Bombay High Court
Milind Ramakant Ekbote vs The State Of Maharashtra on 2 February, 2018
Author: S. C. Dharmadhikari
Bench: S. C. Dharmadhikari, Bharati H. Dangre
ORAL JUDGMENT-APEAL.70.2018.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 70 OF 2018 Mr. Milind Ramakant Ekbote } Age 61 years, Occ: Social } Worker, Residing at: } 1170/33, Sushil Kuti, } Revenue Colony, } Shivajinagar, Pune-5 } Appellant versus The State of Maharashtra } (through Shikrapur Police } Station, Pune } Respondent WITH CRIMINAL APPLICATION NO. 150 OF 2018 Sanjay Ramesh Bhalerao } Applicant/Intervener/ Victim in the matter of Milind Ramakant Ekbote } Appellant versus The State of Maharashtra } Respondent Mr. Niteen Pradhan with Ms. Shubhada Khot, Mr. Chintamani Ghate, Mr. Aditya Lasaria, Mr. Umesh S. Iyer and Ms. Ameeta Kuttikrishnan for the appellant.
Mrs. P.P.Shinde-APP for State.
Mr Suresh Mane with Ms. Swati Lade for original complainant In C.R.No.19/2018.
Mr Nitin Satpute with Mr Nitin Sonawane and Mr. Anil Kamble for applicant in APPA/150/2018 (intervener).
Deputy Sub Divisional Police Officer Mr.Ganesh More, Daund Division Dist Pune present.
CORAM :- S. C. DHARMADHIKARI & SMT. BHARATI H. DANGRE, JJ.
DATE :- FEBRUARY 2, 2018 Page 1 of 27 J.V.Salunke,PA ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 01:02:44 ::: ORAL JUDGMENT-APEAL.70.2018.doc ORAL JUDGMENT :- (Per S. C. Dharmadhikari, J.)
1. This appeal is directed against the order passed on 22 nd January, 2018 by the learned Additional Sessions Judge, Pune, copy of which is at page 50 of the paper book (Annexure 'H') in Criminal Bail Application No. 171 of 2018 and Criminal Miscellaneous Application No. 32 of 2018. The appellant before us is arrayed as an accused in C. R. No. 9 of 2018 registered at Shikrapur Police Station.
2. This is an appeal traceable to section 14A of the the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the SCST Act"). By sub- section (1) of section 14A, an appeal can be filed against any judgment, sentence or order not being an interlocutory order of a Special Court or an Exclusive Special Court, to the High Court both, on facts and law.
3. Mr. Pradhan appearing for the appellant has submitted that the order passed in the present case by the learned Trial Judge is traceable to section 18 of the SCST Act. Section 18 rules out the applicability of section 438 of the Code of Criminal Procedure, 1973. It says that nothing in section 438 of the Code shall apply in relation to any case involving arrest of any person on an accusation of having committed an offence under this Act. In the Page 2 of 27 J.V.Salunke,PA ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 01:02:44 ::: ORAL JUDGMENT-APEAL.70.2018.doc facts and circumstances of the case, Mr. Pradhan would submit that once no offence punishable under this SCST Act is committed or made out from a reading of the FIR even if the allegations therein are taken to be correct, then, this bar enacted by section 18 is inapplicable. Once that is inapplicable, then, there was no embargo on the learned Trial Judge to consider the application for anticipatory bail moved by the appellant.
4. Once the learned Trial Judge holds that this bar is attracted as offences punishable under the SCST Act are prima facie committed by the appellant, then, irrespective of the language of sub-section (1) of section 14A, an appeal lies. He would, therefore, submit that the present appeal is maintainable.
5. We at once clarify that since there is no objection raised to the maintainability of this appeal, nor have the parties canvased any arguments on this issue, we proceed on the footing that the present appeal could have been filed and even argued before this court.
