Bombay High Court
Jagdish Sajjankumar Banka vs State Of Maharashtra And Anr on 10 March, 2023
Author: Prakash D. Naik
Bench: A. S. Gadkari, Prakash D. Naik
2023:BHC-AS:8669-DB
SAT 24-APEAL-1258-2022-WITH-1259-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1258 OF 2022
Jagdish Sajjankumar Banka,
Age : 43 years, Indian inhabitant,
permanently resident at C-312,
Tirupati Plaza, Balaji Nagar,
Bhayander (West), Dist. Thane - 401 101 ...Appellant
Versus
1. The State of Maharashtra,
at the instance of Bhayander
Police Station.
2. Baburao Ramchandra Yadav,
Age : 54, R/o. Room No.5,
Mangal Kunj, Ram Mandir Road,
Bhayander (West), Thane - 401 101 ...Respondents
WITH
CRIMINAL APPEAL NO. 1259 OF 2022
Satish Sajjankumar Banka,
Age : 47 years, Indian inhabitant,
permanently resident at C-412,
Tirupati Plaza, Balaji Nagar,
Bhayander (West), Dist. Thane - 401 101 ...Appellant
Versus
1. The State of Maharashtra,
at the instance of Bhayander
Police Station.
2. Baburao Ramchandra Yadav,
Age : 54, R/o. Room No.5,
Mangal Kunj, Ram Mandir Road,
Bhayander (West), Thane - 401 101 ...Respondents
....
Mr. Subhash Jha a/w Mr. Tushar Bansode & Ms. Meena Mishra i/by
Law Global, Advocate for Appellant.
Mrs. S.D. Shinde, A.P.P. for Respondent No.1-State
Mr. Laxman Kalel, Advocate for Respondent No.2.
Mr. Shantilal Jadhav, A.C.P., Bhayander Division.
1/21
::: Uploaded on - 10/03/2023 ::: Downloaded on - 09/06/2023 20:19:09 :::
SAT 24-APEAL-1258-2022-WITH-1259-2022.doc
CORAM : A. S. GADKARI AND
PRAKASH D. NAIK, JJ.
RESERVED ON : 28th FEBRUARY, 2023.
PRONOUNCED ON : 10th MARCH, 2023.
JUDGMENT - (PER : PRAKASH D. NAIK, J.)
1. Both these appeals are preferred by Appellants under
Section 14-A of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (for short "SC/ST Act")
challenging Order dated 19th November, 2022 passed by learned
Additional Sessions Judge, Thane/Special Court (Atrocities Act) in
Criminal Anticipatory Bail Application No.4055 of 2022 rejecting
application for pre-arrest bail in C.R. No.309 of 2022 registered with
Bhayander Police Station on 22nd June, 2022 for offences under
Section 427, 504 and 506 of Indian Penal Code (for short 'IPC') and
Sections 3(1)(r) and 3(1)(s) of SC/ST Act.
2. The complainant has alleged that, he belongs to Chambhar
Community which is Scheduled Caste. He owns a shop dealing in
sale and repairs of foot wear at Bhayander (West). Accused are
conducting business as decorators and caterers from the shop
situated near complainant's shop. On 21st June, 2022, the
complainant was present at his shop. His son-in-law Manoj
Amarchand More and his three friends Pravin Hiraman Bare, Rupesh
Ramesh Khetle and Dilip Shankar Giri came to his shop for installing
2/21
::: Uploaded on - 10/03/2023 ::: Downloaded on - 09/06/2023 20:19:09 :::
SAT 24-APEAL-1258-2022-WITH-1259-2022.doc
Tarpaulin shade adjacent to his shop. While they were carrying on
the said work Jagdish and his brother Satish came there. Satish told
the complainant not to install bamboo at the said place. Jagdish
shouted at complainant and abused him on his caste. He also
removed the bamboo installed at the said place. The complainant
informed the accused that he has been provided Police protection
and case is pending in the Court. He should not be troubled. He
questioned the accused for parking vehicles on the gutter causing
obstruction to traffic. Jagdish threatened him and both of them left
the place of incident. The complaint was lodged on 22 nd June, 2022
at about 15:10 p.m.
3. The Assistant Commissioner of Police/Investigating Officer
issued notice dated 23rd June, 2022 under Section 41(A)-1 of Code of
Criminal Procedure to the Appellant in Criminal Appeal No.1258 of
2022 and notice dated 27th June, 2022 to Appellant in Criminal
Appeal No.1259 of 2022.
