Lahu S/O. Vitthalrao Bhosale vs The State Of Maharashtra And Anr

Lahu s/o. Vitthalrao Bhosale, Age 43 years, Occu. Agri., R/o. Devangra, Tq. Chakur, Dist. Latur. ....Appellant.

Versus

1. The State of Maharashtra, Through the Police Station Officer, Chakur Police Station, Chakur, Tq. Chakur, Dist. Latur.

2. Udhav s/o. Vitthalrao Shinde, Age 55 years, Occu. Service, R/o. Devangra, Tq. Chakur, Dist. Latur. ....Respondents.

Mr. N.D. Kendre with Mr. H.V. Patil, Advocates for appellants. Mr. M.M. Nerlikar, APP for respondent No. 1/State. Mr. V.V. Kabade, Advocate for respondent No. 2 (appointed).

CORAM : T.V. NALAWADE AND MANGESH S. PATIL, JJ. RESERVED ON : 28/03/2019. PRONOUNCED ON : 03/04/2019

JUDGMENT :

[PER T.V. NALAWADE, J.]

1) The appeal is admitted. Notice after admission made

returnable forthwith. Heard both the sides for final disposal.

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2) The appeal is filed against the order made by the learned

Special Judge appointed under the provision of Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities) Act, 1989

(hereinafter referred to as 'the Act' for short) and the appeal is filed

under the provision of section 14-A of the Act. The application which

was filed for relief of anticipatory bail by the appellant in C.R. No.

14/2019 registered with Chakur Police Station, Chakur, District Latur

for offences punishable under sections 307, 341, 504, 506 of Indian

Penal Code (hereinafter referred to as 'I.P.C.' for short) and section 3

(1)(r)(s) of the Act is rejected by the learned Special Judge.

3) The first informant Shri. Udhav Shinde and the appellant

are resident of village Devangra, Tahsil Chakur, District Latur. One

Laxman Bhosale is uncle of the appellant and Laxman is a friend of

the first informant. The first informant owns a four wheeler and

appellant also owns a four wheeler. The first incident took place on

3.1.2019 at about 6.10 p.m. It is the contention of the first

informant, respondent that when he was returning from his

agricultural land in his car, the car of the appellant came from

backside and it tried to give dash to the car of first informant. It is

contended that he somehow avoided the impact, but the car of

appellant overtook his car and then by stopping the car in front of

his car, the appellant made the first informant to stop the car. It is

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contended that the appellant then started talking in threatening

language and the appellant asked the first informant to convince

Laxman Bhosale to make partition of the land and give the share to

the appellant. It is the contention of the first informant that

appellant gave threat of life and said that if his share is not given,

he will finish not only Laxman, but also the first informant. It is

contended that this incident was witnessed by some witnesses and

their names are mentioned in the F.I.R. by the first informant. It is

contended that on that occasion, the first informant had contacted

father of the appellant and as the father had said sorry for the

incident and he had requested not to take any action, he had not

taken any action in respect of the incident dated 3.1.2019.

4) According to the first informant, on 11.1.2019 at 5.30

p.m. when he was returning from his field and when he was on his

foot on Devangra road, the appellant drove his four wheeler at him

and tried to finish him. According to him, he somehow jumped aside

and saved himself. It is contended that on that occasion also, the

appellant again gave threat of life and this incident was also

witnessed by some witnesses. The names of these witnesses are

mentioned in the F.I.R. It is contended that on both the occasions,

the appellant wanted to finish him. In view of the nature of

allegations, the crime was initially registered for offences punishable

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under sections 307, 341, 504 and 506 of I.P.C.

5) On 13.1.2019 the first informant gave supplementary

statement and in that statement, he contended that due to

oversight, he did not mention in the report dated 11.1.2019 that he

belongs to scheduled tribe and the appellant does not belong to

scheduled caste or scheduled tribe and he is of Maratha caste. The

first informant contended that the aforesaid incidents took place due

to hate of appellant towards the first informant as he belongs to

scheduled tribe. Along with the supplementary statement, he

produced caste validity certificate. He informed that he had not

sustained any visible injury on both the occasions.

