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2023 Supreme(Bom) 1088
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Vinay Joshi, Valmiki Sa Menezes, JJ.
Dhondu Hakam – Appellant
Versus
State of Maharashtra – Respondent
Criminal Appeal No. 685 of 2022
Decided On : 05-01-2023
S.S.Chourasia, Advocate, S.S.Doifode, Advocate, J.Y.Ghurde, Advocate, Vikas Kulsange, Advocate
The court has discretion to lift the statutory bar under Sec. 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 in appropriate cases, but prima facie satisfaction that the offence punishable under Special Statute has not been made out is required.
Headnote:
Pre-arrest Bail - Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - The court declined to grant pre-arrest bail to the applicant for the offences punishable under Indian Penal Code. The court held that the statutory bar created under Sec. 18 of the said Act is not absolute, but the Court has discretion to lift the bar in appropriate cases. However, for that purpose, the Court should record prima facie satisfaction that the offence punishable under Special Statute has not been made out. The allegations were of commission of offence punishable under Ss. 3(1)(r), 3(1)(s) and 3(2)(va) of the said Act, and there was prima facie material to constitute the offence punishable under the Special Act, so the statutory bar would apply. The court found no reason for having custodial interrogation of the applicant, but since the statutory bar would come into play with full force, the application for pre-arrest bail was not entertained.
Fact of the Case:
The appeal raised the challenge to the order declining to grant pre-arrest bail to the applicant for the offences punishable under Indian Penal Code. The crime was registered based on the report lodged by the father of the injured, who belonged to the Scheduled Tribe. The allegations included assault and instigation based on caste.
Finding of the Court:
The court found that the statutory bar created under Sec. 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is not absolute, but the Court has discretion to lift the bar in appropriate cases. However, for that purpose, the Court should record prima facie satisfaction that the offence punishable under Special Statute has not been made out. The court also found no reason for having custodial interrogation of the applicant, but since the statutory bar would come into play with full force, the application for pre-arrest bail was not entertained.
Issues: The issues included the challenge to the order declining to grant pre-arrest bail to the applicant for the offences punishable under Indian Penal Code, and the interpretation of the statutory bar under Sec. 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
Ratio Decidendi: The court held that the statutory bar created under Sec. 18 of the said Act is not absolute, but the Court has discretion to lift the bar in appropriate cases. However, for that purpose, the Court should record prima facie satisfaction that the offence punishable under Special Statute has not been made out. The court also found no reason for having custodial interrogation of the applicant, but since the statutory bar would come into play with full force, the application for pre-arrest bail was not entertained.
Final Decision: The appeal stands dismissed.
JUDGMENT
VINAY JOSHI, J. - Heard.
2. This appeal under Sec. 14-A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, "the said Act") raises the challenge to the order dtd. 14/09/2022 by which the Trial Court has declined to grant pre-arrest bail to the applicant for the offences punishable under Ss. 143, 147, 148, 307, 341, 323 r/w 149 of the Indian Penal Code.
3. At the instance of the report lodged by the father of the injured, a crime has been registered on 19/08/2022. It is the Informant's case that the applicant and his sons are resident of same village. The Informant belongs to the member of Scheduled Tribe. On 27/07/2022 in the afternoon at around 2.00 pm to 3.00 p.m., Informant's son namely; Santosh Nivrutti Chibade had gone to Titvi Tanda for purchasing the meat. At that time, the applicant and his sons have accosted the Informant's son and started to assault at the instance of filing police report. The Informant stated that all the co-accused have assaulted Santosh by way of dangerous weapon while the applicant had instigated the rest. Particularly, it is stated that the Informant while instigating the co- accused has uttered the words pertaining to the caste of the Informant, which is reproduced hereinbelow :- [xxxxxxxxxxxx].
4. To be specific, he stated that the people of said particular caste shall not stay in the village and by saying so, instigated the others.
5. Learned counsel for the appellant would submit that the contents of FIR are totally false, since at the time of occurrence, applicant was not present on the spot. He would submit that the injured Santosh was having criminal antecedents, who had in fact tried to outrage modesty of applicant's daughter- in-law for which police report has been lodged on 03/08/2022. Moreover, it is argued that the contents of FIR though show that the deadly weapons were used in the assault, however the role assigned to the applicant is at the most of instigating the co- accused. The applicant has placed reliance on the decision of Supreme Court in the cases of (1) Union of India Vrs. State of Maharashtra and others in Review Petition (Crl.) No.228 of 2018 in Criminal Appeal No.416 of 2018 and (2) Prathvi Raj Chauhan Vrs. Union of India and others in Writ Petition (C) No.1016 of 2018 to contend that the statutory bar created under Sec. 18 of the said Act is not absolute, but the Court has discretion to lift the bar in appropriate cases.
6. On the other hand, learned APP as well as learned Advocate appearing for the Informant have resisted the bail. The learned counsel appearing for the Informant has relied on the decision of the Supreme Court in the case of Vilas Pandurang Pawar and another Vrs. State of Maharashtra and others, reported in (2012) 8 SCC 795 to contend that the statutory bar cannot be easily brushed aside, since the object of Legislation is to provide protection to the members belonging to Scheduled Castes and Scheduled Tribes.
7. There can be no dispute that in befitting cases Court can lift the statutory bar. However, for that purpose, the Court should record prima facie satisfaction that the offence punishable under Special Statute has not been made out. So far as the provisions of the said Act are concerned, the allegations are of commission of offence punishable under Ss. 3(1)(r), 3(1)(s) and 3(2)(va) of the said Act. There is no dispute that the alleged occurrence took place at Tanda, which is a public place. Moreover, investigation paper contain various statements of the persons, who were present on the spot. Therefore, at this juncture, there is no material to prima facie hold that the offence was not committed within the public view. So far as, the offence under Sec. 3(2) (va) of the said Act is concerned, the offence under Sec. 323 is a scheduled offence. Therefore, there exists prima facie material to constitute the offence punishable under the Special Act and the statutory bar would apply.
8. So far as the rest
