P. Sathasivam, J.— The short question to be decided in this petition is whether an accused charged with various offences under the Penal Code, 1860 (in short “IPC”) along with the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short “the SC/ST Act”) is entitled for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (in short “the Code”).
2. In the complaint filed by Savita Madhav Akhade, Respondent 3 herein, it has been alleged that she has been residing with her family members at Khandeshwari, Taluq Karjat, Ahmednagar, Maharashtra and earning their livelihood from agricultural work. It is further alleged that the complainant is having an agricultural land adjacent to the agricultural land of one Balu Bhanudas Pawar and Arun Bhanudas Pawar. On 15-6-2012, the complainant allowed the rainwater, which was accumulated, to flow into the field of Balu Bhanudas Pawar. When the complainant and her husband were standing on S.T stand for going to Karjat, at that time, Balu Bhanudas Pawar came there and abused them on caste on account of the rainwater flowing from the agricultural land of the complainant to his land. The complainant has also alleged that after their return to home, the petitioner along with other co-accused persons gathered at their house and they again abused them on their caste and assaulted the complainant and her family members by using sticks, stones, fighters, etc. Thereafter, on the same day, an FIR was registered being No. 139 of 2012 at Karjat PS, Ahmednagar, Maharashtra.
3. The petitioners along with other co-accused filed an application for anticipatory bail under Section 438 of the Code being Criminal Miscellaneous Application No. 712 of 2012 before the Court of Sessions Judge, Ahmednagar. By an order dated 4-7-2012, the Additional Sessions Judge rejected their application for anticipatory bail.
4. Aggrieved by the order of the Sessions Judge, the petitioners filed Criminal Application No. 3012 of 2012 before the High Court of Bombay, Bench at Aurangabad. By the impugned judgment and order dated 19-7-2012, the High Court, while rejecting the anticipatory bail application of the present petitioners, allowed the anticipatory bail to 13 accused out of 15. Being aggrieved, the petitioners approached this Court by filing special leave petition under Article 136 of the Constitution of India.
5. Heard Mr Dilip Annasaheb Taur, learned counsel for the petitioners.
6. Taking note of the fact that the complaint not only refers to various offences under IPC but also under Section 3(1)(x) of the SC/ST Act, we posed a question to the counsel by drawing his attention to Section 18 of the SC/ST Act as to how the petitioners are entitled to anticipatory bail.
7. It is useful to reproduce Section 18 of the SC/ST Act which reads as under:
“18. Section 438 of the Code not to apply to persons committing an offence under the Act.—Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.”
A reading of the above provision makes it clear that Section 438 of the Code is not applicable to persons committing an offence under the SC/ST Act. In the complaint, the complainant has specifically averred that she and her family members were insulted by the petitioners by mentioning her caste and also assaulted them by saying “beat the Mahar so that they should not live in the village”.
8. In order to understand the grievance of the complainant and the claim of the petitioners, it is useful to extract the complaint dated 15-6-2012:
“complaint
I, Sau. Savita Madhav Akhade, age 45 years, occu. household, r/o Takali Khandeshwari, Taluq Karjat, (caste — Hindu Mahar).
I am giving in writing the complaint in the police station that, I am residing on the above place with husband Madhav, my sons Ramesh, Umesh jointly. My husband is in service in Beed District. Near my house, Dadasaheb Paraji Akhade, Sadashiv Paraji Akhade and Deelip Paraji Akhade are residing with their families and doing the agricultural work. There is my agricultural land in Khandeshwari area. Near my agricultural land, there is agricultural land of Balu Bhanudas Pawar and Arun Bhanudas Pawar and they are cultivating their lands. On 15-6-2012, we allowed the rainwater to flow on the lower side and that flow is running from previously.
Today on dated 15-6-2012 at about 7.00 o'clock, my husband stood on Takali Khandeshwari S.T stand for going to Karjat, at that time, Balu Bhanudas Pawar came there and said to my husband that, ‘Mahardya’, I will not be allowing your water to come in my field and started beating him. After that, the people, who gathered along with Shivaji Anna Thombe has rescued the quarrel. After that, my husband came at home.