6) The record of investigation shows that the first informant

was working as Senior Police Inspector for Caste Scrutiny

Committee, Gadchiroli. It is his contention that he was on leave at

the relevant time and so, he was present at the native place. On the

other hand, the learned counsel for appellant submitted that the first

informant was suspended during that time due to his misconduct.

7) There are statements of witnesses who are named in the

F.I.R. The statements show that the witnesses in respect of the

incident dated 11.1.2019 say that they did not witness any incident.

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There are statements of persons like Limbaji, Ramakant and Ankush

in respect of the incident dated 3.1.2019, but they say that they

only heard the conversation which was going on between the

appellant and the first informant. According to them, the appellant

was talking about the property dispute between him and his uncle,

but in their presence, no threats were given and no abuses were

given by the appellant to the first informant. Thus, in respect of the

incident dated 3.1.2019 the witnesses say that no offence at all was

committed. In respect of incident dated 11.1.2019 there are only

allegations of the first informant and there is no corroboration of

statements of any witnesses or circumstantial evidence. The police

papers include the statement of Laxman Bhosale, uncle of the

appellant and it shows that partition had taken place, but the names

of the sharers were not entered in the revenue record.

8) The learned Special Judge has rejected the application

filed by the present appellant for anticipatory bail by holding that

there is bar of provision of section 18-A(2) of the Act. The learned

APP and the learned counsel for first informant strongly opposed the

present appeal by contending that the provision of section 18-A(2)

of the Act which came into force with effect from 20.8.2018 has

created a clear bar to the proceeding under section 438 of Criminal

Procedure Code (hereinafter referred to as 'Cr.P.C.' for short) and

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this Court has also no jurisdiction to grant relief by allowing the

appeal. The learned APP submitted that in view of the aforesaid

provision, the decisions, if any, given in the past to hold that the

application under section 438 of Cr.P.C. is tenable, cannot be used

after 20.8.2018. In view of the nature of contentions raised, the

scheme of the Act and the relevant provisions of Constitution of

India, this Court is considering, whether the High Court or the

Sessions Court (Special Court) cannot entertain the application filed

under section 438 of Cr.P.C. even to ascertain as to whether the

crime under the Act is committed or not and whether the Court

should go with the presumption that there is material to make out

prima facie case for offences mentioned in the Act when the crime is

registered for offences punishable under the Act.

9) For considering the effect of the amendment which came

into force with effect from 20.8.2018 and which added the provision

of section 18-A in the Act, it is necessary to consider the objects

behind the main Act of 1989, the objects behind amendment of

2016 and the objects behind the amendment of 2018.

10) The sum and substance of the objects and reasons

clause of the main Act of 1989 show that the Act is made to protect

the persons of scheduled castes, scheduled tribes from the practices

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of untouchability, to protect their right to get minimum statutory

wages, to protect them from bonded or forced labour, to prevent

others who try to cow down the people of schedule castes and

schedule tribes and terrorise them etc. The objects and reasons

clause also show that to achieve the object, the provisions are made

in the Act which provide for higher punishment if the offence is

committed against the people of scheduled castes and scheduled

tribes.

11) The objects and reasons clause of amendment of 2016

shows that to expedite the trial of the case, to have speedy

investigation and to provide for removal of obstructions which were

noticed at the time of arrest of the offenders under the Act and also

to remove the obstacles which were noticed in the process of filing

chargesheet and also to tackle the low conviction rate, the

amendment was made. The amendment also provided for relief to

and rehabilitation of victims of such offences. Some presumptions

were raised to see that the conviction rate is increased. Section 18

of the Act was there right from beginning.