6. This Bench has not been assigned matters and particularly such criminal matters, which would enable it to take up this appeal and decide it. This appeal was moved before a Bench presided over by Hon'ble Mr. Justice B. R. Gavai on 31 st January, Page 3 of 27 J.V.Salunke,PA ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 01:02:44 ::: ORAL JUDGMENT-APEAL.70.2018.doc 2018. As His Lordship recused himself, being a Bench alternate to the Bench presided of by Hon'ble Mr. Justice Gavai, this appeal was mentioned before us. On an oral request of Mr. Pradhan and bearing in mind the urgency, we listed it today for admission.
7. We have heard Mr. Pradhan at great length. We have also heard Mr. Pradhan on the amended grounds, which the appellant seeks to introduce in the memo of appeal as additional grounds. A formal prayer is made for leave to amend the memo of Criminal Appeal No. 70 of 2018. We grant leave to amend the memo and it be carried out within a period of one week from today.
8. Mr. Pradhan would submit that in the present case, the paper book would reveal that the FIR has been registered at the instance of the complainant. That complainant is residing, according to Mr. Pradhan, at village Vadu Budruk. Mr. Pradhan would submit that Chatrapati Sambhaji Maharaj, who was the son of Chatrapati Shivaji Maharaj was supposed to have been killed and as per the historic record, at this place and his body parts were spread over in a large area. The history says that these body parts were collected and assembled and thereafter, there was a memorial erected at the site. That memorial is in the honour of this leader and warrior Chatrapati Sambhaji Maharaj. An organisation or Trust, which has erected and constructed this Page 4 of 27 J.V.Salunke,PA ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 01:02:44 ::: ORAL JUDGMENT-APEAL.70.2018.doc memorial has been established and the appellant is associated with it. There is no doubt that the appellant, in order to protect and preserve this memorial, visits that area and looks after the Trust affairs. In the ordinary and normal course of business and when the appellant was informed that very near to this memorial is another memorial and which is revered and respected by members of dalit community, which memorial was desecrated, he bonafide decided to visit this site. He was of the opinion that in the event this desecration fuels communal tension, even the memorial of Chatrapati Sambhaji Maharaj will be damaged. That is why to pacify the crowd and not to create unnecessary law and order problems and communal tensions, the appellant may have visited the site. That visit also brought about a settlement or peace between the two communities. The villagers of Vadu Budruk were not interested in prosecuting anybody. They wanted to bury their differences with non-dalits and live and lead a peaceful life. They do not want any tensions, much less communal passions to be fueled leading to riots. Thus, this was a closed chapter.
9. Mr. Pradhan submits that there was a function organised and that was at the behest or instance of dalit community and members of the political parties at Pune. There was a public Page 5 of 27 J.V.Salunke,PA ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 01:02:44 ::: ORAL JUDGMENT-APEAL.70.2018.doc function held, at which, leaders of certain outfits made provocative speeches. They provoked and instigated a large of the audience to march towards Koregaon Bhima, after which, the incident, as narrated in the FIR, took place. Thus, Mr. Pradhan would submit that we should not forget the backdrop and in which certain attempts were made even by the members of dalit and other communities to fuel tension and promote violence. It is on account of the rival group's march towards the place that certain violent incidents occurred, which are indeed unfortunate. However, for the appellant to be booked in a crime, there ought to be at least prima facie materials indicating that he had organised any meeting or he was present at the site. The appellant was not at Koregaon Bhima on the relevant date and time. His name does not appear in the statement of the first informant from Vadu. The other persons, who are named as accused in the violent incidents are in relation to their role and which is very specific. The acts as attributed to them are not so attributed to the appellant. Our attention is invited to page 38 of the paper book to submit that the appellant has not been named and advisedly as an accused. In these circumstances, there was no occasion to register any crime against him. There may be reference to him, but that reference by itself and without anything more does not even prima facie indicate his complicity in the crime. In these Page 6 of 27 J.V.Salunke,PA ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 01:02:44 ::: ORAL JUDGMENT-APEAL.70.2018.doc circumstances and when no violent acts or provocative speeches or any specific role is attributed, then, the SCST Act could not have been invoked and applied. Mr. Pradhan addresses us essentially on this aspect of the matter.