After we came at home, while I was fetching the water from water tank, the TATA ACC belongs to Vilas Pawar in that all the people, namely, Balu Bhanudas Pawar, Vilas Pandurang Pawar, Ravi Dada Pawar, Arun Bhanudas Pawar, Shrirang Pawar, Deepak Bhagade, Parmeshwar Indrajit Phadtare, Sudhir Chhagan Phadtare, Satish Namdeo Kirdat, Raghunath Tukaram Savant, Vitthal Raghunath Savant, Sandeep Raghunath Savant, Aba Kaka Phadtare, Dattatray Namdeo Pawar, nephew of Balu Pawar, all r/o Takali Khandeshwari (Pawar Vasti) came there and said that, beat the Mahar so that they should not live in the village, they are behaving arrogantly, saying that, they started beating with the weapons in hand like sticks, stones, fighters. In that quarrel, I myself, Dada Paraji Akhade, Sadashiv Paraji Akhade, Kundlik Gaikwad, Ramesh Akhade, Umesh Akhade, Rahul Akhade, Asru Akhade, Deelip Akhade are beaten at the hands of these people, so also, Nanda Deelip Akhade, Chhabubai Dadasaheb Akhade including myself were snatched on corner and beaten by these people. Thereafter, Vilas Pandurang Pawar told to Raghunath Tukaram Savant to help them. Thereafter, we phoned to police and the quarrel stopped after the police came on the spot.
Therefore, on 15-6-2012, near about 7.00 to 7.30 a.m the persons, namely, Balu Bhanudas Pawar, Vilas Pandurang Pawar, Ravi Dada Pawar, Arun Bhanudas Pawar, Shrirang Pawar, Deepak Bhagade, Parmeshwar Indrajit Phadtare, Sudhir Chhagan Phadtare, Satish Namdeo Kirdat, Raghunath Tukaram Savant, Vitthal Raghunath Savant, Sandeep Raghunath Savant, Aba Kaka Phadtare, Dattatray Namdeo Pawar, nephew of Balu Pawar, name is not known, all r/o Takali Khandeshwari have gathered unlawful assembly and assaulted the complainant and her relatives by means of sticks, stones, fighters and also abused on caste by saying, ‘beat the Mahar so that they should not live in the village’, on the ground that, the rainwater is allowed to flow in the field of Balu Bhanudas Pawar. I and others have sustained injuries. We want to go in hospital.
My complaint is read over to me and it is true as stated by me.
Before
Hence, written
sd/-
Date: 15-6-2012
Police Station Officer,
Karjat Police Station.
Sent to: Hon'ble JMFC,
Karjat.
Police Station Officer,
Karjat Police Station.”
A perusal of the complaint shows that the petitioners and other accused persons abused the complainant and her husband by calling their caste (Mahar) and assaulted them for their action of letting rainwater into their field.
9. Section 18 of the SC/ST Act creates a bar for invoking Section 438 of the Code. However, a duty is cast on the court to verify the averments in the complaint and to find out whether an offence under Section 3(1) of the SC/ST Act has been prima facie made out. In other words, if there is a specific averment in the complaint, namely, insult or intimidation with intent to humiliate by calling with caste name, the accused persons are not entitled to anticipatory bail.
10. The scope of Section 18 of the SC/ST Act read with Section 438 of the Code is such that it creates a specific bar in the grant of anticipatory bail. When an offence is registered against a person under the provisions of the SC/ST Act, no court shall entertain an application for anticipatory bail, unless it prima facie finds that such an offence is not made out. Moreover, while considering the application for bail, scope for appreciation of evidence and other material on record is limited. The court is not expected to indulge in critical analysis of the evidence on record. When a provision has been enacted in the Special Act to protect the persons who belong to the Scheduled Castes and the Scheduled Tribes and a bar has been imposed in granting bail under Section 438 of the Code, the provision in the Special Act cannot be easily brushed aside by elaborate discussion on the evidence.
11. The learned counsel appearing for the petitioners, relying on the decisions of the Delhi High Court in R.K Sangwan v. State (2009) 112 DRJ 473 and M.A Rashid v. Gopal Chandra Cri. MC No. 3866 of 2008 (Crl. MC 3866/2008) decided on 23-3-2012 and decision of the Orissa High Court in Ramesh Prasad Bhanja v. State of Orissa 1996 Cri LJ 2743 (Ori) submitted that in spite of the specific bar under Section 438 of the Code, the courts have granted anticipatory bail to the accused who were charged under Section 3(1) of the SC/ST Act.
12. In view of the specific statutory bar provided under Section 18 of the SC/ST Act, the above decisions relied on by the petitioners cannot be taken as a precedent and as discussed above, it depends upon the nature of the averments made in the complaint.
13. In view of the above discussion and in the light of the specific averments in the complaint made by the complainant Respondent 3 herein, we are of the view that Section 18 of the SC/ST Act is applicable to the case on hand and in view of the same, the petitioners are not entitled to anticipatory bail under Section 438 of the Code. Accordingly, the special leave petition is dismissed. However, it is made clear that the present conclusion is confined only to the disposal of this petition and the trial court is free to decide the case on merits.