4. Appellants preferred Criminal Bail Application No.3092 of
2022 before the Additional Sessions Judge and Special Court
(Atrocities Act), Thane for anticipatory bail. Application Exh.3 was
preferred in anticipatory bail application seeking interim protection.
Vide Order dated 11th August, 2022, application Exh.3 was rejected.
3/21
::: Uploaded on - 10/03/2023 ::: Downloaded on - 09/06/2023 20:19:09 :::
SAT 24-APEAL-1258-2022-WITH-1259-2022.doc
5. Appellants preferred Criminal Anticipatory Bail Application
No.2369 of 2022 before this Court seeking interim protection. By
Order dated 29th August, 2022, this Court noted that, the application
pending before Sessions Court is slated for hearing on 2 nd September,
2022. This Court did not entertain the application and directed that,
on the next date of hearing the Special Judge shall grant an
ad-interim relief or reject the application since it cannot be kept
pending without any orders adhering to procedure prescribed under
Section 438 of Cr.P.C. (Maharashtra Amendment Act).
6. Learned Additional Sessions Judge decided the application for
anticipatory bail finally and rejected the same vide Order dated 2nd
September, 2022
7. Appellants preferred Criminal Appeal No.888 of 2022 before
this Court. The appeal was heard and disposed off vide Order dated
14th September, 2022 by directing the appellants to attend
Investigating Officer, Bhayander Police Station on 21st September,
2022 and 22nd September, 2022 and join the process of investigation.
It was further directed that, in case the Investigating Officer forms an
opinion that the arrest of Appellant is necessary, he shall issue notice
48 hours in advance to them. Order dated 2 nd September, 2022 was
set aside.
4/21
::: Uploaded on - 10/03/2023 ::: Downloaded on - 09/06/2023 20:19:09 :::
SAT 24-APEAL-1258-2022-WITH-1259-2022.doc
8. The Investigating Officer served the notice under Section
41(A)-1 of Code of Criminal Procedure dated 31 st October, 2022 to
Appellants stating that, the notice is issued to them in accordance
with Order dated 14th September, 2022 passed by this Court. The
notice also indicated that, charge-sheet would be filed against the
appellants before the competent Court.
9. In view of the said notice Appellants preferred Criminal Bail
Application No.4055 of 2022 before Special Court (Atrocities Act).
Vide Order dated 19th November, 2022, the application for
anticipatory bail preferred by Appellants was rejected.
10. Vide order dated 22nd December, 2022, this Court had granted
interim protection to Appellants, by observing that, the concerned
Officer was not only casual but in disregard to the provisions for
lodgment of First Information Report (for short 'FIR') has inserted
certain irrelevant and redundant provisions in it.
11. Mr. Jha appearing for Appellants has urged several grounds
assailing the impugned Order rejecting application for anticipatory
bail. It is submitted that, the complaint was filed with malafide
intentions. There is delay in lodging FIR. The notice under Section
41(A) of Cr.P.C. was issued without understanding the object of the
said provision. The alleged abuses were not supported by statement
of any independent witnesses. The FIR is false. Custodial
5/21
::: Uploaded on - 10/03/2023 ::: Downloaded on - 09/06/2023 20:19:09 :::
SAT 24-APEAL-1258-2022-WITH-1259-2022.doc
interrogation of Appellants is not necessary. Bar under Section 18 of
the SC/ST Act is not attracted in the present case. The Special Court
has mechanically rejected the application for anticipatory bail. The
Respondent No.2 is in habit of filing vexatious complaints by
misusing the provisions of Atrocities Act. When the chequered history
of filing such vexatious complaints in the past was brought to the
notice of the Special Court it was imperative for the Court to follow
the dictum of the Apex Court in case of Siddharam Satlingappa
Mhetre Vs. State of Maharashtra (2011) 1 SCC 694. The alleged
incident cannot be said to have occurred within a public view. The
witnesses were closely associated with the complainant. The alleged
abuses on caste were attributed to Appellant in Criminal Appeal
No.1258 of 2022. Detention of a person in a Police lockup causes
incalculable harm to his reputation and self-esteem. The offences
under the SC/ST Act are not made out against Appellants.