10. Relying upon the additional grounds, Mr. Pradhan has taken us through other materials and in that regard, he would submit that we must not also forget that a pamphlet was circulated in support of a function or parishad known as Yelgar Parishad held on 31st December, 2017 at Shaniwarwada, Pune. That was attended by prominent personalities, including one Umar Khalid. Mr. Pradhan would submit that looking at this pamphlet and its careful perusal would demonstrate as to how this parishad was organised so as to instigate people to march towards a place called Bhima Koregaon battle ground. Even this place, according to Mr. Pradhan is known for a battle, where British army fought the Peshwas. The British Army consisted of members/soldiers of Mahar Regiment. They were part of the force. The day on which that battle was won by these forces is often celebrated and till such time as this provocative function at Pune was held and a provocative circular issued, there was never any violent incident. This time, according to Mr. Pradhan, the clashes took place in which, one Rahul Fatangle, a resident of Page 7 of 27 J.V.Salunke,PA ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 01:02:44 ::: ORAL JUDGMENT-APEAL.70.2018.doc Bhima Koregaon, belonging to Maratha Community lost his life. In fact he was not part of the mob. He was mistaken as a follower of Chatrapati Sambhaji Maharaj and connected with above Trust. It is only because Chatrapati Shivaji Maharaj's photo was displayed on his shirt/clothes that he was attacked and later on put to death. Thus, this is not a case where we should look at one incident in isolation. This is a violent incident occurring also because of the provocation and active encouragement of the leaders of dalit community and so called progressive organisations. In these circumstances, picking up the present appellant and seeking to arrest him by booking him in a serious crime would demonstrate the prosecution's malafides. Mr.Pradhan would submit that the appellant has been shown as a conspirator. He is alleged to have instigated the crowd. However, he was neither present personally in Bhima Koregaon nor gave any speech prior to the celebration of 1 st January, 2018. Mr. Pradhan would submit that the organisers of this Yelgar Parishad are pressing for the arrest of the appellant. They are pressurising the administration only because the appellant has opposed the organisation of such parishad at Shaniwarwada. It is a historical place and has its own significance and place in history. If any historical or cultural show is organised, then, making available the open space in Shaniwarwada has never been opposed by the Page 8 of 27 J.V.Salunke,PA ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 01:02:44 ::: ORAL JUDGMENT-APEAL.70.2018.doc appellant. The appellant has been opposing holding of political functions and rallies at this place. Thus, he is essentially interested in preserving and promoting the rich heritage and culture so also the historical status of Shaniwarwada, Pune. Such a person is often on the wrong side of the local administration. Whenever he has opposed holding such functions and protested in the past, he has been booked in some crime or the other. However, the incidents hitherto, according to Mr. Pradhan, do not indicate that the appellant is a violent person and has been booked for alleged offences against human body or property. Therefore and particularly when the ingredients of the provisions applied are not attracted, we must allow this appeal.
11. Apart from addressing us on the above lines, when the learned APP produced the relevant records and files and we perused them, Mr. Pradhan addressed us also on the alleged calls which have been allegedly made from the mobile number of the present appellant. Mr. Pradhan's explanation is that these mobile calls have been made in routine course and the communication is with the other office bearers of the Trust. These other office bearers may have been booked in the crime or otherwise, but merely because some calls have been made on 29 th, 30th or 31st December, 2017 that does not mean that the appellant has played Page 9 of 27 J.V.Salunke,PA ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 01:02:44 ::: ORAL JUDGMENT-APEAL.70.2018.doc any active role in the violent incidents occurring at Bhima Koregaon.
12. In support of his submission that the SCST Act cannot be applied, by referring to its preamble, its object and purpose, Mr. Pradhan invited our attention to the judgments of this court as also that of the Hon'ble Supreme Court of India. Mr. Pradhan would submit that these judgments lay down the legal principles. The prosecution before applying and invoking this act ought to be aware of the bar enacted under section 18 of this Act. Hence, a duty is cast, when the prosecution invokes and applies this drastic provision, on the court to verify the averments in the complaint and to verify whether a case for invocation of the SCTS Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, a person insults, intimidates with intent to humiliate Scheduled Caste or Scheduled Tribe persons, then he is not entitled for anticipatory bail. Thus, everything would depend upon the nature of the averments in the complaint.
