Bombay High Court
Khushal S/O. Shankarrao Patil vs The State Of Maharashtra on 19 June, 2019
Author: Arun M. Dhavale
Bench: Arun M. Dhavale
911.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
911 CRIMINAL APPEAL NO.606 OF 2017
KHUSHAL S/O. SHANKARRAO PATIL
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Appellant : Mr. H.B. Nandagavale h/f Mr. Sakolkar Vijay G. APP for Respondent No. 1 & 2: Mr. S.M. Ganachari. Advocate for Respondent No. 3 : A.S. Jadhav h/f Mr. Prashant Katneshwarkar.
CORAM : ARUN M. DHAVALE, J
DATE : 19/06/2019
PER COURT :
1. By Order dated 16.11.2017 in M.C.A. No. 203/2017, the learned Additional Sessions Judge Kandhar, District Nanded, rejected the application for anticipatory bail filed by the present applicant. Hence this appeal.
2. The F.I.R. dated 27.03.2017 shows that on the same day at 11 a.m. the informant had submitted his nomination for reserved seat in A.P.M.C. Committee election. He was raising objections to the nomination of one of the accused persons. That time present appellant and two others addressed to him as 'Mahardya' and challenged his participation in Market Committee. He was addressed as ,"Salya Haramkhor, Madarchod, this Market committee belongs to we farmers, 1/5 ::: Uploaded on - 26/06/2019 ::: Downloaded on - 14/07/2019 09:59:11 :::
911.odt you Mahardya had nothing to do with it, you can not submit the form. The F.I.R. shows that the informant belongs to 'Boudh Mahar' community.
3. The learned advocate for the appellant relies on the report of Dy.S.P. Degloor, dated 18.04.2017 addressed to Special Judge Mukhed- Kandhar which shows that during the investigation the statements of Assistant Registrar and other Government Officer, who were present at the site, were recorded and they have denied the commission of the offences by the accused of abusing in the name of caste. They have also denied that there was any obscene abuses and causing of injuries on the skull. The Dy.S.P. sought permission to delete section 3(1)(r)(s) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities ) Act from the Crime. Learned advocate for the appellant therefore submits that the F.I.R. does not disclose offence under the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities ) Act and the appellant should be released on anticipatory bail.
4. Per contra, learned advocate for the informant/respondent No. 3 and the learned APP for the State submit that the two co-accused of present applicant had filed Criminal Appeal No. 581/2017 which was rejected by Division Bench of this Court on 06.02.2018. Learned advocate for the appellant submits that the said order is challenged 2/5 ::: Uploaded on - 26/06/2019 ::: Downloaded on - 14/07/2019 09:59:11 :::
911.odt before the Apex Court and the Apex Court has granted interim protection by directing that there shall not be arrest of the petitioners in the said Crime. Learned APP further submits that the prosecution has filed application to add section 3(2)(5A) of the Scheduled Castes & Scheduled Tribes ( Prevention of Atrocities ) Act.
5. On carefully considering the submissions and going through the papers, the F.I.R. shows that the informant belongs to 'Boudh Mahar' community. In the case diary there is a caste certificate. The F.I.R. shows specific averments that three accused including the present appellant had addressed the informant as 'Mahardya' and he and Bapurao Kamble were assaulted. The statements of the Government servants present at the spot do not support but there are statements of three to four other witnesses, which support the F.I.R.
6. As held in Vilas Pandurang Pawar Vs. State of Maharashtra 2012(8) SCC 795 case when there are specific averments in the F.I.R., showing the commission of the offences under the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities ) Act, it is not permissible for this Court to enter into minute scrutiny and to consider which statements of the witnesses are false and which are true. This can be gone into at the time of trial. In this regard I rely on Manju Devi Vs. Onkarjit Singh, 2017(13) SCC 439.
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7. There is no reference in F.I.R. that the accused do not belongs to Scheduled Castes & Scheduled Tribes (Prevention of Atrocities ) Act but as held in Ashabai Machindra Adhagale Vs. State of Maharashtra and Ors. reported in 2009 (3) SCC 789 case, it is not requirement of law. The accused if belongs to Scheduled Castes or Scheduled Tribes he may take such defence. It can be established even at trial that the accused do not belong to Scheduled Caste or Scheduled Tribes. The learned advocate for the appellant argued that there is no role attributed to the appellant but the F.I.R. shows that all the three accused persons have abused and assaulted. Minute scrutiny of the evidence is not permissible when deciding whether section 18 of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities ) Act is applicable or not.
8. In the light of the facts, no finding can be recorded that no offence under the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities ) Act is prima facie committed. Hence as held in Vilas Pandurang Pawar's case (supra) bar under section 18 would be applicable and no anticipatory bail can be granted.
9. If the applicant surrenders before the Special Judge and files application for bail it shall be decided expeditiously and if possible on the same day, on its own merits. In R. Madhusadan V/s. State of 4/5 ::: Uploaded on - 26/06/2019 ::: Downloaded on - 14/07/2019 09:59:11 :::
911.odt Karnataka, 2017(14) SCC 233 the Apex Court has adopted this course. The application is disposed of as not maintainable. Request for further protection cannot be granted in the light of above observations.
10. The application is disposed of.
11. Authenticated copy be forwarded to the Special Judge (ARUN M. DHAVALE, J) mkd 5/5 ::: Uploaded on - 26/06/2019 ::: Downloaded on - 14/07/2019 09:59:11 :::