. Heard, appeal is admitted. Notice after admission is made returnable forthwith. Appeal is taken up for final hearing with the consent of both the sides.

2. The appellants who are respectively accused No.2,4 and 9 against whom and ten (10) others crime no. I-186/2018 has been registered in Kannad Rural Police Station for the offences punishable under Sections 342 and 354B read with Section 34 of the Indian Penal Code (for short IPC ), under Section 3(1) ,(2) and (3) of the Maharashtra Prevention and Eradication of Human Sacrifice and other inhuman, Evil and Aghori Practices and Black Magic Act, 2013 (hereinafter referred to as 'Black Magic Act') and under Section 3(i)(l)(w)(i)(ii) , 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the "Atrocities Act") and whose application bearing No. 2194 of 2018 for anticipatory bail under Section 438 ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: (3) criappeal968.18 of the Code of Criminal Procedure was rejected by the District Judge-5 and Additional Sessions Judge, Aurangabad by order dated 24/12/2018 have assailed the said order by this appeal under Section 14-A(2) of the Atrocities Act.

3. By order dated 08/01/2019 an interim protection that, "meanwhile, no coercive action/steps be taken against the appellants-accused, was granted and the same has been continued from time to time.

4. Mr. Gaikwad, learned counsel for the appellants/accused Nos.2,4 and 9 has submitted that the alleged incident has taken place on 07/12/2018, but the complaint was lodged by the respondent No.2/ complainant on 15/12/2018. The respondent No.2 is in the habit of filing false cases. It is submitted that no specific role is attributed to applicants as regards offence under Section 354 of the IPC and they have been implicated on the statement of co-accused which is in admissible in evidence. The conduct of ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: (4) criappeal968.18 the respondent No.2 is material and it is required to be seen. Two of the accused, namely, Rambhau Shinde and Namdeo Shinde respectively accused Nos.1 and 3 in the present crime have been granted regular bail. The custodial interrogation of the appellants/accused is not necessary. The investigation is almost completed. Caste of the complainant/respondent No.2 is not mentioned in the FIR. Mere mentioning of caste of respondent No.2 is not enough. Allegations must be made that knowing that the respondent No.2/ complainant belongs to Scheduled Caste or Scheduled Tribe the accused who are not members of Scheduled Castes or Scheduled Tribes have outraged modesty of respondent No.2 and committed the alleged offences under the Atrocities Act. According to the learned counsel for the appellants offence under the Black Magic Act is not attracted. It is submitted that the finding of the learned Additional Sessions Judge that application for anticipatory bail is not tenable is not correct and the learned Additional Sessions Judge ought to have granted anticipatory bail application ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: (5) criappeal968.18 of the appellants. Therefore, according to learned counsel order under challenge is not sustainable and said order be set aside and appellants be granted anticipatory bail by allowing their application by allowing this appeal.

5. To support his submissions the learned counsel for the appellants has relied upon the following decisions:

(iv) Virendra Singh Vs. State of Rajasthan, 2000 Cri.L.J.2899

(v) Dhankesh S/o Bachubhai Lathiya Vs. State of Gujarat in R/Criminal Appeal No.445 of 2018 decided ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: (6) criappeal968.18 on 05/09/2018.

(vi) Devjibhai Ganeshbhai Patel (Kathrotiya) Vs. State of Gujrat in R/Criminal Appeal No.1200 of 2018 decided on 14/09/2018

(vii) Shri. Nagesh @ Nagesh Reddy, s/o. Venkatareddy, Vs. The State of Karnataka in Criminal Petition No.4306 of 2018 decided on 28/08/2018 (Karnataka High Court).

(viii) Manjeet Singh and Ors. Vs. State of Delhi, 2013 Cri.L.J.3070.

(ix) Dharani Pradhan Vs. State of Orissa, 2014(4) Crimes 456(Orissa) wherein it has been held that merely because a case is registered under Section 3 of the SC/ST Act, there is no bar in entertaining an application 438 Cr.P.C.

(x) Unknown Vs. State of West Bengal in C.R.M. 10431 of 2018 decided on 26/02/2019.

(xi) Lahu s/o. Vitthalrao Bhosale Vs. The State of Maharashtra in Criminal Appeal No.194 of 2019, Bombay High Court decided 03/04/2019.

