Bhaktaraj S/O. Parasram Angulwar v. The State Of Maharashtra And ANR
1 43-CriAl-944-19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD CRIMINAL APPEAL NO. 944 OF 2019 Bhaktaraj S/o Parasram Angulwar Age : 51 years, Occu. Service as Postmaster, R/o. Sawna (J), Taluka - Himayatnagar, District - Nanded.
...
APPELLANT (Original Accused )
VERSUS
1.
The State of Maharashtra.
Through Police Station Officer, Himayatnagar Police Station, Himayatnagar, Dist. Nanded.
2.
Dhondiba Kishan Raut Age : 36 years, Occu.: Agriculture, R/o. : Sawna (J), Tq. Himayatnagar, District: Nanded ... RESPONDENTS (Respondent No.2 - Ori. complainant) ...
Mr. S.S. Rathi, Advocate for Appellant.
Mr. A. P. Basarkar, APP for respondent No. 1-State. Mrs. Anita Gadekar, Advocate for Respondent No.2. ...
CORAM : K.K. SONAWANE, J.
DATE : 16th DECEMBER, 2019.
JUDGMENT :- 1.
Heard. Admit. The matter is taken up for its finality on merit with the consent of both sides.
2.
The present appeal is filed by the appellant-original accused against the impugned Order of rebuffing the relief of pre-arrest bail to him in Crime No. 126 of 2019 registered with Himayatnagar Police Station, District Nanded, under Sections 324 and 323 read with Section 34 of the Indian Penal Code (IPC) and under Section 3(1)(r)(s) of the Scheduled Castes and Scheduled Tribes
2 43-CriAl-944-19 (Prevention of Atrocities) Act, 1989 ("Act of 1989"). The appellantaccused preferred the present appeal by invoking remedy under Section 14-A(2) of Act of 1989.
3.
The prosecution case in brief is that on 04-08-2019, complainant- Dhondiba Kishan Raut, resident of Sawna (J), Taluka Himayatnagar, District Nanded rushed to the Police of Himayatnagar Police Station, District Nanded and ventilated the grievance that on 03-08-2019 at about 7.00 p.m., when he accompanied with his friend Maruti Ratan Wankhede were proceeding towards D.P. to insert the fuse for flow of electric energy. The complainant asked the Sunil and Vishal Angulwar not to put the hooks on electric line. Thereafter, the complainant went forward towards DP to continue electric supply. According to complainant, after inserting fuse in D.P.
, when he was returning to house in the village in Ped Chowk, the present applicant and another two accused caught hold the complainant and abused him on his caste saying that "Maharya Dhedya tula kay lightchi garaj ahe". They hurled casteist abuses with intention to insult and humiliate on his caste within a public view. According to the complainant, accused Vishal Angulwar inflicted blow of iron rod on his head and forearm and thereby caused injury. Eventually, the first informant filed the report with Police Station for penal action against the appellant and others.
4.
Pursuant to FIR, the Police of Himayatnagar Police Station registered the Crime bearing No. 126 of 2019 and set the penal law
3 43-CriAl-944-19 in motion. The appellant apprehending his arrest filed Miscellaneous Criminal Application bearing No. 124 of 2019 under Section 438 of the Code of Criminal Procedure, 1973 (Cr.P.C.) before the learned Additional Sessions Judge, Bhokar. The learned Additional Sessions Judge considered the circumstances on record and rejected the application of appellant on the ground that there are sufficient allegations to make out the offence under the Act of 1989. The learned Sessions Judge further observed that for the sake of investigation and for recovery of weapon - iron rod, the custodial interrogation of appellant is necessary. Therefore, it would not justifiable to grant relief of anticipatory bail in this case. The impugned order of rejection of application for anticipatory bail of the appellant is the subject-matter of present appeal. 5.
The learned counsel for appellant vehemently submits that the appellant is innocent of the charges pitted against him. He has not committed any crime, but he has been falsely implicated in this case. According to learned counsel, allegations made in the FIR are not sufficient to constitute the offence under the Act of 1989. Therefore, statutory bar under Sections 18 and 18-A of the Act of 1989 would not be made applicable to preclude the appellant for availing benefit of Section 438 of Cr.P.C., in this case. The learned counsel contends that present complaint is lodged with an ulterior motive to harass the appellant. The learned counsel for appellant submitted that the provisions of Section 3(1)(r)(s) of Act of 1989 are not attracted to the facts and circumstances of the present case.
