C., the factors which are required to be taken into consideration by the Court are given and the provision is as follows :-
"438. Direction for grant of bail to person apprehending arrest .- (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest, he shall be released on bail, and that Court may, after taking into consideration, inter alia, the following factors:- (i) the nature and gravity or seriousness of the accusation as apprehended by the ::: Uploaded on - 25/04/2019 ::: Downloaded on - 26/04/2019 06:56:15 ::: ( 13 ) criappeal875.18 applicant;
(ii) the antecedents of the applicant including the fact as to whether he has, on conviction by a Court previously undergone imprisonment for a term in respect of any cognizable offence;
(iii) the likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested, and
(iv) the possibility of the applicant, if granted anticipatory bail, fleeing from justice,"
either reject the application forth with or issue an interim order for the grant of anticipatory bail:"
With effect from 21.4.2018 sub-section (4) was added to section 438 and it runs as under :-
"(4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA of section 376DB of the Indian Penal Code."
In the case reported as (1980) 2 SCC 565 [Shri. Gurbaksh Singh Sibbia and Ors. Vs. State of Punjab], the Constitutional Bench of Apex Court has made following observations at para No. 31 :-
"31. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the ::: Uploaded on - 25/04/2019 ::: Downloaded on - 26/04/2019 06:56:15 ::: ( 14 ) criappeal875.18 release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and "the larger interests of the public or the State" are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in The State v.
Captain Jagjit Singh, which,
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( 15 ) criappeal875.18
though, was a case under the old
Section 498 which corresponds to the present Section 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail."
Thus, the provision of section 438 of Cr.P.C. and the law developed on it shows that it is a discretionary relief, it can be granted in exceptional circumstances and the Court is expected to keep in mind the interest of the society also. If there are provisions due to which the relief of anticipatory bail cannot be granted to a person against whom there is allegation of commission of a particular offence, it becomes the duty of the Court to ascertain as to whether there is material to make out prima facie case of commission of that offence by the person who has come to the Court for relief of anticipatory bail. If the Court forms opinion that there is such material, then it can be said that the bar given by section 18 or section 18-A comes into play. If the material is not sufficient to make out prima facie case of commission of the offence punishable under the Act against the applicant, the Court is expected ::: Uploaded on - 25/04/2019 ::: Downloaded on - 26/04/2019 06:56:15 ::: ( 16 ) criappeal875.18 to consider the matter as provided under section 438 of Cr.P.C. Section 438 already quoted shows that the provision is made to see that the liberty of the subject is not put in jeopardy on frivolous grounds at the instance of unscrupulous or irresponsible persons or officers who may some times be in charge of prosecution. [Reliance placed on the case reported as AIR 1977 SC 366 (Balchand Jain Vs. State of Madhya Pradesh) and also on AIR 2007 SC 1450 [D.K. Ganesh Babu Vs. P.T. Manokaran & Ors.]).
21) In view of the discussion made above, this Court holds that even after the amendment made in the year 2018 by which the provision of section 18-A came to be added, there is the power to Sessions Court and High Court to consider anticipatory bail application even if the crime is registered for offences punishable under the Act. At the time of consideration of such application, the Court will have to consider as to whether there is accusation of having committed the offence under the Act and as to whether there is material to make out prima facie case for commission of such offence. This Court wants to add that even the police officer is expected to give thought at the time of registration of the crime under section 154 of Cr.P.C. that whether the allegations constitute the offence under the Act. Only because the first informant belongs to scheduled tribe or scheduled caste, the crime cannot be registered for offence punishable under the Act and offence can be registered under the Act only if there are ingredients of the offences punishable under the Act in the accusation."
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13. Similarly, it is useful to refer decision of Full Bench of Rajasthan High Court in the case of Virendra Singh Vs. State of Rajasthan, 2000 Cri.L.J. 2899 to see under what circumstances application under Section 438 of the Code of Criminal Procedure can be entertained in case of offence under the Atrocities Act, and in the said case in paragraph 18 it was observed thus:-
"18.If a person is even alleged of accusation of committing an offence under the S.C. S.T. 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 Sec. 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 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 ::: Uploaded on - 25/04/2019 ::: Downloaded on - 26/04/2019 06:56:15 ::: ( 18 ) criappeal875.18 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 in our view is intended to put to a complete bar against entertainment of application of anticipatory bail which is unambiguously laid down under Section 18 of the Act of 1989, 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 therefrom taken at their face value disclose the existence of the ingredients constituting the alleged offence. In our opinion, the court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint by calling for the case diary, charge sheet or any other material gathered at the time of investigation but if the allegations in the FIR or the complaint even if they are taken at their face value are accepted in their entirety do not constitute the offence alleged, it is only in those miniscule number of cases, the courts would be justified in entertaining the application, not because it is maintainable but clearly because the Act would be inapplicable in the facts and circumstances of that particular case. Thus the application for anticipatory bail can be entertained only on the ground of inapplicability of the Act of 1989 due to the facts of the case which will have to be gathered only from the FIR and not beyond that because once it is ::: Uploaded on - 25/04/2019 ::: Downloaded on - 26/04/2019 06:56:15 ::: ( 19 ) criappeal875.18 gathered from the FIR that the applicant is an accused of committing an offence laid down under Section 3 of the Act of 1989, the bar of Sec. 18 would instantly operate against the person who has been made an accused of the offence under the Act of 1989.
