1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 807 OF 2009 1] Pandharinath S/o Uttam Solav Age : 35 years, Occu.: Agri., R/o Suralwadi, Tq. Gangakhed, Dist. Parbhani 2] Devidas S/o Uttamrao Solav, Age : 40 years, Occu.: Agri., R/o Suralwadi, Tq. Gangakhed, Dist. : Parbhani .. Applicants Versus The State of Maharashtra Through the Police Inspector, Police Station, Gangakhed, Tq. Gangakhed, Dist. Parbhani (Copy to be served on the Public Prosecutor, High Court of Judicature of Bombay Bench at Aurangabad) .. Respondent Mr. V.D. Salunke, Advocate for the applicants Mr. N.B. Khandare, APP for the respondent-State CORAM : A.V. NIRGUDE, J. DATED : 12th JUNE, 2009 ORAL ORDER:- 1] The applicants are seeking anticipatory bail in crime no. 34 of 2009 registered at Gangakhed 2 Police Station, Dist. Parbhani on 1.4.2009 alleging offences punishable under section 452, 324, 323, 504 and 506 of the Indian Penal Code and under section 3(1)(X) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 2] Before I consider the application on merits, I must narrate as to what happened after the initial order extending the ad-interim protection on 17.3.2009 was granted by this Court. On 17.3.2009, this Court heard the application and passed order in terms of prayer clause (C) of the application, which prayer clause reads as under:- “(C) Pending the hearing and final disposal of this Criminal Application, ad-interim relief in terms of prayer clause “B” may kindly be granted.“ Prayer clause (B) is seeking anticipatory bail. On 20.3.2009, the applicant no. 1 was arrested under section 151 Cr.P.C. as preventive measure. The applicant no.1 thought that the Police had violated the order passed on 17.3.2009 and made a complaint to this Court. This Court then asked the 3 Investigation Officer to submit his explanation as to how and under what provisions the applicant no.1 was arrested on 20.3.2009. The Investigation Officer submitted a detailed affidavit, in which he sought to justify the applicant no.1’s preventive detention under section 151 CrPC. While in custody the applicant no.1 suffered a paralytic stroke and he was taken to a hospital. This aspect of the matter requires no further discussion, because the learned Advocate appearing for the applicants clearly stated that he does not want to take up this aspect of the case and his clients’ complaint against the Police further. So the notice issued by this Court against the Investigation Officer stands discharged. 3] Now I would examine the merits of the application and give my finding as to whether the applicants deserve anticipatory bail in this case. In order to record the finding, the Court has to find out as to whether the applicants can be prima facie accused of having committed offence under section 452, 323, 324, 504, 506 and under section 4 3(1)(x) of the S.C. and S.T. (Prevention of Atrocities) Act? Out of these sections, more important is the allegation of the offence under section 3(1)(x) of the Atrocities Act. 4] The complainant has narrated two incidents in his complaint. He stated on 14.2.2009, at about 5:00 pm. while he was returning from weekly bazar at Gangakhed, the applicant no.2 accosted him at Bhaji Mandi area of Gangakhed and abused him calling him ‘Dhedgya’ and asked him as to why he had not returned his wire. He then assaulted him using fists and kicks. The complainant, then stated that he and his brother came back to his village and at about 6:00 pm, both the applicants came to their house. This time, they called him ‘Dhedgya’ and again asked him as to why he had not returned their wire. So saying, he stated, they dragged him out of his house and assaulted him. The applicant no.1 was armed with a knife with which he inflicted a blow on the complainant’s hand. The complainant stated he sustained injury because of such blow. The complainant further stated that his wife came for 5 his rescue but the applicants assaulted her too. The complainant further stated that at that time, three villagers by name Tukaram, Narayan and Piraji came and they intervened. The applicants then left him threatening that they would kill him. The complainant then stated that the applicants knew that he belonged to a scheduled caste and in order to humiliate him, they abused him on the basis of his caste. 5] The first question is whether, calling a person belonging to a scheduled caste ‘Dhedgya’, would amount to his insult with intent to humiliate him as scheduled caste person? Word ‘Dhedgya’ is certainly is an abusive word, utilised for a person belonging to a caste by name ‘Dhed’ which is a scheduled caste. Therefore, calling ‘Dhed’ by his caste name ‘Dhedgya’, would certainly amount to insult with intent to humiliate him. The second question here is whether calling a person belonging to caste ‘Holar’ (a scheduled caste) by word ‘Dhedgya’, would amount to insult with intent to humiliate him? The answer is in the affirmative. 