04 May 2121

If the complaint does not make out a prima facie case for applicability of the provisions of the SC & ST (Prevention of Atrocities) Act, 1989, the bar created by section 18 and 18a(i) shall not apply - Bombay High Court

Case : Mahesh Bhikaji Badave v. State of Maharashtra & Ors. Criminal Appeal No. 41 of 2021 With Criminal Application No. 396/2021

Court : Bombay High Court

Bench : Justice Smt. Vibha Kankanwadi

Decided on : 04 May 2121

Relevant Statutes

Sections 3(1) (r) (s), 3(1) (w) (II), 14A & 18A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

Sections 438 & 294 of Code of Criminal Procedure, 1973

Section 507 of Indian Penal Code, 1860

Brief Facts and Procedural History

1The informant lodged the FIR against the appellant under Section 507 of Indian Penal Code, 1860 and Sections 3(1) (r) (s), 3(1) (w) (II) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

2. In FIR, the informant stated the following story: ‘The informant is a near relative of the wife of the appellant. The informant though performed inter-caste marriage but originally she belonged to a member of a scheduled tribe. There is domestic discord between the present appellant and his wife and, therefore, the appellant’s wife is residing with the informant. The informant is a social worker and many social workers from the Adiwasi community used to visit her place. At about 9.00 pm on 27.12.2020, her mother had visited her place. Two social workers from the area had also come to her house. The informant, her husband and mother were sitting in the courtyard of her house. The appellant gave a phone call on the informant’s mobile. The informant told him to settle the dispute between him and his wife. But the appellant was making grievances against his wife with the informant. She had cut the phone after giving the advice. But, thereafter, according to the informant, the present appellant was calling her again and again and abusing them.

3. Further the two social workers, who were with her, advised her to put the phone on speaker mode and listen as to what the appellant is saying. It is stated that the present appellant gave abuses in the name of caste to the informant. She also states that the present appellant had sent messages to his wife and had abused the informant in filthy language referring to her caste and, therefore, she has lodged the FIR.’

4. The appellant was apprehending his arrest in connection with the above stated FIR, therefore, he moved the Bail Application under Section 438 of Criminal Procedure Code, 1973, before the Sessions Judge, Nandurbar. The learned Session Judge rejects the bail application of the appellant.

The Issues of the Case

Whether it was the intention of the appellant to abuse or insult the informant, who is a member of the scheduled tribe in a “public place” or within “public view”?

Whether the place, where the offence is alleged to have been committed, is a “public place” or within “public view”?

The Observations of the Court

1On perusal of criminal application filed as intervention application by the wife of the present appellant, the court found that, in fact, she has categorically stated that the appellant has not sent any messages on her mobile, imputing the informant.

2. The police papers are provided, which show that a substantive investigation appears to have been done. The Honourable Bombay High Court considers the call around 9.00 pm on 27.12, .2020, there is only one call, duration of which is said to be 302 seconds. Therefore, it does not, prima facie, support the contents of the FIR, wherein she has stated that she had cut the phone, but then appellant was calling her again and again and abusing. It is further noted that either in the FIR or in the statements of the witnesses, they have not stated that they had given the idea to the appellant that they were sitting in the courtyard or the informant had put her mobile on speaker mode. Prima facie it does not appear that the appellant has an intention to abuse or insult the informant, who is a member of the scheduled tribe in a “public place” or within “public view”.

3. Further, as regards the message that is given to wife of the appellant by the appellant on Whatsapp is concerned, since the messages on WhatsApp are end-to-end encrypted, it cannot be said to be a place of “public view”. Nivrutti S/o Hariram Gaikwad Vs. The State of Maharashtra and Ors., Criminal WP No.557/2018, is referred for the same.

4. It is argued by the respondent that the present appellant is having criminal background. The court explained that the alleged criminal background of the appellant cannot be taken into consideration here with the background of the present dispute as to the background of a domestic dispute between the wife of the appellant and the appellant himself. Further, those offences appear to be an old one and the present status of those cases has not been produced on record.

5. The Honourable Bombay High Court opined, in view of the fact that prima facie offence has not been made out against the appellant, there is no question of Bar under Section 18A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989. The physical custody of the appellant is not required. Prathvi Raj Chauhan vs. Union of India, Writ Petition No.1015/2018, is referred for the same.

The Decision Held by the Court

1. Criminal Application moved to intervene in the appeal is allowed and disposed of.

2. The criminal appeal is allowed and set aside the judgment and order passed by learned Sessions Judge, Nandurbar, in Criminal Bail Application. The said application stands allowed.

3. In the event of arrest of the appellant in connection with FIR registered with Nandurbar City police station for the offences punishable under Section 507 of IPC and Sections 3(1)(r)(s), 3(1)(w)(II) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989, he is released on PR and SB of Rs.15,000/- each.

4.  The appellant shall attend the concerned police station on every Monday and Thursday between 10.00 AM to 2.00 PM till the filing of the charge sheet.

5. The appellant shall not tamper with evidence of the prosecution in any manner and shall not indulge in any criminal activity.

6. It is clarified that the observations made by this Court are restricted for deciding the bail application only and the Trial Court shall not get influenced by the same while considering disposal of the case on merits.

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