(Emphasis supplied). To put it differently, once it is apparent from the FIR that an offence under the Act of 1989 is even alleged, the Courts would not be justified at all in weighing or scrutinising the preponderance of the probability of commission of the offence by the accused, but if from the FIR itself the ingredients of offence as laid down under Sec. 3 of the Act itself is found to be missing, the bar created by Sec. 18 would not be allowed to operate against an accused and only in that event his application for anticipatory bail would be dealt with by the concerned Court to determine whether the Act of 1989 can be said to be rightly applicable against the accused and not to enter into further enquiry into the matter so as to determine whether the allegations levelled against the accused in the FIR are true or false and there would be no justification to enter into the matter further in order to examine whether the allegations levelled against the accused are even prima facie correct or incorrect."
14. Thus, it is clear from the observations of the Division Bench of this Court in Criminal Appeal ::: Uploaded on - 25/04/2019 ::: Downloaded on - 26/04/2019 06:56:15 ::: ( 20 ) criappeal875.18 No.194 of 2019 that if the Court forms opinion that there is such material, then bar under Section 18A comes in to play, if the material is not sufficient to make out prima facie case of commission of offence punishable under the Atrocities Act against the applicant, the Court is expected to consider the matter as provided under section 438 of Cr.P.C. Similarly in view of Full Bench decision of Rajasthan High Court in the case of Virendra Singh (Supra) application for anticipatory bail can be entertained only on the ground of inapplicability of the Act of 1989 due to the facts of the case which will have to be gathered only from the FIR and not beyond that because once it is gathered from the FIR that the applicant is an accused of committing an offence laid down under Section 3 of the Act of 1989, the bar of Section 18 would instantly operate against the person who has been made an accused of the offence under the Act of 1989.
15. The ingredients of offences under Sections ::: Uploaded on - 25/04/2019 ::: Downloaded on - 26/04/2019 06:56:15 ::: ( 21 ) criappeal875.18 3(1)(r) and 3(1)(s) of the Atrocities Act alleged against the appellants are to be considered and said provisions are as under:
"3. Punishments for offences of atrocities.- (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-
(a) ..........
(r) intentionally insults or
intimidates with intent to
humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;
(s) abuses any member of a
Scheduled Caste or a Scheduled
Tribe by caste name in any place
within public view;
(t) ........
shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine."
16. On perusal of the FIR (Exh."C") dated 04/11/2018 lodged by the respondent No.2/complainant it is seen that respondent No.2 and her husband went in the office of the District Collector, Nanded on 30/10/2018 at about 10.30 a.m. as there was hearing of the proceeding under Section 10-1A of the Maharashtra Village Panchayats Act. Her husband after leaving her at the gate of the said office went to ::: Uploaded on - 25/04/2019 ::: Downloaded on - 26/04/2019 06:56:15 ::: ( 22 ) criappeal875.18 the office of Superintendent of Police as he was having personal interview with the Superintendent of Police. Respondent No.2 was waiting for her husband at the gate of office of District Collector, Nanded. After sometime her husband came at the gate and she asked him whether his work is over. He told her that Superintendent of Police had gone to Kandhar and he has been called on tomorrow. Thereafter, he went to the office of District Collector and inquired about the matter and again came to the gate and when she asked him what has happened, he told her that her advocate has asked him to wait for sometime. Therefore, both of them were waiting for the advocate, but they could not contact their advocate for long time. Therefore, her husband went in the office of the District Collector. There both the appellants were present. As her husband was in the uniform the appellant No.2 said him why he has come there and said that they have made his wife to step down from the post of Sarpanch and they would also compel him to leave his job and appellant No.2 was ::: Uploaded on - 25/04/2019 ::: Downloaded on - 26/04/2019 06:56:15 ::: ( 23 ) criappeal875.18 abusing her husband on his caste. Her husband came to the gate and told the above said incident to her. This shows that the respondent No.2 had not witnessed the above said incident happened in the office of the District Collector with her husband. It has further alleged in the FIR that thereafter while respondent No.2 and her husband were standing at the gate of the office of Collector the appellants came on motorcycle and stopped the motorcycle near the respondent No.2 and said that she has lost post of Sarpanch and within one month her husband would also loose his job and that, "rqeph yk;dh vkeP;k ik;ktoG jkg.;kph] ekxqu [kk.kkjh tkr rqeph pkj ?kj vlwu ,so<k ekt rqEgkyk" and further threatened to kill them with the knife and they further said that they would file false complaint to the Superintendent of Police.
