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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.M. GAVHANE, J.
Sham Bhagwanrao Ingale - Appellant
Versus
State of Maharashtra - Respondent
Criminal Appeal No. 875 of 2018
Decided On : 25-04-2019
Code of Criminal Procedure, 1973 – Section 438 – Maharashtra Village Panchayats Act – Section 10-1A – Penal Code, 1860 – Sections 504, 506, 34 – Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Sections 3, 18 – Anticipatory Bail – By this appeal the appellants/accused Nos.1 and 2 have assailed order in Misc. Criminal Application passed by the Additional Sessions Judge-4, Nanded, thereby rejecting said application of the appellants for anticipatory bail – By order interim protection that, "no coercive action be taken against the appellants till the next date", was granted and it was continued from time to time. – Held, As the offences under Sections 3(1)(r) and 3(1)(s) of the Atrocities Act are not prima facie attracted and applicable as per the FIR the bar contemplated under Section 18A of the Atrocities Act to entertain application for anticipatory bail under Section 438 of the Code of Criminal Procedure is not attracted in the present case. As such, application for anticipatory bail can be entertained– Of course the statement of husband of respondent No.2 shows that his wife was elected as a Sarpanch from Scheduled Tribe category and that both the appellants were abusing him loudly on his caste. – But when FIR and statement of husband of respondent No.2 are not sufficient to state that either the respondent No.2 or her husband were abused on their caste in a place within public view the say of the husband of respondent No.2 is not sufficient to attract offences under Sections 3(1)(r) and 3(1)(s) of the Atrocities Act. – At the most on the basis of allegations referred earlier made in the FIR offence under Section 506 of the IPC which is bailable would be attracted against the appellants on the background of the admitted facts referred earlier regarding Grampanchayat dispute pending before the Collector, Nanded between appellant No.2 and others on the one hand and respondent No.2/complainant on the other hand. – Additional Sessions Judge while passing the impugned order in paragraph No.14 though observed that at this juncture it may be doubtful to say whether Section 3(1)(s) of the Atrocities Act would be applicable or not, observed that there is no doubt to say that the provisions of Section 3(1)(r) of the Atrocities Act will be applicable. – When in the FIR the respondent No.2/ complainant does not say that she belongs to Scheduled Caste or Scheduled Tribe and further does not say that the appellants are not members of Scheduled Caste or Scheduled Tribe observations of the learned Additional Sessions Judge that provisions of Section 3(1)(r) of the Atrocities Act will be applicable are prima facie not correct and sustainable. – Court hold that the appellants have made out the case to extend benefit of anticipatory bail to them. – Therefore, the order impugned in the present appeal needs to be quashed and set aside and application filed by the appellants for anticipatory bail needs to be allowed by allowing the appeal. – Therefore, in the result following order is passed. – Appeal Allowed.
S.M. GAVHANE, J.
1. Heard, the appeal is admitted. Notice after admission is made returnable forthwith. Appeal is taken up for final hearing with the consent of both sides.
2. By this appeal the appellants/accused Nos.1 and 2 have assailed order dated 30/11/2018 in Misc. Criminal Application No.894 of 2018 passed by the Additional Sessions Judge-4, Nanded, thereby rejecting said application of the appellants for anticipatory bail. By order dated 15/01/2019 interim protection that, "no coercive action be taken against the appellants till the next date", was granted and it was continued from time to time.
3. Facts relevant to decide this appeal, in short, are that respondent No.2-Vanita Dhanaji Marakwad has filed the complaint with Vazirabad Police Station against the appellants and on the basis of the said complaint Crime No.333/2018 came to be registered against the appellants on 04/11/2018 for the offences punishable under Sections 3(1)(r) (s), 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the "Atrocities Act") and under Sections 504 and 506 read with Section 34 of the Indian Penal Code (for short "IPC"). It was alleged that on 30/10/2018 in the office of Collector at Nanded the appellants purposely picked up the quarrel with the husband of respondent No.2 and appellant No.2/accused No.2 abused husband of respondent No.2 on his caste. So also while going out of the office of Collector at Nanded near the gate they had threatened to kill respondent No.2 and her husband.
4. Mr. Gaikwad, learned counsel for the appellants submitted that in the Grampanchayat elections of 2015 the respondent No.2 got elected as a member and Sarpanch of village Hathral, Tq. Mukhed, Dist. Nanded and she belongs to 'Mannervarlu' Scheduled Tribe. As she belongs to Scheduled Tribe she was required to file tribe validity certificate within six months of her election as a Sarpanch as per Section 10-1A of the Maharashtra Village Panchayats Act. But respondent No.2 did not submit said certificate and as such she incurred disqualification. Therefore, appellant No.1 filed complaint with the Collector, Nanded on 03/10/2016. The Collector, Nanded vide letter dated 24/10/2016 (Exh.'A') informed appellant No.1 that his application dated 03/10/2016 has been disposed of stating that he should file grampanchayat dispute as per Section 10-1A of the Maharashtra Village Panchayats Act, 1958. Thereafter, appellant No.2- Vishwanath Rajendra Aaranye and one Prakash Gyanoba Tembhurne have filed election dispute/appeal bearing No.277/2016 on 15/12/2016 against present respondent No.2 and two others praying that the present respondent No.2 who is respondent No.1 in the said election dispute and respondent No.2 in the said dispute have incurred disqualification, as they have not submitted their tribe validity certificates within six months of their election, as per Section 10-1A of the Maharashtra Village Panchayats Act and claimed declaration that present respondent No.2 is disqualified to be a Sarpanch and respondent No.2 in the said dispute is disqualified to be a member of the Grampanchayat and said dispute was pending before the Collector, Nanded on 30/10/2018 and therefore the appellants as well as respondent No.2 and her husband had come in the Collector office, Nanded on 30/10/2018.
5. Mr. Gaikwad, learned counsel further submitted that the husband of respondent No.2 is serving in Police department. He threatened the appellants on account of filing election dispute by them against his wife respondent No.2, on 30/10/2018. Therefore, immediately appellant No.2 made complaint (Exh.'B') to the District Superintendent of Police, Nanded against the husband of respondent No.2 about the aforesaid incident happened in the office of District Collector, Nanded. It is after five days of the said compliant filed by appellant No.2, the respondent No.2 filed complaint dated 04/11/2018 with Vazirabad Police
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