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(7) criappeal968.18

6. Mr. Morampalle, learned APP submitted that there is bar under Section 18A of the Atrocities Act and offences alleged against the appellants are attracted. Thus, he supported the impugned order and claimed to dismiss the appeal.

7. Mr.Gore, learned counsel for the respondent No.2 submitted that offence under the Black Magic Act is non bailable. Appellants have committed inhuman Act and hence provisions of Black Magic Act are attracted. Punishment provided for offence under the said Act is 7 years imprisonment. So also, it is submitted that offences under Sections 3(1)(l) ,(w)(i) and (ii) of the Atrocities Act are made out against the appellants. Decisions of this Court in Lahau Vitthalrao Bhosale (Supra) relied upon by the learned counsel for the appellants is not applicable to this case as the offences under the Atrocities Act against the appellants are attracted. Thus, learned counsel for the respondent No.2 submitting that the learned Additional Sessions Judge has rightly ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: (8) criappeal968.18 rejected application for anticipatory bail of the appellants by the impugned order prayed to dismiss the appeal.

8. I have carefully considered the submissions made by the learned counsel for the appellants, learned APP and learned counsel for respondent No.2 and with their assistance I have perused the documents on record submitted by the appellants and the impugned order.

9. To see whether anticipatory bail application is maintainable after provision under Section 18A of the Atrocities Act after the amendment in the Act, it would be useful to refer observation in paragraphs No. 20 and 21 of the judgment dated 03/04/2019 of the Division Bench of this Court in Criminal Appeal No. 194 of 2019. Said paragraph Nos.20 and 21 are as under:-

either reject the application forth with or issue an interim order for the grant of anticipatory bail:"

In the case reported as ( 1980) 2 SCC 565 [Shri. Gurbaksh Singh Sibbia and Ors. Vs. State of Punjab ], the Constitutional Bench of Apex Court has made following observations at para No. 31 :-

Thus, the provision of section 438 of Cr.P.C. and the law developed on it shows ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 12 ) criappeal968.18 that it is a discretionary relief, it can be granted in exceptional circumstances and the Court is expected to keep in mind the interest of the society also. If there are provisions due to which the relief of anticipatory bail cannot be granted to a person against whom there is allegation of commission of a particular offence, it becomes the duty of the Court to ascertain as to whether there is material to make out prima facie case of commission of that offence by the person who has come to the Court for relief of anticipatory bail. If the Court forms opinion that there is such material, then it can be said that the bar given by section 18 or section 18-A comes into play. If the material is not sufficient to make out prima facie case of commission of the offence punishable under the Act against the applicant, the Court is expected to consider the matter as provided under section 438 of Cr.P.C. Section 438 already quoted shows that the provision is made to see that the liberty of the subject is not put in jeopardy on frivolous grounds at the instance of unscrupulous or irresponsible persons or officers who may some times be in charge of prosecution. [Reliance placed on the case reported as AIR 1977 SC 366 ( Balchand Jain Vs. State of Madhya Pradesh ) and also on AIR 2007 SC 1450 [D.K. Ganesh Babu Vs. P.T. Manokaran & Ors. ]).

21) In view of the discussion made above, this Court holds that even after the amendment made in the year 2018 by which the provision of section 18-A came to be added, there is the power to Sessions Court and High Court to consider anticipatory bail application even if the crime is registered for offences punishable under the Act. At the time of consideration of such ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 13 ) criappeal968.18 application, the Court will have to consider as to whether there is accusation of having committed the offence under the Act and as to whether there is material to make out prima facie case for commission of such offence. This Court wants to add that even the police officer is expected to give thought at the time of registration of the crime under section 154 of Cr.P.C. that whether the allegations constitute the offence under the Act. Only because the first informant belongs to scheduled tribe or scheduled caste, the crime cannot be registered for offence punishable under the Act and offence can be registered under the Act only if there are ingredients of the offences punishable under the Act in the accusation."

