Urmila S. Joshi-Phalke JUDGMENT
Urmila S. Joshi-Phalke, J.
1. Heard finally with the consent of learned Counsel for the parties.
2. Present appeal is preferred by the appellant under Section 14A of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Act of 1989' for short) against the order by which the anticipatory bail application of the appellant, is rejected by the Sessions Court.
3. Present appellant has filed an application for grant of anticipatory bail under Section 438 of Code of Criminal Procedure in connection with Crime No. 459 of 2023 registered at police station Gadge Nagar, Amravati under Sections 323, 504, 506(2) of the Indian Penal Code and under Sections 3(1)(r) and 3(1)(s) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. The appellant is apprehending his arrest at the hands of the Police as crime is registered on the basis of report lodged by Manoj Rameshrao Ingle on an allegation that on 1st April 2023 at about 2.20 p.m., he reached at Irvin square, near Rajeshwari Vidyalaya near his house on Priyanka colony road. At about 4.15 p.m., when he was alone on the road one person came by covering his face by dupatta and snatched dupatta which was around his neck. Due to which he fallen on the ground. During scuffle he removed the dupatta of the said person and it revealed to him that said person is the present appellant by name Ajinkya Ghogare. It is further alleged that the present appellant attempted to press his neck by means of said dupatta and assaulted him by fist and kick blows and also threatened him. On the basis said report, police have registered the offence against the present appellant.
4. As per the contention of the present appellant he is qualified as a Bachelor of Engineering and working as a Junior Engineer with the Amravati Municipal Corporation from the year 2018. The Amravati Municipal Corporation reserved one land for library, primary school and vegetable market vide Reservation No. 11, 12 and 13. However, there is slum area at Mouza Shegaon within the limits of Amravati Municipal Corporation. The informant, who claims to be an office bearer of the Republican Party of India and holding the post of Youth City President of the Republican Party of India since 2021, there was correspondence by the office bearer of the Republican Party of India for regularizing the encroachment by the person on the aforementioned reservations. Under the scheme known as "Pradhan Mantri Aawas Yojana" several persons who are residing in the slum area, have made an application for getting the residence under the said scheme. The present appellant was entrusted the work of spot inspection under the said scheme in order to determine the entitlement of the beneficiaries. The informant used to extend threats to the government officials in order to pressurize them. On 10.02.2023, the informant have made a complaint with the Collector, Amravati requesting to remove the appellant from his post. Thus, the informant was having grudge against the present appellant. On 24.02.2023, when the appellant along with the Deputy Engineer Shri Sunil Chaudhary had been to mouza Shegaon for conducting the survey, at that time the informant obstructed them and the appellant has reported the said incident to the Gadge Nagar police station. On the basis of the report lodged by the present appellant crime is registered against the informant under Sections 353, 504 and 506 of the Indian Penal Code vide Crime No. 299 of 2023. The informant was arrested in the said crime and subsequently, released on regular bail.
5. On 21.03.2023 the informant through one another Sanghtana filed a representation to the Commissioner, Amravati Municipal Corporation and made a complaint against the appellant. The Corporation has directed the City Engineer to prepare report. Pending the enquiry, the informant have filed this report with the false allegation that he was abused and assaulted by the present appellant. In fact, present appellant had no occasion to go to the Priyanka Colony as it was a Saturday. He is resident of native place Chincholi and after office hours, he had been to on his way to Chincholi by his Car bearing registration No. MH-28-AZ-2767 at about 4:10 p.m. to 4:15 p.m. At the relevant time, he was on petrol pump situated near Sikchi Resort. The CCTV footage near the said petrol pump reveals that at the relevant time, when the alleged incident according to the informant has taken place, the appellant was proceeding towards his village Chincholi. Thus, this fact is sufficient to show that due to previous complaint lodged by the present appellant against the informant, he is falsely implicated in the alleged crime. Therefore, he is apprehending arrest at the hands of the police and prays for anticipatory bail in the event of arrest.
6. Said application is strongly opposed by the State on the ground that after registration of the First Information Report (FIR), the Investigation Agency has registered the crime and drawn the spot panchnama. There is prime facie material against the present applicant, which requires the custodial interrogation, and hence, anticipatory bail application deserves to be rejected.
7. Said application is strongly opposed by the original complainant also on the ground that, the present appellant had assaulted him and attempted to press his neck and kill him. There is prima facie material against the present appellant. If he is released on bail there is a possibility of tampering of the witnesses and hence, the application deserves to be rejected.