13. Mr. Pradhan also invited our attention to an order passed by a Division Bench of this court in Criminal Appeal No. 890 of 2017 and Criminal Appeal No. 891 of 2017 on 6th November, 2017 to submit that a circumstance and which is entirely based Page 10 of 27 J.V.Salunke,PA ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 01:02:44 ::: ORAL JUDGMENT-APEAL.70.2018.doc on the telephone/mobile calls exchanged can never be taken as credible evidence. These call details themselves cannot be said to be conclusive evidence.
14. We must also clarify that Mr. Satpute, who had filed an application for intervention being Criminal Application No. 150 of 2018 raised a preliminary objection to the maintainability of the appeal by submitting that the applicant/intervener is a victim. The crime is serious and therefore, in terms of the applicable law and particularly section 15A of the Act, the applicant ought to have been impleaded as a party respondent to this appeal. The non-impleadment is fatal and therefore, the appeal should be dismissed on this ground alone. It was also attempted to be argued that the intervener-victim has a right to be heard and irrespective of whether the appellant impleads him as a party respondent or not, he should be heard.
15. We must clarify at once that on this point, we told Mr. Satpute and equally Mr. Suresh Mane that both counsel need not be heard in view of the ultimate conclusion reached by us. Hence, we have not taken note of their preliminary objection, though Mr.Pradhan was ready to implead the applicant even now as a party respondent. We have not heard them simply because we indicated to both that in the event we are disinclined to admit the Page 11 of 27 J.V.Salunke,PA ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 01:02:44 ::: ORAL JUDGMENT-APEAL.70.2018.doc appeal, then, interest of justice would not suffer adversely nor will be there any miscarriage of justice if we do not hear them.
16. The learned APP Ms. Shinde placed before us the original files containing the investigation papers. With her assistance, we have perused some of the papers in the file and particularly those marked for our perusal and termed as relevant for this case.
17. True it is, as Mr. Pradhan contends that before the SCST Act is invoked and applied, the court must be careful and scrutinise as also verify the complaint. At the same time, we do not wish to re-emphasise, but as the preamble to this Act itself denotes, it is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for Special Courts and the Exclusive Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto that this Act has been enacted. It is brought into force on 11th September, 1989 and now substituted by Act 1 of 2016.
18. A perusal of the statement of objects and reasons of this Act would reveal that despite various measures to improve the socio- economic conditions of the Scheduled Castes and the Scheduled Page 12 of 27 J.V.Salunke,PA ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 01:02:44 ::: ORAL JUDGMENT-APEAL.70.2018.doc Tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to various offences, indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons (underlining ours). Because of the awareness created amongst the Scheduled Castes and the Scheduled Tribes through spread of education etc., they are trying to assert their rights and this is not being taken very kindly by the others. When they assert their rights and resist practices of un-touchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them down and terrorise them. Despite the deterrent provisions made in the Act, atrocities against the members of the Scheduled Castes and Scheduled Tribes continue at a disturbing level. Adequate justice also remains difficult for the majority of the victims and the witnesses, as they face hurdles virtually at every stage of the legal process. The implementation of the Act suffers due to procedural hurdles such as non-registration of cases, procedural delays in investigation, arrests and filing of charge-sheets and delays in trial and low conviction rate. It was also observed that certain forms of atrocities, known to be occurring in recent years, are not Page 13 of 27 J.V.Salunke,PA ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 01:02:44 ::: ORAL JUDGMENT-APEAL.70.2018.doc covered by the Act. Several offences under the Indian Penal Code, other than those already covered under section 3(2)(v) of the Act were also committed frequently against the members of the Scheduled Castes and the Scheduled Tribes on the ground that the victim was a member of a Scheduled Caste and Scheduled Tribe. It was also felt that the public accountability provisions under the Act need to be outlined in greater details and strengthened. In view of this, it became necessary to take a comprehensive review of the relevant provisions of the Act after due consultation with the State Governments, Union Territory Administration, concerned Central Ministers, National Commission for the Scheduled Castes, National Commission for the Scheduled Tribes, certain Non-Governmental Organisations and activists. That is why this special legislation and which is to take care of and deter crimes against the Scheduled Castes and Scheduled Tribes has been enacted.
