1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION NO. 3233 /2009 (Sampatrao Anandrao Gaikwad vs. State of Maharashtra & others ) ..................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Mr. M. L .Vairagade, Adv. for applicant Mr C. N. Adgokar, APP for Respondents 1 & 2 Mr A. S.Mardikar, Adv. for Respondent 3 .......... CORAM : A.P.BHANGALE, J. DATED : FEBRUARY 5, 2010. Heard learned counsel for respective parties, at length. 2 By way of this application filed under section 439(2) of the Criminal procedure Code, the applicant prays for cancellation of anticipatory bail granted in favour of the non-applicant no.3 - Sonali w/o Jayant Gaikwad, by learned Addl. Sessions Judge, Washim vide order dated 27.8.2009 in Criminal Application No.395/2009 in connection with Crime No. 3060/2009 registered at Washim Police Station under section 3 (1) (x) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short “the Act of 1989”). 3 Learned Advocate for the applicant submitted that the order which is sought to be challenged by means of this application could not have been passed in view of 2 specific bar u/s 18 of the Act of 1989. 4 It is the prosecution case that non-applicant no.3, on 19.8.2009 between 3.00 & 3.30 p.m. went to the house of the applicant while he was resting; while milkman had been there to collect the bill and the maid- servant was busy in household chores. At that time, the non-applicant no.3 kicked the Gate of the house, entered the house, abused the applicant questioning as to why he gave notice to the tenant to vacate the house. When applicant expressed his ignorance, the non-applicant no.3 got enraged, hurled filthy abuses, used unprintable language in the name of his 'caste' and insulted him. It was further alleged that the non-applicant no.3 also pelted stones at the window glasses and filthily abused the applicant; she also threatened that she will bring a morcha so as to defame the applicant as she is holding the post of Woman President of Rashtrawadi, a political party and warned that she would hire henchman to kill him and threatened to falsely implicate the applicant an an offence of rape. The complaint was lodged u/s 294 read with section 506 IPC ; further read with section 3 (1)(x) of the of the Act of 1989. 5 Learned Advocate for the applicant submitted that in view of the ruling in Kaliya Perumal vs. State reported in 1998 Cri.L.J. 1467, a person belonging to Scheduled Castes/Tribes notwithstanding married with member of the forward caste, do not loose her status as born in the Scheduled Castes or Tribes as the case may 3 be. Further, reference is made to the ruling in Rajendra Shrivastava vs. State of Maharashtra delivered by the Full Bench of this Court in Criminal Application No.2437/2009 on 22.1.2010 so as to contend that if a lady belonging to Scheduled Castes/Tribes marrying with a person belonging to forward caste, is abused in the name of her caste, would not loose her status which was inherent upon her/him by virtue of birth. Learned Advocate for the applicant submits that there was no justification for the non-applicant no.3 to abuse the applicant in the name of his caste and, as such, provisions of Section 18 of the Act of 1989 were attracted, in view of a specific bar imposed and anticipatory bail could not have been granted. 6 Learned Advocate for the Respondent No.3 opposed the application tooth and nail, contending that while the present applicant lodged a complaint to Police Station House Officer Washim on 18.8.2009, the applicant did conveniently suppress the material fact that the present non-applicant is his daughter-in-law after having married with his son. The complainant did not whisper about this material fact. This fact was noted by the learned Addl. Sessions Judge while allowing the application for anticipatory bail. 7 Learned Advocate for the applicant submits that non-applicant was married with one Subhashsingh Sitaramsingh Dandir and, in fact, claimed maintenance for herself and her son from said Subhashsingh Dandir. 4 Learned Advocate for the non-applicant no.3 stated that the said maintenance proceeding was initiated much before and, to be precise, in March 2000 and thereafter the non-applicant had re-married on 22.9.2001. Learned Advocate for non-applicant no.3 submitted that because of her marriage with son of the first informant (present applicant) she became member of his family although her original caste by birth can not change; whereas the alleged incident of offence occurred inside the house of the applicant which was also the house of the non- applicant no.3. Alleged incident did not occur within the public view or at any public place. Merely because maidservant, milkman or family members were present, such alleged abuse assuming that it was made, would not be sufficient to constitute an offence punishable u/s 3 (1)(x) of the Act of 1989. Reference is made to ruling in Mahesh Patole and others vs. State of Maharashtra reported in 2009 (2) Bom.C.R. Page 867 more particularly, Para No.7 thereof, wherein it is held that mere presence of the family members, including resident servant is not sufficient to consitute an offence u/s 3(1)(x) of the Act. The Court before which the prayer for anticipatory bail is made is required to consider prima facie accusations, according to law. It cannot be said that there would be bar of Sec. 18 of the Act. It is quite possible that between the family members due to some other reason, false accusations may be made. According to learned Advocate for the applicant no.3 she had filed 5 claim for maintenance against her husband as also prosecuted the present applicant u/s 498A of the IPC and to counter-blast such prosecution, false complaint was made by the present applicant. 8 Considering all these submissions as also the legal position under Section 3 (1)(x) of the Act but u/s 18 of the Act would not be attracted if alleged utterances were made in any place which was not within public view or at any public place, the grant of anticipatory bail by the learned Addl. Sessions Judge,Washim is just and proper. No overwhelming and cogent grounds are made for to cancel the anticipatory bail. Application is rejected. JUDGE sahare