Tuesday, 18 June 2019

Whether person accused of offence under SC &SC (Atrocities) Act can be granted anticipatory bail?

 In the present FIR, absolutely there are no averments to
the effect that appellants-applicants are belonging from higher
caste or atleast that they are not a member of Scheduled Castes
or Scheduled Tribes. There are also no whisper in the FIR/
complaint that appellants had an knowledge that complainant
was from Scheduled Castes or Scheduled Tribes community. It is
true that there are allegations that appellants hurled abuses to
the complainant on caste by saying “Bhil”. But, bare uttering
word “Bhil” would not sufficient to draw inference that appellants
had an knowledge or they were aware about the caste of
complainant, and therefore, they abused the complainant in the
name of her caste to insult or humiliate her within public view.
The possibility of uttering word “Bhil” during the course of hot
exchange of words may be to increase gravity of abuses and

make it more filthily. All these circumstances being prime and
basic ingredients of Section 3(1)(w)(i)(ii) of the Act of 1989 and
the absence of the same will have an serious impact as to the
allegations to constitute offence under Act of 1989.
11. In the matter-in-hand, as referred above, averments
in regard to appellants that they are not the member of
Scheduled Castes and Scheduled Tribes community or they are
belonging from higher caste, are totally absent in the alleged FIR.
In contrast, it reveals that appellant No. 1 is from Scheduled
Caste category. He produce the relevant document of his caste
on record. Therefore, the provisions of Act of 1989 do not attract
against appellant No.1-Avinash Chandra in the present matter.
Moreover, recitals of the FIR are silent to point out that the
appellants had an knowledge or aware about the caste of
complainant as she belongs to Scheduled Castes or Scheduled
Tribes community. The abuses by uttering words “Bhil” may be
towards act of abusing the complainant more filthily. Therefore,it
cannot be said that allegations nurtured on behalf of complainant
are sufficient to constitute the offence under the Act of 1989. In
the result, statutory bar under Section 18 of the Act of 1989,
would not set in operation to the facts and circumstances of the
present case.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 276 OF 2019


 Avinash Prabhakar Chandra,  Vs  The State of Maharashtra,


CORAM : K.K. SONAWANE, J.

PRONOUNCED ON : 30th APRIL, 2019.



Heard. Admit. The appeal is taken up for final hearing on
merit with the consent of both parties.
2. Present appeal is directed against the impugned order of
rebuffing the relief of pre-arrest bail of the appellants in Crime
No. 15 of 2019 registered with Dhule Taluka Police Station under
Sections 323, 504, 506 and 509 of the Indian Penal Code (IPC)
and Section 3(1)(w)(i)(ii) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 (hereinafter, referred
to as “Act of 1989” for the sake or brevity). The appellants
preferred present appeal by invoking remedy under Section
14-A(2) of Act of 1989.
3. The prosecution case in short compass is that, on 30-01-
2019 first informant - Vaishali Hiralal Sonwane approached to the
Dhule Taluka Police Station and ventilated the grievance that she
is belonging from Adiwasi – Bhil community and residing with her
husband and other family members in the campus of SRPF, 500
Quarters, Building No. N-2 Room No. 4 located within the vicinity
of village Mahindale, Dhule. Her husband was on Bandobast duty
in Gadchiroli area since 10-05-2018. It has been alleged that on
the day of incident i.e. on 17-05-2018, in the wee hours of night
at about 10.00 to 10.30 p.m. when the first informant Vaishali
Hiralal Sonawane, her daughter Rudraksha as well as sister-in-

law Mukta Bapu Sonawane were at home in SRPF Quarters, that
time appellant-Ganesh Patil visited her for enquiry as to whether
some one else came to her house. The first informant-Vaishali
Sonawane disclosed him that no one else visited to her house.
She replied in negative, thereupon the appellant-Ganesh Patil
proceeded to frisk the house of complainant. But, all his efforts
did not evoke result. There was altercation in between the first
informant and appellant - Ganesh Patil. He took the cellphone of
first informant forcibly and went away. In the following morning,
appellant -Jitendra Lonari informed that the Superior Officer Mr.
Namdeo Pawar called her for enquiry. Accordingly, first
informant-complainant and her mother proceeded towards the
office of Superior Officer Mr. Pawar. It has been alleged that
when first informant-complainant and her mother were en-route
to office of Superior Officer Mr. Namdeo Pawar, that time
appellants accosted and reprimanded her for objectionable
behaviour on her part. They indulged in conversation with the
first informant in disgusting and derogatory manner. They cast
aspersion on the first informant-complainant that the person by
name Sunny Gawali visited her house in the wee hours of night.
The appellants hurled castiest abuses and humiliated her within a
public view. They also attempted to outrage her modesty by
making obscene gestures. Eventually, the first informant Vaishali
Sonawane rushed to the Police Station and filed the report.

