REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
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2 SPECIAL LEAVE PETITION (CRL.) NO. 6432 of 2012
Vilas Pandurang Pawar & Anr. .... Petitioner(s)
Versus
State of Maharashtra & Ors. .... Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) The short question to be decided in this petition is whether an
accused charged with various offences under the Indian Penal Code, 1860 (in
short ‘IPC’) along with the provisions of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short ‘the SC/ST
Act’) is entitled for anticipatory bail under Section 438 of the Code of
Criminal Procedure, 1973 (in short ‘the Code’).
2) In the complaint filed by Savita Madhav Akhade – Respondent No.3
herein, it has been alleged that she has been residing with her family
members at Khandeshwari, Taluq Karjat, Ahmednagar, Maharashtra and earning
their livelihood from agricultural work. It is further alleged that the
complainant is having an agricultural land adjacent to the agricultural
land of one Balu Bhanudas Pawar and Arun Bhanudas Pawar. On 15.06.2012,
the complainant allowed the rain water, which was accumulated, to flow into
the field of Balu Bhanudas Pawar. When the complainant and her husband was
standing on S.T. stand for going to Karjat, at that time, Balu Bhanudas
Pawar came there and abused them on caste on account of the rain water
flowing from the agricultural land of the complainant to his land. The
complainant has also alleged that after their return to home, the
petitioner along with other co-accused persons gathered at their house and
they again abused them on their caste and assaulted the complainant and her
family members by using sticks, stones, fighters etc. Thereafter, on the
same day, an FIR was registered being No. 139/2012 at Karjat P.S.,
Ahmednagar, Maharashtra.
3) The petitioners along with other co-accused filed an application for
anticipatory bail under Section 438 of the Code being Criminal
Miscellaneous Application No. 712 of 2012 before the Court of Sessions
Judge, Ahmednagar. By order dated 04.07.2012, the Additional Sessions
Judge rejected their application for anticipatory bail.
4) Aggrieved by the order of Sessions Judge, the petitioners filed
Criminal Application No. 3012 of 2012 before the High Court of Bombay,
Bench at Aurangabad. By impugned judgment and order dated 19.07.2012, the
High Court, while rejecting the anticipatory bail application of the
present petitioners, allowed the anticipatory bail to 13 accused out of 15.
Being aggrieved, the petitioners approached this court by filing special
leave petition under Article 136 of the Constitution of India.
5) Heard Mr. Dilip Annasaheb Taur, learned counsel for the petitioners.
6) Taking note of the fact that the complaint not only refers to various
offences under IPC but also under Section 3(1)(x) of the SC/ST Act, we
posed a question to the counsel by drawing his attention to Section 18 of
the SC/ST Act as to how the petitioners are entitled to anticipatory bail.
It is useful to reproduce Section 18 of the SC/ST Act which reads as under:
“18. Section 438 of the Code not to apply to persons committing an
offence under the Act.- Nothing in section 438 of the code shall apply
in relation to any case involving the arrest of any person on an
accusation of having committed an offence under this Act.”
A reading of the above provision makes it clear that Section 438 of the
Code is not applicable to persons committing an offence under the SC/ST
Act. In the complaint, the complainant has specifically averred that she
and her family members were insulted by the petitioners by mentioning her
caste and also assaulted them by saying “Beat the Mahar so that, they
should not live in the village.”
7) In order to understand the grievance of the Complainant and the claim
of the petitioners, it is useful to extract the complaint dated 15.06.2012.
“COMPLAINT
I. Sau. Savita Madhav Akhade, Age-45 years, Occu. Household, R/o
Takali-Khandeshwari. Tq. Karjat, (Caste-Hindu Mahar)
I am giving in writing the complaint in the Police Station that, I am
residing on the above place with hushand – Madhav, my sons Ramesh,
Umesh jointly. My husband is in service in the Beed district. Near
my house, Dadasaheb Paraji Akhade, Sadashiv Paraji Akhade and Deelip
Paraji Akhade are residing with their families and doing the
agricultural work. There is my agricultural land in Khandeshwari
area. Near my agricultural land, there is agricultural land of Balu
Bhanudas Pawar and Arun Bhanudas Pawar and they are cultivating their
lands. On 15.06.2012, we allowed the rain water to flow the lower
side and that flow is running from previously.
