2019 Supreme(Bom) 477

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
K.K. SONAWANE, J.
Ratnakala Martandrao Mohite - Appellant
Vs.
State Of Maharashtra - Respondent
Criminal Appeal No. 228, 267 & 268 of 2019
Decided on : 05-04-2019

Headnote:

Indian Penal Code ,1860 - Section 34,506,509 - Criminal Procedure Code,1973 –Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Section 14-A(2) - Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - section 3(1)(r)(s),3,18,18-A - Quash of Criminal - Resident of Aurangabad, approached to Police of Police Station and lodged report that she is Class-I Officer as Epidemiologist attached to Health and Family Welfare Training Center,Aurangabad since June, 2016 - It has been alleged that she is from “Mahar” community, and being a member of Scheduled Caste, her Superior i.e. Principal (one of the appellants) used to maltreat her mentally and economically since she assumed charge in office at Aurangabad - He also used to torture other staff members belonging to Scheduled Caste community - Appellant/accused did not allow first informant to avail facilities meant for Class-I, Officer including facility of office Cabin etc - It has been alleged that after about a month first informant on her own accord started sitting in Cabin available for her post in Office - But appellant. put monitor of CCTV Camera of her Cabin in his room which cause disturbance to her privacy - First informant further cast allegation that appellant used to behave indecently by calling her in his Cabin without any cause - She was not allowed to avail benefit of staff car or travelling allowance etc - According to first informant-complainant, she was being tortured by appellants only because she is a member of Scheduled Caste - Whether offence under atrocities Act has been prima facie made out or not? – Whether prima facie case is made out or not? In paragraph No. and 15 of aforesaid Ingle’s case - Whether applicant at all is a fit person to be treated as accused of te crime registered under Act of 1989 - Whether person can be treated as accused of commission of offence under Act of 1989 - Whether uncontraverted averments in FIR disclose ingredients of any offence under the Act of 1989 - Whether prima facie case is made out by complainant against appellants - Whether there is material to make out prima facie case for offence punishable under Act, 1989 - Whether supplementary statement recorded by IO during course of investigation can be considered as a part and parcel of FIR to ascertain maintainability of application filed under Section 438 of Cr.P.C. for relief of pre-arrest bail of appellants - Whether appellants are fit person to be treated as an accused of Crime registered against them under the Act of 1989 - Whether there is at all an accusation against a person for registering a case under Sec. 3 of the Act of 1989 - whether allegations are true or false or whether there is any pre-ponderence of probability of commission of such an offence - Whether Act of 1989 can be said to be rightly applicable against accused and not to enter into further enquiry into matter so as to determine whether allegations levelled against the accused in the FIR are true or false and there would be no justification to enter into the matter further in order to examine whether he allegations levelled against accused are even prima facie correct or incorrect – Held, Provisions of Section 18A newly incorporated in Act of 1989 is reproduction of earlier provisions of Section 18 of Act of 1989 - Newly amended provision of Section 18A is inserted as clarifactory proviso giving emphasis on procedure prescribed under Cr.P.C. for registration of FIR without any preliminary enquiry as well as right of Investigating Officer to arrest without approval from any authority if he has reason to suspect commission of crime in terms of section 41 of Code - It is also significant to note that while incorporating provisions contemplated under Section 18A in Act of 1989 Legislature did not consider it necessary to repeal earlier provisions of Section 18 which indicate that both provisions are required to be read harmoniously and consonantly - Therefore operation of Section 18A of Act of 1989 has not taken away the limited jurisdiction of Court to examine whether uncontraverted averments in FIR disclose ingredients of any offence under Act of 1989 - In case of Vilas referred supra Their Lordships of Hon’ble Apex Court reiterated the similar principle of law and observed that no Court shall entertain application for anticipatory bail in offence registered under the provisions of Act of 1989 unless it prima facie find that such offence is made out - Similar principles/rule also delineated by this Courts of Law in aforesaid case laws referred on behalf of appellants - In such circumstances, it is evident that in spite of bar under Section 18 of Act of 1989 for invocation of powers under Section 438 of Cr.P.C., it is still open to this Court to find out by looking into FIR as to whether prima facie case is made out by complainant against appellants. Recently, the Division Bench of this Court (and observed that the application under Section 438 of Cr.P.C. needs to be considered for ascertaining whether there is material to make out prima facie case for offence punishable under the Act, 1989 – Court of opinion that in spite of bar under Sections 18 and 18A of the Act of 1989 for invocation of powers under section 438 of the Cr.P.C., it is still open to this Court to find out by looking to FIR of the case itself as to whether prima facie case is made out against the present appellants - There are no any circumstances incriminating in nature on record to point out ‘intentional insult’ or ‘intimidation’ with intent to humiliate the complainant within public view by appellants - In contrast all allegations nurtured on behalf of first informant are vague, cryptic and slender in nature - sweeping and omnibus allegations made in FIR all appear to be based on own perception of first informant-complainant and it would not match with very ingredients of Section 3(1)(r) and (s) of Act of 1989, to rebuff relief of pre-arrest bail as prayed on behalf of appellants - Appeals stand allowed