Bombay High Court
Navnath S/O. Dalsing Rathod @ Aade And ... vs The State Of Maharashtra And Anr on 25 April, 2019
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.968 OF 2018
1. Navnath s/o. Dalsing Rathod @ Aade,
Age: 42 years, Occu: Labour,
R/o. Seeta-Naik Tanda, Tal. Kannad,
Dist. Aurangabad.
2. Changdeo s/o. Magan Jadhav
Age: 43 years, Occu : Labour,
R/o. As above.
3. Sopan s/o. Kachru Salunke
Age : 38 years, Occu : Labour,
R/o. Kolwadi, Ta. Kannad,
Dist. Aurangabad
...APPELLANTS
VERSUS
1. The State of Maharashtra
Through Police Inspector
Karmad Police Station, Aurangabad.
2. Priyanka w/o. Sanjay Shejwal,
Age: 31 years, Occu: Agriculture,
R/o. Kalanki, Ta. Kannad,
Dist. Aurangabad.
...RESPONDENTS
Mr.Satish A. Gaikwad, Advocate for the appellants
Mr. S.N. Morampalle, APP for respondent No.1/State
Mr. R.V. Gore, Advocate for respondent No.2.
CORAM : S.M.GAVHANE,J.
RESERVED ON : 10/04/2019
PRONOUNCED ON : 25/04/2019
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J U D G M E N T :-
. Heard, appeal is admitted. Notice after admission is made returnable forthwith. Appeal is taken up for final hearing with the consent of both the sides.
2. The appellants who are respectively accused No.2,4 and 9 against whom and ten (10) others crime no. I-186/2018 has been registered in Kannad Rural Police Station for the offences punishable under Sections 342 and 354B read with Section 34 of the Indian Penal Code (for short IPC), under Section 3(1),(2) and (3) of the Maharashtra Prevention and Eradication of Human Sacrifice and other inhuman, Evil and Aghori Practices and Black Magic Act, 2013 (hereinafter referred to as 'Black Magic Act') and under Section 3(i)(l)(w)(i)(ii), 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the "Atrocities Act") and whose application bearing No. 2194 of 2018 for anticipatory bail under Section 438 ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: (3) criappeal968.18 of the Code of Criminal Procedure was rejected by the District Judge-5 and Additional Sessions Judge, Aurangabad by order dated 24/12/2018 have assailed the said order by this appeal under Section 14-A(2) of the Atrocities Act.
3. By order dated 08/01/2019 an interim protection that, "meanwhile, no coercive action/steps be taken against the appellants-accused, was granted and the same has been continued from time to time.
4. Mr. Gaikwad, learned counsel for the appellants/accused Nos.2,4 and 9 has submitted that the alleged incident has taken place on 07/12/2018, but the complaint was lodged by the respondent No.2/ complainant on 15/12/2018. The respondent No.2 is in the habit of filing false cases. It is submitted that no specific role is attributed to applicants as regards offence under Section 354 of the IPC and they have been implicated on the statement of co-accused which is in admissible in evidence. The conduct of ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: (4) criappeal968.18 the respondent No.2 is material and it is required to be seen. Two of the accused, namely, Rambhau Shinde and Namdeo Shinde respectively accused Nos.1 and 3 in the present crime have been granted regular bail. The custodial interrogation of the appellants/accused is not necessary. The investigation is almost completed. Caste of the complainant/respondent No.2 is not mentioned in the FIR. Mere mentioning of caste of respondent No.2 is not enough. Allegations must be made that knowing that the respondent No.2/ complainant belongs to Scheduled Caste or Scheduled Tribe the accused who are not members of Scheduled Castes or Scheduled Tribes have outraged modesty of respondent No.2 and committed the alleged offences under the Atrocities Act. According to the learned counsel for the appellants offence under the Black Magic Act is not attracted. It is submitted that the finding of the learned Additional Sessions Judge that application for anticipatory bail is not tenable is not correct and the learned Additional Sessions Judge ought to have granted anticipatory bail application ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: (5) criappeal968.18 of the appellants. Therefore, according to learned counsel order under challenge is not sustainable and said order be set aside and appellants be granted anticipatory bail by allowing their application by allowing this appeal.
