Criminal Appeal No.356 of 2018

6th August, 2018.

Petitioner Counsel: Mr. S.S. KAZI
Respondent Counsel: Mr. A.A. JAGATKAR, Ms. TALEKAR, h/f S.B. TALEKAR AND TALEKAR ASSOCIATES

Cases Cited:
Dr. Subhash Kashinath Mahajan Vs. The State of Maharashtra and Anr., 2018 ALL MR (Cri) 1773 (S.C.)=2018 ALL SCR (Cri) 542 : Cri. Appeal No.416/2018, Dt.20.03.2018 [Para 8,13]
Chikkappa and others Vs. State, (2002) Cri. LJ. 518 [Para 9,13]
Mamta Jitendra Jadhav Vs. The State of Maharashtra and Ors., Cri. Appeal No.625/2017, Dt.20.9.2017 [Para 9,13]

JUDGMENT

JUDGMENT :- Present appeal has been filed by the original accused under Section 14 -A of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred as 'Atrocities Act' for the sake of brevity) and Section 438 of the Code of Criminal Procedure.

2. Respondent No.3 is the original informant. He filed the FIR on 07-04-2018. He has clearly stated his status in the beginning. He has stated that, he is an agriculturists. He had taken maze crop in 2016. The yield was to the extent of 50 quintal. He had sold the maze in November 2016 to the present appellant @ Rs.1100 per quintal. Accused was supposed to pay consideration of Rs.55,000/- after about eight days. After eight days when informant went to demand the amount, it was told by the accused that, due to demonetization, he is not having the cash. He promised that, he would give cash and till then he gave a cheque bearing No.577335 drawn on Central Co-operative Bank, Khultabad Branch, dated 30-11-2016. Accused told him that, after he would provide cash to the informant, informant should return the cheque, he should not present the cheque for encashment. Thereafter, the informant was demanding amount from the accused time and again, however the accused did not pay him the amount. Ultimately informant once again went to the place of accused around 9.30 a.m. on 05-04-2018 and met him. At that time some witnesses were present. In the presence of the witnesses, informant asked accused to give him the amount of Rs.55,000/-. Accused got annoyed as the amount was demanded in presence of those persons and then started abusing. He uttered, "dk; ds iSls ,d #i;k ugh nqWaxk rsjsls D;k gksxk oks djys rsjk esjk dqN ysuk nsuk ugh rsjsls esjk dksbZ laca/k ukgh- py Hkkx ;gkWa ls- rsjh ekWa dh rsjh cgu dh".

3. It is stated by the informant that, accused was having knowledge that the informant is a member of the scheduled caste, and therefore, the accused uttered, "lkys tkjs egkj dh vkSykj] /ksM] vc isls ekWaxus vk;k rks ekj Mkywaxk] eS nknk gwWa-" Informant felt insulted as those utterances were in presence of witnesses. Thereafter, the witnesses intervened and persuaded the accused. Thereafter, accused told that, he would give the amount after two days and therefore, the informant did not lodge the report immediately. However, when the amount was not paid, he lodged the report.

4. On the basis of the said First Information Report, offence has been registered vide Crime No. 88 of 2018 with Khultabad Police Station, Aurangabad for the offence punishable under Section 406, 504, 506 of the Indian Penal Code and Section 3(ii)(v)(a), 3(i)(r)(s) and 3(i)(x) of the Atrocities Act. The applicant is apprehending his arrest in this crime.

5. The applicant had approached the Special Judge i.e. Additional Sessions Judge, Aurangabad for bail under Section 438 of the Code of Criminal Procedure. However, after hearing the applicant as well as the informant, the said application has been rejected on 23-04-2018. Hence, present appeal.

