Order Below Exh.1 in Cri. Bail Appln. No. 361/2022 ( CNR No. MHNS­010012282022 )

Amit Vasant Pawar Vs. State

Heard:
Ld. Adv. Mr. R. D. Avhad for the applicant.

Ld. A.P.P. Ms. S. S. Sangle for the State.

Perused the say filed by the complainant.

1] This is an application by accused under section 438 of Criminal Procedure Code in Crime No.88/2022 registered at Panchavati Police Station, Nashik for the offence under Sections 354, 394, 452, 427, 323, 504 & 506 of the Indian Penal Code, 1860 (I.P.C.), Secs. 3(1)(p), 3(2)(a)(i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Atrocities Act) and 4/25 of the Arms Act. It is the case of prosecution in brief that the accused persons (including the applicant) entered the house of the complainant and assaulted her brother­in­law and husband due to previous animosity. When she went for their rescue, they molested her and accused No. 3 gave her caste­based abuses.

They also lifted her cash of Rs.7800/­ and golden beeds and locket which fell down from her person during the commotion.

2.Ld. Adv. for the applicant has submitted that admittedly, the offence took place inside the house of the complainant and therefore FIR is lodged under section 452 of I.P.C. For the provisions of the Atrocities Act to be applicable, caste­based abuse or insult needs to be made in a public place.

Since a house is not a public place, therefore, provisions of the Atrocities Act will prima­facie not be applicable and bar of Sec. 18 of the Atrocities Act will also not come into play. Secondly, even as per the case of the prosecution, there is previous animosity and disputes inter­se between the parties. In fact, there is admittedly a previous FIR by the police about the same incident against the complainant’s husband and two other persons. Thirdly, the allegation of mouthing caste­based abuses is only against accused No. 3 who himself belongs to a Scheduled Caste and is behind bars. Fourthly, provisions of Sec.392 of the I.P.C. will not be applicable because the FIR does not state that the accused robbed the complainant of cash and gold.

The FIR categorically states that during the commotion, cash and gold fell from the person of the complainant and was picked up by the accused. Applicant is ready to abide by the terms and conditions imposed by the Court.

3.In order to buttress his contentions further, he has relied on the following citations :­
(i) Hitesh Verma V/s. The State of Uttarakhand Laws (SC) ­ 2020­11­17.

In this matter, it was held by the Apex Court that since the matter is regarding possession of property pending before the Civil Court, any dispute arising on account of possession of the said property would not disclose an offence under the Act unless the victim is abused, intimated or harassed only for the reason that she belongs to Scheduled Caste or Scheduled Tribe.

In the case at hand also, there is admittedly an ongoing property dispute between the parties.

(ii) Dada @ Anil S/o. Navnath Murkute V/s. The State of Maharashtra LAWS (BOM) 2020 8 26. In this matter (with similar facts), anticipatory bail was given to the applicant.

4.Per contra, Ld. A.P.P. has opposed the bail application on the ground that there is prima­facie case against the applicant. Custodial interrogation of the applicant is necessary. Moreover, the said application is barred by Section 18
of the Atrocities Act.

5.Perusal of the case diary indicates that the offence took place inside the house of the complainant and therefore FIR is lodged under section 452 of I.P.C. For the provisions of the Atrocities Act to be applicable, caste­based abuse or insult needs to be made in a public place. Since a house is not a public place, therefore, provisions of the Atrocities Act will prima­facie not be applicable and bar of Sec. 18 of the Atrocities Act will also not come into play. As per the case of the prosecution, there is previous animosity and disputes inter­se between the parties.

There is a previous FIR by the police about the same incident against the complainant’s husband and two other persons. The allegation of mouthing caste­based abuses is only against accused No. 3 who himself belongs to a Scheduled Caste and is behind bars. His Caste certificate is filed on record and is not disputed by the prosecution. The FIR does not state that the accused robbed the complainant of cash and gold. The FIR categorically states that during the commotion, cash and gold fell from the person of the complainant and was picked up by the accused.

6.Citations in the case of Hitesh Verma (Supra), Kiran (Supra) and Dada @ Anil (Supra) are squarely applicable to the present case. No recovery needs to be made from the applicant. He is ready to abide by the terms and conditions imposed by the court and co­operate with the investigating agency. Applicant is not the prime accused. Prime accused(accused No. 1 to 3) are behind bars. In the facts of the case, custodial interrogation of the applicant does not appear to be necessary. In view of the foregoing discussion, I am inclined to allow the application subject to the following terms and conditions.

ORDER
1) Application Exh. 1 is allowed.

2) In the event of arrest of applicant Amit Vasant Pawar, he be released on executing P. R. bond of
₹15,000/­ with one local surety of like amount.

3) Applicant shall attend the concerned Police Station as and when called by the I.O.

4) Applicant shall co­operate in the investigation and shall not tamper with the prosecution witnesses.

5] Applicant shall not threaten or intimidate the victim and shall not commit any offence.

Digitally signed by MRIDULA MRIDULA BHATIA BHATIA Date: 2022.04.05 10:14:58 +0530 Nashik Mridula Bhatia 04/04/2022 District Judge ­ 2 and Additional Sessions Judge, Nashik.