The burden on the prosecution to establish that the accused does not belong to Scheduled Caste and Scheduled Tribe does not necessarily require the mention of the accused's caste in the FIR. The intent of the accused to insult or humiliate the victim with reference to her caste is crucial in determining the applicability of the offences under the SC and ST act.

JUDGMENT

N. J. Jamadar, J. - This appeal under Section 14a of the Scheduled Caste and Scheduled Tribes (Prevention of atrocities) act, 1989 ('the SC and ST act') is directed against an order dated 24th February, 2022, in Criminal appeal No.526 of 2022, whereby the learned Special Judge, Thane, was persuaded to reject the application of the applicant accused for pre-arrest bail in connection with CR No.19 of 2002 registered with CBD Belapur Police Station, Thane, for the offences punishable under Sections 3(1)(r) and 3(1)(s) of the SC and ST act.

2. admit.

3. Heard finally.

4. The indictment against the appellant accused is that the appellant had known the prosecutrix, who is a member of the scheduled caste, as the appellant had an occasion to interview the prosecutrix for the post of Tele-Caller with the Five Bridge Company, Belapur, Navi Mumbai. The prosecutrix was informed that she was not selected. However, the appellant tried to establish rapport with the prosecutrix and made advances towards her. The prosecutrix did not cave in to the advances of the appellant with ill motive.

5. In the month of January, 2022, the prosecutrix was offered appointment on the post of Tele-caller in Nearby Plut Company. The prosecutrix alleges that on 25th January, 2022, at about 11.30 am. while she was working as a receptionist, the appellant came to the office accompanied by four persons. She requested the appellant and his associates to enter their names in the visitors book. Without paying heed to her request, the appellant and his associates barged into the cabin of Chief Managing Director (CMD). There was exchange of words in high tone. after her employer, Devidas Rathod asked the appellant and his associates to leave the CMD's cabin, they came in the waiting area. at that time, the prosecutrix asked the appellant to make an entry in the visitors book. The appellant humiliated the prosecutrix by uttering the words, 'Tuzi layaki kay ahe, tu chambhar kuthali, tula me jawal karnyacha praytna kela tar tula maj ala'. The appellant humiliated the prosecutrix with reference to her caste, in the presence of the other office staff, Devidas Rathod, and the persons who accompanied the appellant. Hence, the prosecutrix lodged report.

6. apprehending arrest, the appellant preferred an application for pre-arrest bail. By the impugned judgment and order, the learned Special Judge rejected the application. The learned Special Judge was of the view that there was prima facie material to support the allegation of commission of the offences punishable under the SC and ST act, and thus the bar under Section 18 and 18-a of the SC and ST act came into play and, therefore, the appellant did not deserve exercise of discretion under Section 438 of the Code of Criminal Procedure, 1973 ('the Code').

7. Being aggrieved the appellant is in appeal.

8. I have heard Mr. Nikam, the learned Counsel for the appellant, Mr. Patil, the learned aPP for the State and Ms. Yadav, the learned advocate appointed from the Legal aid Panel, to espouse the cause of the respondent no.2 - prosecutrix.

9. Mr. Nikam would urge that the offences punishable under Sections 3(1)(r) and 3(1)(s) of the SC and ST act, are not prima facie made out. The learned Special Judge, according to Mr. Nikam, committed an error in arriving at a finding that in the facts of the case, the offences are prima facie made out and, therefore, the provisions of Section 438 of the Code had no application.

10. a three-pronged submission was canvassed by Mr. Nikam. First, the FIR does not disclose the caste of the appellant. Since Section 3 of the SC and ST act begins with the expression, 'Whoever, not being a member of Scheduled Caste or a Schedule Tribe', it is incumbent on the prosecution to demonstrate that the appellant does not belong to Scheduled Caste or Scheduled Tribe. In the absence of such positive assertion in the First Information Report ('FIR'), the offences punishable under Section 3(1)(r) and 3(1)(s) cannot be