6. The applicant has contended that, he has enmity with one Sharfuddin Mohammod, Shaikh Iqbal, Shaikh Tausif and others. These persons had assaulted the appellant, and therefore, on the basis of the FIR vide Crime No. 34 of 2015, offence under Section 143, 325 and 307 of Indian Penal Code was registered against those persons. Appellant says that, he had issued cheque to the informant with an understanding that, he would return the cheque after payment of amount. Informant had agreed for the same. Appellant had paid the entire amount to the informant, however informant refused to return the cheque by giving excuse that the cheque is not traceable. According to the appellant, the informant had lodged the FIR at the instigation of those persons against whom the appellant has filed FIR No. 34 of 2015. According to the appellant when he got the knowledge about the fact that, informant is about to lodge a complaint, he had issued notice through Advocate Mr. Gajanan Maruti Tayde on 05-04-2018 to the informant. It was made clear to the informant that, he shall not file a false complaint against him. In spite of the said legal notice, the report has been lodged. The appellant says that, he has been falsely implicated. After the appellant had approached the learned Sessions Judge, interim relief was granted with condition and the appellant has abide by those conditions. Now also he is ready to abide by the conditions. The learned Additional Sessions Judge failed to consider that the appellant has been implicated. The said application was rejected by the learned Additional Sessions Judge only on the ground that, the said application was barred under Section 18 of the Atrocities Act. The appellant has prayed for setting aside the impugned order and releasing him on anticipatory bail.

7. The informant - respondent No.3 has filed affidavit-in-reply. The contents of the FIR are reiterated. It has been contended that, before registering the FIR, preliminary enquiry has been done by Police Inspector, Khultabad Police Station. It is stated that, the legal notice that was sent by the appellant was in fact dispatched on 06-04-2018 just in order to create an evidence to get anticipatory bail. The said notice was received by him on 16-04-2018. The track record of the consignment has been produced along with the reply from the website of the Department of Posts, Ministry of Communications, Government of India. It has been stated by the informant that, the application for anticipatory bail was barred under Section 18 of the Atrocities Act, and therefore, it has been rightly rejected by the Additional Sessions Judge.

8. Heard learned advocate Mr. S. S. Kazi for appellant, learned Additional Public Prosecutor Mr. N. M. Munde appearing on behalf of State and learned Advocate Ms. Talekar appearing on behalf of respondent No.3 - informant. Perused the police papers. The learned Advocate for the appellant has taken me through the contents of the FIR and then pointed out that legal notice was issued by the appellant to the informant on 05-04-2018. He also pointed out that, the appellant had filed FIR against those witnesses way back in 2015. These are the pieces which would show that the appellant has been falsely implicated. He also submitted that, by way of interim relief, the appellant was released by the Additional Sessions Judge as well as by this Court and he has not misused the liberty. He relied on the decision in Dr. Subhash Kashinath Mahajan Vs. The State of Maharashtra and Anr., Criminal Appeal No. 416 of 2018 : [2018 ALL MR (Cri) 1773 (S.C.) : 2018 ALL SCR (Cri) 542], decided by Apex Court on 20-03-2018, wherein it has been held that,

"There is no absolute bar against grant of anticipatory bail in cases 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 malafied."

9. He also relied on the decision in Chikkappa and others Vs. State, (2002) Cri. LJ. 518 (Karnataka High Court). It has been observed that,

"The Court will have to take a look at the first information/ complaint and the allegations made to find out whether the essence of the offence under the Act is made out. If Court finds such, material, then it has to reject the application under Section 438 of the Cr.P.C. as prohibited by Section 18 of the Act. On the other hand no prima facie case is made out to show commission of the offence under the Act, certainly, this Court can consider the application under Section 438 of Cr.P.C."

He has further relied on the decision in Mamta Jitendra Jadhav Vs. The State of Maharashtra and Ors., Criminal Appeal No. 625 of 2017, decided on 20th September 2017, wherein the appeal was granted by setting aside the impugned order.

10. Per contra it has been submitted on behalf of the respondents that, the perusal of the FIR would show that with every knowledge the appellant had uttered the words. Those words intending to humiliate the member of the scheduled castes, and therefore, the application for anticipatory bail was clearly barred under Section 18 of the Atrocities Act. The reasons given by the learned Addl. Sessions Judge, Aurangabad, while rejecting the application are properly.

