1 Cri.B.A. 409 of 2022 (Common Order Exh. 1 & 12) Common Order Below Exh. 1 and Exh. 12 in
Cri. Bail Appln. No. 409/2022 ( CNR No. MHNS010014412022 )

Amolsingh Rameshsingh Pardeshi & 3 Others Vs. State

Heard:
Ld.Adv. Mr. M. D. Bhanose for the applicants.

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

I. O. present.

Complainant present in person.

Ld. Adv. Mr. A. G. Donde for the complainant.

1] This is an application under section 438 of the Code of Criminal Procedure in Crime No. II 42/2022 registered at Police Station, Indira Nagar, Nashik for the offence under Sections 504, 506 r/w Section 34 of the Indian Penal Code and Sections 3(1)(s), 3(1) (r) & 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the ‘Atrocities Act’). Application below Exh. 12 has been filed to vacate the interim protection granted to the applicants. It is the case of prosecution in brief that the complainant resides in the housing society of the applicants/accused. Applicant no. 3 is the Chairperson of the said co­operative housing society and the other applicants are the members. The complainant had made certain encroachments in the society area and had also taken an illegal electric connection from the meter of the society. Due to this, the society issued her notices and on 20.02.2022, came outside her house (to the common area of the society) and removed the said encroachment/gate, abused her and told her that, “You are a Mahar and are not worthy to stay in this society. You are of a lower caste.”

2] Ld. Adv. for the applicants Mr. Bhanose has submitted that perusal of the entire FIR would indicate that no case under the Atrocities Act has been made out against the applicants. Mere utterance of the name of the caste of the victim would not amount to an offence under the purview of the Atrocities Act. In order to buttress his contentions further he has relied on an unreported judgment of the Hon’ble Bombay High Court in Criminal Appeal No. 56 of 2020 dated 26th February, 2020 (Sandip Machindra Patil & others Vs. The State of Maharashtra & another), wherein “the appellant had kicked the door of his house and then uttered य यककळळ लककयकनय मयरय हह कयळळ लकक मयततन गहलह आहह तययकनय गयवयबयहहर कयढय’. Having knowledge that he is Koli by caste, they uttered said language and hereafter he was threatened to kill”. In this case, it was held by the Hon’ble High Court that mere utterance of the name of the caste of the victim would not amount to an offence under the purview of the Atrocities Act.

3] He has also relied on the citation in the case of Jairam s/o Shankarrao Tale V/s. State of Maharashtra, Laws (BOM) 2019­4­32 and has submitted that this citation also lays down the same ratio.

4] He has submitted that he has filed a copy of the FIR, perusal of which does not indicate that the applicants had sought to humiliate the victim in a public place on the basis of her caste. On the contrary, she was a part of all society functions and photographs of the same have been annexed to the application. Moreover, the FIR is tainted in as much as the alleged offence occurred on 22.02.2022 and the FIR came to be lodged on 23.03.2022.

5] Ld. Adv. Mr. Bhanose has submitted that the complainant had purchased a flat on the ground floor of the Housing Society where she is a member. She has encroached upon the area of the society and has constructed an iron gate thereupon and put a lock.

The area on which the said gate has been constructed, leads to the water tank of the society. Because of the construction of the iron gate by the complainant, the water tank has become unapproachable even for cleaning. She has not even handed over the key of the said lock to the society office bearers. In addition, it was also discovered to the shock and dismay of the society members that the complainant had taken an illegal electricity connection from the common meter of the society. Due to the said violations by the complainant, the society office bearers had asked the complainant to remove the said encroachment and also pay the amount of the individual bill.

However, she failed and neglected to do so. Therefore, the society members were constrained to file a police complaint dated 17th February, 2022 against her. They had also mentioned in the said complaint that the complainant is threatening the society bearers with filing a false complaint under the SC/ST prevention of Atrocities Act. The society members had also written a letter dated 28/02/2022
to the D.C.P., Zone­1, Nashik narrating the illegal activities carried out by the complainant. The complainant had also installed a CCTV camera in the society premises without obtaining the requisite permission. She had also kept the DVR of the said camera in her house. Ld. Adv. Mr. Bhanose has persuasively urged the court that the said complaints were filed in Feb., 2022, i.e., at least a month prior to lodging of the FIR by the complainant which clearly indicates that the contention of the society members is true and correct. The complainant, true to her threat, has filed a false complaint against the society members more than one month after the date of the alleged incident. Moreover, there is delay in lodging FIR. The alleged incident took place on 20/02/2022 at 10.00 a.m., whereas the FIR
was lodged on 23/03/2022. Ld. adv. Mr. Bhanose had submitted that in the backdrop of the above factual matrix, it is amply clear that the FIR is tainted. He has submitted that there is no necessity of custodial interrogation of the accused persons. Nothing needs to be recovered from them. They have complied with the terms and conditions imposed by the Court while granting interim relief. They have attended the police station as and when called by the I. O. and their statements have also been recorded.

