Ladda 1 appln-2347-09.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL ANTICIPATORY BAIL APPLICATION No.2347 of 2009 Mr Rajendra s/o K.B. Shrivastava ...Applicant. Versus The State of Maharashtra ...Respondent. Mr A.M. Saraogi, Advocate for the Applicant. Mr Parvez Ubharaj, Advocate for Respondent No.2/Original Complainant. Mrs S.D. Shinde, A.P.P.for the State. CORAM: A.R.JOSHI, J. DATED:- 28th March 2011. P.C. 1. Heard rival submissions at length. 2. Perused the present application for anticipatory bail preferred by the Applicant - husband apprehending his arrest in the matter of C.R.No.125/2008 registered on 10th April, 2008 on the complaint, dated 8th April,2008, lodged by the wife of the applicant. The wife is Intervener in the present application and is represented by Advocate Shri Parvez Ubhare. Also, heard the arguments on behalf of the Intervener. Ladda 2 appln-2347-09.doc 3. The facts of the present matter are rather peculiar in nature. Main allegations of the complainant-wife- Intervener against the present applicant are that he had committed the offence of 498-A of the I.P.C. and also harassed and meted out cruel treatment to her and also abused her on account of her caste. As per the averments in the F.I.R. such utterances as to imputation against the caste of the wife Intervener, were made definitely prior to December, 2001 and after the marriage between the parties which took place in March, 1991. As mentioned in the F.I.R. both the Applicant and Intervener were Homeopathy Practitioners and when they came in contact with each other some time in the year 1991, at Bhopal, fallen in love and then got married. Present Applicant is by caste ‘Kayasth’ and his wife present Intervener is by caste ‘Dhor Kumbhar’. 4. Initially, when the matter was before the another Bench (V.M.Kanade,J), the order was passed by said Bench on the anticipatory bail application preferred by the co-accused – relative of the present applicant. In the said order it was expressed by that Court, that the provisions of Atrocities Act and Protection of the Civil Rights Act cannot be made applicable since the complainant’s caste merged with the caste of her husband. In the said order the term “complainant” refers to the present Intervener and the term “husband” refers to the present Ladda 3 appln-2347-09.doc Applicant. When that order was placed before the Bench of Justice Shri D.B.Bhosale, in the present matter, a preliminary issue was framed in the following manner and the matter was referred to the Full Bench. Said issue reads, thus :- “If a lady, belonging to the schedule caste/schedule tribe, marrying a person belonging to forward caste, is abused in the name of her caste by a member of public or by her husband or his relatives, whether an offence under the provisions of Atrocities Act can be registered and investigated against such person/s.” 5. As such, the matter was referred to the Full Bench of Justice Shri B.H.Marlapalle, Shri A.S.Oka and Shri R.Y.Ganoo and by an order dated 22nd January, 2010 per Justice Shri A.S.Oka the point was answered in the affirmative and the question arose for determination as formulated by the Full Bench was answered in the negative. Said question formulated by the Division Bench, is as under: “If a woman who by birth belongs to a scheduled caste or a scheduled tribe marries to a man belonging to a forward caste, whether on marriage she ceases to belong to the scheduled caste or the scheduled tribe?” 6. In view of the above, one thing is certain that if on merits and facts of the present case, if it is found out that the provisions of Ladda 4 appln-2347-09.doc Scheduled Castes and Scheduled Tribes Act are attracted, as to making some observations against the Intervener regarding her caste, then such provisions would attract and consequently there would be a bar for grant of anticipatory bail. 7. When this legal position was accepted by all the rival parties, still, it is argued on behalf of the applicant that now on the facts of the matter as alleged in the F.I.R. which is lodged in the year 2008 there cannot be attraction of any offence punishable under the Scheduled Castes and the Scheduled Tribes Act, so also there cannot be even the attraction of the offence for Section 498-A or for that matter any cruel treatment to the wife i.e. the present Intervener. 8. This Court has carefully gone through the contents of the F.I.R. which is lodged on 8th April, 2008. So also, this Court has carefully gone through the earlier complaint lodged way back on 7th January, 2006 by the present Intervener before the Delhi National Women’s Commission. So far as the allegations in the letter addressed to Delhi National Women’s Commission are concerned, there are no allegations against the present Applicant as to any offence under the S.C and S.T Act, though there are allegations as to ill-treatment and harassment meted out to her, allegedly attracting offence punishable under section 498-A of I.P.C. However, all such allegations were definitely prior to the Ladda 5 appln-2347-09.doc year 2001. 9. Now, coming back to the allegations contained in the F.I.R. in the present matter, there is only a vague allegation made in the F.I.R. without giving any details as to date and time, much less, the specific year. However, it is a factual position that definitely such type of allegations of allegedly abusing the Intervener wife on her caste were made prior to December, 2001 and not beyond that and specifically for such allegations, complaint was lodged in April, 2008 and is now being dealt with by this Court in the year 2011. On plain reading of the entire contents of said F.I.R. apart from vague allegations as to making reference to the caste of the present Intervener at the hands of the applicant and his relatives, that also much prior to the year 2001, there is nothing even to suggest that there were recurrences of such imputations on the caste. Moreover, it is also an admitted position that the Applicant and the Intervener started residing separately since the year 2001 or 2002 and sometime in the year 2002 Intervener came down to Mumbai. However, the Applicant still remained at his usual place in Bhopal. 10. Considering the above factual position and considering the specific dates and allegations mentioned in the F.IR. in the opinion of this Court, it is not the case in which bar under SC and ST Act for not Ladda 6 appln-2347-09.doc granting anticipatory bail is attracted and in that view of the matter still considering the allegation as to commission of offence under section 498-A of the I.P.C. in the opinion of this Court, custodial interrogation of the present applicant is not warranted. Hence, the following order. ORDER. (a) Criminal Application No. 2347 of 2009 is allowed. (b) In the event of arrest of the applicant in C.R.No. 125 of 2008, registered with Nehru Nagar Police Station he shall be released on bail on his executing PR bond in the sum of Rs.15,000/- with one surety for the like amount. Application is disposed of accordingly. (A.R.JOSHI, J.)