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2019 Supreme(Bom) 245
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH
K.K. Sonawane, J.
Eknath Chindha Patil - Appellant
Vs.
State of Maharashtra - Respondent
Criminal Appeal No. 731 of 2018
Decided On : 18-03-2019
D.B. Thoke, Adv., P.G. Borade, Adv., Harshal P. Randhir, Adv.
Headnote:
Scheduled Castes and Scheduled Tribes Act, 1989 - Section 14- A(2) - Criminal Procedure Code, 1973 - Section 437/439 - Indian Penal Code - Section 354-A – Constitution of India, 1950 - Article 21 - Anticipatory bail – Quash of order – First Information Report - Appeal is preferred by appellant-accused agitating the validity and propriety of impugned order passed by learned Additional Sessions Judge on application below filed in Special Case under Section 437 read with Section 439 of Code of Criminal Procedure, 1973 to enlarge appellant-accused on bail pending trial - Appellant taking recourse of Section 14- A(2) of Scheduled Castes and Scheduled Tribes Act, 1989 filed present appeal to redress his grievances - Genesis of appeal culled out in brief is that first informant approached to Police of Police Station and lodged report that after finishing office work of monthly meeting she proceeded towards her house - When she came at square in village appellant accosted her and started reprimanding her for what reason she has accepted his resignation in posthaste manner - He further caste allegations for not sanction of his bills nor he received any share from work commenced in locality of Community - Complainant made Endeavour to give understanding to appellant but he became furious and in a fit of rage manhandled complainant and also hurled abuses on her caste - Appellant gave threat to complainant - After hearing commotion villagers and family members of complainant thronged at spot and extricated complainant from clutches of appellant-accused - Thereafter she filed the report to Police of Police Station – Held, Court find that it would be unjust and improper to curtail valuable liberty of appellant/accused in this case – Admittedly accused is charge sheeted for offence punishable under Section 354-A of Indian Penal Code (IPC) and Section 3(1)(r)(s) and (w)(i) of Act of 1989 - IO did not prefer to arrest appellant for sake of investigation in this crime - Relevant documents of police papers reflects that appellant was not apprehended at any point of time during course of investigation - IO also completed entire investigation and filed charge-sheet before concerned trial Court under section 173(2) of Criminal Procedure Code – Therefore there is no propriety to lodge appellant behind bar pending trial - It is rule of law that there should not be reconviction incarceration by way of punishment - There is no impediment to exercise discretion in favor of appellant for releasing him on bail pending trial - It would unjust and improper to put restrictions on personal liberty of appellant guaranteed under Article 21 of Constitution of India for sake of trial in this case – Therefore application moved by applicant before learned Special Judge for bail required to be allowed - In such backdrop court of considered opinion that appeal filed on behalf of appellant deserves to be granted - In sequel appeal stands allowed - Impugned order passed by learned Additional Sessions Judge below applications in Special Case is hereby quashed and set-aside - Application of appellant-applicant filed under Sections 437 and 439 of Criminal Procedure Code for bail stands allowed - Appellant be released on bail in connection with Crime registered at Police Station under Section 354-A of Indian Penal Code and Section 3(1) (r)(s) and (w)(i) of Scheduled Castes and Scheduled Tribes Act, 1989 on furnishing PR bond with one solvent surety of like amount - Criminal Appeal stands disposed of
K.K. Sonawane, J.
Heard. Admit. The present appeal is taken up for final hearing on merit with the consent of both sides.
2. This appeal is preferred by the appellant-accused agitating the validity and propriety of the impugned order passed by the learned Additional Sessions Judge, Jalgaon, on the application below (Exhibit-3) filed in Special (Atrocity) Case No. 12 of 2018 under Section 437 read with Section 439 of the Code of Criminal Procedure, 1973, to enlarge the appellant-accused on bail pending trial. The appellant taking recourse of Section 14- A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter, referred to as "Act of 1989" for the sake or brevity) filed the present appeal to redress his grievances.
3. The genesis of the appeal culled out in brief is that, on 06-11-2017, the first informant Smt. Sushilabai w/o. Anna Kamble, Sarpanch of village Borkheda Budruk, Taluka Chalisgaon, approached to the Police of Mehunbare Police Station and lodged the report that at about 1.00 p.m. after finishing the office work of monthly meeting of Grampanchayat, she proceeded towards her house. When she came at the square in the village, the appellant accosted her and started reprimanding her for what reason she has accepted his resignation in posthaste manner. He further caste allegations for not sanction of his bills nor he received any share from the work commenced in the locality of Dalit Community. The complainant made endeavour to give understanding to the appellant, but he became furious and in a fit of rage, manhandled the complainant and also hurld abuses on her caste. The appellant gave threat to the complainant. After hearing commotion, the villagers and family members of the complainant thronged at the spot and extricated the complainant from the clutches of appellant-accused. Thereafter, she filed the report to the Police of Mehunbare Police Station.
4. Pursuant to the FIR, Police of Mehunbare Police Station registered Crime bearing No. 105 of 2017, under Section 354-A of the Indian Penal Code (IPC) and Section 3(1)(r)(s) and (w)(i) of the Act of 1989 and set the penal law in motion. Investigation Officer (IO) recorded the statement of witnesses acquainted with facts of the case. He seized the relevant documents, memory card about recording of incident, etc. during the investigation. He collected documents of medical certificates, etc. The IO also issued letter to the appellant under Section 41- A(1) of the Cr.P.C. and made enquiry about the incident with him. After completion of investigation, IO preferred charge-sheet against appellant-accused bearing Special Case (Atro) No. 12 of 2018.
5. It is to be noted that while submitting charge-sheet i.e. report under Section 173 of the Cr.P.C., IO issued another notice to the appellant, for communication to secure his presence before the Sessions Court for further process. Accordingly, the appellant appeared before the Sessions Court concerned and filed the application under Section 437 and 439 of the Cr.P.C. to admit him on bail. Unfortunately, the learned Sessions Judge did not favour the appellant and rejected his application for bail, on the ground of its maintainability prior to any order of remand of appellant to magisterial custody. According to learned Sessions Judge, the appellant was not arrested in this crime by the police, neither he was taken in custody by the court at any point of time, nor the appellant get himself surrender before the concerned Court. Therefore, no question would arise to entertain the application for grant of bail of the appellant. Eventually, the learned Sessions Judge passed the impugned order, which is reproduced as below :-
"[1] The application vide Exh. 3 for regular bail which filed by accused is hereby rejected on the ground of its maintainability.
[2] The application vide Exh. 9 which filed by learned Astt. Counsel of informant is hereby allowed.
[3] Accused is directed to file application
