1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Criminal Application No. 2378 of 2009 Sau Ganga v. State of Maharashtra -------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. Mr A.S. Chandurkar, Advocate and Mr V.N. Vyas, Advocate with him for applicant. Ms Sharda Wandile, APP and Mr F.T. Mirza, Advocate to assist her for respondent-State Coram : A.P. Bhangale, J Dated : 27th July 2009 1. Heard Mr A.S. Chandurkar, learned counsel for applicant; Ms Sharda Wandile, learned Addl. Public Prosecutor for State with Mr F.T. Mirza, learned counsel assisting prosecution. 2. This is an application for anticipatory bail under Section 438 Cr.P.C. The incident was reported on 31.5.2009 being FIR No. 99/2009 at Mangrulpir PoliceStation, District Washim under Sections 147, 148, 149, 324 of the Indian Penal Code read with Section 3 (1) (x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. One Kishor Bhimrao Ingole, retired soldier, resident of Ashok Nagar, Mangrulpir informed that he is conducting a grocery shop, which is looked after mostly 2 by his wife Sau Pramila Kishor Ingole. On 30.5.2009 at about 10.30 am while his wife Pramila was present in the shop, at that time, Gangabai Gayanu Bhadange, resident of the same locality came and asked for milk packet. When Pramila replied that milk is not available, Gangabai got angry and uttered, “Dhedgyache Potche, Maharache Potche, Dudh nahi tar may zavale dukan lavale. Maharache Dukan Kadhich Chalat Nastat”. Thus filthy abuses were hurled for about half an hour in front of their shop. At about 11.15 am when first informant came from outside, as he has gone to fetch sand filter, Gangabai had continued to abuse, “He Mahare Mazale Yayale Khatam Kara Lagte”. When first informant asked Pramilabai as to what happened, Pramila told the above incident to him. At that time, Gangabai’s nephew Tana Shamrao Ghuge came and forcefully gave kick blow while first informant still was sitting on his vehicle, thereby vehicle and first informant fell. Then Gayanu Tulsiram Bhadange came. He assaulted first informant by metal ring on left side of his head. In the result, injury was caused on his head. Himmat Tulsiram Bhadange was armed with iron pipe while Raju TulsiramBhadange was armed with stick; Gangabai Gayanu Bhadange and Rahi Raju Bhadange – all persons together filthily abused and first informant was felled on the ground while his wife was felled down by Gayanu Bhadange who had held her hair and after felling her down, gave two fist blows on her neck saying, “He Mahare Lay Majale tya sarvanna khatam kara”. Thus, all the persons above-named, it is alleged, abused on caste and assaulted on head, lips, face, right leg and abdomen on the pretext of milk packet. They raised dispute because first informant’s shop is doing very good business and he has good relations in locality. Gayanu Bhadange has started constructing grocery shop and intends to cause closure of first informant’s shop and therefore, raising disputes. On 30.5.2009 on the pretext of milk packet, Gangabai started quarrel and attempted assault upon 3 wife of first informant. Nobody had snatched gold chain weighing 10 grams but due to anger it was written down. The first informant apprehends danger to his and his wife’s life as they are goondas and may do anything. Sau Vandanabai Ashok Sonare and Raghu Arjun Gahule had mediated and saved and taken first informant to the Government Hospital and after preliminary treatment, first informant gave report to Police Station. 3. Thereafter Police had again sent first informant for medical examination at Akola Main Hospital and admitted him. 4. In the column of informant in the proforma of FIR, one Ganesh (HC) appears to have signed. An addition was made subsequently that he signed on behalf of complainant. 5. On behalf of the applicant, learned Advocate contended that earlier on 30.5.2009 also Kishor Bhimrao Ingole gave a report to Police Station Officer, Mangrulpir against Sau Gangabai, Gayanu, Raju, Himmat Bhadange and Tanu Ghuge alleging that Gangabai had abused his wife “Bhosadiche Mahare Dhedge, Dukanat Pudi nahi tar Zak Marayala dukan lavali kay ?” and raised quarrel, alleging that the accused had assaulted and Gangabai had robbed gold chain worth Rs. 15,000/-. Learned Advocate for the applicant contended that on the face of complaint lodged earlier on 30.5.2009 it was no where mentioned that the accused named were not belonging to scheduled caste or scheduled tribe. The first informant tried to improve and concoct a new story on the following day stating that the gold chain was not robbed but due to anger he had stated so while making false accusations. 6. According to learned Advocate for applicant, fact is otherwise. The applicant Gangabai herself was assaulted mercilessly by first informant and his wife and she had reported Police Station, Mangrulpir about this incident of merciless assault on her on 30.5.2009 and was sent by police for 4 medical check up for injuries she received at Rural Hospital, but police had failed to take cognizance of the complaint despite medico-legal case report and on following day the police had sided with first informant to record FIR, as alleged with drastic improvements of earlier story given by the first informant. 7. Learned counsel for the applicant contended that applicant is municipal councillar in Mangrulpir Municipality, elected since 2006 and is law-abiding and peace-loving person and that the police have recorded totally false complaint although Gangabai was assaulted mercilessly by first informant and his wife for which she had reported to the police and received medical treatment on 30.5.2009, but this fact has been suppressed by investigating agency. Learned Advocate contended that Section 3 (1) (x) of the SC & ST (Prevention of Atrocities) Act, 1989 is not attracted as allegations in the entire complaint read as they are, do not allege that applicant or other persons named as co-accused were not members of scheduled caste or scheduled tribe and no where it is mentioned that accused intentionally insulted or intimidated with intent to humiliate the first informant or his wife in a place within public view. When such basic ingredients of offence under Section 3 (1) (x) of the Act are missing in the complaint, it is argued that applicant is sought to be falsely implicated on the basis of bogus report without any prima facie case under Section 3 (1) (x) of the said Act or