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2020 DIGILAW 834 (BOM)

Papu Ashok Supekar v. State Of Maharashtra

2020-07-31

ANUJA PRABHUDESSAI

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JUDGMENT Anuja Prabhudessai, J. - None present for the Respondent No.2, though the afdavit of service indicates that the notice has been duly served in compliance with order dated 12/06/2020. With consent, the Appeal is heard and decided on merits. 2. This is an Appeal under Section 14-A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, hereinafter referred to as 'the Prevention of Atrocities Act'. The Appellants herein have challenged the order dated 13/03/2019 whereby the learned Additional Sessions Judge, Niphad has dismissed the Application under Section 438 of Cr.P.C. mainly on the ground of bar under Section 18 and 18-A of the Prevention of Atrocities Act in fling Application under Section 438 of Cr.P.C. 3. Mr. Amey Deshpande, learned counsel for the Appellants submits that there is no prima facie material to attract the provisions of the Prevention of Atrocities Act. He therefore contends that the bar under section 18 and 18A of the Prevention of Atrocities Act is not attracted and the application under Section 438 of Cr.PC. is maintainable. He submits that the appellants had also fled a cross complaint against the frst informant and his family members. He has further submitted that the ofences under IPC are not grave as to justify custodial interrogation. 4. Ms. S.V. Sonawane, learned APP for the State submits that the frst information report prima facie indicates that the frst informant is a tribal and that the appellants herein had intimidated, insulted and assaulted him and his family members within public view. She further submits that the frst informant and others were also abused by caste name. The frst information report prima facie reveals the essential ingredients of the ofences under the Prevention of Atrocities Act and hence the Application under Section 438 of Cr.P.C is not maintainable. 5. I have perused the records and considered the submissions advanced by the learned counsels for the respective parties. 6. It has to be borne in mind that the Prevention of Atrocities Act, which is a benefcial legislation, has been enacted to protect a marginalized section of the society, which has been oppressed, humiliated, harassed and subjected to indignities for last several decades. 6. It has to be borne in mind that the Prevention of Atrocities Act, which is a benefcial legislation, has been enacted to protect a marginalized section of the society, which has been oppressed, humiliated, harassed and subjected to indignities for last several decades. The statement of object and reasons indicates that the existing laws like the Protection of Civil Right Act, 1955 and the provisions of the Indian Penal Code were found to be inadequate to check the atrocities against the members of the Scheduled Castes and the Scheduled Tribes. Hence, this special legislation was enacted to check and deter crimes committed against this weaker section of the Society by the members of the nonScheduled Castes and the non-Scheduled Tribes. Section 18 of this Act contains a bar against grant of anticipatory bail. This section provides that "Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an ofence under this Act." In Dr. Subhash Kashinath Mahajan v/s. State of Maharashtra and anr., (2018) 6 SCC 454 , the Apex Court 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 when on judicial scrutiny the complaint is found to be prima facie mala fde. The Apex Court observed that the provisions of Prevention of Atrocities Act are misused and hence issued the following directions :- " xxx iii) In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only be after approval of the appointing authority and of a non-public servant after approval by the S.S.P. which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinised by the Magistrate for permitting further detention. (iv) To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to fnd out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated. (v) Any violation of directions (iii) and (iv) will be actionable by way of disciplinary action as well as contempt. The above directions are prospective." 7. (v) Any violation of directions (iii) and (iv) will be actionable by way of disciplinary action as well as contempt. The above directions are prospective." 