Law Web: 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