17. From the above allegations in the FIR it is clear that no role is attributed to appellant No.1 as regards offence under Section 3 of the Atrocities Act. So also, FIR does not show that respondent No.2/ ::: Uploaded on - 25/04/2019 ::: Downloaded on - 26/04/2019 06:56:15 ::: ( 24 ) criappeal875.18 complainant belongs to Scheduled Tribe or Scheduled Caste and that the appellants are not members of Scheduled Caste or Scheduled Tribe. The words referred to above allegedly uttered by the appellants are not prima facie sufficient to infer that the appellants have intentionally insulted the respondent No.2 with intent to humiliate her in any place within the public view within the meaning of Section 3(1)(r) of the Atrocities Act. Similarly, allegation in the FIR that the appellant No.2 abused husband of respondent No.2 on his caste which is vague and which incident is not witnessed by respondent No.2 is not sufficient to state that appellant No.2 abused husband of respondent No.2 by his caste name in any place within public view because there is nothing in the FIR to show that the aforesaid incidents were witnessed by the public or any other witness.
18. Thus, as the offences under Sections 3(1)(r) and 3(1)(s) of the Atrocities Act are not prima facie attracted and applicable as per the FIR the bar ::: Uploaded on - 25/04/2019 ::: Downloaded on - 26/04/2019 06:56:15 ::: ( 25 ) criappeal875.18 contemplated under Section 18A of the Atrocities Act to entertain application for anticipatory bail under Section 438 of the Code of Criminal Procedure is not attracted in the present case. As such, application for anticipatory bail can be entertained.
19. Of course the statement of husband of respondent No.2 shows that his wife was elected as a Sarpanch from Scheduled Tribe category and that both the appellants were abusing him loudly on his caste. But when FIR and statement of husband of respondent No.2 are not sufficient to state that either the respondent No.2 or her husband were abused on their caste in a place within public view the say of the husband of respondent No.2 is not sufficient to attract offences under Sections 3(1)(r) and 3(1)(s) of the Atrocities Act. At the most on the basis of allegations referred earlier made in the FIR offence under Section 506 of the IPC which is bailable would be attracted against the appellants on the background of the admitted facts referred earlier regarding ::: Uploaded on - 25/04/2019 ::: Downloaded on - 26/04/2019 06:56:15 ::: ( 26 ) criappeal875.18 Grampanchayat dispute pending before the Collector, Nanded between appellant No.2 and others on the one hand and respondent No.2/complainant on the other hand.
20. The learned Additional Sessions Judge while passing the impugned order in paragraph No.14 though observed that at this juncture it may be doubtful to say whether Section 3(1)(s) of the Atrocities Act would be applicable or not, observed that there is no doubt to say that the provisions of Section 3(1)(r) of the Atrocities Act will be applicable. When in the FIR the respondent No.2/ complainant does not say that she belongs to Scheduled Caste or Scheduled Tribe and further does not say that the appellants are not members of Scheduled Caste or Scheduled Tribe observations of the learned Additional Sessions Judge that provisions of Section 3(1)(r) of the Atrocities Act will be applicable are prima facie not correct and sustainable.
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( 27 ) criappeal875.18 21. In view of the above, I hold that the
appellants have made out the case to extend benefit of anticipatory bail to them. Therefore, the order impugned in the present appeal needs to be quashed and set aside and application filed by the appellants for anticipatory bail needs to be allowed by allowing the appeal. Therefore, in the result following order is passed.
ORDER
(i) Appeal is allowed.
(ii) Impugned order dated 30/11/2018 passed by
the Additional Sessions Judge-4, Nanded in Misc.
Criminal Bail Application No.894 of 2018 is quashed and set aside.
(iii) Said Misc. Criminal Bail Application No. 894/2018 is allowed. In the event of arrest of the appellants in connection with Crime No.333/2018 registered in Vazirabad Police Station, Nanded, the appellants be released on bail, each on furnishing ::: Uploaded on - 25/04/2019 ::: Downloaded on - 26/04/2019 06:56:15 ::: ( 28 ) criappeal875.18 P.R. bond of Rs.15,000/- (Rupees Fifteen Thousand) with solvent surety of the like amount on conditions that;
(a) They shall make themselves available to the Investigating Officer for the purpose of investigation as and when necessary;
(b) They shall not tamper the evidence of prosecution in any manner and by brining pressure on the respondent No.2/complainant or any witness;
(c) They shall attend Vazirabad Police Station, Nanded on fourth Saturday of each month between 11.00 a.m. to 12.00 p.m. till the conclusion of the investigation.
[S.M.GAVHANE,J.] SSP ::: Uploaded on - 25/04/2019 ::: Downloaded on - 26/04/2019 06:56:15 :::