Sarjerao S/o Gulabrao Dhamdhere vs State Of Maharashtra

Present appeal has been filed by the original accused under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Act, 1989 (hereinafter referred to as the "Atrocities Act") to challenge the order dated 19-12-2019 passed by learned Additional Sessions Judge/Special Judge, Sangamner, thereby rejecting his pre-arrest Bail Application No.198 of 2019.

The appellant is apprehending the arrest in Crime No.282 of 2019 registered with Ghargaon Police Station, Sangamner, Dist. Ahmednagar for the offence punishable under Sections 294, 504, 506 of Indian Penal Code and under Sections 3(1)(r)(s), 3(2)(va) of the Atrocities Act. The first information report has been lodged by present respondent No.2.

Heard learned Advocate Mr. L. S. Mahajan for appellant, learned APP Mr. P. K. Lakhotia for respondent No.1-State and learned Advocate Mr. S. B. Ghatol Patil for respondent No.2. Perused the affidavit-in-reply along with documents.

It has been vehemently submitted on behalf of the appellant that the learned Special Judge failed to consider the enmity between the applicant and the informant. A complaint application has been filed by the present appellant in respect of the property dispute. It was contended that there is a Big house (Wada) of the forefathers of the appellant. It is now in dilapidated condition. There was certain space behind the said Wada. When the family of respondent No.2 started levelling the land behind the Wada, it was objected by the appellant so also a written complaint was filed on 08-09-2015 to the Grampanchayat. However, the Grampanchayat with some political motive had made entries in the name of the family of respondent No.2. Therefore, a complaint application was then made by him to the Collector. The informant got annoyed with the same and, in fact, application under Section 14-G of the Maharashtra Grampanchayat Act was filed by the appellant against the Sarpanch, Deputy Sarpanch and the Gram Sewak of the Grampanchayat. It was stated that all of them together had shown the open space belonging to the appellant in the name of one Maruti Karbhari Mundhe, Suresh Karbhari Mundhe and Pramod Rambhau Mundhe. It is further stated that present respondent No.2 is the near friend of said Mundhe family and by taking advantage of the caste of the informant false complaint has been lodged and those two persons from Mundhe family whose name has been taken in the application before Collector by the appellant are shown to be the eye witnesses to the incident. In fact, these two witnesses by name Mundhe were not even present when the incident had taken place. Therefore, when the FIR is filed with mala fide intention, the learned Special Judge ought not to have considered that there is bar for entertaining pre-arrest bail applications in view of Section 18-A of the Atrocities Act.

The learned Advocate for respondent No.2 in view of the affidavit-in-reply (which is nothing but the replica of the FIR) submitted that even Santosh Mundhe has filed affidavit stating that now he is being pressurized by the appellant and his relatives to change his statement before the police. He also submitted that the contents of the FIR are clear enough to show that the present appellant had abused the informant in the name of caste. He has knowledge that informant is Bhil Adhiwasi and even earlier also there were such attempts to abuse the informant in the name of caste. Therefore, there was clear bar under Section 18 of the Atrocities Act. The Special Judge has correctly rejected the application. Reliance has been placed on the decision in Prathvi Raj Chauhan Vs. Union of India [2020 SCC Online SC 159] wherein it has been observed :-

"33. I would only add a caveat with the observation and emphasize that while considering any application seeking pre-arrest bail, the High Court has to balance the two interests: i.e. that the power is not so used as to convert the jurisdiction into that under Section 438 of the Criminal Procedure Code, but that it is used sparingly and such orders made in very exceptional cases where no prima facie offence is made out as shown in the FIR, and further also that if such orders are not made in those classes of cases, the result would inevitably be a miscarriage of justice or abuse of process of law. I consider such stringent terms, otherwise contrary to the philosophy of bail, absolutely essential, because a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament."

