1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 1704 of 2010 Kailash Vitthal Kapse ..VERSUS.. State of Maharashtra, through P.S.O., P.S., Ansing, Dist. Washim. Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. R.M.Daga, Advocate for the applicant. Mrs. B.H.Dangre, Addl. P.P. with Mrs. A.R.Taywade, A.P.P. for the respondent/State. CORAM : Prasanna B. Varale, J. Dated : 16 th Dec ember , 2010. Heard. By this application, the applicant is seeking pre-arrest bail in Crime No. 47/2010, registered with Police Station, Ansing, Dist. Washim for the offences punishable under Section 354 of Indian Penal Code and under Section 3(1)(xi) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The sum and substance of the allegations levelled against the applicant is that the applicant belongs to Bouddha community. When she had gone towards cattle shed, the applicant was present there and with an intent to outrage her modesty used criminal force to her. As such on her complaint the present offence came to be registered against the applicant. Mr. Daga, learned Advocate for the applicants submitted that the report lodged against the applicant is outcome of political rivlary on account of Gram Panchayat elections, which were held at village Umra. Learned Advocate for the applicant submitted that the applicants had approached the learned Sessions Court, Washim by presenting Misc. Criminal Application No. 369/2010 under Section 2 438 of Cr.P.C. seeking pre-arrest bail, which came to be rejected by order dated 08/10/2010. Learned Advocate submitted that the learned Sessions Judge without considering the merits of the matter rejected the application only on the ground that as there is specific bar under Section 18 of the Atrocities Act. Learned Advocate submitted that the learned Sessions Judge erred in rejecting the application at threshold and as such in the backdrop of cross terms rejection order is unsustainable and the applicants are entitled for protection. Mrs. Bharti H. Dangre, learned Additional Public Prosecutor for the State has strongly opposed the application by filing reply. She submitted that there is enough material to connect the applicants with the crime and the offences committed by the applicants are serious in nature. Therefore, she prayed for rejection of the application. In view of the submissions of learned Advocate for the applicant as well as learned Addl. Public Prosecutor and the order of learned Sessions Judge rejecting the application of the applicants, it is not in dispute that the point to be considered in this application is whether the learned Sessions Judge was right in rejecting the application at the threshold on the ground that there is bar under Section 18 of the Atrocities Act. With the assistance of the learned Advocate for the applicant and learned APP, I have gone through the order of Sessions Court dated 08/10/2010, in which the learned Sessions Judge has observed thus :- “5. It is seen that complainant had lodged report disclosing about the indecent acts of applicant. It is also material to note that together with offence punishable under Section 354 of I.P.C. offence under Section 3(1)(xi) of S.C. & S.T. (Prevention of Atrocities Act, 1989 is attracted, in which there is a specific bar under Section 18 of the said Act. Therefore, considering the 3 nature of offence, its gravity and said bar for entertaining application for grnating pre-arrest bail, I find application does not survive and proceed to pass following order. ORDER – Application is rejected. ” In view of the conclusion arrived at by the learned Sessions Judge, there is considerable merit in the submission of learned Advocate for the applicants that the learned Sessions Judge has committed an error by rejecting the application at threshold. Mr. Daga, learned Advocate submitted that the approach of the learned Sessions Judge is hyper-technical and is not in conformity with the settled position of law. The learned Advocate has placed reliance on the judgment of this Court in the case of Pravin Shrimant Bhutekar .vs. State of Maharashtra and another, reported in 2010 All M.R. (Cri.) 1223. Learned Advocate has also invited my attention to the judgment of Karnataka High Court in the case of Sri N.B.Gungarakoppa and others ..vs.. State of Karnataka, reported in 2002 Cri. L.J. 3311. According to him, though initially there was some ambiguity in entertaining the applications under Section 438 of Cr.P.C. in view of bar under Section 18 of the Atrocities Act, but in view of said judgment, the position of law is clear. Learned Advocate for the applicant further submitted that the Apex Court in the case of State of M.P. .vs. Ram Krishna Balothia, reported in A.I.R. 1995 S.C. 1198, though uphold the validity of Section 18 of the Atrocities Act, the question of consideration of anticipatory bail application was considerably pruned. Mrs. Dangre, learned A.P.P. has fairly submitted that the aspect of consideration of the application under Section 438 Cr.P.C. is dealt with in detail with Sri Gungarakoppa’s case. The Karnataka High Court in Gungarakoppa’s case has dealt with two aspect (1) whether Section 18 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities Act, 1989 is a bar for 4 entertaining the petition under Section 438 Cr.P.C. ? and (2) Whether only the High Court has got jurisdiction to entertain the petition of this nature filed under Section 438 Cr.P.C. excluding the concurrent jurisdiction of the learned Sessions Judge ?. Though in the issue before the Karnataka High Court, both the learned Single Judge hold that Section 18 does not prescribe a total and absolute bar to entertain the anticipatory bail application, there was difference of opinion as to whether the anticipatory bail application under the Atrocities Act could be addressed either to the Court of Sessions or to the High Court. As such, by considering the various judgments, the Division Bench of Karnataka High Court has observed that “as far as the question as to whether there is total bar to the entertainment of an anticipatory bail