1
Cri.B.A. 509 of 2022
(Order Exh. 1)
Order Below Exh. 1 in Cri. Bail Appln. No. 509/2022
( CNR No. MHNS010019732022 )
Umesh Namdev Malode & another Vs. State.
Heard:
1]
Ld.Adv. Mr. A. G. Sonawane for the applicants.
Ld. A.P.P. Ms. S. S. Sangle for the State.
I. O. present.
Complainant and her advocate present in person.

This is an application under section 438 of the Code of
Criminal Procedure in Crime No. 104/2022 registered at Police
Station, Nashik Road, Nashik for the offence under Sections 376(2)
(n), 109, 504 & 506 r/w Section 34 of the Indian Penal Code and
Sections 3(1)(s), 3(1)(r) & 3(1)(w)(i), 3(2)(va) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
(hereinafter referred to as the ‘Atrocities Act’). It is the case of
prosecution in brief that the complainant is a married woman with a
five year­old daughter. However, since her husband was having an
extra­marital affair, she trusted the accused No. 1 and entered a live­
in­relationship with him. She had been staying with him since the
past few years along with her daughter. However, he refused to
marry her on one pretext or the other. On 16/08/2021 and
10/01/2022, accused No. 2 to 4 (mother, Mama and brother of
accused No. 1) came to her house, abused her and told her that they
would not let accused No. 1 marry her because she is from a lower
caste. Applicants are the mother and brother of accused No. 1.

2
2]
Cri.B.A. 509 of 2022
(Order Exh. 1)
Ld. Adv. for the applicants Mr. Sonawane has submitted
that the FIR is false and is filed purely with a view to arm­twist the
accused No. 1. There was a consensual relationship between the
complainant and accused No. 1. In fact, accused No. 1 has
transferred huge amount of money to her.

He has also filed on
record a copy of an agreement on stamp paper between the accused
No. 1 and the complainant wherein both of them had decided to
amicably settle their dispute. However, thereafter the complainant
started trying to extort money from the accused No. 1. The FIR is
nothing but a gross misuse of the provisions of Atrocities Act.
3]
Perusal of the entire FIR would indicate that no case
under the Atrocities Act has been made out against the applicants.
They are not the prime accused. Nothing needs to be recovered from
them. Their custodial interrogation is not required. No name of the
caste has been mentioned in the FIR. Moreover, even as per the FIR,
no caste­based insults were heaped on the so­called victim. Even as
per the FIR, the entire incident took place within the four walls of
the house. Therefore, there was no alleged humiliation based on
caste in a public place. Therefore, bar under Sec. 18 of the Atrocities
Act would not apply.
4]
In order to buttress his contentions further, he has relied
on the citations in the case of :
(i)
Hitesh Verma V/s. The State of Uttarakhand Laws (SC) ­
2020­11­17. In this matter, it was held that an offence under the
3
Cri.B.A. 509 of 2022
(Order Exh. 1)
Atrocities Act is not established merely on the fact that the informant
is a member of Scheduled Caste unless there is an intention to
humiliate a member of Scheduled Caste or Scheduled Tribe for the
reason that the victim belongs to such caste.
(ii)
Lahu S/O Vitthalrao Bhosale V/s. The State of Maharashtra
Laws (BOM)­ 2019­4­17. In this matter, it has been held by the
Division Bench of the Bombay High Court that the Sessions Court is
empowered to consider anticipatory bail application even if the crime
is registered for offences punishable under the Act. At the time of
consideration of such 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.
5]
He has submitted that perusal of the FIR does not
indicate that the applicants had sought to humiliate the victim in a
public place on the basis of her caste. Moreover, the FIR is tainted in
as much as there is gross delay in lodging FIR which has not been
explained. Applicant is ready to co­operate in the investigation and
abide by the terms and conditions imposed by the Court.
6]
Per­contra, Ld. A.P.P. Ms. Sangle has vehemently
opposed the application on the ground that perusal of the FIR and
case diary indicates that prima­facie case under the Atrocities Act has
been made out against the applicants. Therefore, anticipatory bail
application is not maintainable as per Sec. 18 of the Atrocities Act.

4
7]
Cri.B.A. 509 of 2022
(Order Exh. 1)
I have heard all the Ld. Advocates at length and have also
perused the case­diary. Perusal of the FIR indicates that no caste­
based insults were heaped on the victim. Even as per the FIR, the
entire incident took place within the four walls of the house.
Therefore, there was no alleged humiliation based on caste in a
public place. The allegations about abuses are vague. The allegations
against the applicants prima­facie do not constitute an offence under
the Atrocities Act. The alleged abuses were not made in public view
or public place. As per the FIR it was stated in the house of the
complainant. Save and except the utterance that, “We will not allow
our son to marry you because you belong to a lower caste” (that too
in the house of the complainant), there is no other allegation in the
FIR which would constitute an offence under the Atrocities Act.
Citations in the case of Hitesh (Supra) & Lahu (Supra) are squarely
applicable to the facts of the present case. The FIR also does not state
that the applicants does not belong to S.C./S.T. community.
Therefore, in my considered opinion there is neither any accusation
of having committed the offence under the Act, nor is there material
to make out prima­facie case for commission of such offence.
Therefore, bar under Sec. 18 of the Atrocities Act will not be
applicable to the facts of the present case. Applicants are ready to
comply with the terms and conditions imposed by the Court and co­
operate with the investigating machinery. No recovery needs to be
made from him. They are not the prime accused.

Custodial
interrogation of the applicants therefore does not appear to be
necessary. In view thereof, I am inclined to allow the application in
terms of the following order.

5
Cri.B.A. 509 of 2022
(Order Exh. 1)
ORDER
1)
Application Exh. 1 is allowed.

2)
In the event of arrest of applicants Umesh Namdev Malode &
Sunita Namdev Malode, they be released on bail by executing
P. R. & S.B. of ₹15,000/­ each with one local surety of like
amount.

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

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

5)
Applicants shall not threaten or intimidate the victim and shall
not commit any offence.
MRIDULA
BHATIA
Nashik.
26/04/2022.

Digitally signed
by MRIDULA
BHATIA
Date:
2022.04.26
20:04:33
+0530
Mridula Bhatia
District Judge­2 and Additional
Sessions Judge, Nashik.