(1) CR.APP. 2236.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2236 OF 2009 1] Ambadas S/o Ganjidhar Gulawe, Age : 48 years, Occu.: Agri., 2] Sundar S/o Ganjidhar Gulawe, Age: 37 years, Occu.: Agri., and Police Patil, Both R/o Sarati, Tq. Sillod, Dist. Aurangabad .. Applicants Versus 1] The State of Maharashtra, Through Incharge Police Station, Ajintha, Tq. Sillod, Dist. A’bad. 2] The Superintendent of Police, Aurangabad (Copy to be served on Public Prosecutor, High Court of Bombay, Bench at Aurangabad) .. Respondent Mr. V.D. Sapkal, Advocate for the Applicants Mr. N.H. Borade, APP for the Respondent-State CORAM : A.V. NIRGUDE, J. DATED : 7TH JULY, 2009 ORAL ORDER:- 1] The applicants are seeking anticipatory bail (2) CR.APP. 2236.2009 in crime no. II-9/2009 dated 14.6.2009 of Ajintha Police Station, Dist. Aurangabad. The applicants are charged under section 323, 504, 506 r/w. 34 of the Indian Penal Code and under section 7(1)(d) of the Protection of Civil Rights Act and under section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter referred to as the “Atrocities Act”. 2] The grievance of the complainant can be narrated as under:- . The complainant said that he and his wife used to reside at their village Sarati. But in 2004 or thereabout, on account of the complainant’s wife touching and desecrated the public drinking water pump of the village, there occurred dispute between him and the applicants. He said thereafter, the applicants ostracised him and prevented them from getting jobs, ration, water etc. in the village. Due to this harassment, he said he could no longer reside in the village Sarati and so he shifted his residence to village Pimpalner. He said since last 4-5 years he has been residing at that village. He said, he continued visiting his agricultural land at village Sarati where he said he has four acres of agricultural land. He then said that on 28.5.2009 at about 2:30 pm, while he and his wife were walking through the applicants’ agricultural field, both of (3) CR.APP. 2236.2009 them rushed towards them and started abusing them on the basis of their caste. They threatened that if they were seen in the village, they would kill them. The complainant then lodged this complaint on 14.6.2009 at the Police Station. 3] As said above, thereafter, the Police registered the offence against the applicants. The applicants are seeking anticipatory bail. Section 18 of the Atrocities Act prohibits the Courts from granting anticipatory bail to the accused who are charged under the provisions of the Atrocities Act. The question, therefore is whether the allegations made against the applicants, prima facie constituted offence punishable under section 3(1)(x) and 3(1) (xv) of the Atrocities Act? 4] As regards the incident of 28.5.2009, one may easily come to a conclusion that the incident did not constitute offence under section 3(1)(x) of the Atrocities Act. The first and foremost reason for coming to such conclusion is that the incident did not take place in “public view”. It is said that the incident took place in the agricultural field of the applicants. When the incident took place, there were only four persons present namely, the applicant, his wife and two complainants. There is no indication in the complaint that the incident was seen and heard by any other person. In view of (4) CR.APP. 2236.2009 the judgment of our High Court in the matter of Shri Mahesh Sakaharam Patole and ors. Vs. State of Maharashtra reported in 2009 ALL MR (Cri) 1601 a mere presence of family person, namely the applicant’s wife is not sufficient to constitute the offence under section 3(1)(x) of the Atrocities Act. The Court held that family members of the complainant would not be treated as members of public. The second ground for holding in favour of the applicants, is the delay in lodging of the complaint. There is no explanation given by the complainant as to why he delayed filing of the complaint by 17 days. Considering the history and the long standing enmity between the parties, the complainant should have lodged this complaint immediately after the incident, if not immediately, atleast on the next day. 5] As regards the harassment at the hands of the applicants of the complainant and his family, since last 4-5 years which apparently amounted to offence under section 3(1)(xv) of the Atrocities Act, besides oral assertion of the complainant, there is no supporting material. Learned APP candidly admitted that the Police could not record a statement of even a single witness in support of the complainant’s case that he and his family were harassed by the applicants and others over their caste and were ostracised etc. Apparently, both (5) CR.APP. 2236.2009 these offences are not constituted against the applicants and so, they are entitled to anticipatory bail. 6] The applicants, if arrested in this case, shall be released on bail of Rs.5000/- (Rs. Five Thousand) each with one surety each in the like amount. 7] Criminal Application stands disposed of. Sd/- (A.V. NIRGUDE, J.) arp/7july9/cr2236.09