19. The term "atrocity" is defined in section 2(1)(a) to mean an offence punishable under section 3. The other definitions appearing in this section would denote that the "Special Court"
means a court of Session specified as a Special Court in section 14 and section 2(ec) defines the word "victim" to mean any individual who falls within the definition of the terms "Scheduled Page 14 of 27 J.V.Salunke,PA ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 01:02:44 ::: ORAL JUDGMENT-APEAL.70.2018.doc Castes and Scheduled Tribes" under clause (c) of sub-section (1) of section 2, and who has suffered or experienced physical, mental, psychological, emotional or monetary harm or harm to his property as a result of the commission of any offence under this Act and includes his relatives, legal guardian and legal heirs. The terms "Scheduled Caste and Scheduled Tribe" carry the same meanings as are assigned to them respectively under clause (24) and clause (25) of Article 366 of the Constitution of India.
20. The punishments for offence of atrocities are set out in Chapter II. Mr. Pradhan would submit that a reading of the FIR and the statement of the first informant would indicate that the prosecution has failed to apply its mind totally. They seem to be unaware of the legal provisions for they applied and invoked section 3(2)(x) and section 3(2) (v) of the SCST Act.
21. In that regard, with the assistance of Mr. Pradhan, we have perused the statement of the first informant and equally the related papers. The FIR in question is stated to be FIR No. 9 of 2018. This FIR invokes, at least from its heading, sections 3(2) (V) and 3(1)(10). However, the incident that is narrated concerns a function organised on 1 st January, 2018 at Bhima Koregaon. The function was styled as "warriors day"
(Shauryadin). The complainant says that she, with her husband and children as also her friend, proceeded towards this place on Page 15 of 27 J.V.Salunke,PA ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 01:02:44 ::: ORAL JUDGMENT-APEAL.70.2018.doc motor bike. They reached a place called Chakan Shikrapur. Near Shikrapur Toll Naka and after they reached Sanaswadi, they found people throwing stones and a riotous mob. They burned down property. There was a flag (Panchashil flag) and blue flag. This blue flag is often displayed by the dalits. That was also burned down. The mob was carrying weapons. They were beating persons and that is why the complainant and her husband turned their bike towards another road and using that road, they were to reach the memorial. In this, the friend, his family and they were separated. They were waiting for the friend after reaching Fulgaon and when they were so waiting, the friend of the complainant called her on mobile phone and informed her that she is stuck on the way and at Sanaswadi. There, the mob has burned down vehicles. The mob is carrying rods, swords and soda water bottles. They are pelting stones and that has led the complainant to take assistance of the police and reach the destined place, Vadu Khurd. The police also did not co-operate and the complainant says that even the police were victims of stone pelting. Thus, the whole atmosphere was vitiated and that is how this family took shelter at a secluded place. However, there also people gathered and a mob attacked them with weapons. Somehow they managed to escape. They also named certain persons, who were targeted.
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22. The complainant specifically says that all the violent incidents were at the behest of inter alia appellant-Milind Ekbote, who is the Chief of Hindu Janajagran Samiti. He and his non- Scheduled Caste colleagues have deliberately indulged in these acts and targeted the Scheduled Caste and Scheduled Tribe communities. It is also stated that there is another violent incident, in relation to which, a crime may have been registered. Then, there are certain statements, which have been recorded.