6 The complainant specifically mentioned at the end of the complaint that the applicants abused him on the basis of caste and thereby, insulted him. This assertion cannot be ignored in this background. The last portion of the complaint is not a mere summation of the complaint. It cannot be said that it was added by the Police. It certainly is part of the narration of the complaint. The word ‘Dhedgya’ is an abuse. It would be an abuse if it is used as an address to a person belonging to any scheduled caste. An abusive word is always used to humiliate the addressee. If the abuse is based on the addressee’s low social status, it would hurt more. So calling a person belonging to scheduled caste ‘Dhedgya’ would remind him of low caste no matter if he does not belong to particularly the caste ‘Dhed’. It would still hurt and humiliate him. 6] The learned Advocate appearing for the applicants asserted that word ‘Dhedgya’ has not been so far defined and is not held to be an abuse by any judicial pronouncement. He also suggested that a Judge should not consider it abuse or insult on 7 general presumption that the word is an abuse. I have already discussed about that word ‘Dhedgya’. 7] The next question is whether the incident in question occurred in public view? There is some amount of scope for discussion as to whether the first incident which occurred at Bhaji Mandi area of Gangakhed had occurred in public view, because the FIR does not mention that at that time any other person was watching the incident. Of course the prosecution would say that the place where the incident took place was bhaji mandi which could be a crowded vegetable market. But at this stage there is nothing on record to show that the place which is described as Bhaji Mandi, Gangakhed was a crowded place. But the incident that took place in or about the house of the complainant, was certainly witnessed by atleast three independent persons whose names are mentioned above. The presence of these three persons would remove doubt as to whether insult and humiliation took place within public view. The learned Advocate appearing for the applicants tried to suggest that the names of the 8 persons mentioned in the FIR who came to help the complainant, apparently belonged to his family. He stated that in view of the judgment of our High Court in the matter of Balu s/o Bajirao Galande V. State of Maharashtra and anr. reported in 2006 All MR (Cri.) 3197, if the witnesses are either relatives or persons belonging to family of the complainant, it would not amount to incident in public view. This statement is not acceptable, because it is not factually correct. The FIR does not indicate that the named persons who intervened, belonged to the complainant's family or were his relatives. The complainant specifically mentioned that they were his ‘co-villagers’. 8] The learned Advocate appearing for the applicant placed reliance on judgment of Allahabad High Court in the case of Pappu Singh v. State of U.P. 2002 CRI. L.J. 1251. In that case a member of scheduled caste belonging to caste 'Chamar' was addressed using word 'Chamariya'. The learned Single Judge of the Allahabad High Court held that assuming the accused had used word 'Chamariya' and 9 addressed the complainant with the said word, it cannot make out an offence under section 3(1)(x) of the Act. He further held that it is simply addressing a person by his caste, without any intention of insult or intimidate and so it does not constitute the offence. The facts of the present case before me are little different. The applicants had a grievance against the complainant because the complainant had not returned their wire despite their demands. They were angry and out of their anger they abused him. They even assaulted him. One of them even caused bleeding injury to him (medical certificate to that effect is on record) In such a interaction, if the applicants used the word 'Dhedgya' to address the complainant, it certainly amounted to intentional insult with intent to humiliate the complainant. Had the complainant not been belonging to a scheduled caste, they would not have used this word. They would have abused him in anger but probably in a different way. 9] I am therefore of the view that the allegations prima facie would amount offence under 10 section 3(1)(x) of the Atrocities Act and besides the other IPC offences are also prima facie seem to have been committed. I am told that the applicant no.1 has criminal antecedents. There are about six cases, besides this present case, pending against him. The applicants do not deserve discretionary relief of anticipatory bail. 10] The application stands rejected. (A.V. NIRGUDE, J.) arp/12june9/cr807.09