ORAL ORDER

1. Admit. Learned A.P.P. waives service of notice of admission for the respondent - State and learned advocate Ms.S.M. Rana waives service of notice of admission for respondent No.2 – complainant. The learned advocate for respondent No.2 – complainant places affidavit-in-reply filed on behalf of respondent No.2, which is ordered to be taken on record.

2. Vide order dated 04.12.2018 passed by the learned Special Judge, Additional Sessions Court, Navsari in Criminal Misc. Application No.1190 of 2018, the learned trial Judge rejected the application of the appellants filed u/s 438 of the Code of Criminal Procedure, 1973 to enlarge them on anticipatory bail in the event of their arrest on account of offence being registered vide C.R.No.I-104 of 2018 with Navsari Town police station, Navsari for the offence punishable under Sections 323, 504, 506(2), 354(B) and 114 of the Indian Penal Code, Section 135 of the G.P. Act and Sections 3(1)(R)(Z)

and 3(2)(5A) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocity) Act, 1989 (for short “Atrocity Act”).

3. Feeling aggrieved by the said order, the appellants preferred said appeal u/s 14A of the Atrocity Act.

4. Brief facts as stated in the FIR in sum and substance are like this:-

4.1. It is alleged that on 24.11.2018 at about 12:30 p.m., when the complainant was at her residence with her husband and two children, at that time, neighbours of the complainant, namely, Mr.Ramghani Gupta, his son and wife came there and used abusive language and insulted the complainant by using words with an intention of humiliating the complainant and further said that she was trying to create hurdle in the process to construct the house. It is alleged that the accused deliberately uttered bad words in order to defame the complainant and her caste and the accused used wooden stick to hurt the complainant and her husband was brutally beaten and assaulted by the accused and his son. It is further alleged that the accused tried to molest the complainant by sitting on her and physically assaulted her and her husband. Thus, the present complaint came to be lodged.

5. Having considered submissions made by the learned advocate for the appellants, learned advocate Ms.S.M. Rana for respondent No.2 and the learned A.P.P., considering the police papers supplied by the learned A.P.P. during the course of hearing as well as considering the averments made in the affidavit-in-reply filed by respondent No.2, it appears that the parties to the proceedings are neighbours and due to some construction activity, the dispute arose which has been over- exaggerated by the respondent No.2 in the complaint. Further, no any past antecedent is registered against the appellants and there are also complaints and counter-complaints in the form of chapter cases are pending between the parties. However, it is legal requirement on the part of respondent No.2 – complainant to aver that the appellants are not the members of the Scheduled Caste or Scheduled Tribe for invoking provisions of section 3 of the Atrocity Act. In similar circumstances, in Gorige Pentaiah Vs. State of Andhra Pradesh and others reported in (2008) 12 SCC 531, the FIR itself was quashed.

6. Similarly, learned advocate appearing for the respondent No.2 placed reliance on the amended provision u/s 18A so as to contend that section 438 of the Code would not apply to a case under Atrocity Act. In case on hand, when required mandatory averments are missing in the F.I.R. itself, it is doubtful whether provisions of Atrocity Act would come into play and, therefore, amended provisions u/s 18A will not help the respondent No.2.

7. In the result, present criminal appeal is allowed and the impugned order dated 04.12.2018 passed by the learned Special Judge, Additional Sessions Court, Navsari in Criminal Misc. Application No.1190 of 2018 is hereby quashed and set aside. The appellants are ordered to be enlarged on bail in the event of their arrest on furnishing a bond