23. With the assistance of the learned APP, we have perused the original file. Apart from the complainant, there are two or three persons, who have named the appellant and it is stated that the appellant visited a place called as Perne Phata, Sonai Hotel on 31 st December, 2017. The statement of a witness is shown to us and he categorically states that in the year 1818, there was a war and the British forces comprised of the members of Mahar Battalion. That had fought a war against Peshwas. The Mahar Battalion was engaged in the battle with the Peshwas. Some soldiers of the Mahar Battalion gave away their life. In the memory of these soldiers, there is a memorial styled as " Vijay Stambh". This memorial is within the limits of village Perne. It is on Pune Ahmadnagar highway. It is near Perne Phata. Every year, on 1 st January, the Bauddha religion followers assemble there and Page 17 of 27 J.V.Salunke,PA ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 01:02:44 ::: ORAL JUDGMENT-APEAL.70.2018.doc celebrate the victory day. People from all over the State gather there and pay their respect. This year, the war of 1818 completed 200th anniversary. Therefore, a large gathering was going to assemble and rather assembled at that place. Then, he says that at village Vadu Budruk and behind the Grampanchayat office, there is a samadhi of Govind Gopal Mahar. On 28th December, 2017, his followers and particularly Pandurang Gaikwad, resident of Vadu Budruk and other workers placed a board. The message on that board was objected to and therefore, on 29th December, 2017, one person Sachin Maruti Bhandare and other picked up and threw away that board. They also desecrated this samadhi. They broke the iron umbrella. They also abused the members of the Mahar community and by name. That is why one Sushma Subhash Ovhal residing at Ambedkar Nagar, Haveli, Pune lodged a complaint with Shikrapur Police Station. The police arrested seven persons in relation to this crime. This witness states that on 30th December, 2017, the appellant came near Perne Phata at Sonai Hotel. He had convened a press conference and thereafter he was to brief the media persons. That is why this witness, together with another journalists came at the hotel at about 4.00 p.m. He saw the appellant at this Sonai Hotel. On recognising the witness and others, the appellant got up and handed over photocopy of an article of Dr. Babasaheb Page 18 of 27 J.V.Salunke,PA ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 01:02:44 ::: ORAL JUDGMENT-APEAL.70.2018.doc Ambedkar appearing in a work "Adhunik Manu". He specifically invited the attention of this witness to this article and a particular passage or some sentences therefrom. The witness says that two other persons had also come at the place. The appellant was also present and after this note was handed over, they left the place and did not give any publicity to this incident or to this press conference or handing over of this photocopy, as they thought that this will further fuel communal passion. On account of the possible law and order situation, they did not give any publicity to this visit of the appellant.
24. This person has also narrated as to how the riots occurred. He also stated specifically about the participation of 300 to 400 persons of Maratha community. It is stated that when the two mobs came face to face, they started pelting stones and also destroyed public property. Even vehicles were torched.
25. Mr. Pradhan would argue that this does not indicate that the appellant was instrumental in these attacks on the dalits or members of the Scheduled Caste or Scheduled Tribe far from playing any active role in the desecration of the samadhi of Govind Mahar. Thus, prima facie, this incident and the violence at the war memorial being connected or linked that the SCST Act was invoked and applied. Both prima facie promoted or Page 19 of 27 J.V.Salunke,PA ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 01:02:44 ::: ORAL JUDGMENT-APEAL.70.2018.doc attempted to promote feelings of enmity, hatred or ill-will against the members of the Scheduled Caste.