4. Pursuant to FIR of complainant Vaishali Sonwane, Police of
Dhule Taluka Police Station registered the Crime No. 15 of 2019
for the offence punishable under Sections 323, 504, 506 and 509
of the IPC and Section 3(1)(w)(i)(ii) of Act of 1989, and set the
penal law in motion. The appellants, apprehending their arrest in
the present crime, filed the application before the learned
Additional Sessions Judge, Dhule, for their pre-arrest bail bearing
Criminal Bail Application No. 119 of 2019 under Section 438 of
the Code of Criminal Procedure, 1973 (Cr.P.C.). But, learned
Additional Sessions Judge found reluctant to nod in favour of
applicants-appellants. Learned trial Court held that in view of
statutory bar under Sections 18 and 18-A of the Act of 1989,
Sessions Court has no jurisdiction to entertain the application for
anticipatory bail. Eventually, learned Additional Sessions Judge
rejected the application of appellants for anticipatory bail and
passed the impugned order, the validity, propriety and
correctness of which, is agitated in the present appeal.
5. Mr. Chaudhari, learned counsel for the appellants
vehemently submitted that the appellants have not committed
any crime as alleged by the prosecution, but they are falsely
implicated in this case. According to the learned counsel for
complainant- first informant, there is inordinate delay in lodging
the FIR. There is no direct or indirect evidence against present
appellants in regard to castiest abuses. Appellant No. 1 belongs

to Scheduled Caste and offence under Act of 1989 cannot be
registered against him. The complainant used to give threat to
implicate appellants by filing false complaint under the Atrocities
Act. There is dispute between the first informant-complaint and
her husband. The appellants are the fellow SRPF personnel of her
husband. The complainant without reasonable cause preferred
the present complaint, which is false baseless and concocted one.
Learned counsel explained the circumstances in detail and
submits that the allegations would not attract the provisions of
the Act of 1989. Therefore, he requested to entertain the appeal
and grant the relief of pre-arrest bail to the appellants in this
case. The learned counsel for appellants in support of the
contentions placed reliance on the judgment of this Court in the
case of Nitin Sampatrao Maske and another Vs. The State
of Maharashtra and another in Criminal Appeal No. 9 of
2019, dated 7th March, 2019.
6. Learned APP for respondent No. 1 and learned counsel
appearing on behalf of respondent No. 2 vociferously raised
objections and submit that Section 18A of the Act of 1989 put
statutory bar for exercising the powers under Section 438 of the
Cr.P.C. by the Court. The appellants abused the complainant on
her caste within a public view. The appellants also intentionally
touched the complainant by holding her hand with an illintention.
The circumstances reflect from the FIR are sufficient to

draw inference that appellants committed an offence under the
Act of 1989. The appellants had an knowledge that complainant
is from “Bhil” community recognized as Scheduled Tribe.
Therefore, there is no propriety to grant relief of anticipatory bail
under Section 438 of the Cr.P.C. Respondent No. 2 also filed
affidavit-in-reply on record in support of her contentions. He also
placed reliance on the judgment of the Supreme Court in the
case of Manju Devi Vs Onkarjit Singh Ahluwalia @
Omkarjeet Singh and others reported in 2017 DGLS (SC)
335 : 2017 AIR (SC) 1583.
7. It is to be noted that this Court in the decision of Criminal
Appeal No. 787 of 2018 (Kiran Madhukar Ingle Versus State
of Maharashtra and another), elaborately dealt with the issue
of applicability of Section 18 of Act of 1989 to entertain the
application for pre-arrest bail under Section 438 of the Cr.P.C.
and made observations in paragraph Nos. 13 and 15 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, 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 instant appeal, the prosecution applied the
provisions of section 3(1)(w)(i)(ii) of the Act of 1989 against the
present appellants, which reads as under :-
“3. Punishments for offences of atrocities :-
(1) Whoever, not being a member of a Scheduled
Caste or a Scheduled Tribe :-
(w)(i) intentionally touches a woman belonging to a
Scheduled Caste or a Scheduled Tribe, knowing that she
belongs to a Scheduled Caste or Scheduled Tribe, when
such act of touching is of a sexual nature and is without
the recipient's consent;
(ii) uses words, acts or gestures of a sexual nature
towards a woman belonging to a Scheduled Caste or a
Scheduled Tribe, knowing that she belongs to a
Scheduled Caste or a Scheduled Tribe.”
9. Provisions of Section 3 of the Act of 1989 makes it
mandatory on the part of complainant to show prima facie in the
FIR that accused is not the member of Scheduled Castes or
Scheduled Tribes. Moreover, the alleged humiliation by way of
intentional touching to her was under knowledge that she is