8. Heard learned Counsel Shri P.R. Agrawal for the appellant. He is stated that the recitals of the FIR shows that nobody was present at the time of incident. Thus, the alleged incident has not occurred within a public view. From the record it reveals that previously present appellant has lodged the report against the informant and to give counter blast to the said report, this false report is filed. The Bar under Section 18 of the Act of 1989 is not applicable in the present case as prima facie material is not sufficient to show that the appellant has committed the offence punishable under the provisions of the Act of 1989. The custodial interrogation of the present appellant is not required. The printouts of the CCTV footage shows that at the relevant time, when the alleged incident has taken place, the appellant was on his way to Chincholi as he was proceeding to the native place. This fact is sufficient to show that false report is lodged against the present appellant. Considering all these aspects, the appellant be released on anticipatory bail in the event of his arrest. In support of his contention, he placed reliance on the decision of the Avakash Vs. State of Maharashtra and ors. MANU/MH/2333/2021 : 2021 ALL MR(Cri) 3435 wherein it is held that dispute going on between the applicant and his care taker, who allegedly threatened the applicant to involve in atrocity case, the FIR is quashed. He further placed reliance on Virendra Singh Vs. State of Rajasthan MANU/RH/0355/2000 : 2000 CRI.L.J.2899 wherein the Full Bench of the Rajasthan High Court held that if a person is even alleged of accusation of committing an offence under the Act of 1989 the intention of Section 18 is clearly to debar him from seeking the remedy of anticipatory bail and it is only in the circumstances where there is absolutely no material to infer as to why Section 3 has been applied to implicate a person for an offence under the Act of 1989 the Courts would be justified in a very limited sphere to examine whether the application can be rejected on the ground of its maintainability. What is intended to be emphasized is that while dealing with an application for anticipatory bail, the Courts would be justified in merely examining as to whether there is at all an accusation against a person for registering a case under Section 3 of the Act of 1989 and once the ingredients of the offence are available in the FIR or the complaint, the Courts would not be justified in entering into a further inquiry by summoning the case diary or any other material as to whether the allegations are true or false or whether there is any preponderance of probability of commission of such an offence. Such an exercise is intended to put a complete bar against entertainment of application of anticipatory bail which is unambiguously laid down under Section 18 which is apparent from the perusal of the Section itself and thus, the Court at the most would be required to evaluate the FIR itself with a view to find out if the facts emerging there from taken at their face value disclosed the existence of the ingredients constituting the alleged offence. He further placed reliance on Ratnakala Martandrao Mohite Vs. The State of Maharashtra and anr. MANU/MH/0585/2019 : 2020 ALL MR (Cri) 334, Navnath s/o Dalsing Rathod @ Aade and ors. Vs. State of Maharashtra thr. Police Inspector Karmad Police Station, Aurangabad and anr. in Criminal Appeal No. 968 of 2018 decided on 25.04.2019 and Jagdish Sajjankumar Banka Vs. State of Maharashtra and anr. MANU/MH/0869/2023 wherein by referring the judgment that Full Bench of the Rajasthan High Court, it is held that the issue of applicability of Section 18 of the Act elaborately and held that the provisions of Section 18 as well as newly amended Section 18 of the Act of 1989 create a bar for exercising jurisdiction under Section 438 of the Cr.P.C. However, it would not preclude the concerned Court from examination of allegations made in the FIR on its face value to determine whether prima facie case is made out or not. In Vilas Pandurang Pawar and anr. Vs. State of Maharashtra and ors. [MANU/SC/0732/2012 : 2012 ALL MR (Cri.) 3743 (S.C.)] wherein the Hon'ble Apex Court held that no Court shall entertain application for anticipatory bail in the offence registered under the provisions of the Act of 1989, unless it prima facie finds that such an offence is made out. Similar principles also laid down by this Court. In such circumstances, it is evident that in spite of bar under Section 18 of the Act of 1989 for involving the powers under Section 438 of the Cr.P.C., it is still open to this Court to find out by looking into FIR as to whether prima facie case is made out by the complainant against the appellant. Thus, the application under Section 438 of the Cr.P.C. needs to be considered for ascertaining whether there is material to make out prima facie case for offence punishable under the Act of 1989.
9. Learned Counsel Shri P.R. Agrawal submitted that in case in hand it reveals from the record that present appellant has initially filed the complaint against the informant and only to give counter blast to the said complaint, present false report is lodged against the appellant. Thus, prima facie case is not made out against the present appellant to attract the bar under Section 18 of the Act of 1989 and therefore, he be released on anticipatory bail.