Today on dated 15.06.2012 at about 7.00 O’Clock, my husband
stood on Takali-Khandeshwari S.T. stand for going to Karjat, at that
time, Balu Bhanudas Pawar came there and said my husband that,
“Mahardya”, I will not be allowed your water to come in my field and
started beating him. After that, the people, who gathered along with
Shivaji Anna Thombe has rescued the quarrel. After that, my husband
came at home. After we came at home, while I was fetching the water
from water tank, the TATA ACC belongs to Vilas Pawar in that all the
people, namely, Balu Bhanudas Pawar, Vilas Pandurang Pawar, Ravi Dada
Pawar, Arun Bhanudas, Pawar, Shrirang Pawar, Deepak Bhagade,
Parmeshwar Indrajit Phadtare, Sudhir Chhagan Phadtare, Satish Namdeo
Kirdat, Raghunath Tukaram Savant, Vitthal Raghunath Savant, Sandeep
Raghunath Savant, Aba Kaka Phadtare, Dattatray Namdeo Pawar, Nephew of
Balu Pawar, all R/o Takali Khandeshwari (Pawar Vasti) came there and
said that, beat the Mahar so that, they should not live in the
village, they are behaving arrogantly, saying that, they started
beating with the weapons in hand like sticks, stones, fighters. In
that quarrel, I myself, Dada Paraji Akhade, Sadashiv Paraji Akhade,
Kundlik Gaikwad, Ramesh Akhade, Umesh Akhade, Rahul Akhade, Asru
Akhade, Deelip Akhade are beaten at the hands of these people, so
also, Nanda Deelip Akhade, Chhabubai Dadasaheb Akhade including myself
were snatched on corner and beaten by these people. Thereafter, Vilas
Pandurang Pawar told to Raghunath Tukaram Savant to help them.
Thereafter, we phoned to police and the quarrel is stopped after the
Police came on the spot.
Therefore, on 15.06.2012, near about 7.00 to 7.30 A.M. the
persons namely, Balu Bhanudas Pawar, Vilas Pandurang Pawar, Ravi Dada
Pawar, Arun Bhanudas Pawar, Shrirang Pawar, Deepak Bhagade, Parmeshwar
Indrajit Phadtare, Sudhir Chhagan Phadtare, Satish Namdeo Kirdat,
Raghunath Tukaram Savant, Vitthal Raghunath Savant, Sandeep Raghunath
Savant, Aba Kaka Phadtare, Dattatray Namdeo Pawar, Nephew of Balu
Pawar, name is not known, all R/o Takali Khandeshwari have gathered
unlawful assembly and assaulted the complainant and her relatives by
means of sticks, stones, fighters and also abused on caste by saying,
“Beat the Mahar so that, they should not live in the village”, on the
ground that, the rain water is allowed to flow in the filed of Balu
Bhanudas Pawar. I and others have sustained injuries. We want to go
in Hospital.
My complaint is read over to me and it is true as stated by me.
Before Hence, written
Sd/- Date: 15/06/12
Police Station Officer,
Karjat Police Station.
Sent to: Hon’ble JMFC
Karjat.
Sd/-
Police Station Officer
Karjat Police Station.”
A perusal of the complaint shows that the petitioners and other accused
persons abused the complainant and her husband by calling their caste
(Mahar) and assaulted them for their action of letting rain water to their
field.
8) Section 18 of the SC/ST Act creates a bar for invoking Section 438 of
the Code. However, a duty is cast on the court to verify the averments in
the complaint and to find out whether an offence under Section 3(1) of the
SC/ST Act has been prima facie made out. In other words, if there is a
specific averment in the complaint, namely, insult or intimidation with
intent to humiliate by calling with caste name, the accused persons are not
entitled to anticipatory bail.
9) The scope of Section 18 of the SC/ST Act read with Section 438 of the
Code is such that it creates a specific bar in the grant of anticipatory
bail. When an offence is registered against a person under the provisions
of the SC/ST Act, no Court shall entertain application for anticipatory
bail, unless it prima facie finds that such an offence is not made out.
Moreover, while considering the application for bail, scope for
appreciation of evidence and other material on record is limited. Court is
not expected to indulge in critical analysis of the evidence on record.
When a provision has been enacted in the Special Act to protect the persons
who belong to the Scheduled Castes and the Scheduled Tribes and a bar has
been imposed in granting bail under Section 438 of the Code, the provision
in the Special Act cannot be easily brushed aside by elaborate discussion
on the evidence.
10) Learned counsel appearing for the petitioners, relying on the
decisions of the Delhi High Court in Dr. R.K. Sangwan & Anr. vs. State,
2009 (112) DRJ 473 (DB) and in Crl. M.C. No. 3866/2008 and Crl. M.C. No.
1222/2009 titled M.A. Rashid vs. Gopal Chandra decided on 23.03.2012 and a
decision of the Orissa High Court in Ramesh Prasad Bhanja & Ors. vs. State
of Orissa, 1996 Cri. L.J. 2743, submitted that in spite of the specific bar
under Section 438 of the Code, the Courts have granted anticipatory bail to
the accused who were charged under Section 3(1) of the SC/ST Act.
11) In view of the specific statutory bar provided under Section 18 of
the SC/ST Act, the above decisions relied on by the petitioners cannot be
taken as a precedent and as discussed above, it depends upon the nature of
the averments made in the complaint.
12) In view of the above discussion and in the light of the specific
averments in the complaint made by the complainant-respondent No.3 herein,
we are of the view that Section 18 of the SC/ST Act is applicable to the
case on hand and in view of the same, the petitioners are not entitled to
anticipatory bail under Section 438 of the Code. Accordingly, the special
leave petition is dismissed. However, it is made clear that the present
conclusion is confined only to the disposal of this petition and the trial
Court is free to decide the case on merits.
...…………….…………………………J.
(P. SATHASIVAM)
..…....…………………………………J.
(RANJAN GOGOI)
NEW DELHI;
SEPTEMBER 10, 2012.
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