Bombay High Court
Tushar Somnath Dhembe And Anr vs The State Of Maharashtra And Anr on 4 March, 2020
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
904 CRIMINAL APPEAL NO.1085 OF 2019
TUSHAR SOMNATH DHEMBE AND ANR
VERSUS
THE STATE OF MAHARASHTRA AND ANR
...
Mr. S.S. Panale, Advocate for appellants
Mr. B.V. Virdhe, APP for respondent No.1
Mr. S.V. Natu, Advocate for respondent No.2
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 04th MARCH, 2020
PER COURT :
1 Admit.
2 Present appeal has been filed under Section 14(A)(2) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
challenging the order of rejection of application for anticipatory bail in
Criminal Miscellaneous Application No.158/2019 by learned Special
Judge/Additional Sessions, Sangamner dated 17.10.2019.
3 The applicants are apprehending their arrest in Crime
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No.612/2019 dated 27.09.2019 lodged at the instance of the present
respondent No.2 for the offences punishable under Section 120(B), 363, 384,
392, 420 of the Indian Penal Code and under Section 3(1)(x), 3(1)(zb) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
4 Heard learned Advocate Mr. S.S. Panale for appellants, learned
AGP Mr. B.V. Virdhe for respondent No.1 and learned Advocate Mr. S.V. Natu
for respondent No.2.
5 It has been vehemently submitted on behalf of the appellants
that the learned Special Judge failed to consider that the First Information
Report was lodged or registered after the order was passed by the learned
Special Judge on 09.09.2019 in Special Case No.21/2019, directing
Sangamner City Police Station to register crime on the basis of complaint and
to investigate under Section 156(3) of the Code of Criminal Procedure.
Therefore, the basis for the registration of the crime was the said private
complaint, which was filed by the respondent No.2 and the said complaint
had no averments, stating that there was abuse in the name of caste. Those
statements are appearing now in the First Information Report and it appears
that those have been inserted by the police. Therefore, there is no question
of bar under Section 18-A of the Atrocities Act for releasing the present
appellants on pre arrest bail. Though the learned Judge has given eight
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reasons for rejecting the application, none of them were strong enough to
show that they are not entitled to get pre arrest bail. No prima facie case was
made out against the present appellants. In fact, the seizure of the vehicle,
which was taken on loan by the respondent No.2 at Bhiwani (State of
Haryana) and all the procedure, that was contemplated regarding
information about taking possession of the vehicle and informing the said
fact to the local police, was complied with. Thereafter, respondent No.2 had
issued two notices to the office of the Finance Company. Those notices have
been replied. Instead of taking some other legal remedy, the respondent No.2
has resorted to such legal action, which was not at all with bona fide
intention, and therefore, the learned Special Judge ought to have allowed the
application of pre arrest bail by the applicants.
6 The learned APP as well as learned Advocate for the respondent
No.2 are supporting the reasons given by the learned Special Judge while
rejecting the application. In addition, the learned Advocate for the
respondent No.2 has submitted that the respondent No.2 was kidnapped and
then threat was given, that he should sell the vehicle to different person. The
possession of the vehicle was forcibly taken and when the respondent No.2
went to the office of Finance Company and offered to pay the remaining
outstanding instalments of two months, at that time he was abused. The
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vehicle was disposed of by the Financial Institution without the permission of
the respondent No.2 and specific abuses were given in the name of caste by
the appellant on 20.05.2019 at about 11.30 a.m. as "ekaxV;k ijr vkWQhle/;s ik; Bsow
udks] rq>h xkMh vkEgh fodwu Vkdyh vkgs] rqdk dk; djk;ps rs d:u ?ks ". Therefore, prima
facie case was made out to attract the provisions of Atrocities Act, and
therefore, the learned Special Judge has rightly held, that the application for
pre arrest bail was not maintainable.