7. Section 18-A came to be inserted to nullify the directions contained in the judgment of Dr.Subhash Kashinath Mahajan (supra). The said Section reads thus :- " 18A. (1) For the purposes of this Act :- (a) preliminary enquiry shall not be required for registration of a First Information Report against any person; or (b) the investigating ofcer shall not require approval for the arrest, if necessary, of any person, against whom an accusation of having committed an ofence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply. (2) The provisions of section 438 of the Code shall not apply to a case under this Act, notwithstanding any judgment or order or direction of any Court." 8. It is to be noted that in The Union of India v/s. The State of Maharashtra, (2019) AIR SC 4917 , a Review Petition fled by the Union of India, the Apex Court has recalled the general direction Nos.(iii) to (v) holding that these directions encroach upon the feld reserved upon the legislature and against the concept of protective discrimination in favour of down trodden classes under Article 15(4) of the Constitution of India and also impermissible within the parameters laid down for exercise of powers under Article 142 of the Constitution. It was held that a preliminary enquiry is permissible only in the circumstances as per the law laid down by a Constitution Bench in Lalita Kumari v/s. Government of U.P., (2014) 2 SCC 1 . 9. In Prithviraj Chavan v/s. Union of India, (2020) AIR SC 1036 , a three Judge Bench of the Apex Court while upholding the validity of Section 18-A has reiterated that the provisions of Section 438 of Cr.P.C. shall not apply to the case under the Prevention of Atrocities Act. However, if the complaint does not make out for prima facie case for applicability of the provisions of the Act, the bar created under Section 18 and 18-A shall not apply. 10. However, if the complaint does not make out for prima facie case for applicability of the provisions of the Act, the bar created under Section 18 and 18-A shall not apply. 10. In view of the above, it is manifestly clear that while considering the application for Anticipatory Bail the question which needs to be considered is whether the complaint prima facie makes out the case for applicability of the provisions under Section 18 and 18-A of the Prevention of the Atrocities Act. In the instant case, the complaint has been lodged by Mr. Sharad Pawar, who claims to be a member of 'Bhill' Tribe. He had alleged that on 14/01/2019, his brothers and other boys from the village had gathered on the ground to fy kites on the occasion of "Makar Sankranti" festival. He noticed that the boys were fghting with each other. Hence, he and his friends went to the place of the incident and saw the Appellant Nos.1 and 2 assaulting his brother Sachin. Sometime later, the Appellant No.2 called his relatives, who came to the place of the incident armed with weapons such as iron rods, spade and they started quarreling with the frst informant. It is alleged that the Appellants assaulted and intentionally insulted and intimidate d the frst informant and his brothers. It is further alleged that the Appellant Nos.3 and 4 also said that the members of 'Bhill' Tribe have become arrogant and must be taught a lesson. Based on the said report, C.R.No.09/2019 has been registered at Yeola City Police Station against the Appellants for ofences punishable under sections 143, 147, 148, 323, 324, 504 r/w. 149 of IPC and Section 3(1)(r) and (s) of Prevention of Atrocities Act. 11. Based on the said report, C.R.No.09/2019 has been registered at Yeola City Police Station against the Appellants for ofences punishable under sections 143, 147, 148, 323, 324, 504 r/w. 149 of IPC and Section 3(1)(r) and (s) of Prevention of Atrocities Act. 11. The short point falling for consideration is whether the complaint prima facie discloses the essential ingredients of ofences under Section 3(1)(r) and 3(1)(s) of the Prevention of Atrocities Act which reads thus :- "3(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe :- xxx (r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view; (s) abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view; xxx shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to fve years and with fne." 12. A plain reading of this provision would indicate that the provision under Section 3 is attracted only when the ofences are committed by a person not being a member of Scheduled Caste or a Scheduled Tribe against a member of Scheduled Caste or a Scheduled Tribe. It is also pertinent to note that to constitute ofence under Section 3(1) (r), insult or intimidation must be intentional with an intent to humiliate the member of Scheduled Caste or a Scheduled Tribe. Furthermore, to constitute ofences under these Sections 3(1)(r) and (s), the incident must be in a place within public view. The expression "within public view" is not synonymous with the expression "public place". The