6] Per­contra, Ld. A.P.P. Ms. Sangle has vehemently opposed the application on the ground that perusal of the FIR and the case diary indicates that prima­facie case under the Atrocities Act has been made out. Therefore, bar of Sec. 18 of the Act will come in to play. There is no delay in lodging FIR. There are six eye witnesses to the incident whose statements have been recorded by the investigating machinery and they clearly indicate that not only was there mere utterance of the name of the Caste of the complainant but also caste­based abuses were hurled at her within their audible range. Therefore, anticipatory bail application is not maintainable as per Sec. 18 of the Atrocities Act.

7] Ld. A.P.P. Ms. Sangle has submitted that when the complainant had purchased the flat in the society, it was clearly mentioned in the sale deed that the area adjoining flat no. 3 on the ground floor would belong to the complainant. Complainant has filed on record the copy of the sale deed to substantiate this argument. She has also submitted that the other issue about the water tank meter and the issue of the lock is exaggerated and extrapolated. The complainant always handed over the key of the said gate to the society members. Moreover, if at all the society office bearers were dissatisfied with the outcome of the water­tank and meter issue, then the concerned authority or the municipal corporation ought to have filed the complaint. The society office bearers and the accused persons had no right to abuse her on the basis of her caste.

8] Perusal of the statement of the eye witnesses along with the FIR clearly indicate that prima­facie offence under the Atrocities Act have been made out. The accused persons have not merely uttered the name of her caste but have also heaped caste­based insults on at her which constitutes prima­facie case under the Atrocities Act and the bail application is therefore covered by the bar under Sec. 18 of the Atrocities Act.

9] I have heard all the Ld. Advocates at length and have also perused the case­diary. Perusal of the case­diary indicates that the caste­based abuses were hurled at the complainant in the presence of the following six witnesses:
(i) Complainant’s Cook­ Kalpana,
(ii) Complainant’s sister­in­law,
(iii) Complainant’s maid Sunita,
(iv) Complainant’s son’s Tuition teacher Mr. Kanojia,
(v) Complainant’s husband’s friend Mr. Sandip More and
(vi) Complainant’s Banker Ravi Rajabhau Ardhapure.

10] This clearly indicates that the abuses were in public place and in public view. Perusal of statement of Manasi Mohan Kanojia indicates that when the accused persons hurled cast­based abuses at the victim, several people had gathered there and they were speaking loudly. The accused persons told the complainant and her family members, “You Bhimte belong to lower caste and do not know how to live and behave”. Perusal of the statement of Sharal Donde indicates that the accused persons had told the complainant and her family members, “We will see how you Maharde stay here. You come out, we will beat you with Chappals”. Statement of Sandip More reveals that on the date of the incident, the accused persons had broken the CCTV camera installed outside the house of the complainant and created a lot of commotion. When Sandip More came out, he saw that the accused had told the complainant and her family members that, “You belong to Mahar Caste and do not deserve to stay in this society”. Statement of Ravi Ardhapure reveals that the accused persons had gathered out­side the house of the complainant and were saying loudly that, “Gautam Donde should be removed out­side the house. He is not worthy enough to stay here”.

11] Perusal of the above statements of the witnesses along with the FIR indicate that there was not mere utterance of the name of the caste of the complainant but also there were caste based insults which were heaped upon her in public view with intent to cause humiliation. Therefore, I am of the considered opinion that primiafacie case under the Atrocities Act has been made out and therefore the bar under Sec. 18 of the said Act will operate. It is fairly wellsettled that an application under Sec. 438 of the Cr.P.C. can be entertained (if an offence is committed under the Atrocities Act) only if allegations in the FIR do not make out a primafacie case under the provisions of the said Act. It is also wellsettled that while doing so, the Court is not supposed to examine the correctness/ veracity of the allegations made in the FIR/complaint and that it only needs to examine whether an offence under the provisions of the Atrocities Act is made out when the allegations made in the FIR are taken at their face-value. Although the statements of the applicants may have been recorded and although they may have complied with the terms and conditions imposed by the Court, however, in view of the fact that primafacie case is made out against them under the Atrocities Act, bail application as envisaged under Sec. 438 of the
Cr.P.C. is not maintainable. In view of the foregoing discussion, I am inclined to reject the bail application.

ORDER

1] Criminal Bail Application No. 409 of 2022 is hereby rejected.
2] Interim order dated 28/03/2022 is hereby vacated.

Nashik. Mridula Bhatia 07/04/2022. District Judge 2 and Additional Sessions Judge, Nashik.