12) The amendment of 2018 has also statement of objects

and reasons. The statement of objects and reasons show that the

amendment was made to make it clear that the previous enquiry is

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not necessary for registration of the crime in such cases and there is

no need of prior approval before making arrest of the offenders

under the Act. The case of the Apex Court which made it necessary

for the legislature to make amendment is the case reported as

(2018) 6 SCC 454 [Dr. Subhash Kashinath Mahajan Vs. State of

Maharashtra and Ors.]. In this case, the Apex Court had given

directions to see that some preliminary enquiry is made prior to

registration of the crime and the period for the same was fixed. The

object behind the preliminary enquiry was stated as to avoid

frivolous or motivated registration of the crimes. Further, direction

was given to see that if the offender was not public servant,

permission is obtained from Senior Superintendent of Police of

District and the permission is obtained from appointing authority

when the offender involved is a public servant before the arrest. The

Apex Court had also observed that there is no absolute bar in

respect of the applications of anticipatory bail filed under the Atrocity

Act if prima facie case is made out or where on judicial scrutiny, the

complaint is found to be prima facie malafide. For giving such

direction, the provisions of Article 14 and 21 of the Constitution of

India were referred and section 18 of the Act was interpreted. This

was the decision of two Hon'ble Judges of the Apex Court. The

previous section creating bar was section 18 of the Act and it runs as

under :-

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"Section 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."

13) By way of amendment of the year 2018 following

provision was inserted :-

"18-A. No enquiry or approval required.- (1) For the purposes of this Act :-

(a) preliminary enquiry shall not be required for registration of a First Information Report against any person; or

(b) the Investigating Officer shall not

require approval for the arrest, if necessary, of any person,

against whom an accusation of having committed an offence under this Act has been made and no procedure other than that provided under this Act or the Code shall apply;

(2) The provisions of Section 438 of the Code shall not apply to a case under this Act,

notwithstanding any judgment or direction of any Court."

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(2) of the Act, it is provided that the provision of section 438 of

Cr.P.C. shall not apply in relation to the offences committed under

the Act, irrespective of any judgment, order or direction of any

Court, no power is left with the Sessions Court (Special Court) or the

High Court to consider the matter even to ascertain as to whether

there is material to make out prima facie case for the offence

committed under the Act. He submitted that in criminal law, the

interpretation should be strict in accordance with the object behind

the law and further, the interpretation needs to be only literal

interpretation and no other rule for interpretation can be invoked. He

placed reliance on the cases of Apex Court on this point. He further

submitted that even objects and reasons clause of the main Act

cannot be referred when there is such amendment and on that

point, he referred a case of Apex Court.

14) This Court has already quoted the sum and substance of

the statement of objects and reasons of the original Act, of the

amended Act of 2016 and of the amended Act of 2018. The reason

behind the amendment of 2018 is given which is quoted already. The

main object of the Act remained the same and in the past also, there

was provision of section 18 which is not much different from the

provision of section 18-A (2) of the Act. In the case of Dr. Subhash

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cited supra, some directions were given by the Apex Court and those

directions had diluted the powers of the investigating agency to

arrest the offenders who had committed the offences under the Act

and there was some restriction in the duty of the police to register

the crime when the report in respect of cognizable offence is

received which must be registered as per the settled law if the police

officer forms an opinion that such offence has been committed. It

needs to be kept in mind that the provision of section 18 of the Act

was kept intact and provision of section 18-A(2) was added which

can be said as supplementary provision to main section 18. In view

of the situation created by the case of Dr. Subhash cited supra, the

entire provision of section 18-A was inserted by legislature and so, it

can be said that the main purpose of the legislature was to say that

there was no necessity of any enquiry before registration of the

crime and there was no necessity of taking approval before making

arrest of the offender if the offence is committed under the Act.

Apparently, there was no other reason for the amendment of the

year 2018. That is the only interpretation which is possible in respect

of non-obstanete clause added in section 18-A(2) "Notwithstanding

any judgment and order or direction of any Court bar, shall apply".

