Education, R/o. Bhopala, Tq. Parali, Dist. Beed v. 1. 2. The State of Maharashtra Through Police Station Ambajogai, Dist. Beed. Gaurav Rajabhau
Case Details
apeal-964-2022.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.964 OF 2022 Nikhil Balasaheb Munde Age: 23 years, Occu.: Education, R/o. Bhopala, Tq. Parali, Dist. Beed. Versus 1. 2. The State of Maharashtra Through Police Station Ambajogai, Dist. Beed. Gaurav Rajabhau Kuchekar Age: 21 years, Occu.: Education, R/o. Wadarwada, Rajiv Gandhi Chouk, Ambajogai, Tq. Ambajogai, Dist. Beed. .. Appellant .. Respondents ... Ms. Ashwini A. Lomte, Advocate for appellant. Mr. R. V. Dasalkar, APP for respondent No.1 - State. Mr. Irfan D. Maniyar, Advocate for respondent No.2. ...
Legal Reasoning
CORAM : SMT. VIBHA KANKANWADI AND ABHAY S. WAGHWASE, JJ. DATE : JANUARY 11, 2023. ORDER :- [Per Smt. Vibha Kankanwadi, J.] . Admit. 2. Present appeal has been fled under Section 14-A(2) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the "Atrocities Act") to challenge the (1) apeal-964-2022.odt order of rejection of application by the learned Special Judge, under the Atrocities Act/Additional Sessions Judge, Ambajogai on 02.12.2022. The said application was fled under Section 438 of the Code of Criminal Procedure. 3. The present appellant has been arrayed as accused No.4 in Crime No.405 of 2022 registered with Ambajogai City Police Station, Dist. Beed for the ofences punishable under Sections 307, 326, 341, 323, 504, 506 read with Section 34 of Indian Penal Code and under Sections 3(1)(r), 3(1)(s), 3(2)(va), 3(2), 3(v) of the Atrocities Act, on the basis of the FIR lodged by present respondent No.2. The appellant had fled the said bail application under Section 438 of the Code of Criminal Procedure, however, it has been rejected by the concerned Judge holding that it is barred under Section 18 and 18-A of the Atrocities Act. 4. It has been vehemently submitted on behalf of the appellant that the learned Judge failed in not considering the facts of the case and wrongly held that the application is barred under Section 18 and 18-A of the Act. The role attributed to the present applicant is that he had caught hold of the waist of respondent No.2 and then co-accused Govind Shep has assaulted the informant by iron rod on his left hand resulting in fracture to his two fngers of the left hand. The alleged abuses in the name of caste are against co-accused Datta Phad. Under such circumstance, the physical custody of the applicant was (2) apeal-964-2022.odt not required and, therefore, the said application ought to have been allowed. 5. Per contra, the learned APP as well as learned Advocate appearing for respondent No.2 strongly opposed the appeal and they supported the reasons given by the learned Special Judge. Respondent No.2 has fled afidavit-in-reply and, in fact, he has reiterated the same facts. Further, it has been stated that respondent No.2 was admitted to Sahyadri Multispeciality Accident and Neuro Care Hospital, Latur between 18.09.2022 to 23.09.2022. Grievous injuries have been caused due to weapon Koyta i.e. scythe. It is also stated in the afidavit-in-reply that the present appellant and and co- accused had used the words ", ekaxV~;k vkeP;k fojks/kkr rq rdzkj ns.;klkBh fu?kkykl dk" in front of Hotel Pakija near Ambajogai Police Station and, therefore, it suggests that he was humiliated within the public view and, therefore, ofences under the Atrocities Act are attracted. Learned APP by producing the police papers submitted that there is evidence against the appellant and, therefore, his application under Section 438 of the Code of Criminal Procedure was barred under Section 18 and 18-A of the Atrocities Act. 6. At the outset, it is to be noted that we are required to consider the wordings those have been used in the FIR and not the afidavit-in- reply. The FIR gives a picture that the incident had taken place at two places. It is stated that around 9.30 p.m. on 17.09.2022, when (3) apeal-964-2022.odt the informant along with his friend had come on motorcycle near Maitri Pan Center in Bhagwanbaba Chowk, Ambajogai, at that time, all the accused persons including the appellant were present. Informant had asked the Pan Center owner accused Govind Shep that he should provide him Pan, at that time, accused - Datta Phad while smoking cigarette came near the informant and pulled scarf which was around the neck of the informant in such a way that it had put pressure on the neck of the informant and, therefore, the informant asked him as to why he has done