10. The learned Additional Public Prosecutor vehemently submitted that considering the bar under Section 18 of the Act of 1989 present application deserves to be rejected. He further submitted that the alleged incident has taken place within the public view. The statement of the witnesses shows that they have witnessed the alleged incident and the informant was assaulted by the present appellant. Therefore, the custodial interrogation of the present appellant is required. Moreover, in view of the bar under Section 18 of the Act of 1989, application deserves to be rejected.
11. The point of controversy in the present appeal is on the question of pre-arrest bail by exercising power under Section 438 of the Cr.P.C. The appellant preferred present appeal by resorting the remedy under Section 14-A(2) of the Atrocities Act, 1989 and submitted that as prima facie case is not made out by under Section 18, is not applicable in the present case.
12. The allegations against the present appellant is that on 01.04.2023 at about 4.30 p.m. when informant was travelling besides his house on the Priyanka colony road, the present appellant came there by covering his face and pulled the informant by means of dupatta and attempted to strangulate his neck by the said dupatta and assaulted him by fist and kick blows. It is further alleged that present appellant also threatened him that he will commit his murder and fled away from the spot of incident.
13. The said allegation is denied by the present appellant and submitted that he is Engineer serving in Amravati Municipal Corporation on contract basis. One scheme under the "Pradhan Mantri Aawas Yojna" was run by the Amravati Municipal Corporation wherein several slum residents applied for the residence. The appellants was entrusted the work of spot inspection and was determining the entitlement of the beneficiaries. As the part of the job, on 24.02.2023, when the appellant had been with the Deputy Engineer at Mouza Shegaon for conducting the survey, present informant obstructed them therefore, present appellant lodged the report against the informant. On the basis of said report, crime has been registered under Section 353, 504 and 506 of the IPC vide Crime No. 299 of 2023 at Gadge Nagar Police Station. Thereafter, through another Sanghatna, the informant has lodged the report against the present appellant and the Commissioner has directed the City Engineer to prepare the report. During the pendency of the inquiry, present report is lodged against the appellant only to give counter blast to his report. In support of his contention he placed on record various documents including the FIR lodged by him. The recitals of the FIR lodged by the present appellant shows that on 24.02.2023, when he had been to Shegaon for the verification, the informant along with some other persons came there and abused the appellant and obstructed his work when he was on a duty as a public servant. Further contention of the appellant is that it is alleged by the informant that the alleged incident has occurred on 01.04.2023. In fact, on that day, after completing the official work, he was proceeding towards his village and to show that he has produced the photocopy of CCTV footage, he has obtained the said CCTV footage from the petrol pump and submitted to the same to the Investigating Officer. It is submitted that from the said CCTV footage it is clear that on the day of incident he had been to Chicholi road. Thus, the contention of the present appellant is that at the relevant time he was not at all present at the spot of incident and this false report is lodged against him.
14. I have given the consideration to the rival submissions of both the parties. I have also perused the various decisions on which the appellant placed reliance. This Court in the case of Ratnakala Martandrao Mohite Vs. The State of Maharashtra and anr. and Navnath s/o Dalsing Rathod @ Aade and ors. Vs. State of Maharashtra (supra) have considered the scope of Section 18 and applicability. The decisions relied upon the judgment of Kiran s/o Madukar Ingle Vs. State of Maharashtra and anr. MANU/MH/0290/2019 : 2019 ALL MR (Cri.) 2825 which dealt with the issue of applicability of Section 18 of the Act of 1989 elaborately and held that the provisions of Section 18 as well as newly amended Section 18(A) of the Act create a bar for exercising the jurisdiction under Section 438 of the Cr.P.C. However, it would not preclude the concern Court from examination of allegations made in the FIR on its face value to determine whether prima facie case is made out or not. In paragraph 13 and 15 of the said decision it is held that the Court of Sessions or High Court can entertain the application for pre-arrest bail to ascertain its maintainability. The law does not permit to reject the application for anticipatory bail merely because the case has been registered under Section 3 of the Act of 1989. But, it is incumbent on the part of the Court to examine as to whether the applicant at all is a fit person to be treated as an accused of the crime registered under the Act of 1989. Section 18 of the Act of 1989 does not bar judicial scrutiny of the accusation made in the complaint. When the Court is held competent to enter into scrutiny of the allegations to determine whether the person can be treated as accused of commission of offence under the Act of 1989, there is question would arise as to what extent the Court would be justified to examine material to determine the prima facie case against him. It is further held in paragraph 15 that the exposition of law as referred above unequivocally pointer to the inference that the application for anticipatory bail can be entertained only on the ground of inapplicability of the provisions of Act of 1989 and it would be ascertainable only on perusal of recitals of the FIR or complaint and not beyond that, because once it is gathered from the FIR that the applicant is accused of committing the offence prescribed under Section 3 of the Act of 1989, a bar under Section 18 of the Act of 1989 would instantly operate against him. Therefore, the Courts are not permitted to enter into roving enquiry in regard to sustainability of accusation nurtured on behalf of complainant. Moreover, further scrutiny by summoning the case diary or other material to test veracity of the allegations made in the FIR also not permissible under the law.
