CRIMINAL APPEAL 771 OF 2019

9th March 2020

Petitioner Counsel: Shri J.R. Kidilay
Respondent Counsel: Shri N.B. Jawade Shri Sharad Thakare
Act Name: Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

Section :
Section 18 Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Section 18A Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

Cases Cited :
Para 2: Dr. Subhash Mahajan Vs. State of Maharashtra, (2018) ALL MR (Cri.) 1773 (SC)
Para 2: Union of India Vs. State of Maharashtra & Ors, (2020 ALL MR (Cri) 1 (S.C.)

JUDGEMENT

1. This appeal is directed against the order dated 11.11.2019, rendered by the Additional Sessions Judge, Wardha in Misc. Criminal Application 489 of 2019, whereby the learned Sessions Judge refused to consider grant of pre-arrest bail in view of the bar of section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (“Atrocities Act” for short).

2. Unfortunately, the learned Sessions Judge did not address the core issue whether a prima facie case is made out of offence punishable under the Atrocities Act and mechanically rejected the application holding that there is bar to grant of anticipatory bail. In matters after matters, this Court is noticing that the Special Court is labouring under the misconception of law that there is an absolute bar to grant of anticipatory bail, if the first information report alleges commission of offence under the Atrocities Act. It is more than apparent that some judges are not alive to the position of law settled by the Hon’ble Apex Court. In catena of decisions, the Hon’ble Apex Court has held that there is no absolute bar and that if a prima facie case of offence punishable under the Atrocities Act is not made out, pre-arrest bail can be granted. The Hon’ble Apex Court found that the provisions of Atrocities Act were being misused and apart from clarifying that there is no absolute bar to grant anticipatory bail, issued directions (iii) and (iv) which mandate conducting a preliminary inquiry and in certain situations obtaining the approval of the superior officer. The directions issued by the Hon’ble Apex Court in Dr. Subhash Mahajan vs. State of Maharashtra, (2018) ALL MR (Cri.) 1773 (SC), were reviewed by the Hon’ble Apex Court in [Union of India vs. State of Maharashtra & Ors, (2020 ALL MR (Cri) 1 (S.C.)]. However, while the Hon’ble Apex Court held that directions (iii) and (iv) could not have been issued, the decision does not dilute the exposition that there is no absolute bar to grant of pre-arrest bail. In the interregnum, the legislature intervened and section 18A was introduced to nullify the effect of directions (iii) and (iv). Notwithstanding, the introduction of section 18A on the statute book, the settled position that pre-arrest bail can be granted, if prima facie case of offence punishable under the Atrocities Act is not made out, is left uneffected. Be it noted, that while section 18A was introduced to nullify the effect of decision in Dr. Subhash Mahajan vs. State of Maharashtra, section 18 which incorporates the bar was always on the statute book when the Hon’ble Apex Court ruled that there is no absolute bar to grant of pre-arrest bail. In this view of the matter, the learned Special Judge was expected to consider the material on record to ascertain whether a prima facie case is made out of offence under the Atrocities Act.

3. Adverting to the factual matrix of the present case, I am satisfied that no prima facie case of commission of offence under the Atrocities Act, is made out. The complainant respondent 2 herein initially lodged complaint dated 9.6.2019, which was treated as non-cognizable. In the said complaint, there is not even a whisper of any abuse hurled in the name of caste. Later on, the police registered first information report dated 11.6.2019 on the basis of complaint lodged in late evening hours of 9.6.2019. Prima facie, the improvised version appears to be a case of obvious exaggeration and over implication.

4. The appeal is allowed.

5. The interim order dated 26.11.2019 is made absolute.

6. The fees of the learned counsel Shri Sharad Thakare for respondent 2, shall be quantified and paid as per rules.