15) Even if the proposition made by the learned APP that due

to nature of aforesaid amendment viz. Section 18-A(2) of the Act,

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the decision, if any, of the Apex Court rendered in the past including

the decision of Dr. Subhash cited supra and the decisions of the

High Courts given in the past [to the effect that the matter filed

under section 438 of Cr.P.C. can be entertained, to ascertain as to

whether there is material to make out prima facie case] are nullified,

is accepted, it cannot be ignored that the higher judiciary has the

power to interpret the new provisions also to ascertain the object

behind the new provision. This is in addition to the power to

ascertain the Constitutional validity of such newly added provision.

16) The learned counsel for appellant placed reliance on

some cases decided by higher judiciary and they are as under :-

(i) C.R.M. 10431/2018 [Pradipta Biswas Vs. State of West Bengal] dated 26.2.2019 decided by Calcutta High Court.

(ii) Cr.A.No. 7295/2018 [Atendra Singh Rawat Vs. State of Madhya Pradesh] dated 11.10.2018 decided by Madhya Pradesh High Court.

(iii) (1996) 11 SCC 428 [K. Sankaran Nair (Dead) through L.Rs. Vs. Devaki Amma Malathy Amma and Ors.].

In the decision given by the learned Single Judge of this Court in

Criminal Appeal No. 787/2018 (Kiran s/o. Madhukar Ingle Vs.

The State of Maharashtra and Anr.) decided on 26.2.2019, the

learned Single Judge has referred the case reported as 2012 Cri.L.J.

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4520 [Vilas Pandurang Pawar and Anr. Vs. State of

Maharashtra] of Supreme Court and the cases of other High Courts

including the case of Full Bench of Rajasthan High Court reported as

2000 Cri.L.J. 2899 [Virendra Singh Vs. State of Rajasthan].

There are observations of Full Bench with regard to the

interpretation of provision of section 18 of the Act and they are as

under :-

"(18). In the matter of State of M.P. v. R.K. Balothia (supra), although the consideration was only in regard to the challenge to the constitutional validity of the Act of 1989 and Sec. 18 of the said Act in particular while dealing with the same, the arguments which have been advanced by some of the counsel in this reference regarding extent of the scrutiny of material and maintainability of the application also impliedly under consideration and although the Apex Court expressly did not enter into the question as to what extent the Courts would enter into scrutiny of material, the tone and tenor of the entire judgment is more than a pointer to the inference that once a person is accused of an offence under Sec. 3 of the Act of 1989, his remedy seeking anticipatory bail is completely barred and as observed in the matter of Rakesh's case (1995 Raj Cri C 329) (supra) by the Apex Court in Cr. Appeal No. 640/96 dated 7-5-1996, the Courts would not be justified in entertaining the application for anticipatory bail

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once an offence under the Act of 1989 is disclosed in the FIR. In view of the ratio of these two judgments, there is no scope left for this Full Bench to enter into the question regarding the extent and scope of interpretation of Sec. 18 of the Act of 1989 on the ground of curtailment of personal liberty for once a person is accused of an offence and a case is registered against him under the Act of 1989, the Court of Session and the High Court in view of the clear bar of Sec. 18 of the Act of 1989 would clearly be precluded from entering into the enquiry of the allegations levelled against the accused and we find substance in the contention that if the Courts are permitted to enter into a roving enquiry in regard to the allegations, the whole purpose and effect of the section would be totally defused and would make it totally otiose and redundant. This is also the ratio which is clearly reflected from the case of State of M.P. v.

R.K. Balothia (1995 Cri L J 2076) referred to hereinbefore as in the said case, the same set of arguments were advanced that if the courts are precluded from entering into the enquiry into the allegations there would be complete negation of the right to liberty envisaged in the Constitution. We are afraid that if an interpretation of Sec. 18 is made in a manner so as to permit scrutiny of materials into the case diary, charge-sheet, statements of the witnesses and other materials on record, it would be difficult to make a

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distinction between usual application for anticipatory bail and the one filed in a case alleged against an accused under the Act of 1989. It has to be borne in mind that if a person is even alleged of accusation of committing an offence under the S.C. S.T. 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 Sec. 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 Sec. 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 prepondence of probability of commission of such an offence. Such an exercise in our view is intended to put to a complete bar against entertainment of application of anticipatory bail which is unambiguously laid down under Sec. 18 of

