IMPORTANT POINT
Case u/s 18, SC/ST Act and anticipatory bail.

JUDGMENT

P. Sathasivam, J.-The short question to be decided in this petition is whether an accused charged with various offences under the Indian Penal Code, 1860 (in short ‘IPC’) along with the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short ‘the SC/ST Act’) is entitled for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (in short ‘the Code’).

2. In the complaint filed by Savita Madhav Akhade – Respondent No.3 herein, it has been alleged that she has been residing with her family members at Khandeshwari, Taluq Karjat, Ahmednagar, Maharashtra and earning their livelihood from agricultural work. It is further alleged that the complainant is having an agricultural land adjacent to the agricultural land of one Balu Bhanudas Pawar and Arun Bhanudas Pawar. On 15.06.2012, the complainant allowed the rain water, which was accumulated, to flow into the field of Balu Bhanudas Pawar. When the complainant and her husband was standing on S.T. stand for going to Karjat, at that time, Balu Bhanudas Pawar came there and abused them on caste on account of the rain water flowing from the agricultural land of the complainant to his land. The complainant has also alleged that after their return to home, the petitioner along with other co-accused persons gathered at their house and they again abused them on their caste and assaulted the complainant and her family members by using sticks, stones, fighters etc. Thereafter, on the same day, an FIR was registered being No. 139/2012 at Karjat P.S., Ahmednagar, Maharashtra.

3. The petitioners along with other co-accused filed an application for anticipatory bail under Section 438 of the Code being Criminal Miscellaneous Application No. 712 of 2012 before the Court of Sessions Judge, Ahmednagar. By order dated 04.07.2012, the Additional Sessions Judge rejected their application for anticipatory bail.

4. Aggrieved by the order of Sessions Judge, the petitioners filed Criminal Application No. 3012 of 2012 before the High Court of Bombay, Bench at Aurangabad. By impugned judgment and order dated 19.07.2012, the High Court, while rejecting the anticipatory bail application of the present petitioners, allowed the anticipatory bail to 13 accused out of 15. Being aggrieved, the petitioners approached this court by filing special leave petition under Article 136 of the Constitution of India.

5. Heard Mr. Dilip Annasaheb Taur, learned counsel for the petitioners.

6. Taking note of the fact that the complaint not only refers to various offences under IPC but also under Section 3(1)(x) of the SC/ST Act, we posed a question to the counsel by drawing his attention to Section 18 of the SC/ST Act as to how the petitioners are entitled to anticipatory bail. It is useful to reproduce Section 18 of the SC/ST Act which reads as under:

“18. Section 438 of the Code not to apply to persons committing an offence under the Act.- 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 offence under this Act.”

A reading of the above provision makes it clear that Section 438 of the Code is not applicable to persons committing an offence under the SC/ST Act. In the complaint, the complainant has specifically averred that she and her family members were insulted by the petitioners by mentioning her caste and also assaulted them by saying “Beat the Mahar so that, they should not live in the village.”

7. In order to understand the grievance of the Complainant and the claim of the petitioners, it is useful to extract the complaint dated 15.06.2012.

“COMPLAINT

I. Sau. Savita Madhav Akhade, Age-45 years, Occu. Household, R/o Takali-Khandeshwari. Tq. Karjat, (Caste-Hindu Mahar)

I am giving in writing the complaint in the Police Station that, I am residing on the above place with hushand – Madhav, my sons Ramesh, Umesh jointly. My husband is in service in th