application under S.438 of the Code of Criminal Procedure in case where the provision of the atrocities Act have been attracted, our answer is in negative”. The Division Bench has further observed that we have already clarified that it is not merely the invocation of the provisions that is the test but that it is necessary for the Court to embark upon a degree of scrutiny and we can only draw a parallel from the action under the Companies Act where the Supreme Court uses the phrase lifting the veil of the company or in other words the examination which the Court would have to do is to ascertain what is the true nature of the complexion and contents of the charge, not merely going by empty words or sections. The Division Bench further observed that “while we do concede that the bar would apply as consistently laid down by the Supreme Court and various other High Courts in genuine cases which fall under S. 3 of the Fact, it would certainly not apply to situations in which the provisions of the Act have wrongly been invoked or where the facts do not justify it”. The Division Bench while dealing with the question as to whether it is obligatory upon the Court entertaining petitions under 5 Section 438 Cr. P.C. to meticulously examine the material on record and attempt to find out a prima facie case, has observed that “the court is required to address itself to the simple question as to whether on a responsible judicial examination the material before the Court justified the invocation of the charge bearing in mind the possibility of wrongful invocation of the Act which is very prevalent and the Courts would, therefore, necessarily have to be on guard to ensure that the bar is restricted only to the small category of cases where an offence under the Act could justifiably be spelt out.” In view of said judgment relied upon by the learned Advocate for the applicant clearly establishes that the application under Section 438 Cr.P.C. is not required to be rejected at the threshold saying that there is a bar under Section 18 of the Atrocities Act. It is not in dispute that the offences under the Atrocities Act are serious and the Apex Court in Ram Krishna Balothia’s case has observed that there are the class of offences that are not only anti social but inhuman, that they are virtually a blot on civilised behaviour and that the reason why very special and stringent provisions have been made by the Legislature through the medium of this Act. Keeping in mind the object of the Act, the Division Bench in Gungarakoppa’s case observed that as far as class of atrocities set out in Section 3 of the Act are concerned, the Legislature was to ensure that the persons who have indulged in such horrifying atrocities are not permitted to forestall their arrest and custody by obtaining anticipatory bail but while there may be no two opinions with regard to situations that may arise where the Act has been very validly and genuinely invoked, the Courts cannot lose sight of the situations in which abuses may be prevalent. The Division Bench while observing that the incidents of some horrifying and barbaric acts directed against weaker sections and when the incident of this type takes 6 place, the law very rightly prescribes that the accused cannot avoid the consequences of the law by asking for anticipatory bail, has further observed that this, however, is only one side of the story. If this Court were to do a rough evaluation of the statistics over the last few years the disturbing position that is revealed is that in more than 96% of the cases where the provisions of this Act have been involved it has subsequently been established that the invocation was motivated and thoroughly unjustified. Therefore, the Division Bench arrived at a conclusion that the application under Section 438 Cr.P.C. is not required to be rejected at the threshold on the ground that there is bar under Section 18 of the Atrocities Act. While coming to the conclusion, the Division bench also observed that we are here more concerned with the day to day problem that the courts are facing in the large number of situations where the provisions are wrongly and unjustifiably invoked and where the accused are shut out from a remedy that Section 18 prescribes absolute bar to the grant of anticipatory bail. In view of the position as emerged in the submissions of learned Advocate for the applicant that the Sessions Court ought to have considered the application with relevant factors. Learned Advocate for the applicant submitted that the applicant is ready to go before the Sessions Court for consideration of his application afresh in view of the judgment of Sri Gungarakoppa’s case. Mrs. Dangre, learned APP fairly submitted that in view of the judgment of the Karnataka High Court referred to above, a fair opportunity can be given to the applicant to approach the Sessions Curt so as to have fresh consideration of the matter. On consideration of the submissions of the respective counsel as well as the material placed on record and in view of the judgment of the Karnataka High Court in Gungarkoppa’s case, I am of 7 the opinion that the learned Sessions Judge has erred in rejecting the application at the threshold on the ground of bar under Section 18 of the Atrocities Act and the application ought to have been considered where certain degree of scrutiny was expected. In the result, the order dated 08/10/2010 passed by the learned Addl. Sessions Judge, Washim in Misc. Criminal Application No. 369/2010 is set aside. Learned Sessions Judge is directed to consider the Misc. Criminal Application No. 369/2010 afresh. The applicants to appear before the learned Sessions Judge on 27/12/2010. The parties are at liberty to make their submissions and learned Sessions Judge to decide the application afresh as early as possible after giving opportunity of hearing to the parties. Ad-interim protection granted by this Court to continue till decision of the learned Sessions Judge, Washim in the matter. With these directions, the criminal application is disposed of. JUDGE Diwale