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the Act of 1989, 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 therefrom taken at their face value disclose the existence of the ingredients constituting the alleged offence. In our opinion, the Court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint by calling for the case diary, charge sheet or any other material gathered at the time of investigation but if the allegations in the FIR or the complaint even if they are taken at their face value are accepted in their entirety do not constitute the offence alleged, it is only in those miniscule number of cases, the Courts would be justified in entertaining the application, not because it is maintainable but clearly because the Act would be inapplicable in the facts and circumstances of that particular case. Thus the application for anticipatory bail can be entertained only on the ground of inapplicability of the Act of 1989 due to the facts of the case which will have to be gathered only from the FIR and not beyond that because once it is gathered from the FIR that the applicant is an accused of committing an offence laid down under Sec. 3 of the Act of 1989, the bar of Sec. 18 would instantly operate against the person who has been made an accused of the

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offence under the Act of 1989. To put it differently, once it is apparent from the FIR that an offence under the Act of 1989 is even alleged, the Courts would not be justified at all in weighing or scrutinising the prepondence of the probability of commission of the offence by the accused, but if from the FIR itself the ingredients of offence as laid down under Sec. 3 of the Act itself is found to be missing, the bar created by Sec. 18 would not be allowed to operate against an accused and only in that event his application for anticipatory bail would be dealt with by the concerned Court to determine whether the Act of 1989 can be said to be rightly applicable against the accused and not to enter into further enquiry into the matter so as to determine whether the allegations levelled against the accused in the FIR are true or false and there would be no justification to enter into the matter further in order to examine whether the allegations levelled against the accused are even prima facie correct or incorrect. Any other interpretation, in our opinion, would go against the letter and spirit of the clear provision of Sec. 18 of the Act of 1989 which has already stood the test of reasonableness and constitutional validity upto the level of the Apex Court."

In the case of Vilas Pawar referred by the learned Single Judge and

now in the case of Dr. Subhash cited supra, it is made clear that if

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there is no material to make out prima facie case in respect of the

offence committed under the Act, the provision of section 438 of

Cr.P.C. can be used. The learned Single Judge considered the case

decided subsequent to the amendment by Kolkatta High Court and

Madhya Pradesh High Court also.

17) The learned Single Judge held that application under

section 438 needs to be considered for ascertaining whether there is

material to make out prima facie case for offence punishable under

the Act. In the case of Supreme Court cited by the learned counsel

for appellant which is reported as 1996 (11) SCC 428 [K.

Sankaran Nair (Dead) through L.Rs. Vs. Devaki Amma Malathy

Amma and Ors.], the Apex Court has laid down that only due to

circumstance that the law was subsequently amended which had

intention to declare that the judgment already rendered is not in

consonance with the law or amended law, is not binding, it cannot

be said that previous decision of higher judiciary was not binding

and for that, it is necessary for legislature to remove substratum of

judgment or giving retrospective effect to the amendment to

displace the binding nature of the judgment. If that is not done, the

judgment would operate as res-judicata. This case was in respect of

the tenancy and land laws. But, on the same line it can be said that

in the present case, the amendment of 2018 can be used only to the

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extent of the situation which was created by Dr. Subhash's case

cited supra. The situation was in respect of registration of the crime

and the power of police to arrest the offender who has committed

the offence under the Act. The amendment does not show that

inherent jurisdiction of the Court to ascertain as to whether a

particular case falls under the Special Enactment or not is also taken

away. That could not have been done by the legislature.

18) The learned counsel for appellant produced on record

copy of interim order made by the Apex Court in Petition(s) for

Special Leave to Appeal (Cri) No. 7338/2018 arising out of final

judgment and order made by this Court in Criinal Appeal No.

356/2018 dated 356/2018 (Saliquddin s/o. Ziyauddin Chisty Vs. The

State of Maharashtra). Copy of final order made in that case is also

produced. This record shows that interim order was made in favour

of appellant by the Apex Court and it was confirmed on 19.2.2019.