12. Learned Advocate Mr. Jha has relied upon the following
decisions :-
i. Siddharam Satlingappa Mhetre Vs. State of
Maharashtra, (2011) 1 SCC 694.
ii. Swaran Singh and Others V/s. State through standing
Counsel and Another, (2008) 8 SCC 435.
iii. Sidharth V/s. State of Uttar Pradesh and Another,
(2022) 1 SCC 676.
6/21
::: Uploaded on - 10/03/2023 ::: Downloaded on - 09/06/2023 20:19:09 :::
SAT 24-APEAL-1258-2022-WITH-1259-2022.doc
iv. Javed Raza Shroff V/s. The State of Mahrashtra and
Anr., decided by this Court vide Criminal Appeal No.1119 of
2022 dated 20th December, 2022.
13. Learned APP submitted that, during the course of investigation
statement of complainant and four other eye witnesses to the
incident were recorded under Section 164 of Cr.P.C. which support
the prosecution case that Accused had abused the complainant on his
caste. On instructions it is submitted that, investigation is completed,
custodial interrogation of Appellants is not necessary for the purpose
of investigation. However, the offences under the provisions of
Atrocities Act are made out and in view of bar under Section 18 of
the said Act, the Appellants are not entitled for pre-arrest bail.
14. Learned Advocate Mr. Laxman Kalel appearing for Respondent
No.2 submitted that, overtact has been attributed to both Appellants.
Both Appellants are liable for commission of offence under under
Section 3(1)(r) and 3(1)(s) of SC/ST Act. The complainant was
abused by Accused on his caste. The incident had occurred at public
place and within public view. The statements of witnesses support
the version of complainant. Since the offence under the Atrocities
Act is made out, the Accused are not entitled for relief under Section
438 of Code of Criminal Procedure. Bar under Section 18 of SC/ST
Act is attracted in this case.
7/21
::: Uploaded on - 10/03/2023 ::: Downloaded on - 09/06/2023 20:19:09 :::
SAT 24-APEAL-1258-2022-WITH-1259-2022.doc
15. Learned Advocate for the complainant has relied upon the
decision of the Apex Court in the case of Prathvi Raj Chauhan V/s
Union of India and Ors., AIR 2020 Supreme Court 1036.
16. According to complainant the accused are known to him. They
are allegedly conducting their business in the vicinity of the shop of
the complainant. Accused had allegedly obstructed the work of
installing Tarpaulin carried out at the instance of complainant. From
the FIR it appears that, the abuses on caste are attributed to
Appellant in Criminal Appeal No.1258 of 2022. The alleged incident
had occurred on 21st June, 2022 at about 5:30 p.m. The incident
was reported to Police on 22nd June, 2022 at about 14:41 p.m. and
the FIR was registered on 22 nd June, 2022 at about 15:10 p.m.
Appellants are relying upon the information received through R.T.I.
which has been annexed to this appeal wherein it is stated that, at
the instance of Baburao Ramchandra Yadav (complainant/
Respondent No.2), other complaints were lodged and FIR's were
registered, viz. C.R. No.II-25/2006 under Section 3, 1, 10 and 6 of
SC/ST Act. C.R. No.II-28/2012 under Section 279 of IPC. Initially
notice under Section 41(A)-1 of Code of Criminal Procedure was
issued to Appellants on 23rd June, 2022 and 27th June, 2022
respectively directing them to remain present before the
Investigation Officer for investigation. Appellants preferred
8/21
::: Uploaded on - 10/03/2023 ::: Downloaded on - 09/06/2023 20:19:09 :::
SAT 24-APEAL-1258-2022-WITH-1259-2022.doc
anticipatory bail application before Sessions Court and Special Court.
The said application was rejected by learned Additional Sessions
Judge, Thane vide Order dated 2nd September, 2022, on the ground
that prima facie case is made out against Appellants and the bar
under Section 18 of SC/ST Act would be applicable. Thereafter, this
Court had directed that the Investigating Officer shall issue notice of
48 hours in advance to Appellants in the event he forms an opinion
that the arrest of Appellants is necessary. Fresh notice under Section
14(A)-1 of Cr.P.C. was issued to Appellants on 31 st October, 2022
which prompted them to again approach the Sessions Court for
anticipatory bail. The said application was rejected vide Order dated
19th November, 2022.
