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2020 Supreme(Bom) 550
IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT AURANGABAD BENCH
Vibha Kankanwadi, J.
Anant - Appellant
Versus
State Of Maharashtra & Ors. - Respondents
Criminal Appeal No.119 of 2020
Decided On : 08-05-2020
Mr. R.S. Deshmukh, Sr.Counsel;, for the Appellant; Mr. P.G. Borade, APP;, for the Respondent Nos. 1 & 2; Mr.VY Patil, Adv, for the Resp. No. 3.
Prima facie case under the Atrocities Act is essential for the application of Section 438 of Cr.P.C., and the Special Court must consider the maintainability of the private complaint before the Magistrate.
Headnote:
Atrocities Act - Jurisdiction - Section 438 of Cr.P.C. - Section 156(3) of Cr.P.C. - Sections 3(1)(w)(i) and (ii) of the Atrocities Act - Prima facie case - Special Court's powers - Anticipatory bail - Interim protection
Fact of the Case:
The informant filed a private complaint alleging offences under the Atrocities Act. The Magistrate observed that prima facie the allegations did not make out a case under the Atrocities Act but indicated a cognizable offence. The Additional Sessions Judge entertained the application for anticipatory bail, which was challenged in the present case.
Finding of the Court:
The court set aside the order of the Additional Sessions Judge and allowed the bail application, confirming the interim protection granted earlier.
Issues: Jurisdiction of the Special Court under the Atrocities Act, maintainability of the private complaint before the Magistrate, and the power of the Magistrate to direct police investigation under Section 156(3) of Cr.P.C.
Ratio Decidendi: The court found that the allegations did not prima facie attract the offences under the Atrocities Act, making the application for anticipatory bail maintainable. It also emphasized the need for the Special Court to consider the maintainability of the private complaint before the Magistrate.
Final Decision: The impugned order was set aside, the bail application was allowed, and the interim protection was confirmed with a modification.
JUDGMENT
1. Heard Learned Sr. Counsel Shri R.S. Deshmukh for appellant; learned APP Shri P.G. Borade for Respondent Nos.1 and 2; and learned Advocate Shri Y.V.Patil, Advocate for Respondent No.3.
2. Admit. With consent of learned Advocates for the respective parties, taken up for final disposal.
3. Present appeal has been filed under Section 14(A)(2) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, for challenging the order of rejection of bail application under Section 438 of the Code of Criminal Procedure in Criminal Misc. Application (Bail) No.46/2020 on 21.1.2020 by learned Additional Sessions Judge-3, Jalna.
4. Present appellant is apprehending his arrest by Jafrabad police Station, Dist. Jalna in CR No.9/2020 dated 8.1.2020 lodged by present Respondent No.3 (original informant) after order under Section 156(3) of Cr.P.C., which came to be passed by learned Judicial Magistrate, First class (2nd Court), Jalna for the offences punishable under Section 3 of The Maharashtra Prevention of ? Eradication of Human Sacrifice and Other Inhuman, Evil and Aghori Practices and Black Magic Act, 2013 and under Sections 420, 354, 504, 506 of IPC and under Section 3(1)(w)(i) and 3(1)(w)(ii) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (herein after referred to as The Atrocities Act).
5. It has been vehemently submitted on behalf of the appellant that, earlier, Respondent No.3 had approached the police station with a written complaint, which was received by the police station on 27.9.2019. It was stated in the said complaint that it relates to the offence that was committed in May 2019. While the police were making enquiry, statement was given by the informant to the police that, when the complaint application, which she had given on 27.9.2019, should not be further enquired into as there is no necessity to take action on the basis of the said complaint.
6. It appears that, pursuant to the said statement given by the informant, that file was closed. However, thereafter, Respondent No.3 has lodged a private complaint with JMFC, Jafrabad even thereafter by adding sections 354, 504, 506 of IPC and Section 3(1)(w)(i) of the Atrocities Act. However, further facts show that even after observing that, prima facie offences, under the provisions of the Atrocities Act, have not been made out, the learned Magistrate has sent the complaint for investigation under Section 156(3) of Cr.P.C. and on the basis of the said order, the FIR has been registered.
7. It has been further submitted on behalf of the appellant that the learned Sessions Judge, who was dealing with the application under Section 438 of Cr.P.C., has failed to consider the observations made by the learned Magistrate that the offence under the provisions of the Atrocities Act has not been made out; yet it was held that there is bar under Section 18 of the Atrocities Act. The informant has intentionally suppressed her own statement made before the police that there is no necessity to take any action against the appellant.
8. In fact, the appellant is an astrologist. He helps the people on the basis of that astrology science to mitigate their sorrows and griefs. The informant in the present case has stated that as her husband''s health was not well and she was fed up with the treatment given; yet when no improvement was seen with that treatment, she believed in the words of the appellant.
9. The informant was not knowing the appellant earlier as it appears that she believed on the alleged visiting card of the appellant. There are many persons who believed in the science of the appellant and, therefore, there is no question of cheating. In fact, there was no reason for the appellant to know caste of the informant. All these factors have not been considered by the learned Sessions Judge and only on the alleged apparent reading, which appears to be a concocted story, taking into consideration the written complaint which was g
