CRIMINAL APPEAL NO. 1163 OF 2019

18th February 2020

Petitioner Counsel: Mr. Sudarshan J. Salunke
Respondent Counsel: Mr. B.V. Virdhe Mr. V.B. Deshmukh
Act Name: Indian Penal Code, 1860 Maharashtra Police Act, 1951 Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

HeadLine : Prevention of Atrocities - Anticipatory bail - Bar of Section 18 of the Atrocities Act - Applicability

Section :
Section 34 Indian Penal Code, 1860 Section 143 Indian Penal Code, 1860 Section 146 Indian Penal Code, 1860 Section 147 Indian Penal Code, 1860 Section 148 Indian Penal Code, 1860 Section 188 Indian Penal Code, 1860 Section 323 Indian Penal Code, 1860 Section 324 Indian Penal Code, 1860 Section 341 Indian Penal Code, 1860 Section 379 Indian Penal Code, 1860 Section 504 Indian Penal Code, 1860 Section 506 Indian Penal Code, 1860 Section 135 Maharashtra Police Act, 1951 Section 3(1)(r)(s) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Section 3(2)(va) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Section 14-A(2) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Section 18 Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Section 18-A Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Section 18-A(1) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

Cases Cited :
Paras 6, 10: Shashikant Ramhari Tambe and Ors. Vs. State of Maharashtra, 2008 ALL MR (Cri) 2132
Para 6: Mukesh Kumar Saini Vs. State (Delhi Administration), 2002 ALL MR (Cri) JOURNAL 41
Paras 6, 10: Sugriv Prakash Garde and Ors. Vs. The State of Maharashtra and Anr., Cri. Appln. No.2848/2016, Dt.9.6.2016
Para 7: Vishwanath Kisan Jadhav Vs. The State of Maharashtra, Cri. Appln. No.2734/2012, Dt.9.7.2012
Paras 8, 9: Prithviraj Chouhan Vs. Union of India & Ors., W.P. (Civil) No.1015/2018, Dt.10.2.2020
Para 9: State of M.P. and Anr. Vs. Ram Krishna Balothia and Anr., 1995 ALLMR ONLINE 384 : 1995 (3) SCC 221

JUDGEMENT

1. Present appeal has been filed under Section 14-A(2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (herein after referred to as the Atrocities Act) to challenge order passed by learned Additional Sessions Judge/Special Court, rejecting the Criminal Bail Application Nos.405/2019, 406/2019 and 407/2019, thereby rejecting their prayer for anticipatory bail.

2. Admit.

3. With the consent of learned Advocates for the parties, taken up for final disposal at the stage of admission.

4. The appellants are apprehending their arrest in CR No. 273/2019 dated 15.10.2019 lodged by present Respondent No.2, contending that the present appellants have committed the offences punishable under Sections 379, 323, 504, 506, 143 of Indian Penal Code and Section 3(1)(r)(s) and 3(2)(va) of the Atrocities Act.

5. Learned Advocate appearing for the appellants submitted that, perusal of the FIR lodged by the informant – Respondent No.2, would show that the alleged incident had taken place on 13.10.2019, however, he has lodged the report on 15.10.2019. The delay that has been caused has not been properly explained. The informant has stated in the FIR that agricultural land bearing Gut No. 258 situated at village Kasbe Talwade, Tq. And District Osmanabad, was owned by one Shashikant Kashinath Hogale and he was looking after the field where soybean crop was harvested. The real fact is that, originally the said field was belonging to one Godabai Dagadu Kamble and she had entered into an agreement to sale the said land with present appellant No.3. Issar Pawti was executed on 20.12.2020 between them and as per the said agreement, possession of the land was given to appellant No.3. Unfortunately, before the sale-deed could be executed, said Godabai expired. Said Godabai was sister of the informant. Taking dis-advantage of the said fact of death of Godabai, the informant sold the agricultural land to Shashikant Hogale by registered sale-deed dated 12.8.2011. Appellant No.3 had filed RCS No.44/2012 (Old Special Civil Suit No.122/2011) on 20.11.2011 for specific performance of contract and for perpetual intonation against the informant and said Shashikant Hogale. The said suit came to be decreed in favour of appellant No.3 on 22.4.2015 and defendant No.1, i.e. informant, was directed to execute the sale-deed in favour of the plaintiff, i.e. appellant No.3. The appellant was cultivating the suit land and when his possession was disturbed, he lodged the FIR on 17.6.2019 against four persons including the informant, stating that they have committed the offences punishable under Sections 188, 341, 504 read with 34 of IPC. Even prior to that, he had also lodged a report on 5.10.2011 against Shashikant Hogale, informant and some other persons. Even at that time, the threat was given by the informant and one Datta Shahu Kamble as well as Satish Shahu Kamble that case under the Atrocities Act would be filed against appellant No.3. That offence was registered under Sections 143, 146, 147, 148, 324, 323, 504, 506 of IPC and Section 135 of the Maharashtra Police Act. Therefore, there are documents with the appellants to show that the possession of the disputed land is with them and no such incident would have taken place on the date, as alleged. Further, the contents of FIR would show that all the accused persons had given alleged abuses in the name of caste in chorus, which cannot be a real fact.