15. In case of Vilas Pandurang Pawar (supra) wherein the Hon'ble Apex Court reiterated the similar principle of law and observed that no Court shall entertain the application for anticipatory bail in the offence registered under the provisions of the Act of 1989, unless it prima facie find that such offence is made out. Thus, the principles underlying is that the application under Section 438 of the Cr.P.C. needs to be considered for ascertaining, whether there is material to make out prima facie case for offence punishable under the Act of 1989.
16. After perusal of the FIR lodged against the present appellant prima facie reveals that the allegation against the present appellant is that he attempted to strangulate the neck of the informant and abused him on his caste. The basic ingredient of Section 3(1)(r)(s) are that there must be "intentional insults" with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view. In Shantabai Vs. State of Maharashtra [MANU/MH/0032/1981 : 1982 Cri.L.J. 872] wherein it has been held that merely calling a person by his caste name though may amount to insult or abuse to him, it cannot be said to be with intent to humiliate such person.
17. The allegations against the present appellant is that he called the informant by his caste. He has stated in his FIR the mode and manner in which the appellant had insulted and humiliate him, being a member of the Scheduled Caste. The record further shows that there was previous report lodged by the present appellant against the informant as he has obstructed when the appellant was discharging his official duty. If the allegations in the FIR are taken into consideration, to attract the provisions, it is alleged that the present appellant has called him on his caste. From the various judicial decisions it is evident that application under Section 438 of the Cr.P.C. for the relief of anticipatory bail can be entertained only on the ground of inapplicability of the provisions of the Act of 1989 and it would be verifiable only after perusal of recitals of FIR or complaint itself and not beyond that. It is the rule that once it is gathered from the FIR that the appellant is the accused of committing of offence as prescribed under Section 3(1)(r)(s) or 3(1)(w)(ii) of the Act, the bar under Section 18A of the Act of 1989 would come into operation against him. If the contents of FIR do not constitute ingredients of offence under the Act of 1989, there would not be any embargo of statutory bar in grafted under Section 18 or 18A of Act of 1989. It is not permissible for the Court to enter into roving enquiry in regard to sustainability of accusation nurtured on behalf of the complainant.
18. Taking into consideration overall factual matter, as observed by this Court in case of Shantabai (supra) merely calling a person by his caste though may amount to insult of abuse to him, it cannot be said to be with intent to humiliate such person. From the recitals of the FIR also it reveals that at the relevant time, the informant was standing alone on the road. Taking into consideration the well settled law that inspite of Bar under Section 18 and 18A of the Act for involving the power under Section 438 of the Cr.P.C., it is still open to this Court to find out by looking to the FIR of the case itself as to whether prima facie case is made out against the present appellant. There are circumstances shows that there was previous dispute between informant and the present appellant. Present appellant has filed report against him. There are no any circumstances incriminating in nature on record to point out intentional insult or intimidation with intent to humiliate the informant within public view by the appellant.
19. On the Contrary, allegations are against the informant that he obstructed the work of the appellant wherein he was discharging his public duty. Thus, all allegations by the informant are vague in nature. Accordingly, the appeal deserves to be allowed. Hence, the following order :
(i) The impugned order rejecting the bail application passed in Criminal Application No. 498/2023 dated 16/05/2023 passed by the learned Additional Sessions Judge (Special Judge), S.C. and S.T., Amravati is quashed and set aside.
(ii) The appellant-Ajinkya s/o Chandrashekhar Ghogare is herein released on bail on executing P.R. Bond in the sum of Rs. 15,000/-(Rs. Fifteen thousand) with one solvent surety in the like amount in respect of Crime No. 459 of 2023 registered at police station Gadge Nagar, Amravati under Sections 323, 504, 506(2) of the Indian Penal Code and under Sections 3(1)(r) and 3(1)(s) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.
(iii) The appellant shall attend the concerned police station as and when required for the investigation purpose.
(iv) The appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case and shall not tamper the prosecution evidence.
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