Shivappa Huchappa Tavanshi v. The State of Maharashtra

The learned counsel for the applicant submitted that the applicant is from the same village. In the FIR, applicant's name was not mentioned. He submitted that applicant's complicity was indicated in a supplementary statement recorded two days after the incident. According to the learned counsel for the applicant, the allegations are baseless and all the persons participating in the assault including the applicant are alleged to have referred to the caste of the first informant stating that the first informant, belongs to 'Chambhar' caste, & should be killed. The learned counsel for the applicant submitted that in these circumstances, mere reference to the caste of the applicant would not be sufficient to invoke provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 in order to deny anticipatory bail to the applicant. For ABA 833-12.odt this purpose, he relied on Judgment of this Court in Shashikant Ramhari Tambe & ors. Vs. State of Maharashtra, reported in 2008 ALL MR (Cri.) 2132, wherein, there was a delay of about a week in lodging FIR. In the second Judgment of Delhi High Court in Mukesh Kumar Saini Vs. State (Delhi Administration), reported in 2002 ALL MR (Cri.) 41, it was observed that there must be specific accusation alleged against each of the accused in order to attract provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 & that Section 34 of the Indian Penal Code cannot be pressed into service. The learned counsel for the applicant relied on Judgment of this Court in Ramchandra Govindrao Watkar and another Vs. State of Maharashtra, reported in 1995(2) Mh.L.J. 669 where the Court observed that FIR as well as statement under Section 161 of the Code of Criminal Procedure and available material in case diary ex facie did not disclose the ABA 833-12.odt ingredients constituting offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and therefore, provisions of Section 18 of the Act barring invocation of the jurisdiction under Section 438 of the Code of Criminal Procedure was not attracted. The learned counsel for the applicant relied on Judgment of this Court in Sugdeo Ramchandra Tayade Vs. State of Maharashtra, reported in 1994 CRI.L.J. 2150 which was, in fact, an appeal against conviction. In Bai @ Laxmibai w/o. Nivrutti Poul & ors. Vs. State of Maharashtra, reported in 2001 ALL MR (Cri.) 219 on which the learned counsel for the applicant placed reliance, this Court was considering an application for quashing the FIR. Amongst other things, the Court observed that the incident ought to occur in a public view in order to attract the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. In ABA 833-12.odt Somesh Das Vs. State of Chhattisgarh, reported in 2004 CRI.L.J.680, High Court of Chhattisgarh held that if the complaint is found to be false, anticipatory bail cannot be denied to accused, even if the offence registered was one punishable under Section 3(1)(x) of the S.C.S.T.Act. In Phulsingh Vs. State of Madhya Pradesh, reported in 1991 CRI.L.J.2954, the High Court of Madhya Pradesh held that merely referring a person by name of his caste did not constitute an offence punishable under Section 7(1)(d) of the Civil Rights Act, 1964. In Suresh Kumar Vs. State, reported in 1999(1)Crimes 636, High Court of Madhya Pradesh was considering an offence punishable under Section 3(1)(x) of the S.C.S.T.Act & under Sections 294 & 341 of the Indian Penal Code and observed that no prima facie material was available to raise suspicion of commission of any offence under the Act, & so the person concerned was entitled to anticipatory bail. In ABA 833-12.odt Ashok Lakhaji Halmare Vs. State of Maharashtra & anr., reported in 2005 ALL MR (Cri.) 2489, this Court was considering question of quashing of proceedings in Special Criminal Case No.28 of 2001 before the Special Judge, Bhandara and in that context observed that every quarrel or altercation between a member of Higher caste and that of Scheduled Castes and Scheduled Tribes would not ipso facto constitute acts of commission of offence which are capable of cognizance under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and Protection of Civil Rights Act as the case may be. In Gowardhan s/o. Rambhau Mohite Vs. State of Maharashtra, reported in 2005 ALL MR (Cri.) 1223, this Court was considering an appeal against conviction for the offence punishable under Section 3(1)(x) of the S.C.S.T.Act and in that context, considered the question of delay in communicating the incident to the police. The Court also found that bare words referring to the caste had been used by ABA 833-12.odt the accused.

3. I have carefully considered the observations made in these Judgments. When legislature has provided by enacting Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, that provisions of Section 438 of the Code of Criminal Procedure would not apply, it would not be permissible for Courts by observing at the stage of investigation itself if an offence is made out or not on the basis of what is stated in the FIR or a statement by a witness. FIR merely marks the commencement of investigation and cannot be an encyclopedia marking the outer boundaries of the investigation. Further, whether the particulars of utterance amount to or offence under the Act would have to be considered after the investigation is over in the light of the entire material that may be ABA 833-12.odt collected by the investigating officer. Therefore, in my view, none of the Judgments relied on by the learned counsel would warrant that the bar enacted under Section 18 of the Act should be overlooked and applicant be admitted to anticipatory bail.

4. Criminal Application stands rejected. (R.C.CHAVAN, J.)