6. The learned Advocate placed reliance on the decision in Shashikant Ramhari Tambe and Ors. Vs. State of Maharashtra – 2008 ALL MR(Cri.) 2132, wherein it has been observed, after relying on the decision in Mukesh Kumar Saini Vs. State (Delhi Administration) – 2002 ALL MR(Cri.) Journal 41, wherein it is observed that, there must be specific accusations against each of the accused and Section 34 of IPC cannot be pressed into service. Omnibus statement that all the accused persons uttered allegedly humiliating word may not be enough. In that case also, on the basis of those observations, when allegations were that all the accused had made abuses and there was no specific accusation against each of the accused, anticipatory bail was granted when the offence was under the Atrocities Act. Same decision in the case of Shashikant Tambe (supra) was considered by this Court in Sugriv Prakash Garde and Ors. Vs. The State of Maharashtra and Anr. (Criminal Application No. 2848 of 2016 decided on 9.6.2016). In that case also, the offence was under the Atrocities Act.

7. Further reliance has been placed on Vishwanath Kisan Jadhav vs. The State of Maharashtra (Criminal Application No.2734 of 2012 decided on 9th July, 2012), wherein this Court has observed that, “Considering earlier events and the nature of accusations, even if it is stated that the complainant was insulted, however, it has colour of earlier events and, prima facie, a cloak is created. Consequently, the bar of Section 18 of the Atrocities Act, will not operate.”

8. Per contra, learned APP as well as learned Advocate, representing the informant – Respondent No.2, submitted that in view of Section 18-A of the Atrocities Act, prima facie facts are required to be considered. The FIR discloses that the offences under the Atrocities Act have been made out against all the appellants and, therefore, there is specific bar. Reliance was also placed on the recent decision in the case of Prithviraj Chouhan Vs. Union of India and Ors. (Writ Petition (Civil) No.1015 of 2018, decided by the Hon’ble Apex court on 10.2.2020, wherein, it has been specifically observed that, - “Considering the applicability of the provisions of Section 438 of Cr.P.C., it shall not apply to cases under the Act of 1989. However, if the complaint does not make out a prima facie case, the applicability of the the bar created under Section 18 and 18-A(1) of the Act of 1989, shall not apply. Thereby it was considered that if the FIR prima facie discloses the commission of the offences, then definitely the bar is created and, therefore, the learned Special Court was justified in rejecting the application filed by the present appellants. The documents, which the appellants intend to rely on, cannot be considered since prima facie they are on record that the incident had taken place on 13.10.2019 and the abuses were given.

9. At the outset, only on the point of delay in lodging the FIR, it cannot be said that the appellants would be entitled to get pre-arrest bail. The Hon’ble Supreme Court in the case of Prithviraj Chouhan (supra) has considered the earlier decisions of the Hon’ble Apex court and reiterated the decision in the case of State of M.P. and Anr. Vs. Ram Krishna Balothia and Anr. - 1995 3 SCC 221, in which, the Hon’ble Apex court had upheld the validity of Section 18 of the Act of 1989. It has been thereafter specifically observed and clarified that, if the complaint does not make out prima facie case for applicability of the provisions of the Act of 1989, the bar created by Section 18 and 18-A(1) thereof shall not apply. Therefore, it is necessary to consider as to whether the offence has been made out against the appellants in the FIR registered by Respondent No.2, vide CR No.273/2019?