26. We, at once, clarify that we are not accepting the version of any witness of the prosecution or the first informant or others for that is yet to be tested and must be tested at the trial. We are today at the stage of grant of anticipatory bail. The investigations are still going on. The police is collecting the necessary materials and recording statements of victims of the crime. There are several others, who have relevant and material information with regard to the incident and the police is yet to reach them. It would be, therefore, unsafe to express any opinion, even prima facie, on the complicity of the appellant and others in the crime. We are concerned with a appeal, which is directed against the refusal of anticipatory bail. The learned Trial Judge, being mindful of this position, has not observed anything, which would prejudice the appellant before us in any manner. The learned Trial Judge has noted the arguments of both sides and particularly the fact that the appellant is the President of Hindu Janajagran Samiti. That this samiti comprises of members, who are non-Scheduled Caste and non-Scheduled Tribe, primarily. That such members claim to be followers of Chatrapati Sambhaji Maharaj. They had organised an event and in the past near this samadhi. They had also visited the place prior to the members of Page 20 of 27 J.V.Salunke,PA ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 01:02:44 ::: ORAL JUDGMENT-APEAL.70.2018.doc the Scheduled Caste holding their victory day celebration. It may be that the members of the Scheduled Caste organised a rally or public function at Pune and some of them marched towards Koregaon Bhima after that function concluded. But, as the record prima facie indicates, people from all over the State gathered to celebrate the victory day. These members of the Scheduled Caste revere and respect a memorial and for paying homage to those soldiers, who sacrificed their life in the war against the Peshwas that the place has a significance. That the memorial was erected in 1881 and on 1st January, 2018, 200th anniversary of this war was celebrated and for that, the members of Scheduled Caste gathered at site. Prima facie, anticipating this gathering, the members of the majority community, as Mr. Pradhan would urge and name them, as planned by the organisations such as Hindu Janajagran Samiti assembled at or near the memorial of Chatrapati Sambhaji Maharaj. Prima facie, they justify their gathering at the site was to prevent any damage to the memorial of Chatrapati Sambhaji Maharaj on account of the desecration of the samadhi of Govind Mahar on 28th December, 2017. We do not go into the details of the functions. We also need not link the incidents presently. All that we are concerned with is the role of the appellant before us and who is admittedly the Chief of Hindu Janajagram Samiti.
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27. The material before us prima facie indicates that the appellant has been named in the statements recorded so far and he has been booked on these prima facie materials for offences of atrocities punishable under the SCST Act. The FIR refers to a provision, to which our attention was invited by Mr. Pradhan, but that cannot be taken as conclusive for the acts attributed and prima facie to the appellant are punishable under the SCST Act. The atrocity is an offence and the offence in this case prima facie is of, words either written or spoken or by signs or by visible representation or otherwise promoting or attempting to promote feelings of enmity, hatred or ill-will against members of the Scheduled Caste or Scheduled Tribe. These are the acts, which are referred to in clase (u) and (v) of sub-section (1) of section 3 of the SCST Act as also clause (v) of sub-section (2) of section 3 and alleged to have been committed by the appellant.
28. We have already clarified that expressing any further opinion on this aspect of the matter would prejudice the case of both sides. Presently, some statements are recorded and further investigations are underway. The incident has occurred on 1st January, 2018. The impact of this incident resulted in large scale disruption of even tempo of life in the sense, some retaliatory actions and rioting was reported throughout the State. At this Page 22 of 27 J.V.Salunke,PA ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 01:02:44 ::: ORAL JUDGMENT-APEAL.70.2018.doc stage of investigation, therefore, it will not be proper to observe anything further. It is only with a view to consider the applicability of the Act and the role of the appellant that we referred to the above materials.
29. Prima facie, it is not necessary for a person to remain present so as to commit these offences allegedly committed by the appellant. The object and purpose sought to be achieved by the legislation will have to be borne in mind. At no stage we must lose focus of the same. It is, therefore, not necessary that all these acts and attributable at this prima facie stage have to be committed by the concerned person and can be committed only by his physical presence. So long as the acts attributed are pointing towards promotion or attempting to promote feelings of enmity, hatred or ill-will against members of the Scheduled Casts or Scheduled Tribes, then, we do not see how Mr. Pradhan's arguments can be accepted.