17. It is pertinent to note that the notice dated 31 st October, 2022
purportedly issued under Section 41(A)-1 of Cr.P.C. mentions that,
charge-sheet is to be filed before Competent Court and in view of the
Order passed by this Court notice under Section 41-A of Code of
Criminal Procedure is issued to them. From the said notice it is
apparent that the investigation is completed and for the purpose of
investigation custodial interrogation of Appellants is not necessary.
The question then arises for consideration is whether the bar under
Section 18 of the Atrocities Act can be invoked in the present case to
deny pre-arrest bail to Appellant in respect to crime in question.
9/21
::: Uploaded on - 10/03/2023 ::: Downloaded on - 09/06/2023 20:19:09 :::
SAT 24-APEAL-1258-2022-WITH-1259-2022.doc
18. We have perused the investigation papers. There is delay in
lodging FIR. The FIR smacks malafides. In the past the complainant
has filed one complainant under the Atrocities Act against another
person. The statements of witnesses were recorded under Section
164 of Cr.P.C. One of the witness is son-in-law of complainant. Other
witnesses are friends of complainants son-in-law who were allegedly
present at the spot for installing bamboo and Tarpaulin shade. The
witnesses are closely associated with the complainant. They cannot
be termed as independent witnesses. There are no statements of
independent witnesses corroborating the version of complainant
about abuses on caste.
19. Learned Advocate Mr. Jha has invited out attention to the
observations in the decision of the Apex Court in the case of
Siddharam Satlingappa Mhetre (Supra) wherein it has been observed
that, the complaint filed against Accused needs to be thoroughly
examined including the aspect whether the complainant has filed a
false and frivolous complaint on earlier occasion. The Apex Court
has also laid down the factors and parameters which can be taken
into consideration while dealing with the anticipatory bail.
20. In the case of Sidharth V/s. State of Uttar Pradesh and Another
(Supra), charge-sheet was ready to be filed but Appellant applied for
anticipatory bail since the trial Court takes a view that unless the
10/21
::: Uploaded on - 10/03/2023 ::: Downloaded on - 09/06/2023 20:19:09 :::
SAT 24-APEAL-1258-2022-WITH-1259-2022.doc
person is taken into custody, the charge-sheet will not be taken on
record in view of Section 170 of Cr.P.C. It was observed that, Section
170 of Cr.P.C. does not impose an obligation on the officer incharge
to arrest each and every accused at the time of filing of the charge-
sheet. The word 'Custody' appearing in Section 170 of Cr.P.C. does
not contemplate either Police or Judicial custody but it merely
connotes the presentation of the accused by the Investigating Officer
before the Court while filing the charge-sheet. Personal liberty is an
important aspect of constitutional mandate. Merely, because an
arrest can be made because it is lawful does not mandate that arrest
must be made. Distinction must be made between the existence of
the power of arrest and justification for exercise of it. We are
conscious of the fact that the observation made in the case of
Sidharth V/s. State of Uttar Pradesh and Another (Supra) are not
conducive to the present case. We are dealing with prayer for
anticipatory bail. The Sessions Court has rejected the application for
anticipatory bail in view of bar under Section 18 of SC/ST Act after
coming to conclusion that prima facie offence is made out against
Appellants. Section 18 prohibits exercise of powers under Section
438 of Cr.P.C.
21. Section 18 of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 reads as follows :
11/21
::: Uploaded on - 10/03/2023 ::: Downloaded on - 09/06/2023 20:19:09 :::
SAT 24-APEAL-1258-2022-WITH-1259-2022.doc
"18. Section 438 of the Code not to apply to persons committing
an offence under the Act. - Nothing in Section 438 of the Code
shall apply in relation to any case involving the arrest of any
person on an accusation of having committed an offence under
this Act."
22. In the case of Vilas Pandurang Pawar V/s State of Maharashtra
and Others, 2012 (8) SCC 795 it was observed that Section 18 of the
SC/ST Act creates a bar for invoking Section 438 of the Code.
However, a duty is cast upon the Court to verify the averments in the
complaint and to find out whether an offence under Section 3(i) of
the SC/ST Act has been prima facie made out. In the case of Sumitha
Pradeep V/s Arun Kumar C.K. and Another, 2022 SCC Online 1529,
the Apex Court was dealing with cancellation of anticipatory bail
granted by High Court in a case involving offence under POCSO Act.