10. The informant had contended that when he was working in the field of Shashikant Hogale as watchman, at about 10.00 am on 13.10.2019, appellant Nos.1 & 2, went to the field to take away the soybean crop, he had restrained them, appellant Nos.1 & 2 caught hold of his collar, abused and assaulted him. It will not be out of place to mention here that the FIR does not specify as to which abuses were given by appellant Nos.1 & 2. But, then he says that they both had assaulted him by means of fists and blows on his chest, private part, left hand and it has caused him covert injury. He further says that thereafter appellant No.3 came at the spot and started saying that, said soybean crop belongs to him. He started abusing. Then appellant Nos.4 & 5 came. All of them assaulted him and appellant No.3 abused him in the name of caste by saying that, “ekaxV;k rq>k dk; laca/k vkgs- gs lks;kchu vkep s ekydhp s vkgs ” Thereafter he had slapped him and thereafter all others abused him as,“ekaxV;k] M ax&;k] EgkrkjM;k”. He given threat to kill and then he had made phone call to one Gajanan Mali. Thereafter, Gajanan Mali and Shashikant Hogale came in the field and separated them. Thus, it has to be noted that the FIR discloses specific abuses given by appellant No.3. As regards the others are concerned, it is stated that all of them had abused. Therefore, as regards others are concerned, definitely, it could not have been in chorus and they can be given benefit of the decision in Shashikant Tambe’s case (supra) as well as Sugriv Garde’s case (supra). When the abuses cannot be in chorus, prima facie, it will have to be observed that, the offences under the Atrocities Act are not made out against those appellants and, therefore,for their applications, there was no bar under Section 18 of the Atrocities Act.

11. Now, as regards appellant No.3 is concerned, he is relying on the earlier events as well as the litigation. At the outset, it is to be noted that the copy of the agreement to sale would show that it was a notarized document. Though recitals about handing over of possession are mentioned therein; yet perusal of the judgment in RCS No.44/2012 would show that the learned Civil Judge, Junior Division, had not accepted the contention of the plaintiff, i.e. appellant No.3 herein that, possession of the land has been handed over to him. The prayer for permanent injunction was then rejected. It is not shown by the appellant that he has challenged the said decree before the appellate court and then in that appeal, he has obtained any interim relief to protect his so-called possession. Orally it has been submitted by learned Advocate for Respondent No.2 that the decree that has been passed in RCS No.44/2012 has been stayed by the appellate court in the appeal, which has been filed by the defendants. Therefore, the same decree on which appellant No.3 is relying here to show that there were earlier incident or litigation, that is not in his favour to show that the possession of the land is with him. These observations can definitely be made, even at this prima facie stage, when the contents of the FIR specifically state that,-“R;kosGh rkukth jkek Mksykjs gk Ik.k rsFks vkyk- ----------- Rkkukth jkek Mksykjs ;kus eyk tkrhoj f”kohxkG dsyh o Eg.kkyk dh] ekaxV;k rq>k dk; laca/k vkgs- gs lks;kchu vkeps ekydhps vkgs vls Eg.kqu eyk xkykr pkiV ekjyh-“ Therefore, prima facie offence under the Atrocities Act has been made out against appellant No.3. Therefore, as regards his application, definitely there was bar under Section 18 of the Atrocities Act.

12. Taking into consideration the above discussion, the appeal deserves to be partly allowed. Hence, the following order, -
ORDER
i. The orders rejecting the bail applications of appellant Nos.1, 2, 4 and 5, i.e. Criminal Bail Application Nos.405/2019 and 406/2019, passed by the learned Additional Sessions Judge, Osmanabad, dated 4.11.2019, are hereby set aside.
ii. The appeal in so far as it challenges the order passed by the learned Additional Sessions Judge on 4.11.2019, thereby rejecting the Criminal Bail Application No.407/2019, stands rejected.
iii. In the event of arrest of appellants Nos.1, 2, 4 and 5 in CR No.273/2019 dated 15.10.2019 registered with Dhoki Police Station, District Osmanabad, for the offences punishable under Sections 379, 323, 504, 506, 143 and 147 of IPC and Section 3(1)(r)(s) and 3(2)(va) of the Atrocities Act, they be released on PR and SB of Rs.15,000/- each. These appellants shall not commit any offence and shall not tamper with the evidence of prosecution.

Decision : Appeal partly allowed.