otherwise, under the Penal Code. Thus, learned Advocate for the applicant prayed for anticipatory bail in favour of the applicant. It is also argued that some of the co-accused were already enlarged on bail. 8. Learned Additional Public Prosecutor opposed anticipatory bail contending that the incident had occurred in which first informant as also applicant were injured on 30.5.2009 and it cannot be a false case due to 5 written report from the complainant. She contended that there are eye witnesses to the incident and investigation is in progress. Learned counsel Mr Mirza supported contentions of learned APP arguing that an application under Section 438 Cr.P.C. is barred in view of Section 18 of the Atrocities Act. Reference is made to judgment of the Supreme Court in State of MP and anr v. Ram Kishna and anr reported in AIR 1995 SC 1198 to argue that Section 18 of the Act which was upheld as Constitutionally valid, excludes application of Section 438 Cr.P.C. in respect of offences under the Act involving arrest of any person. He has also pressed into service judgment of Delhi High Court in Mukesh Kumar v. State (Delhi Administration) reported in 2002 All MR (Cri) Journal 41 to argue that anticipatory bail cannot be availed by the person who committed offence under the Atrocities Act. Judicial scrutiny is permissible to evaluate whether material reveals existence of basic ingredients of offence or not. It is necessary to show prima facie that there must be intentional (mens rea) insult or intimidation with intent to humiliate SC/ST member by non-SC/ST member and that insult has been done in any place within the public view. Merely calling a person by caste would not attract the provisions of the Act. 9. Learned counsel for the applicant relied upon the judgment of this Court in Shashikant Ramhari Tambe and ors v. State of Maharashtra reported in 2008 All MR (Cri) 2132 wherein it is held that there must be specific accusation alleged against each of the accused and Section 34 of the Indian Penal Code cannot be pressed into service. Reliance is also placed on the judgment of this Court in Ashok Lakhaji Halmare v. State of Maharashtra and anr reported in 2005 All MR (Cri) 2489 wherein it is observed that every quarrel or altercation between the member of higher caste and that of the Scheduled Castes and Scheduled Tribes would not ipso facto constitute acts of commission of offence which are capable of cognizance under the 6 Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and the Protection of Civil Rights Act as the case may be. The complainant therein had alleged that the accused had used the words, “Majhya mage chuglya ka karta ? Tumhi sale Mahar Jatiche lokach halkat aahat ... Jati vachak shivi gal karun maza apman kela”. It was held that contents of complaint did not answer the description of commission of offence under Section 3 (1) (x) of the Act and that continuance of proceedings would amount to abuse of process of law and the complaint was quashed under Section 482 Cr.P.C. Learned counsel further placed reliance on the judgment of this Court in Ramchandra and anr v. State of Maharashtra reported in 1995 (2) Mh.L.J. 669. It was held that if FIR and statements and the available material ex facie do not disclose ingredients of the offences under the SC/ST (Prevention of Atrocities) Act, the jurisdiction to grant anticipatory bail under Section 438 Cr.P.C. cannot be said to be taken away. The Court can ex facie examine whether report do constitute offence under the Act. Lastly, reliance is placed on Gorige Pentaiah v. State of AP reported in 2009 Cri.L.J. 350 (SC). It is submitted by the learned counsel for applicant that complaint must allege that accused are not members of scheduled caste or scheduled tribe and that the accused intentionally insulted or intimidated with intent to humiliate the comploainant within public view. If basic ingredients of offence under the Act are missing in complaint, then proceedings of complaint cannot continue and have to be quashed. 10. I have gone through the rulings in the light of submissions advanced at the Bar. In the present case, the complaint assuming it is true as it is, does not satisfy the basic ingredients of offence under Section 3 (1) (x) of the Act. Section 3 (1) (x) provides that whoever not being member of a scheduled caste or scheduled tribe intentionally insults or intimidate 7 with intent to humiliate a member of a scheduled caste or scheduled tribe in any place within the public view. 11. Merely because accused abused the complainant and his wife in the name of their caste does not constitute offence under Section 3 (1) (x) of the Act. The complainant ought to have alleged that accused were not member of scheduled caste or scheduled tribe and they intentionally insulted or intimidated the complainant and his wife to humiliate them within a public view. In the instant case, jurisdiction of the Court to grant bail under Section 438 Cr.P.C. is intact as we are sorry to find out that complaint lacks the basic ingredients as above and, therefore, considering attempts of subsequent improvement/concoction in FIR proforma i.e. one Ganesh (HC) signing as informant and then subsequently adding words, “________________ Ganesh HC/34” added later on leads me to conclude in the facts and circumstances revealed so far that benefit of protection under Section 438 Cr.P.C. is surely available for the applicant as Section 18 of the Act is not at all attracted in this case. Even considering rest of the accusations under Sections 147, 149, 294, 324 IPC, applicant is entitled to conditional anticipatory bail considering her status as municipal councillor and absence of any criminal history as against the applicant and also because of probability that the applicant may have been deliberately and subsequently framed due to quarrel in such complaint. Such possibility cannot be overruled ex facie at this stage due to delayed First Information Report. Hence, the following order. 12. Application is allowed. In the event of arrest, applicant be released on anticipatory bail upon her executing PR Bond in the sum of Rs. 25,000/- with one surety in the like amount. She shall cooperate with investigating agency and shall not commit any crime while on bail. Applicant shall inform her permanent address to the Investigating Officer 8 and change, if any therein, in future. Application stands disposed of accordingly. Judge. hsj