The Apex Court had observed that in many anticipatory bail matters,
it is noticed that one common argument being canvassed that, no
custodial interrogation is required and therefore, anticipatory bail
may be granted. There appears to be a serious misconception of law
that, if no case for custodial interrogation is made out by the
proecution, then that alone would be a good ground to grant
anticipatory bail. Custodial interrogation can be one of the relevant
aspects to be considered alongwith other grounds while deciding an
12/21
::: Uploaded on - 10/03/2023 ::: Downloaded on - 09/06/2023 20:19:09 :::
SAT 24-APEAL-1258-2022-WITH-1259-2022.doc
application seeking anticipatory bail. There may be many cases in
which the custodial interrogation of the accused may not be
required, but that does not mean that, the prima faice case against
the accused should be ignored or over looked and he should be
granted anticipatory bail. In the case of Dr. Subhash Kashinath
Mahajan V/s State of Maharashtra and Another (2018) 6 SCC 454
the Hon'ble Supreme Court had considered the question whether
there is an absolute bar to the grant of anticipatory bail under SC/ST
Act. The Court referred to several decisions including the decisions
in the case of Vilas Pandurang Pawar (Supra) and Shakuntala Devi
V/s Baljinder Singh (2014) 15 SCC 521. In Paragraph 56 of the
decision it was observed that, there can be no dispute with the
proposition that mere unilateral allegation by any individual
belonging to any caste, when such allegation is clearly motivated and
false, cannot be treated as enough to deprive a person of his liberty
without an independent scrutiny. Thus exclusion of provision for
anticipatory bail cannot possibly, by any reasonable interpretation, be
treated as applicable when no case is made out or allegations are
patently false or motivated. If this interpretation is not taken, it may
be difficult for public servants to discharge their bonafide functions
and in given cases, they can be blackmailed with the threat of a false
case being registered under Atrocities Act, without any protection of
13/21
::: Uploaded on - 10/03/2023 ::: Downloaded on - 09/06/2023 20:19:09 :::
SAT 24-APEAL-1258-2022-WITH-1259-2022.doc
law. Even a non public servant can be blackmailed to surrender his
civil rights. This is not the intention of law. Such law cannot stand
judicial scrutiny. It will fall foul of guaranteed fundamental rights of
fair and reasonable procedure being followed if a person is deprived
of life and liberty. In paragraphs 57 it was observed that exclusion of
438 Cr.P.C. applies when a prima facie case of commission of offence
under the Atrocities Act is made out. On the other hand, if it can be
shown that, the allegations are prima facie motivated and false, such
exclusion will not apply. The decision of Gujarat High Court in
Pankaj D. Suthar V/s State of Gujarat (1992) Guj. L.R.405, N.T. Desai
V/s. State of Gujarat (1997)2 Guj. L.R. 942 and State of M.P. V/s.
Ram Krishna Balothia (1995) 3 SCC 221 were referred and in
paragraph 60 it was observed that the above Judgments correctly lay
down the scope of exclusion as well as permissibility of anticipatory
bail in cases under the Atrocities Act. In paragraphs 65 and 71 of the
decision it is observed that exclusion of provision for anticipatory bail
will not apply when no prima facie case is made out or the case is
patently false or malafide. This may have to be determined by the
Court concerned in facts and circumstances of each case in exercise
of its judicial discertion. In cases under the Atrocities Act, exclusion
of right of anticipatory bail is applicable only if the case is shown to
bonafide and that prima facie it falls under Atrocities Act and not
14/21
::: Uploaded on - 10/03/2023 ::: Downloaded on - 09/06/2023 20:19:09 :::
SAT 24-APEAL-1258-2022-WITH-1259-2022.doc
otherwise. Section 18 does not apply where there is no prima facie
case or to cases of patent false implication or when the allegation is
motivated for extraneous reasons. The view of Gujarat High Court in
Pankaj D. Suthar (Supra) and N.T. Desai (Supra) was approved. The
conclusions were formulated in paragraph 79 (Paragraph 83 of the
same decision reported in AIR 2018 SC 1498) as follows:
"79.1. Proceedings in the present case are clear abuse of
process of Court and are quashed.
79.2. There is no absolute bar against grant of anticipatory
bail in the cases under Atrocities Act, if no prima facie case is
made out or where on judicial scrutiny the complaint is found to
be prima facie mala fide. We approve the view taken and
approach of Gujarat High Court in Pankaj D. Suthar and N.T.
Desai and clarify the Judgments of this Court in Balothia and
Manju Devi.