5. To support his submissions the learned counsel for the appellants has relied upon the following decisions:
(i) Vilas Pandurang Pawar and Ors. Vs. State of Maharashtra and Ors., AIR 2012 SC 3316.
(ii) Prakash Revchand Budhrani and Ors. Vs. The State of Maharashtra and Ors. in Criminal Appeal No.1233 of 2018 decided on 24.10.2018.
(iii) Atendra Singh Rawat Vs. State of Madhya Pradesh in Criminal Appeal No.7295 of 2018 decided on 11.10.2018.
(iv) Virendra Singh Vs. State of Rajasthan, 2000 Cri.L.J.2899
(v) Dhankesh S/o Bachubhai Lathiya Vs. State of Gujarat in R/Criminal Appeal No.445 of 2018 decided ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: (6) criappeal968.18 on 05/09/2018.
(vi) Devjibhai Ganeshbhai Patel (Kathrotiya) Vs. State of Gujrat in R/Criminal Appeal No.1200 of 2018 decided on 14/09/2018
(vii) Shri. Nagesh @ Nagesh Reddy, s/o. Venkatareddy, Vs. The State of Karnataka in Criminal Petition No.4306 of 2018 decided on 28/08/2018 (Karnataka High Court).
(viii) Manjeet Singh and Ors. Vs. State of Delhi, 2013 Cri.L.J.3070.
(ix) Dharani Pradhan Vs. State of Orissa, 2014(4) Crimes 456(Orissa) wherein it has been held that merely because a case is registered under Section 3 of the SC/ST Act, there is no bar in entertaining an application 438 Cr.P.C.
(x) Unknown Vs. State of West Bengal in C.R.M. 10431 of 2018 decided on 26/02/2019.
(xi) Lahu s/o. Vitthalrao Bhosale Vs. The State of Maharashtra in Criminal Appeal No.194 of 2019, Bombay High Court decided 03/04/2019.
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6. Mr. Morampalle, learned APP submitted that there is bar under Section 18A of the Atrocities Act and offences alleged against the appellants are attracted. Thus, he supported the impugned order and claimed to dismiss the appeal.
7. Mr.Gore, learned counsel for the respondent No.2 submitted that offence under the Black Magic Act is non bailable. Appellants have committed inhuman Act and hence provisions of Black Magic Act are attracted. Punishment provided for offence under the said Act is 7 years imprisonment. So also, it is submitted that offences under Sections 3(1)(l),(w)(i) and (ii) of the Atrocities Act are made out against the appellants. Decisions of this Court in Lahau Vitthalrao Bhosale (Supra) relied upon by the learned counsel for the appellants is not applicable to this case as the offences under the Atrocities Act against the appellants are attracted. Thus, learned counsel for the respondent No.2 submitting that the learned Additional Sessions Judge has rightly ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: (8) criappeal968.18 rejected application for anticipatory bail of the appellants by the impugned order prayed to dismiss the appeal.
8. I have carefully considered the submissions made by the learned counsel for the appellants, learned APP and learned counsel for respondent No.2 and with their assistance I have perused the documents on record submitted by the appellants and the impugned order.
9. 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 ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: (9) criappeal968.18 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 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 ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 10 ) criappeal968.18 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 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 ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 11 ) criappeal968.18 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, 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 ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 12 ) criappeal968.18 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 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 ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 13 ) criappeal968.18 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."
10. 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 ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 14 ) criappeal968.18 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 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 ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 15 ) criappeal968.18 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 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. 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 ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 16 ) criappeal968.18 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."
11. Thus, it is clear from observations of the Division Bench of this Court in Criminal Appeal 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 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 ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 17 ) criappeal968.18 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.
12. The offences alleged against the appellants under the Atrocities Act are under Sections 3(1)(l) (w)(i) and (ii) and 3(2)(va). The 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).......
(l) forces or intimidates or prevents a member of a Scheduled Caste or a Scheduled Tribe-
(w)(i) intentionally touches a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe, when such act of touching is of a sexual nature and is without the recipient's consent;
(ii) uses words, acts or gestures of a sexual nature towards a woman belonging to a Scheduled Caste or a Scheduled ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 18 ) criappeal968.18 Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe.