belonging from Scheduled Caste or Scheduled Tribe category and
also the act of touching to her was with sexual intent. The
opening sentence of Section 3(1) of the Act of 1989 itself shows
that, “whoever not being a member of Scheduled Castes or
Scheduled Tribes”. It means that there must be prima facie
affirmation or say in the FIR-complaint that the accused is not
the member of Scheduled Castes or Scheduled Tribes. In
addition, it must be clear in the FIR that accused were aware or
they had an knowledge that complainant belongs to Scheduled
Castes or Scheduled Tribes category.
10. In the present FIR, absolutely there are no averments to
the effect that appellants-applicants are belonging from higher
caste or atleast that they are not a member of Scheduled Castes
or Scheduled Tribes. There are also no whisper in the FIR/
complaint that appellants had an knowledge that complainant
was from Scheduled Castes or Scheduled Tribes community. It is
true that there are allegations that appellants hurled abuses to
the complainant on caste by saying “Bhil”. But, bare uttering
word “Bhil” would not sufficient to draw inference that appellants
had an knowledge or they were aware about the caste of
complainant, and therefore, they abused the complainant in the
name of her caste to insult or humiliate her within public view.
The possibility of uttering word “Bhil” during the course of hot
exchange of words may be to increase gravity of abuses and

make it more filthily. All these circumstances being prime and
basic ingredients of Section 3(1)(w)(i)(ii) of the Act of 1989 and
the absence of the same will have an serious impact as to the
allegations to constitute offence under Act of 1989.
11. In the matter-in-hand, as referred above, averments
in regard to appellants that they are not the member of
Scheduled Castes and Scheduled Tribes community or they are
belonging from higher caste, are totally absent in the alleged FIR.
In contrast, it reveals that appellant No. 1 is from Scheduled
Caste category. He produce the relevant document of his caste
on record. Therefore, the provisions of Act of 1989 do not attract
against appellant No.1-Avinash Chandra in the present matter.
Moreover, recitals of the FIR are silent to point out that the
appellants had an knowledge or aware about the caste of
complainant as she belongs to Scheduled Castes or Scheduled
Tribes community. The abuses by uttering words “Bhil” may be
towards act of abusing the complainant more filthily. Therefore,it
cannot be said that allegations nurtured on behalf of complainant
are sufficient to constitute the offence under the Act of 1989. In
the result, statutory bar under Section 18 of the Act of 1989,
would not set in operation to the facts and circumstances of the
present case.
12. In regard to the allegations of assault, provocation or

criminal intimidation as envisaged under Sections 323, 504, 506
and 509 read with Section 34 of the IPC, I find that custodial
interrogation of the appellants is not necessary for the sake of
investigation. There is no recovery from the appellants nor there
is any apprehension about absconding of the appellants.
Therefore, there is no impediment to allow present appeal for the
relief of anticipatory bail in favour of appellants-accused. Hence,
appeal deserves to be allowed.
13. In sequel, the appeal stands allowed. The impugned
order dated 16-02-2019 passed by learned Additional Sessions
Judge, Dhule, in Criminal Bail Application No. 119 of 2019 is
hereby quashed and set-aside. The application of the appellantsapplicants
filed under Section 438 of the Cr.P.C. for their prearrest
bail before the learned trial Court is hereby allowed. The
appellants - (1) Avinash Prabhakar Chandra, (2) Jitendra
Dattatray Lonari (3) Ganesh Dilip Patil and (4) Balu Dhondiba
Shelekar be released on bail in the event of their arrest in
connection with Crime No. 15 of 2019 registered at Dhule Taluka
Police Station, District Dhule for the offence punishable under
Sections 323, 504, 506 and 509 of the IPC and Section 3(1)(w)
(i)(ii) of the Act of 1989, on furnishing PR bond of Rs.20,000/-
(Rupees Twenty Thousand) with one solvent surety of like
amount each. It is stipulated that appellants-applicants shall not
indulge, directly or indirectly, in any kind of activities of

tampering with the evidence of prosecution witness. The
appellants/applicants shall attend the Dhule Taluka Police
Station, District Dhule on every Sunday in between 11.00 a.m. to
3.00 p.m. till filing of the charge-sheet and shall co-operate with
the Investigating Officer for the sake of investigation into the
crime. Inform the concerned Investigating Officer, accordingly.
14. The present Criminal Appeal stands disposed of in above
terms. No order as to costs.
[ K. K. SONAWANE ]
JUDGE

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