10. Similarly, it is useful to refer decision of Full Bench of Rajasthan High Court in the case of Virendra Singh Vs. State of Rajasthan , 2000 Cri.L.J. 2899 to see under what circumstances application under Section 438 of the Code of Criminal Procedure can be entertained in case of offence under the Atrocities Act, and in the said case in paragraph 18 it was observed thus:-

11. Thus, it is clear from observations of the Division Bench of this Court in Criminal Appeal No. 194 of 2019 that if the Court forms opinion that there is such material, then bar under Section 18A comes in to play, if the material is not sufficient to make out prima facie case of commission of offence punishable under the Act against the applicant, the Court is expected to consider the matter as provided under section 438 of Cr.P.C. Similarly in view of Full Bench decision of Rajasthan High Court in the case of Virendra Singh (Supra) application for anticipatory bail can be entertained only on the ground of inapplicability of the Act of 1989 due to the facts of the case which will have to be gathered ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 17 ) criappeal968.18 only from the FIR and not beyond that because once it is gathered from the FIR that the applicant is an accused of committing an offence laid down under Section 3 of the Act of 1989, the bar of Section 18 would instantly operate against the person who has been made an accused of the offence under the Act of 1989.

12. The offences alleged against the appellants under the Atrocities Act are under Sections 3(1)(l) (w)(i) and (ii) and 3(2)(va). The said provisions are as under:

3(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,-

(i)..........

(va) commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and shall also be liable to fine)".

13. So also the ingredients of offence under Section 3(1) ,(2), (3) of the Black Magic Act are as under:

14. On perusal of the FIR (Exh.'A') it is seen that on 15/12/2018 the respondent No.2/complainant who is a member of Scheduled Caste i.e. 'Mang' community filed said complaint in Kannad Rural Police Station alleging that on 07/12/2018 i.e. on Firday there was Amavasya. On that day she, her sister Rekha Rokade and her brother-in-law Ramesh Rokade had come to Kannad and had purchased cement. Thereafter, on that day they returned their village Kalanki, Tal. Kannad in the evening at 5.00 p.m. at her house and they were sitting in the house watching the TV. At about 9.00 p.m. Rambhau Laxman Shinde from her ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 20 ) criappeal968.18 village came and said that there is a prayer in his house in the field which is taken on batai and that they (complainant and others) should accompany him for the said prayer. Relying upon his words as he said that he is like father of the complainant, the complainant and her brother-in-law Tulshidas Tribhuvan went to the field of said Laxman Shinde on the motorcycle. There Scorpio car was standing. Her brother-in-law stayed outside the house. The complainant went in side the house. At that time there were four persons in the house and they were from other village and she (complainant) was not knowing them, but on seeing them she could identify them. All of them had wore pant and shirt. Circle of black colour of coal was made in the house. Turmeric, vermilion (red lead), lemon and scented stick were kept in the said circle. One Occultist asked Rambhau to go outside the house and he was asked to close the door. Accordingly said Rambhau went out side the house. At that time the complainant came to know that some sort of magic is going on there. At that time ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 21 ) criappeal968.18 one of the four Occultist persons said the complainant that she should sit naked in the said circle, as they have to have rain of money. Thereupon, the complainant was frightened and she tried to cry. At that time one Occultist pulled her saree and she gave jerk to him and made loud shouts. At that time Occultist said her that if she would not sit naked in the circle she would be burnt by the magic. Thereafter, as she shouted loudly and somebody from the outside said to open door, she opened the door and at that time she saw Tarachand whose full name she does not know and she asked him what is going on and who are these people and she said him to tell the names of those people. Thereupon, he told that they are the appellants Navnath Aade, Namdeo Mango Rathod, Changdeo Jadhav residents of Sitanaik Tanda, Raheman resident of Mungsapur, Tq. Kannad, Dudha Trader resident of Chapaner, Bansi Aalu Aade resident of Boltek Tanda and Sopan Kachru Salunke resident of Kolwadi. She also asked Rambhau what is going on and he said her to pardon her and that he ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 22 ) criappeal968.18 would leave her at house. Thereupon Occultists came out of the house and the people in the Scorpio car were abusing Tarachand and Rambhau. They were saying that they have incurred expenses of Rs.15,000/- and they were pulling and pushing Rambhau in the vehicle and quarrels were going on. At that time the complainant and her brother-in-law Tribhuvan were left at her house on motorcycle by Raheman.