3(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-
(i)..........
(va) commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and shall also be liable to fine)".
13. So also the ingredients of offence under Section 3(1),(2), (3) of the Black Magic Act are as under:
"3.(1) No person shall either himself or through any other person commit, promote, propagate or practice or cause to promote, propagate or practice human sacrifice and other inhuman, evil and aghori practices and black magic mentioned or described in the Schedule appended to this Act.
(2) From the date of coming into force of this Act, commission of any act of human sacrifice and other inhuman, evil and aghori practices and black magic and any advertisement, practice, propagation or promotion of human sacrifice and other inhuman, evil and aghori practices and black magic, in violation of the provisions of this Act, by any person by himself or through any other person shall constitute an ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 19 ) criappeal968.18 offence under the provisions of this Act, and the person guilty of such offence shall, on conviction, be punished with imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine which shall not be less than five thousand rupees but which may extend to fifty thousand rupees.
(3) Whoever abets the commission of or attempts the commission of any act or offence punishable under sub-section (2) shall be deemed to have committed that offence and shall on conviction, be punished with the same punishment for such offences in sub-section (2)."
14. On perusal of the FIR (Exh.'A') it is seen that on 15/12/2018 the respondent No.2/complainant who is a member of Scheduled Caste i.e. 'Mang' community filed said complaint in Kannad Rural Police Station alleging that on 07/12/2018 i.e. on Firday there was Amavasya. On that day she, her sister Rekha Rokade and her brother-in-law Ramesh Rokade had come to Kannad and had purchased cement. Thereafter, on that day they returned their village Kalanki, Tal. Kannad in the evening at 5.00 p.m. at her house and they were sitting in the house watching the TV. At about 9.00 p.m. Rambhau Laxman Shinde from her ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 20 ) criappeal968.18 village came and said that there is a prayer in his house in the field which is taken on batai and that they (complainant and others) should accompany him for the said prayer. Relying upon his words as he said that he is like father of the complainant, the complainant and her brother-in-law Tulshidas Tribhuvan went to the field of said Laxman Shinde on the motorcycle. There Scorpio car was standing. Her brother-in-law stayed outside the house. The complainant went in side the house. At that time there were four persons in the house and they were from other village and she (complainant) was not knowing them, but on seeing them she could identify them. All of them had wore pant and shirt. Circle of black colour of coal was made in the house. Turmeric, vermilion (red lead), lemon and scented stick were kept in the said circle. One Occultist asked Rambhau to go outside the house and he was asked to close the door. Accordingly said Rambhau went out side the house. At that time the complainant came to know that some sort of magic is going on there. At that time ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 21 ) criappeal968.18 one of the four Occultist persons said the complainant that she should sit naked in the said circle, as they have to have rain of money. Thereupon, the complainant was frightened and she tried to cry. At that time one Occultist pulled her saree and she gave jerk to him and made loud shouts. At that time Occultist said her that if she would not sit naked in the circle she would be burnt by the magic. Thereafter, as she shouted loudly and somebody from the outside said to open door, she opened the door and at that time she saw Tarachand whose full name she does not know and she asked him what is going on and who are these people and she said him to tell the names of those people. Thereupon, he told that they are the appellants Navnath Aade, Namdeo Mango Rathod, Changdeo Jadhav residents of Sitanaik Tanda, Raheman resident of Mungsapur, Tq. Kannad, Dudha Trader resident of Chapaner, Bansi Aalu Aade resident of Boltek Tanda and Sopan Kachru Salunke resident of Kolwadi. She also asked Rambhau what is going on and he said her to pardon her and that he ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 22 ) criappeal968.18 would leave her at house. Thereupon Occultists came out of the house and the people in the Scorpio car were abusing Tarachand and Rambhau. They were saying that they have incurred expenses of Rs.15,000/- and they were pulling and pushing Rambhau in the vehicle and quarrels were going on. At that time the complainant and her brother-in-law Tribhuvan were left at her house on motorcycle by Raheman.