4 43-CriAl-944-19 There is no any impediment to entertain the application for relief of pre-arrest bail filed on behalf of appellant. The learned counsel further submitted that there is no any recovery nor custodial interrogation of the appellant is essential for the sake of investigation. Learned counsel submits that other co-accused were released on regular bail by learned trial Court. Therefore, impugned order rejecting application for bail by learned trial Court be set aside and appeal be allowed.
6.
Learned APP for respondent No.1 - State and learned counsel for respondent No. 2 raised the objection and contended that the Section 18-A of the Act of 1989 does not permit the Court for exercise of discretion under Section 438 of the Cr.P.C.. The first informant is from SC/ST community. The appellant hurled casteist abuses and assaulted the first informant to humiliate and insult him within a public view. The learned trial Court rejected the application for bail after considering the statutory bar under Sections 18 and 18-A of the Act of 1989. There is no error or illegality committed by learned trial Court. There is no propriety to entertain the appeal. Learned counsel for respondent No. 2 placed his reliance on the judicial precedent in the case of Bachu Das Versus State of Bihar and others reported in 2014 AIR (SCW) 1668.
7.
This Court on earlier occasion dealt with the issue of applicability of Sections 18 and 18-A of the Act of 1989 to entertain the application for pre-arrest bail filed under Section 438 of the Cr.P.C. In the proceeding of Criminal Appeal No. 787 of 2018
5 43-CriAl-944-19 (Kiran Madhukar Ingle Versus State of Maharashtra and another), this Court in paragraphs No. 13 and 15 of said Judgment elaborately discussed the scope of statutory bar under Section 18 of the Act of 1989. It has also been observed that the application for anticipatory bail could be entertained only on the ground of inapplicability of provisions of Act of 1989 and it would be ascertained only on the basis of recitals of the FIR or complaint and not embarking any sort of roving enquiry as to affirm the reliability or genuineness or otherwise of the allegation made in the FIR. Paragraphs No. 13 and 15 of aforesaid judgment are reproduced as under:- "13.
It is explicitly made clear that the Court of Sessions or High Court can entertain the application for pre-arrest bail to ascertain its maintainability. The law does not permit to reject the application for anticipatory bail merely because the case has been registered under section 3 of the Act of 1989. But, it is incumbent on the part of the Court to examine as to whether the applicant at all is a fit person to be treated as accused of the crime registered under the Act of 1989. Section 18 of the Act of 1989 does not bar judicial scrutiny of the accusation made in the complaint. When the Court is held competent to enter into scrutiny of the allegations to determine whether the person can be treated as accused of commission of offence under the Act of 1989, then question would arise as to what extent the Court would be justified to examine material to determine the prima facie case against him.
14.
xx xx xx xx xx xx xx 15.
The exposition of law as referred above unequivocally pointer to the inference that the application for anticipatory bail can be entertained only on the ground of inapplicability of the provisions of Act of 1989 and it would be ascertainable only on perusal of recitals of the FIR or complaint and not beyond that,
6 43-CriAl-944-19 because once it is gathered from the FIR that the applicant is accused of committing the offence prescribed under section 3 of the Act of 1989, a bar under section 18 of the Act of 1989 would instantly operate against him. Therefore, the Courts are not permitted to enter into roving enquiry in regard to sustainability of accusation nurtured on behalf of complainant. Moreover, further scrutiny by summoning the case diary or other material to test veracity of the allegations made in the FIR also not permissible under the law."
8.
In the present appeal, the prosecution applied the provisions of Sections 3(1)(r)(s) of the Act of 1989 against the present appellants, which reads as under:
"3. Punishments for ofennes of atronities :- (1) Whoever, not being a member of a Snheduled Caste or a Snheduled Tribe :- (a) xxxxxxxx to (q) xxxxxxxx (r) Intentionally insults or intimidates with intent to humiliate a member of a Snheduled Caste or a Snheduled Tribe in any plane within publin view ;
(s) abuses any member of a Snheduled Caste or a Snheduled Tribe by naste name in any plane within publin view;
Explanation : For the purposes of this nlause, the expression "objent" means and innludes statue, photograph and portrait."
9.
The minute scrutiny of the factual score of the prosecution case reveals that prima facie ingredients of penal provisions of the Act of 1989 do not match with the allegation nurtured on behalf of first informant in this case. The basic ingredients of Section 3(1)(r) (s) are that there must be "intentional insult" or "intimidation" with
7 43-CriAl-944-19 "intent" to humiliate a member of Scheduled Caste and Scheduled Tribe in any place within "public view". It is to be noted that the mens rea would be the decisive factor in the offence under Act of 1989. In the case of Shantabai Vs. State of Maharashtra reported in 1982 Cr.L.J. 872, it was held that merely calling a person by his caste name though may amount to insult or abuse to him, it cannot be said to be with intent to humiliate such person within a public view.