The entire text of the final order is not available. This Court called

the record of Criminal Appeal No. 356/2018 and it shows that the

matter was decided on 6.8.2018 by the learned Single Judge of this

Court and the incident had taken place on 5.4.2018. The provision of

section 18-A came to be introduced on 20.8.2018 and so, the bar of

provision of section 18 was only considered by the learned Single

Judge. However, it can be said that in view of the facts of the matter,

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the Apex Court held that the accused Saliquddin was entitled to

relief of anticipatory bail.

19) The learned APP placed reliance on some reported cases

like (1994) 3 SCC 569 [Kartar Singh Vs. State of Punjab] . In the

said case, five Judge Bench of the Apex Court had held that the

deletion of section 438 from Cr.P.C. by the State was not

unconstitutional. However, it appears that the point was referred to

the larger bench by two Judge Bench of Supreme Court in the case

reported as (1998) 8 SCC 632 [Jagat Prasad Vs. State of U.P.].

In the case reported as AIR 1995 SC 1198 [State of M.P. & Anr.

Vs. Ram Kishna Balothia], the Apex Court held that section 18 of

the Act is valid. It is observed that the provision aims to protect the

persons who are victims of the offences and the provision is there to

take care of the possibility that the persons involved as offenders

may terrorise the victims and may prevent proper investigation, if

the relief of anticipatory bail is granted to them. This Court is not

entering into the validity of the provision of section 18 of 18-A of the

Act. For the present purpose, this Court is going with the

presumption that the legislature has power to make provision like

section 18 or 18-A in the Act of present nature. This Court is

attempting only to address the point as to whether the inherent

jurisdiction of the Court to consider as to whether the matter falls

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under the special legislation is taken away by the provision like

section 18 or 18-A of the Act.

20) In the landmark case reported as AIR 2007 SC 1450

[D.K. Ganesh Babu Vs. P.T. Manokaran & Ors.] , the Apex Court

has discussed the provision of section 438 and it is laid down that in

exceptional circumstances anticipatory bail can be granted. In

section 438 of Cr.P.C., the factors which are required to be taken into

consideration by the Court are given and the provision is as

follows :-

"438. Direction for grant of bail to person apprehending arrest .- (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest, he shall be released on bail, and that Court may, after taking into consideration, inter alia, the following factors:- (i) the nature and gravity or seriousness of the accusation as apprehended by the applicant;

(ii) the antecedents of the applicant including the fact as to whether he has, on conviction by a Court previously undergone imprisonment for a term in respect of any

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cognizable offence;

(iii) the likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested, and

(iv) the possibility of the applicant, if granted anticipatory bail, fleeing from justice,"

either reject the application forth with or issue an interim order for the grant of anticipatory bail:"

With effect from 21.4.2018 sub-section (4) was added to section 438

and it runs as under :-

"(4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA of section 376DB of the Indian Penal Code."

In the case reported as (1980) 2 SCC 565 [Shri. Gurbaksh Singh

Sibbia and Ors. Vs. State of Punjab], the Constitutional Bench of

Apex Court has made following observations at para No. 31 :-

"31. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a

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direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and "the larger interests of the public or the State" are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in The State v. Captain Jagjit Singh, which, though, was a case under the old Section 498 which corresponds to the present Section 439 of the Code. It is of

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paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail."

Thus, the provision of section 438 of Cr.P.C. and the law developed

on it shows that it is a discretionary relief, it can be granted in

exceptional circumstances and the Court is expected to keep in mind

the interest of the society also. If there are provisions due to which

the relief of anticipatory bail cannot be granted to a person against

whom there is allegation of commission of a particular offence, it

becomes the duty of the Court to ascertain as to whether there is

material to make out prima facie case of commission of that offence

by the person who has come to the Court for relief of anticipatory

bail. If the Court forms opinion that there is such material, then it

can be said that the bar given by section 18 or section 18-A comes

into play. If the material is not sufficient to make out prima facie

case of commission of the offence punishable under the Act against

the applicant, the Court is expected to consider the matter as

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provided under section 438 of Cr.P.C. Section 438 already quoted

shows that the provision is made to see that the liberty of the

subject is not put in jeopardy on frivolous grounds at the instance of

unscrupulous or irresponsible persons or officers who may some

times be in charge of prosecution. [Reliance placed on the case

reported as AIR 1977 SC 366 (Balchand Jain Vs. State of

Madhya Pradesh) and also on AIR 2007 SC 1450 [D.K. Ganesh

Babu Vs. P.T. Manokaran & Ors.]).