15. From the above allegations in the FIR it is seen that respondent No.2/complainant claims that she belongs to 'Mang' community. But she does not claim in the FIR that she being a member of the Scheduled Caste and the appellants being members of the Scheduled Caste or Scheduled Tribe intentionally touched her knowing that she belongs to a Scheduled Caste or a Scheduled Tribe, and such act of touching is of a sexual nature and is without the recipient's consent and that they used words, acts or gestures of a sexual nature towards her knowing that she belongs to a Scheduled Caste or a Scheduled Tribe so as to ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 23 ) criappeal968.18 attract offences under Sections 3(1)(w)(i) & (ii) of the Atrocities Act. Thus, the allegations in the FIR referred to above are not prima facie sufficient to attract aforesaid offences under the Atrocities Act against the appellants. The FIR shows that respondent No.2/complainant came to know about the names of the appellants from Tarachand (accused No.5) i.e. co- accused. When the respondent No.2 is not knowing the appellants her say in the FIR that she came to know about the appellants from co-accused Tarachand is not prima facie sufficient to say about the involvement of the appellants in the crime. Therefore, offences under Sections 3(1)(w)(i) & (ii) of the Atrocities Act are not prima facie applicable or attracted against the appellants. Therefore, bar contemplated under Section 18A of the Atrocities Act is not applicable in the present case. Therefore, application under Section 438 of the Code of Criminal Procedure for anticipatory bail of the appellants can be entertained in view of the decision of Division Bench of this Court in Criminal Appeal No. 194 of ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 24 ) criappeal968.18 2019 (Supra) and decision of Rajasthan High Court in the case Virendra Singh (Supra).
16. Moreover, from the allegations referred earlier in the FIR it cannot be prima facie said that there is involvement of the appellants in outraging the modesty of the respondent No.2 or in committing the offence under the Black Magic Act. Therefore vague allegations in respect of offences under Sections 354 and 342 of the Indian Penal Code and in respect of the offence under the Black Magic Act made in the FIR are not prima facie sufficient to attract the said offences against the appellants/ accused Nos.2,4 and 9. Another aspect to be noted is that there is no material to show that the respondent No.2 has identified the appellants to be the persons involved in the commission of offence alleged in the FIR.
17. When as observed earlier bar contemplated under Section 18A of the Atrocities Act is not ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 25 ) criappeal968.18 attracted in the present case. The observations of the Additional Sessions Judge while passing the impugned order that the application for anticipatory bail is not tenable are incorrect and unsustainable. Moreover, when the offences alleged against the appellants are not prima facie attracted against the appellants as observed earlier, the observations of the learned Additional Sessions Judge that the offences are serious, are not sufficient to state that the appellants are not entitled to anticipatory bail.
18. There is no dispute that accused Nos.1 and 3, namely, Rambhau Laxman Sinde and Namdeo Mangu Rathod had filed Criminal Bail Application No.2205 of 2018 for bail under Section 439 of the Code of Criminal Procedure and said application was allowed by the learned Additional Sessions Judge on 24/12/2018.
19. For the foregoing reasons when the offences ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 26 ) criappeal968.18 alleged against the appellants are not prima facie attracted and as bar contemplated under Section 18A of the Atrocities Act is not applicable to the present case the appellants can be granted anticipatory bail on certain conditions by setting aside the order under challenge as the same is not sustainable by allowing the appeal. Resultantly following order is passed.
ORDER
(i) Appeal is allowed.
(ii) Impugned order dated 24/12/2018 passed by
the District Judge-5 and Additional Sessions Judge, Aurangabad in Criminal Bail Application No.2194 of 2018 rejecting said application is quashed and set aside.
(iii) Said Criminal Bail Application No.2194 of 2018 is allowed. In the event of arrest of the appellants/accused Nos.2,4 and 9 in connection with Crime No.186/2018 registered in Kannad Rural Police ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 27 ) criappeal968.18 Station, they be released on bail, each on furnishing 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 Kannad Rural Police Station, Aurangabad 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 - 27/04/2019 03:22:30 :::