7 At the outset, what is not in dispute is, that the First Information
Report i.e. Crime No.612/2019 came to be registered after the order was
passed by the learned Special Judge on 09.09.2019 in Special Case
No.21/2019. The words of the order were " Samgamner City Police Station is
directed to register crime on the basis of complaint and to investigate it
under Section 156(3) of Cr.P.C.. The investigation shall be done by
competent police officer under the S.C. and S.T. (Prevention of Atrocities)
Act." So the basis of the registration of the crime was the complaint and
nothing could have been inserted by police more than that was stated in the
complaint, so as to bring that crime within the provisions of Atrocities Act.
Though the learned Special Judge had, in the said order directed, that the
investigation shall be done by the Investigating Officer under Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, unless the
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contents of the complaint would have been to attract the provisions of a
particular act, the offence could not have been registered under the same and
later on it appears that the police on their own have inserted "ekaxV;k ijr
vkWQhle/;s ik; Bsow udks] rq>h xkMh vkEgh fodwu Vkdyh vkgs] rqdk dk; djk;ps rs d:u ?ks". This
prima facie difference between the complaint and the First Information
Report ought to have been considered by the learned Special Judge in order
to come to conclusion that prima facie case has been made out or not, to
attract the bar under Section 18(A)(2) of the Atrocities Act. In Prithviraj
Chavan vs. Union of India in Writ Petition No.1015 of 2018 decided by
Hon'ble Apex Court on 10.02.2020, following observations have been made :
"10. The scope of Section 18 of the SC/ST Act read with Section 438 of
the Code is such that it creates a specific bar in the grant of anticipatory
bail. When an offence is registered against a person under the provisions
of the SC/ST Act, no court shall entertain an application for anticipatory
bail, unless it prima facie finds that such an offence is not made out.
Moreover, while considering the application for bail, scope for
appreciation of evidence and other material on record is limited. The
court is not expected to indulge in critical analysis of the evidence on
record. When a provision has been enacted in the Special Act to protect
the persons who belong to the Scheduled Castes and the Scheduled
Tribes and a bar has been imposed in granting bail under Section 438 of
the Code, the provision in the Special Act cannot be easily brushed aside
by elaborate discussion on the evidence."
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Therefore, there is no absolute bar for entertaining application
for pre arrest bail in involving the provisions of Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act. When in the foundation of
the crime i.e. First Information Report the averments are missing, prima facie
observations can be made, that no prima facie case is made out.
8 Another fact to be noted is, that though the learned Special
Judge has given eight reasons for rejecting the application, there was nothing
before the learned Special Judge to even show at that stage, as to how the
release of the applicants would have caused hindrance to the investigation of
the crime, possibility of tampering with the evidence of the prosecution,
custodial interrogation was necessary and the applicants had tried to
terrorize the informant. Mere statements by the informant are not sufficient.
Taking into consideration the fact, that when the applicants had placed
before him documents to show, that they had adopted proper procedure
while effecting seizure of the vehicle and other appropriate mode or method,
was not adopted by the informant himself well within time. Therefore, the
said reasons given by the learned Judge are not proper. Consequently, the
appeal deserves to be allowed. However, at the same time, the interest of the
prosecution is also required to be protected, and therefore, certain conditions
deserve to be imposed on the appellants. Hence, following order.
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ORDER
1 The appeal stands allowed. 2 The order passed by the learned Special Judge/Additional
Sessions Judge, Sangamner in Criminal Bail Application No.158/2019 dated 17.10.2019, is hereby set aside.
3 In the event of arrest of the applicants by Sangamner Police Station in Crime No.612/2019 for the offence punishable under Section 120(B), 363, 384, 392, 420 of the Indian Penal Code and under Section 3(1)
(x), 3(1)(zb) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, they be released on P.R. and S.B. of Rs.15,000/- each. 4 The applicants shall remain present before the Investigating Officer, on every Sunday, between 10.00 a.m. to 1.00 p.m., till filing of charge sheet.
5 They shall co-operate with the investigation. 6 They shall not tamper with the evidence of prosecution, in any manner.
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