79.3. In view of acknowledged abuse of law of arrest in the
cases under Atrocities Act, arrest of a public servant can only be
after approval by the SSP appointing authority and of a non-
public servant after approval of S.S.P,. which may be granted
inappropriate cases, if considered necessary for reasons
recorded. Such reasons must be scrutinized by the Magistrate
for permitting further detention.
15/21
::: Uploaded on - 10/03/2023 ::: Downloaded on - 09/06/2023 20:19:09 :::
SAT 24-APEAL-1258-2022-WITH-1259-2022.doc
79.4. To avoid false implication of an innocent, a preliminary
inquiry may be conducted by the DSP concerned to find out
whether the allegations make out a case under Atrocities Act
and the allegations are not frivolous or motivated.
79.5. Any violation of directions (79.3) and (79.4) will be
actionable by way of disciplinary action as well as contempt.
79.6. The above directions are prospective."
23. Pursuant to the aforesaid decision, the Union of India filed
review petitions viz. Review Petition (Cri.) Nos. 228 with 275 of
2018 in Criminal Appeal No.416 of 2018. The review petitions were
decided on 1st October, 2019AIR 2019 SC 4917. The Union of India
had filed the petition for review of above decision dated 20 th March,
2018 in the case of Dr. Subhash Kashinath Mahajan (Supra). In
review the Apex Court dealt with the conclusions formulated in the
above decision. The Court considered the scope and object of the
Act. The final conclusion is reflected in paragraph 67 of the decision
in review petition which reads as follows:
"67. We do not doubt that directions encroach upon the
field reserved for the legislature and against the concept of
protective discrimination in favour of downtrodden classes
under Article 15(4) of the Constitution and also impermissible
within the parameters laid down by this Court for exercise of
16/21
::: Uploaded on - 10/03/2023 ::: Downloaded on - 09/06/2023 20:19:09 :::
SAT 24-APEAL-1258-2022-WITH-1259-2022.doc
powers under Article 142 of Constitution of India. Resultantly,
we are of the considered opinion that directions Nos. (iii) and
(iv) issued by this Court deserve to be and are hereby recalled
and consequently we hold that direction No.(v), also vanishes.
The review petition is allowed to the extent mentioned above."
24. Direction No.(iii), (iv) and (v) which were recalled in above
decision relates to approval of the appointing authority before arrest
of public servant and SSP before arrest of non-public servant be
granted in appropriate cases if necessary for reasons recorded and
that reasons be scrutinized by Magistrate for permitting further
detention. Conducting preliminary inquiry by DSP to find out
whether allegations make out a case under Atrocities Act and that
allegations are not frivolous or motivated. Violation of direction (iii)
and (iv) will be actionable by way of disciplinary action and
contempt. It is pertinent to note that direction No.79.2 (ii) viz.,
there is no absolute bar against grant of anticipatory bail in cases
under under the Atrocities Act if no prima facie case is made out or
where on judicial scrutiny the complaint is found to be prima facie
malafide, was not recalled.
25. Pursuant to the decision in the case of Dr. Subhash Kashinath
Mahajan V/s State of Maharashtra (Supra) Section 18-A was
introduced in the Atrocities Act which read as follows :
17/21
::: Uploaded on - 10/03/2023 ::: Downloaded on - 09/06/2023 20:19:09 :::
SAT 24-APEAL-1258-2022-WITH-1259-2022.doc
"18-A. (l ) For the purposes of this Act. -
(a) Preliminary enquiry shall not be required for registration
of a First Information Report against any person; or
(b) the investigating officer shall not require approval for
the arrest, if necessary, of any person,
against whom an accusation of having committed an
offence under this Act has been made and no procedure other
than that provided under this Act or the Code shall apply.
(2) The provisions of section 438 of the Code shall not
apply to a case under this Act, notwithstanding any judgment or
order or direction of any Court."