so. Accused - Datta Phad abused him by saying that ", ekaxV~;k eh QDRk rq>k #eky vks<yk vkgs] R;kpk rqyk ,o<k dk; jkx vkyk". Informant asked him not to abuse in the name of caste, at that time, Accused Datta Phad and Vitthal Munde had assaulted him by hand. The informant then says that when he started to go towards police station and came near Hotel Pakija, which was in front of police station, around 10.15 p.m., a black colour Scorpio came there and it obstructed the motorcycle of the informant. Accused - Vitthal Munde, Govind Shep, Datta Phad and appellant alighted from the said Scorpio and Vitthal Munde abused the informant by saying that ", ekaxV~;k vkeP;k fojks/kkr rq rdzkj ns.;klkBh fu? kkykl dks] Fkkac rq>~;kdMs c?krks" and thereupon he has assaulted the informant fve times on his head by scythe and according to the informant, it was with an intention to kill him. Informant then says that thereafter the appellant had caught hold of informant's waist and (4) apeal-964-2022.odt then accused Govind Shep has assaulted the informant by iron rod on his left hand, thereby causing fracture to two fngers of left hand. Accused - Datta Phad has assaulted him by wooden stick on his left leg. While doing so, it is stated that all of them were saying that they will not leave the informant alive. As the informant raised his cry for help, people started gathering and then the accused persons fed away from the said Scorpio. 7. Taking account of the manner in which the incident had taken place as given in the FIR, it can be said that the role attributed to the appellant is catching hold of the informant at his waist. It is not at all stated that he had uttered any such abuses in the name of caste to the informant. It is to be noted that the police have invoked Sections 3(2) (va), 3(2), 3(v) of the Atrocities Act also, however, in order to prove the said ofence it will have to be proved by the prosecution that the accused has done the alleged act only with knowledge that the informant is member of Scheduled Caste or Scheduled Tribe and further the intention will have to be proved by the prosecution that it has been so done only because the informant is member of such caste or community. That intention cannot be gathered from the contents of the FIR and taking into consideration the role attributed to the appellant, the provisions of Atrocities Act could not have been invoked against him. We need not go into the medico legal certifcate and other documents as well as the statements of the witnesses which (5) apeal-964-2022.odt support the FIR as regards the abuses in the name of caste is concerned. Rather the statements of witnesses under Section 161 of the Code of Criminal Procedure shows inconsistency to the role attributed to the appellant. 8. The learned Special Judge failed to consider the role attributed to the applicant/appellant. The ratio laid down in Prathvi Raj Chauhan Vs. Union of India and others, [(2020) 4 SCC 727] is not properly considered at all and, therefore, the impugned order deserves to be set aside. Case was, in fact, made out for grant of anticipatory bail. Hence, the following order :-
Decision
ORDER I) The appeal stands allowed. II) The order passed in Criminal Bail Application No.545 of 2022 by the learned Special Judge under the Atrocities Act/Additional Sessions Judge, Ambajogai on 02.12.2022 is hereby set aside. The said application stands allowed. III) In the event of arrest of appellant in connection with Crime No.405 of 2022, registered with Ambajogai Police Station, Dist. Beed for the ofences punishable under Sections 307, 326, 341, 323, 504, 506 read with Section 34 of Indian Penal Code and under Sections 3(1)(r), 3(1)(s), 3(2)(va), 3(2), 3(v) of the Atrocities Act, he be released on P.R. Bond of Rs.30,000/- with two solvent sureties of Rs.15,000/- each. IV) The appellant shall not enter in the vicinity of Wadarwada, Rajiv Gandhi Chauk, Ambajogai, Dist. Beed, till the (6) apeal-964-2022.odt conclusion of trial. He should reside elsewhere, and before submission of bail papers, the appellant should give complete address of his proposed residence with his mobile number to the Trial Court as well as to the Investigating Oficer. V) The appellant shall attend the Ambajogai Police Station on every Tuesday and Friday between 10.00 a.m. to 2.00 p.m. till fling of the charge-sheet. VI) The appellant shall not tamper with the prosecution evidence. VII) He shall not indulge in any criminal activity. [ ABHAY S. WAGHWASE ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGE scm (7)