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MHNS010019032022
CRIMINAL BAIL APPLICATION NO.497/2022
IN THE COURT OF ADDITIONAL SESSIONS JUDGE11
NASHIK AT NASHIK.
Mr. Bhushan Lahu Davkhar
Age 21, Occ: None
R/o. Girnare, Tal. Igatpuri,
Dist. Nashik.
..Applicant/accused
V/s.
State of Maharashtra
Through P.I. Igatpuri Police
Station
(CR No. 38 of 2022)
..Opponent
ORDER BELOW EXH.1
1.
The applicant/accused has filed this application for grant
of anticipatory bail U/s.438 of the Cr.P.C. in Crime No.38/2022 of
Igatpuri Police Station for the offence punishable U/s.3(1)(r)(s), 3(2)
(va) of Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act (hereinafter referred as ‘Act’) and Under Section 143,
147, 148, 149, 324, 323, 504 r.w. 34 of the Indian Penal Code
(hereinafter referred as ‘IPC’).
2.
The case of the prosecution is that on 15/04/2022 the
FIR was lodged by one Rahul Prakash Jagtap stating that on
14/04/2022 at about 16.00 hrs. he alongwith 100 to 125 people of
The Samrat Foundation Mandal had
carried out chariot of Dr.
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Cri.Bail bail Appln. No.497/2022
Babaseheb Ambedkar for procession. They had started said
procession from Tinlakadi bridge at that time the applicant/accused
were dancing in the said procession and one of the applicant/accused
was waiving the saffron flag. The said flag caused injury to some of
the persons in the said precession. So the informant asked the
applicant/accused to leave the said procession. At that time the other
accused abused the informant on castelines assaulted him by means
fighter on his head and the other accused assaulted including this
applicant by smacked them. They also pelted the stones on the
procession due to which informant and others have sustained
injuries. Hence the report was lodged by the informant in Igatpuri
Police station.
3.
The applicant has filed this bail application on the
ground that at the time of alleged incident the applicant was not
present on the spot. He was at Balyaduri for marriage ceremony of
his relatives. The applicant is suffering from T.B. and is taking
treatment fro the same. However, he is falsely implicated in this
offence. He is not involved in the present offence. He has not
committed any offence as alleged in the FIR.
4.
The applicant has further contended that there are no
specific allegations against him in the FIR. whereas without
considering the allegations in the FIR false crime registered against
him. He is staking treatment for T.B. and his family is dependent on
him. He was not present at the time of alleged offence nor he has
committed the same. He will not abscond and will assist in the
investigation so he has prayed that he be released on anticipatory
bail. He will abide the conditions imposed on him. So it is prayed that
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Cri.Bail bail Appln. No.497/2022
the application be allowed.
5.
The Ld. APP and I.O. have contested this application by
filing their pursis and say vide Exh.7 and 8. They have contended
that the offence charged against the applicant is serious in nature.
Moreover, in view of Section 18 and 18A (2) of the Act, the provision
of Section 438 of Cr.P.C. is not applicable for the offences under the
said Act. So this application is not tenable. Moreover, investigation is
at initial stage and so if applicant is released on bail there is
likelihood that he might pressurize the witnesses. So it is prayed that
application be rejected.
6.
Heard argument advanced by Ld. Adv. Mr. Walzade for
the applicant. He argued that the applicant was not present at the
time of alleged offence. He is falsely implicated in the same.
Moreover, in the FIR also no specific allegations are levelled against
the applicant. He also argued that there is no bar of Section 18 of the
Act as prima facie no offence is made out against the accused. So he
argued that accused is entitled for anticipatory bail. In support of this
argument the has relied on the case of Dr. Subhash Kashinath
Mahajan V/s. State of Maharashtra 2018 CJ Supreme Court 254
and unreported judgment of Lahu Vithalrao Bhosale and others
V/s. State of Maharashtra Criminal appeal No. 194 of 2019
decided on 03/04/2019.
7.
Per contra, the Ld. Ld. APP Mrs. Patil for the respondent
argued that the present application is not tenable in view of Section
18 of the Act. Also there is sufficient material on record to show
involvement of the applicant in the offence. So she argued that the
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Cri.Bail bail Appln. No.497/2022
application be rejected.
8.
Considered the arguments. Gone through the case of Dr.
Subhas (cited supra). The Hon’ble Supreme Court has led down
several guidelines in respect of the offence punishable under the
Atrocity Act. Whereas in the case of Lahu (cited supra) the Hon’ble
High Court has held and observed that even though by addition of
Section 18A in the Atrocity Act, there is power to the Session Court to
High Court to consider anticipatory bail application. But the court
will have to consider as to whether there is material to make out
prima facie case for commission of such offence.
9.
In view of the guidelines laid down by the Hon’ble Apex
court and the ratio led down by the Hon’ble High Court in the case
law cited supra, it can be said that there is no absolute bar of Section
18 and application for anticipatory bail is tenable. However, on this
point, the case of Pruthviraj Chavan V/s. Union of India Writ
Petition No. 1015 of 2018 decided on 10/02/2020 is material. In
this case the Hon’ble Supreme Court has held that, “the courts in very
exceptional cases where no prima facie offence is made out as shown
in the FIR then only can exercise the jurisdiction under Section 438
of the code”. So as per this case law only in exceptional cases the
jurisdiction under the Section 438 of the Code is required to be
exercised.
10.
In view of the law laid down in the aforestated case law
it is require to see that whether in the present case prima facie
offence is made out. In this context, it is argued by the Ld. Advocate
for applicant that in the present case in the FIR there are no
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Cri.Bail bail Appln. No.497/2022
allegations against applicant which would attract the provisions
under the Act. So the bar under Section 18 is not applicable in this
case. Considered the argument. Gone through the FIR. As per the
contents in the FIR it is narrated by the informant that some persons
who are accused were present in the procession and were waiving
saffron flag, due to which some of the members in the procession
were hurt. So when the informant asked them to leave the procession
those persons abused him on cast lines and the said persons are
accused Umesh and 9 others including the present applicant.
11.
The applicant has taken plea of alibi and has denied his
presence at the time of alleged incident. However, the contents in the
FIR prima facie shows the presence and involvement of the present
applicant in the offence. So at this stage the said defence cannot be
considered whereas prima facie case is made out against him. In view
of the ratio laid down in the case law cited supra only if prima facie
offence is not made out against the accused then only in exceptional
cases anticipatory bail can be granted. Here in this case, from the
contents of the FIR prima facie offence against the applicant is made
out. So in view of the aforestated reason I held that in view of Section
18 of the Act the present application is not tenable. So I proceed to
pass the following order.
ORDER
The application is rejected.
RADHIKA
MADHUKAR
SHINDE
Date: 26/04/2022
Nashik.
Digitally signed
by RADHIKA
MADHUKAR
SHINDE
Date: 2022.04.27
12:18:29 +0530
(Smt. R.M. Shinde )
Additional Sessions Judge,
Nashik.