10.
In the instant case, it has been alleged that appellant hurled abuses in the name of caste of first informant by uttering words "Maharya" "Dhedhya". If the words "Maharya" "Dhedhya" are taken out from the conversation shown occurred in the FIR for moment then other utterances "Tula kay lightchi garaj ahe" etc. perceived from the FIR though indicate "threat" or "intimidation", but it would not sufficient to draw the inference that there was any intent or mens rea to humiliate the complainant on his caste within public view. In the altercations, there were abuses by uttering the names of caste of first informant. But, it does not mean that there was abuses in the name of caste of first informant to humiliate and insult him intentionally within public view. The allegations are found omnibus and general in nature. Therefore, prima facie, it would unsafe to draw any adverse inference against appellant for commission of crime under the Act of 1989 as alleged by the
8 43-CriAl-944-19 prosecution. The allegations in the FIR of threat or intimidation would be at the most constitute offence under the Indian Penal Code. In such circumstances, prima facie, the provision of Section 3(1)(r)(s) of the Act of 1989 would not be made applicable to the facts of the present matter, and consequently, would not create statutory embargo as prescribed under Sections 18 and 18-A of the Act of 1989 in this case.
11. Moreover, in order to attract the offence under Section 3(1)(r)(s) of the Act of 1989, it is essential to demonstrate that the appellant committed the present crimes under the Act of 1989, not being a member of Scheduled Caste or Scheduled Tribe. The opening sentence of Section 3(1) of the Act of 1989, itself shows, "Whoever not being a member of Scheduled Caste or Scheduled Tribe". It means that there must be prima facie affirmation or say in the FIR / complaint that the appellantsaccused are not the member of Scheduled Caste or Scheduled Tribe. In the instant case, there are no whisper or averment in the FIR that appellant is not the member of Scheduled Castes or Scheduled Tribes or he is from higher caste. There is also no reference in the FIR that the appellant-accused was aware or he had an knowledge about the caste of first informant. These are the primary ingredients of offence under Section 3(1) of the Act of 1989 for appreciation at this initial stage relating to grant of relief of pre-arrest bail under section 438 of Cr.P.C.
9 43-CriAl-944-19 12.
Taking into consideration all the circumstances discussed above, there is no impediment to conclude that in spite of bar under Section 18 of the Act of 1989, for invocation of powers under Section 438 of the Cr.P.C. it is still open to this Court to find out by looking to the recitals of FIR of the case itself, as to whether prima facie case is made out or not by the first informant against present appellant. As referred supra, the scrutiny of factual aspects reveals that there are no sufficient material available on record prima facie to arrive at the conclusion that the allegations nurtured on behalf of prosecution constitute the offence under the Act of 1989 against appellant. Therefore, there is no impediment to entertain the application filed under Section 438 of Cr.P.C. for relief of pre-arrest bail on behalf of appellant.
13.
In regard to offences levelled against the appellant under Sections 324 and 323 read with Section 34 of IPC, it is to be noted that the custodial interrogation of the appellant is not essential as well as there would not be any recovery from appellant for the sake of investigation. However, the appellant has shown inclination to cooperate with Investigating Officer during the course of investigation. The other co-accused were already released on bail pending investigation. In such circumstances, it would justifiable to allow the bail application filed before learned trial Court on behalf of the appellant.
10 43-CriAl-944-19
14. In result, the appeal stands allowed. The impugned order dated 23-08-2019 passed by the learned Additional Sessions Judge, Bhokar, in Miscellaneous Criminal Application No. 124 of 2019 is hereby quashed and set aside. The application of the appellant filed under Section 438 of Cr.P.C. for his pre-arrest bail before the Court of learned Additional Sessions Judge is hereby granted. The present appellant be released on bail in the event of his arrest in connection with Crime No. 126 of 2019 registered with Himayatnagar Police Station, District Nanded, for the offence punishable under Sections 324, 323 read with Section 34 of the Indian Penal Code and under Section 3(1)(r)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, on furnishing PR bond of Rs.
20,000/-(Rupees Twenty Thousand) with one solvent surety of like amount. It is stipulated that appellant-applicant shall not indulged, directly or indirectly, in any kind of activities of tampering with the evidence of the prosecution witnesses and co-operate the Investigating Officer for the sake of investigation into the crime. Inform the concerned Investigating Officer, accordingly.
15. The present Criminal Appeal stands disposed of in above terms. No order as to costs.
Sd/- [ K. K. SONAWANE ] JUDGE MTK ***