Further reliance has been placed on the decisions in Balraje Vs. State of Maharashtra and another (2018 SCC Online Bom. 14356), Manju Devi Vs. Onkarjit Singh Ahluwalia Alias Omkarjeet Singh and others [(2017) 13 SCC 439], Shital Sameer Tapkir Vs. The State of Maharashtra [2015 SCC Online Bom. 8208] and Vilas Pandurang Pawar and another Vs. State of Maharashtra and others [(2012) 8 SCC 795]. In these cases also either this Court or Hon'ble Apex Court rejected the pre-arrest bail applications on the ground that they are barred under Section 18 of the Atrocities Act.

Learned APP by producing police papers submitted that the statements of certain witnesses are supporting the informant and since the contents of the FIR are attracting the provisions of Section 3(1)(r) and (s) of the Atrocities Act, the application is not maintainable.

At the outset, we are required to consider what are the contents of the FIR. In the FIR itself, the informant has stated that he is Bhil Adhiwasi by caste. There is graveyard of his community in front of his house. Near to the said graveyard there is house of present appellant. He says that on 22-09-2019, at about 4.00 to 5.00 p.m., the appellant was burying his dead cow in the graveyard of the Bhil community. When he obstructed the appellant, he was abused at that time. He says that, however, he kept quiet on that day, but then on the day of incident i.e. on 10-12-2019 at about 7.30 a.m. when he was proceeding to river Mula for bath, the appellant was standing near the field which is near his house. In view of the anger, he started saying to the informant "rq dk; ;sFks "ksV dk<rks dk fHkyV~;k tkLr ektyk dk;." He was then assaulted by kicks and fist blows and was threatened to kill. The wife of the informant was also manhandled and then he says that the said incident was witnessed by Santosh Mundhe and Sambhaji Suresh Mundhe. Thus, the reading of FIR apparently shows that there were abuses in the name of caste. It appears that as regards the incident dated 22-09-2019, a written complaint was filed by the informant with the police on 23-09-2019. But it can also be seen that the statement of the informant in respect of that matter appears to have been taken on 27-11-2019. Though the complaint application was filed on 23-09-2019, N.C. case appears to have been registered under Sections 323, 504, 506 on 27-11-2019 and then the said statement was recorded. From the police papers it appears that though the complaint application contends abuses in the name of caste, yet, no offence attracting the Atrocities Act were recorded, but only N.C. complaint is registered.

Now, as regards the incident dated 10-12-2019 is concerned, it can be seen that the FIR has been lodged on the same day. Though the appellant has come with the case that he has dispute against Mundhe family, yet, he has not pointed out as to what relations Mundhe family has with the present informant. Merely because informant might be the follower of Mundhe group, we cannot at this stage go on to draw inference that at the behest of said Mundhe's, the informant would have lodge this FIR. It would be expecting much from the prosecution in such circumstances. In view of the decision in Prathvi Raj Chauhan (Supra), we are required to consider the prima facie facts. The prima facie facts on the basis of the contents of the FIR disclose that the offence under the Atrocities Act is made out. No doubt, Court should also see that whether any complaint has been filed with malafide intention or not. If it is filed with malafide intention, then protection will have to be granted to such person's liberty and life. There is nothing on record to show that there is direct malafide intention of the informant with appellant. Rivalry between appellant and Munde can not be considered, without any cogent evidence to that effect. Therefore, there is no substance in the submission on behalf of appellant that the FIR has been filed by the informant with malafide intention. The ratio laid down in the authorities relied by learned Advocate for respondent No.2 are applicable and therefore, it will have to be observed that the learned trial Judge was correct in dismissing the application stating that it is barred under Section 18 of the Atrocities Act. Police papers show that some of the witnesses are supporting the informant whereas two witnesses have stated that the alleged eye witnesses were not present in the village itself on the day of incident. There appears to be political rivalry and there are bound to be such versions. They would be tested at the time of final hearing, but when there is some evidence supporting prosecution and informant, then it will have to be held that there is prima facie case under Atrocities Act. There is no merit in the present appeal. It deserves to be rejected. Accordingly, it is rejected.