30. As far as the judgments, which have been cited before us, it is clear that in the judgment which was specifically referred by Mr. Pradhan (Vilas Pandurang Pawar and Anr. vs. State of Maharshtra1) the appellant before the Hon'ble Supreme Court applied for anticipatory bail under section 438 of the Code of 1 (2012) 8 SCC 795 Page 23 of 27 J.V.Salunke,PA ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 01:02:44 ::: ORAL JUDGMENT-APEAL.70.2018.doc Criminal Procedure, 1973 before the Court of Sessions, Ahmednagar. That application was rejected. Aggrieved by that order, Criminal Application No. 3012 of 2012 was filed in this court at its Bench at Aurangabad, but the said Bench, while allowing the anticipatory bail applications of 13 accused out of 15, rejected the application of the appellant before the Hon'ble Supreme Court. It is being aggrieved by the same that the matter was brought to the Hon'ble Supreme Court. The argument was that the Act would not be applicable for the quarrel took place and over rainwater, which accumulated and had flown into the field of one Balu Pawar. It was alleged that the complainant and her husband were abused by Balu Pawar when they were standing on a S. T. Stand. He abused them on caste basis and following the above incident. The other incident was of gathering of the appellant-petitioner before the Hon'ble Supreme Court along with co-accused and abusing them on their caste, assaulting the complainant and the family members. The assault took place by sticks, stones etc. That resulted in lodging of the FIR and the consequent application for bail. It is while rejecting the bail/petition of the appellant-petitioner that the Hon'ble Supreme Court cautioned that unless and until there are materials to apply the Act, the Act should not be invoked and applied. Therefore, the duty is cast on the court to verify the averments in the complaint. Page 24 of 27 J.V.Salunke,PA ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 01:02:44 ::: ORAL JUDGMENT-APEAL.70.2018.doc We do not think that in the facts and circumstances of the case, the learned Judge has failed to carry out the duty and that was cast on him by law. Therefore, we do not think that section 18 can be overlooked or brushed aside and that bar would come into play in the facts and circumstances of the present case.
31. As far as the call data is concerned, it is not necessary to express any opinion for that is one of the materials, which has been collected during the course of investigation and in addition to the pamphlets that were allegedly circulated by the appellant and which contained the objectionable part. It is in these circumstances that the call data records may or may not necessarily clinch the issue. Today, their evidentiary value is not under consideration.
32. The Division Bench Judgment of this court in the case of Fatehsinh Mohansinhji Chauhan vs. The Union Territory of Dadra and Nagar Haveli and Anr.2, decided on 8th November, 2017 was not dealing with a similar situation. The Division Bench had before it a FIR and which FIR against the appellants was for an offence under section 3(2)(va) of the SCST Act. The prosecution case was referred in para 4 and there, the victim was taken by two persons in a vehicle. She was forced to accompany them and 2 Criminal Appeal Nos. 890 & 891 of 2017 Page 25 of 27 J.V.Salunke,PA ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 01:02:44 ::: ORAL JUDGMENT-APEAL.70.2018.doc as alleged, the victim was sought to be kidnapped. She narrated the whole version, based on which, the FIR came to be registered. The only ground on which the appellants were arrainged was that the other accused had made phone calls to them and one of the arrested accused confessed that the complainant was kidnapped at the instance of one of the appellants. The three accused were initially enlarged on bail. That order came to be challenged before the Sessions Court. The Sessions Court, without giving notice to these three accused, cancelled their bail. It is thereafter that they approached this court. That order of the Sessions Judge was set aside and that of the Magistrate was restored. It is in these circumstances that the observations relied upon by Mr. Pradhan and to be found in para 7 have been made. The factual backdrop and the context in which these observations have been made cannot be ignored. We are of the opinion, therefore, that this order is distinguishable on facts.
33. As a result of the above discussion, we do not find any merit in the appeal. It is dismissed.
34. At this stage, Mr. Pradhan applies for stay of this order so as to enable him to challenge it in higher court or take steps, otherwise permissible in law. This request for stay is opposed by both, the State as also the advocate appearing for the interveners. Page 26 of 27 J.V.Salunke,PA ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 01:02:44 ::: ORAL JUDGMENT-APEAL.70.2018.doc
35. After hearing both sides on this point and finding that the appellant's application for anticipatory bail has been rejected by the trial court on a prima facie finding that the Act was properly invoked and which finding has been endorsed and upheld by us, we are not inclined to grant this request. We do not find any perversity or error of law apparent on the face of the record or a serious legal infirmity in the order under challenge. Consequently, while dismissing the appeal, we also reject the request for stay of the order.
36. In the light of the dismissal of the appeal, the criminal application does not survive and stands disposed of as such. (SMT. BHARATI H. DANGRE, J.) (S.C.DHARMADHIKARI, J.) Page 27 of 27 J.V.Salunke,PA ::: Uploaded on - 08/02/2018 ::: Downloaded on - 09/02/2018 01:02:44 :::