26. In the case of Prathviraj Chauhan V/s Union of India and
Others (Supra) the petitioners questioned the provisions inserted by
way of carving out Section 18-A of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989. It was
submitted that Section 18-A has been enacted to nullify the
Judgment in the case of Dr. Subhash Kashinath Mahajan V/s State of
Maharashtra and Another, AIR 2018 SC 1498 . The Court referred to
conclusions in decision of Dr. Subhash Mahajan (Supra). The Apex
Court than observed that it is not disputed at the Bar that, the
provision of Section 18-A in the Act of 1989 had been enacted
because of the Judgment in Dr. Subhash Mahajan's case, mainly
because of direction Nos. (iii) to (v) contained in para 83 (AIR 2018
SC 1498). The Union of India had filed review petitions, and the
same have been allowed and direction No. (iii) to (v) have been
18/21
::: Uploaded on - 10/03/2023 ::: Downloaded on - 09/06/2023 20:19:09 :::
SAT 24-APEAL-1258-2022-WITH-1259-2022.doc
recalled. Thus, in view of the Judgment passed in review petitions,
the matter is rendered of academic importance as the Court had
restored the position as prevailed by various Judgments that were in
vogue before the matter of Dr. Subhash Mahajan (Supra) was
decided. Only certain clarification are required in view of provisions
carved out in Section 18-A. There can be protective discrimination,
not reverse one. It was further observed that concerning the
provisions contained in Section 18-A, suffice it to observe that with
respect to preliminary inquiry for registration of FIR, the Court has
recalled general directions (iii) and (iv) issued in Dr. Subhash
Mahajan's case (AIR 2018 SC 1498). A preliminary inquiry is
permissible only in the circumstances as per the law laid down in
Lalita Kumari V/s. Government of U.P. (2014) 2 SCC 1 shall hold
good as explained in the order passed by this Court in the review
petitions and amended provision of Section 18-A have to be
interpreted accordingly. Section 18-A (I) was inserted owing to the
decision of this Court in Dr. Subhash Kashinath Mahajan V/s State of
Maharashtra and Another (Supra) which made it necessary to obtain
the approval of the appointing authority concerning a public servant
and the S.S.P. in the case of arrest of accused persons. Court had
recalled that direction in Review Petition No.228 of 2018 decided on
1st October, 2019 (AIR 2019 SC 4917). Thus the provisions which
19/21
::: Uploaded on - 10/03/2023 ::: Downloaded on - 09/06/2023 20:19:09 :::
SAT 24-APEAL-1258-2022-WITH-1259-2022.doc
have been made in Section 18-A are rendered of academic use as
they were enacted to take care of mandate issued in Dr. Subhash
Kashinath Mahajan V/s State of Maharashtra and Another (Supra)
which no more prevails. The provisions were already in Section 18-A
of the Act with respect to anticipatory bail. Concerning the
applicability of provisions of Section 438 of Cr.P.C., it shall not apply
to the cases under the Act of 1989. However, if the complaint does
not make out a prima facie case for applicability of the provisions of
the Act, 1989, the bar created by 18 and 18-A(i) shall not apply. This
aspect has been clarified while deciding review petitions.
27. In the case of Swaran Singh and Others V/s. State of
Maharashtra and Others, 2008 SCC 435 . It was observed that the
abuses on the caste should be uttered in the presence of independent
witnesses. The independent person may not be those persons who
are relatives or friends of complainant.
28. In recent decision in the case of Javed Raza Shroff (Supra)
decided by us on 20th December, 2022, we have referred several
decisions on the issue relating to bar under Section 18 of Atrocities
Act and applying the principles enunciated therein. The relief of
anticipatory bail was granted to Appellant therein by observing that
bar under Section 18 would not be attracted in the said case.
20/21
::: Uploaded on - 10/03/2023 ::: Downloaded on - 09/06/2023 20:19:09 :::
SAT 24-APEAL-1258-2022-WITH-1259-2022.doc
29. In the light of observation made hereinabove, we are of
considered opinion that, the bar under Section 18 of the Atrocities
Act cannot be invoked against Appellants in the present case for
depriving them the pre-arrest bail. The custodial interrogation of
Appellants is not necessary.
ORDER
i. Criminal Appeal No.1258 of 2022 and Criminal Appeal No.1259 of 2022 are allowed.
ii. Impugned Order dated 19th November, 2022 passed by learned Additional Sessions Judge, Thane/Special Court (Atrocities Act) in Criminal Anticipatory Bail Application No.4055 of 2022 rejecting application for pre-arrest bail in C.R. No.309 of 2022 registered with Bhayander Police Station is set aside.
iii. Interim Order dated 22nd December, 2022 is confirmed. (PRAKASH D. NAIK, J.) (A. S. GADKARI, J.) 21/21 ::: Uploaded on - 10/03/2023 ::: Downloaded on - 09/06/2023 20:19:09 :::