21) In view of the discussion made above, this Court holds

that even after the amendment made in the year 2018 by which the

provision of section 18-A came to be added, there is the power to

Sessions Court and High Court to consider anticipatory bail

application even if the crime is registered for offences punishable

under the Act. At the time of consideration of such application, the

Court will have to consider as to whether there is accusation of

having committed the offence under the Act and as to whether there

is material to make out prima facie case for commission of such

offence. This Court wants to add that even the police officer is

expected to give thought at the time of registration of the crime

under section 154 of Cr.P.C. that whether the allegations constitute

the offence under the Act. Only because the first informant belongs

to scheduled tribe or scheduled caste, the crime cannot be

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registered for offence punishable under the Act and offence can be

registered under the Act only if there are ingredients of the offences

punishable under the Act in the accusation.

22) In the present matter, this Court has already quoted the

relevant material. As the crime is now shown to be registered under

the provisions of sections 3 (1)(r) and 3 (1)(s), the ingredients of

these two offences need to be considered. The provisions are as

under :-

"3. Punishments for offences of atrocities.-

(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- (a) .......... (r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view; (s) abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view; (t) ........

shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine."

23) In section 3 (1)(r) of the Act, there is a mention of

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intentional insult or intimidation with intent to humiliate. The

allegations made by the first informant in respect of both the

incidents even in supplementary statement do not show that there

was apparently intentional insult or intimidation with intent to

humiliate. It is not the allegation of the first informant that abuses

were given to him by taking the name of his caste by the appellant

as provided in section 3 (1)(s) of the Act. The first informant was

working as Senior Police Inspector and so, in ordinary course, he

would not have missed to make mention about the intentional insult

or intimidation to humiliate. Further, he was working for Caste

Scrutiny Committee and so, it can be presumed that he had

knowledge about the rights given to the persons of scheduled tribe

under the Act. Allegations as they are show that the first informant

was friend of uncle of the appellant and he could have acted as a

mediator. Thus, the circumstance that he was belonging to particular

tribe was not apparently in the mind of the appellant as he was

requesting the first informant to act as a mediator in the family

dispute of Maratha caste. The nature of allegations that attempt on

the life of first informant was made which are quoted above show

that the incidents prima facie do not appear to be probable in

nature. Thus, there is no material even to make out the offence

punishable under section 307 of I.P.C.

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24) For aforesaid reasons, this Court holds that application

filed for anticipatory bail was maintainable and for the reasons

already given, the appellant is entitled to get the relief under section

438 of Cr.P.C. In the result, the appeal is allowed. The order made

by the learned Judge of the Special Court in anticipatory bail

application filed by the appellant bearing Cri. Bail Application No.

80/2019 is set aside. The said application is allowed. In case of

arrest of the appellant in C.R. No. 14/2019 registered at Chakur

Police Station, District Latur for the aforesaid offences, he is to be

released on bail on his furnishing PR and SB of Rs.15,000/-(Rupees

fifteen thousand). He is not to tamper with the prosecution

witnesses. He is not to commit similar offence. He is to attend the

office of Investigating Officer for coming three consecutive Sundays

between 9.30 a.m. and 12.00 p.m. He is to cooperate the

investigating agency. Fees of the learned counsel appointed for first

informant/respondent No. 2 is quantified as Rs.5000/-. It is to be

paid through High Court Legal Services Authority.

[ MANGESH S. PATIL, J.] [T.V. NALAWADE, J.]

ssc/

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