IMPORTANT POINT
The court established that the bar on bail under the Atrocities Act does not apply to applications made under Sec. 439 of the CrPC, and emphasized the importance of distinguishing between instigation and direct involvement in criminal acts when considering bail applications.

JUDGMENT/ORDER

VIBHA KANKANWADI, J. - Admit.

2. Present Appeal has been filed under Sec. 14-A(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act (for short "the Atrocities Act ") to challenge the order dtd. 21/2/2023 passed by the learned Special Judge under the Atrocities Act and Additional Sessions Judge, Ambajogai, below Exhibit-5 in Special Atrocity Case No.90 of 2022, thereby rejecting the bail application filed under Sec. 439 of the Code of Criminal Procedure by the present appellant. The present appellant has been arrayed as accused No.1 in the said case. It is arising out of Crime No.437 of 2022 registered with Ambajogai City Police Station, Taluka Ambajogai, District-Beed on 6/10/2022 for the offence punishable under Ss. 143, 147, 148, 149, 120-B, 302, 324, 326, 504 of the Indian Penal Code and Ss. 3(2)(v) and 3(1)(r)(s) of the Atrocities Act.

3. Heard learned Advocate Mr. Thombre appearing for the appellant, learned APP appearing for the State and learned Advocate Mr. Telgaonkar appearing for respondent No.2.

4. It has been vehemently submitted on behalf of the appellant that since the application was under Sec. 439 of the Code of Criminal Procedure, there was no bar under Sec. 18 or 18-A of the Atrocities Act, as the said bar is for the application under Sec. 438 of the Code of Criminal Procedure. The learned Special Judge therefore ought to have considered the said application from that angle. The appellant came to be arrested on 6/10/2022 and after undergoing the police custody, he is in magisterial custody since 10/10/2022. The investigation is complete and charge-sheet is filed before the learned Special Judge on 22/12/2022, therefore, the physical custody of the appellant is not required for the purpose of investigation. The contents of the First Information Report (for short "the FIR ") as well as the entire documents in the charge-sheet would show that an incident had taken place around 10.30 a.m. on 5/10/2022 in the grocery shop as well as in front of grocery shop of the appellant. It is alleged that the present appellant had abused deceased Gorakhnath, who is the father of respondent No.2 / original informant, in the name of caste. It is then stated that grand-father of the informant had pacified the dispute, but then the father of the informant had continued his daily pursuit. Father of the informant went to his field and returned around 4.45 p.m. He then told informant that he received phone call from one Manoj Itkar when he was in the field, whereby Manoj had called him to the shop of present appellant. Said Manoj had abused Gorakhnath on phone and asked him to come to the shop of the appellant by giving threats. Thereafter informant has told his father that he should not go to the shop of the appellant. Informant then says that hooligans, who were brought by the present appellant, were raising chaos and abusing Gorakhnath by standing at the end of the galli in which the house of the informant is situated. It is then stated that Gorakhnath and grand-father Madhukar started to go towards those persons who were abusing and then the informant followed them. It is then stated that Manoj had stabbed khanjir (like sharp knife) on the buttock of Gorakhnath. One Navnath Itkar caused grievous injuries to Gorakhnath by assaulting him on his head by brick. Suraj Ramesh Kadam i.e. son of the present appellant had assaulted grand-father Madhukar More on his head by scythe. It is then stated that all the other accused persons had assaulted Gorakhnath on his chest, stomach, back etc. with an intention to kill him. Informant is not taking name of the present appellant in the list of those accused who had actually assaulted the father. It is specifically stated that the appellant was instigating all the accused persons by saying that Gorakhnath should not be left and he should be killed. Thus, except the alleged instigation, no role is attributed to the present appellant of actually causing in