CRIMINAL APPEAL NO. 110 OF 2020

10th February 2020

Petitioner Counsel: Mr. DS Bagul
Respondent Counsel: Mr. PK Lakhotiya Mr. YB Bolkar
Act Name: Indian Penal Code, 1860 Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Maharashtra Police Act, 1951 Code of Criminal Procedure, 1973

Section :
Section 3(1)(r)(s) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Section 37(1)(3) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Section 14-A Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Section 18 Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Section 18A(2) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Section 143 Indian Penal Code, 1860 Section 147 Indian Penal Code, 1860 Section 149 Indian Penal Code, 1860 Section 294 Indian Penal Code, 1860 Section 323 Indian Penal Code, 1860 Section 506 Indian Penal Code, 1860 Section 135 Maharashtra Police Act, 1951 Section 438 Code of Criminal Procedure, 1973

Cases Cited :

JUDGEMENT

1. Learned Advocate Mr. YB Bolkar submits that he has instructions to appear for Respondent No.2-informant.

2. Present appeal has been filed under Section 14-A of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (herein after referred to as the Atrocities Act) to challenge the order of rejection of the Bail Application No.58/2020 by Special Judge & Additional Sessions Judge, Dhule on 23.1.2020.

3. Admit. Learned APP and learned Advocate waive service for respective respondents.

4. Heard finally with consent of learned Advocates for the respective parties.

5. It has been submitted on behalf of the appellants that the informant-Respondent No.2 is Sarpanch of village Tarhadi, Tq. Shirpur, District Dhule from 13th March, 2019. Present appellant No.1 had contested the elections of the Village Panchayat as a member. Appellant No.1 was from Shetkari panel and the informant was from Vikas panel. When the panchayat samiti elections were held, wife of appellant No.1 contested the same from different political party wife of appellant No.1 got elected. Thereafter, when the victory procession was taken out by appellant No.1 and his wife, on 8.1.2020 at about 3.00 p.m. FIR was lodged by the informant, contending that when the procession reached in front of house of the informant at about 5.30 to 6.00 p.m. the informant came out of the house along with her family members. After hearing noise of the musical instruments, she found appellant No.1 and others were dancing. Thereafter, she asked one Bajirao Madhavrao Patil as to why they are dancing on the musical instruments in spite of the fact that the procession has ended. She had submitted that upon her said question, the present appellants and others abused her saying that,

"तु नकटी पारधीन रांड तु धनगर ना घर मा घुसी गई, हाई पारधीन रांड गांव मा खेळ मांडस हिने गावना नास करा "

Thereafter, when husband of the informant went to talk with appellant No.1, at that time, both the appellants along with other persons, manhandled him as well as one Sagar Prakash Dhangar. All those persons again abused husband of the informant saying that,

"हया धनरसले दखीच लेऊ त्यासनी पारधीन रांड घरमा घालेल शे त्यासले एक-एकले जित्त सोडान नई . "

She further contended that after all of them were rescued, injured Sagar Dhangar was taken to police station and then he was referred to the hospital and then she lodged the FIR.

6. On the basis of the FIR, Crime No. 7/2020, for the offences punishable under Sections 143, 147, 149, 294, 323, 506 of IPC and Section 3(1)(r)(s) of the Atrocities Act as well as Section 37(1)(3) punishable under Section 135 of the Maharashtra Police Act, has been registered.

7. It has been submitted that the FIR has been lodged due to the political rivalry and since there is no specific role attributed to each one of the appellants, they ought to have been released on anticipatory bail. There was nothing to be recovered at their instance. So also, there is no bar under Section 18 of the Atrocities Act. The learned Special Judge and Additional Sessions Judge, while rejecting the bail application, failed to consider that the FIR is the outcome of the political rivalry.

8. Learned APP as well as learned Advocate appearing for Respondent Nos.1 and 2 respectively, vehemently submitted that there is specific bar under Section 18A(2) of the Atrocities Act to entertain the application under Section 438 of Cr.P.C. The prima facie facts, which are stated in the FIR, have been considered by the learned Special Judge. It is not in dispute that the informant is a member of Scheduled Tribe and she had performed inter-caste marriage and her husband is a member of Nomadic Tribe-C (NT-C). Further, the offence had taken place in front of house of the informant, which was within the “public view”. The abuses given are stated specifically and separate abuses were given to the informant and her husband. The medical certificate of Sagar Dhangar would show that he has sustained injuries and he was immediately referred by the police to the hospital. Therefore, prima facie facts disclose commission of the offence against the members of Scheduled Tribe as well as Nomadic Tribe-C.

9. At the outset, perusal of the papers of investigation that are made available would disclose that the informant is the member of Scheduled Tribe and her husband is the member of NT-C. The statements of the witnesses are supporting the FIR. However, these statements are literally mirror copies of one another.

10. Even from contents of the FIR, it can be seen that the appellants and the informant are from different political parties. It is stated that the informant had campaigned the candidate who was contesting the panchayat samiti election against wife of appellant No.1. A careful perusal of the FIR would show that she has tried to say that the alleged words in the name of caste, were uttered by both the appellants with others, viz. Milind Shashikant Bhamre, Rahul Macchindra Bhamre, Jitendra Hilal Bhamare, Rakesh Hilal Bhamare and Vishal Sunil Bhadane. As regards the alleged utterances to husband of the informant are concerned, they are also stated to be by the present appellants and Milind Shashikant Bhamre, Rahul Macchindra Bhamre, Jitendra Hilal Bhamare, Rakesh Hilal Bhamare and Vishal Sunil Bhadane. Thus, the FIR shows that the utterances, prima facie, were in chorus, which cannot be the reality. Therefore, when we are required to consider the case prima facie on the basis of the contents of the FIR and the material collected during the course of investigation to consider the application for anticipatory bail, and when the Court comes to the conclusion that the outcome of the FIR is the political rivalry, then, there cannot be a bar under section 18A(2) of the Atrocities Act.

11. Physical custody of the appellants is not required. Taking into consideration the allegations made, except the Bar as aforesaid, there is no hurdle in this case, and as aforesaid, when the element of malafides have been tried to be shown by the present appellants, then definitely the appeal deserves to be allowed. Hence, the following order, -

ORDER
i. The order passed in Criminal Bail Application No.58/2020 by the Special Judge and Additional Sessions Judge Dhule on 23.1.2020, is hereby set aside.
ii. In the event of arrest of the appellants in Crime No.7/2020 registered by Shirpur Police Station, Dist. Dhule for the offences punishable under Sections 143, 147, 149, 294, 323, 506 of IPC and Section 3(1)(r)(s) of the Atrocities Act as well as Section 37(1) (3) punishable under Section 135 of the Maharashtra Police Act, they be released on PR and SB of Rs.15,000/- each. The appellants shall not tamper with the evidence of the prosecution in any manner. They shall remain present before the Investigating Officer on every Wednesday between 10.00 AM to 12.00 PM till filing of the charge sheet.
iii. The appeal stands allowed and disposed of in the aforesaid terms.