expression "within public view" connotes that the alleged ofence committed in any place should be visible / audible to the public. This has been held by the Division Bench of this Court in Pradnya Pradeep Kenkare v/s. State of Maharashtra, (2005) 3 MhLJ 368 and V.P. Shetty v/s. Sr. Inspector of Police and anr., (2005) 3 MhLJ 1006 . Reiterating this view, the Division Bench of this Court in Dr. This has been held by the Division Bench of this Court in Pradnya Pradeep Kenkare v/s. State of Maharashtra, (2005) 3 MhLJ 368 and V.P. Shetty v/s. Sr. Inspector of Police and anr., (2005) 3 MhLJ 1006 . Reiterating this view, the Division Bench of this Court in Dr. Manali w/o. Makarand Kshirsagar v/s. State of Maharashtra in Criminal Application No.477 of 2019, has held that "thus it is clear that incidence of insult or intimidation has to occur in a place accessible to and in presence of public and presence of both these ingredients is absolutely necessary to constitute ofence under the said provision of law. 13. In the instant case, the FIR does not indicate that the incident was between Tribals/Scheduled Caste and non-Tribals/ Scheduled Caste members, which is the essence of ofence under the Section 3. The FIR also does not indicate that the Appellants had committed the ofence with an intention of insulting or humiliating a member of Scheduled Caste or a Scheduled Tribe. On the contrary, the FIR reveals that the genesis and the origin of the incident was a quarrel between the brother of the complainant and the other village boys who had assembled on the ground to fy kites on the occasion of"Makar Sankranti" festival. The scufe between these boys had resulted into a fght between the family members of both the groups. It is on record that the members of both these groups have sustained simple injuries and they have fled complaints and cross complaints against each other. The FIR does not prima facie indicate that the said incident was witnessed by any person other than those associated with these two groups. Hence, it cannot be said that the incident had occurred within public view. Prima facie, the FIR does not disclose the essential ingredients of the ofence under Section 3(1)(r) and Section 3(1)(s) of the Prevention of Atrocities Act. Consequently the Bar under section 18 and 18-A is not applicable. The learned Judge was therefore not justifed in rejecting the Application for Anticipatory Bail. 14. The ofences under IPC are not grave as to warrant custodial interrogation. It is also pertinent to note that the Application for pre-arrest bail was rejected by the learned Additional Sessions Judge, Niphad on 13/03/2019. The present Appeal along with Application for Condonation of Delay was fled on 21/12/2019. 14. The ofences under IPC are not grave as to warrant custodial interrogation. It is also pertinent to note that the Application for pre-arrest bail was rejected by the learned Additional Sessions Judge, Niphad on 13/03/2019. The present Appeal along with Application for Condonation of Delay was fled on 21/12/2019. It is not in dispute that the Appellants are agriculturists and were available in the village despite which no attempts were made to arrest the Appellants for a period of over nine months which fact would prima facie suggest that the Investigating Agency did not want the presence of the Appellants for the purpose of the investigation. 15. Considering the totality of the facts and circumstances of the case, in my considered view, the Appellants are entitled for bail. Hence, the following order :- (a) The Appeal is allowed. (b) The impugned order dated 13/03/2019 passed by the learned Additional Sessions Judge, Niphad in Criminal M.A. (Bail) Application No.19/2019 as it relates to rejection for Application for Anticipatory Application moved by the present Applicants in the subject matter,is quashed and set aside. (c) The Application for Anticipatory Bail moved by the Appellants in the subject crime is allowed. (d) In the event of the arrest of the Appellants in the subject crime, the Appellants be released from jail on executing a PR bond of Rs.15,000/- (Rupees Fifteen Thousand) each and on furnishing two solvent sureties in the like amount. (e) The Appellants shall not interfere with the frst informant, the other injured persons and/or the witnesses in any manner. (f) The Appellants shall report to the Investigating Ofcer as and when directed and shall co-operate with the investigation. (g) The Appellants shall furnish his permanent address and/or temporary address, if any and contact details to the Investigating Ofcer. 16. The Appeal stands disposed of accordingly. 17. Interim Application stands disposed of in view of the disposal of the Appeal.