15. From the above allegations in the FIR it is seen that respondent No.2/complainant claims that she belongs to 'Mang' community. But she does not claim in the FIR that she being a member of the Scheduled Caste and the appellants being members of the Scheduled Caste or Scheduled Tribe intentionally touched her knowing that she belongs to a Scheduled Caste or a Scheduled Tribe, and such act of touching is of a sexual nature and is without the recipient's consent and that they used words, acts or gestures of a sexual nature towards her knowing that she belongs to a Scheduled Caste or a Scheduled Tribe so as to ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 23 ) criappeal968.18 attract offences under Sections 3(1)(w)(i) & (ii) of the Atrocities Act. Thus, the allegations in the FIR referred to above are not prima facie sufficient to attract aforesaid offences under the Atrocities Act against the appellants. The FIR shows that respondent No.2/complainant came to know about the names of the appellants from Tarachand (accused No.5) i.e. co- accused. When the respondent No.2 is not knowing the appellants her say in the FIR that she came to know about the appellants from co-accused Tarachand is not prima facie sufficient to say about the involvement of the appellants in the crime. Therefore, offences under Sections 3(1)(w)(i) & (ii) of the Atrocities Act are not prima facie applicable or attracted against the appellants. Therefore, bar contemplated under Section 18A of the Atrocities Act is not applicable in the present case. Therefore, application under Section 438 of the Code of Criminal Procedure for anticipatory bail of the appellants can be entertained in view of the decision of Division Bench of this Court in Criminal Appeal No. 194 of ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 24 ) criappeal968.18 2019 (Supra) and decision of Rajasthan High Court in the case Virendra Singh (Supra).

16. Moreover, from the allegations referred earlier in the FIR it cannot be prima facie said that there is involvement of the appellants in outraging the modesty of the respondent No.2 or in committing the offence under the Black Magic Act. Therefore vague allegations in respect of offences under Sections 354 and 342 of the Indian Penal Code and in respect of the offence under the Black Magic Act made in the FIR are not prima facie sufficient to attract the said offences against the appellants/ accused Nos.2,4 and 9. Another aspect to be noted is that there is no material to show that the respondent No.2 has identified the appellants to be the persons involved in the commission of offence alleged in the FIR.

17. When as observed earlier bar contemplated under Section 18A of the Atrocities Act is not ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 25 ) criappeal968.18 attracted in the present case. The observations of the Additional Sessions Judge while passing the impugned order that the application for anticipatory bail is not tenable are incorrect and unsustainable. Moreover, when the offences alleged against the appellants are not prima facie attracted against the appellants as observed earlier, the observations of the learned Additional Sessions Judge that the offences are serious, are not sufficient to state that the appellants are not entitled to anticipatory bail.

18. There is no dispute that accused Nos.1 and 3, namely, Rambhau Laxman Sinde and Namdeo Mangu Rathod had filed Criminal Bail Application No.2205 of 2018 for bail under Section 439 of the Code of Criminal Procedure and said application was allowed by the learned Additional Sessions Judge on 24/12/2018.

19. For the foregoing reasons when the offences ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 26 ) criappeal968.18 alleged against the appellants are not prima facie attracted and as bar contemplated under Section 18A of the Atrocities Act is not applicable to the present case the appellants can be granted anticipatory bail on certain conditions by setting aside the order under challenge as the same is not sustainable by allowing the appeal. Resultantly following order is passed.

the District Judge-5 and Additional Sessions Judge, Aurangabad in Criminal Bail Application No.2194 of 2018 rejecting said application is quashed and set aside.

(iii) Said Criminal Bail Application No.2194 of 2018 is allowed. In the event of arrest of the appellants/accused Nos.2,4 and 9 in connection with Crime No.186/2018 registered in Kannad Rural Police ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 ::: ( 27 ) criappeal968.18 Station, they be released on bail, each on furnishing P.R. bond of Rs.15,000/- (Rupees Fifteen Thousand) with solvent surety of the like amount on conditions that;

(a) They shall make themselves available to the Investigating Officer for the purpose of investigation as and when necessary;

(b) They shall not tamper the evidence of prosecution in any manner and by brining pressure on the respondent No.2/complainant or any witness;

(c) They shall attend Kannad Rural Police Station, Aurangabad on fourth Saturday of each month between 11.00 a.m. to 12.00 p.m. till the conclusion of the investigation.

[S.M.GAVHANE,J.] SSP ::: Uploaded on - 25/04/2019 ::: Downloaded on - 27/04/2019 03:22:30 :::