11. The contents of the FIR have been already stated in paragraph No.2. The informant had specifically given that, he is a member of the scheduled castes and then he has also stated as to why he was at the place of accused on the particular day at particular time. According to him he had sold the maze crop grown in his field to the accused and due to the non-availability of the cash, the appellant had issued him cheque. Specific instructions were given to the informant that, he shall not present the said cheque for encashment but the appellant would give him cash. Even if we considered the contents of legal notice issued by the appellant, he specifically makes that, a cheque was given by him to the informant. However, he has stated that, the informant is the owner of brick kiln and the appellant had purchased ten thousand bricks about three years from the informant and at that time towards consideration he had given the cheque. According to him he had given the cash amount of Rs.55,000/- to the informant, however the informant had not returned the said cheque.

12. We cannot go into the story at this stage but the only two factors are required to be considered that, issuance of cheuqe and the cash amount of Rs.55,000/-, they match with the FIR. According to the appellant the said legal notice was issued by him on 05-04-2018 but the informant has not intentionally filed the acknowledgement given by the informant or any other such document to show that said notice was received by the informant prior to 07-04-2018. On the contrary along with the affidavit-in-reply the informant has given the track record which shows that the said notice was dispatched on 06-04-2018 and was received by the informant on 10-04-2018 i. e. after the lodging of the FIR. Therefore, the said piece of evidence which has been tried to be relied by the appellant as a counter blast to file the FIR cannot be considered at all.

13. In case of Subhash Kashinath Mahajan (Dr.) [2018 ALL MR (Cri) 1773 (S.C.) : 2018 ALL SCR (Cri) 542] as well as Chikkappa and others (Supra) it has been stated that, there is no total or absolute bar to file an anticipatory bail application. However, the Hon'ble the Apex Court in clear in terms has stated that, the such application is maintainable only if no prima facie case has is made out or where the judicial scrutiny of the complaint would show that there is prima facie malafied intention for lodging such FIR. That means, when prima facie case is made out there would be absolute bar under Section 18 of the Atrocities Act. In Mamta Jitendra Jadhav's case (Supra) it was found by the Division Bench at the Principal Seat that, another FIR was filed against the informant, and therefore, it was stated that the FIR under the Atrocities Act was found to be counter blast. The facts being different, appellant cannot take advantage of the said pronouncement.

14. Here in this case in the FIR it is clearly stated that, the appellant uttered, "lkys tkjs egkj dh vkSykj] /ksM] vc isls ekWaxus vk;k rks ekj Mkywaxk] eS nknk gwWa-" Statement of witnesses have been recorded and the three witnesses have stated that, those utterances in the name of cast were uttered by the appellant to the informant in their presence. Therefore, prima facie there is evidence which would bar the application under Section 438 of Code of Criminal Procedure in view of Section 18 of the Atrocities Act.

15. Merely because the appellant has abided by the terms and conditions which were imposed when the interim relief was granted to him, that will not give advantage to him when the application itself is barred under Section 18 of the Atrocities Act.

16. The learned Additional Sessions Judge while rejecting the application has taken into consideration the contents of the FIR as well as the police papers including the statements of the witnesses, and therefore, has come to the right conclusion that the application was barred, and therefore, the application was rejected. No fault is found with the said order, hence the appeal will have to be rejected.

17. At this stage, the learned advocate appearing for the appellant prays for continuation of the interim relief earlier granted by this Court for a period of four weeks so that the appellant will approach the superior Court. The said liberty can be granted only with some additional condition because at the time of granting interim relief by this Court, further condition was not imposed.

18. It has been pointed out that in all seven cases are pending against the present appellant and therefore his earlier criminal record is also required to be considered. Another fact that has been brought to the notice of this Court that, one of the witness in this case had lodged Misc. Criminal complaint stating that the appellant had threatened the said witness, not to give statement against him. Definitely these two points are also required to be considered while deciding this application. Hence following order is passed.

ORDER

1) Appeal is hereby rejected.

2) However, the interim relief granted by this Court on 11-05-2018 is hereby extended for further four (04) weeks on condition that, the appellant should remain present before the Investigating Officer, on every Monday and Wednesday between 10.00 a.m. to 12.00 p.m., during the said period of four (04) weeks.

3) Appellant should not pressurize any witness.

Appeal dismissed.