VILAS PANDURANG PAWAR & ANR. Vs STATE OF MAHARASHTRA & ORS.
Bench: P. SATHASIVAM,RANJAN GOGOI
Case number: Special Leave Petition (crl.) 6432 of 2012
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRL.) NO. 6432 of 2012
Vilas Pandurang Pawar & Anr. .... Petitioner(s)
Versus
State of Maharashtra & Ors. .... Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) The short question to be decided in this petition is
whether an accused charged with various offences under the
Indian Penal Code, 1860 (in short ‘IPC’) along with the
provisions of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (in short ‘the SC/ST Act’) is
entitled for anticipatory bail under Section 438 of the Code of
Criminal Procedure, 1973 (in short ‘the Code’).
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2) In the complaint filed by Savita Madhav Akhade –
Respondent No.3 herein, it has been alleged that she has been
residing with her family members at Khandeshwari, Taluq
Karjat, Ahmednagar, Maharashtra and earning their livelihood
from agricultural work. It is further alleged that the
complainant is having an agricultural land adjacent to the
agricultural land of one Balu Bhanudas Pawar and Arun
Bhanudas Pawar. On 15.06.2012, the complainant allowed
the rain water, which was accumulated, to flow into the field of
Balu Bhanudas Pawar. When the complainant and her
husband was standing on S.T. stand for going to Karjat, at
that time, Balu Bhanudas Pawar came there and abused them
on caste on account of the rain water flowing from the
agricultural land of the complainant to his land. The
complainant has also alleged that after their return to home,
the petitioner along with other co-accused persons gathered at
their house and they again abused them on their caste and
assaulted the complainant and her family members by using
sticks, stones, fighters etc. Thereafter, on the same day, an
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FIR was registered being No. 139/2012 at Karjat P.S.,
Ahmednagar, Maharashtra.
3) The petitioners along with other co-accused filed an
application for anticipatory bail under Section 438 of the Code
being Criminal Miscellaneous Application No. 712 of 2012
before the Court of Sessions Judge, Ahmednagar. By order
dated 04.07.2012, the Additional Sessions Judge rejected their
application for anticipatory bail.
4) Aggrieved by the order of Sessions Judge, the petitioners
filed Criminal Application No. 3012 of 2012 before the High
Court of Bombay, Bench at Aurangabad. By impugned
judgment and order dated 19.07.2012, the High Court, while
rejecting the anticipatory bail application of the present
petitioners, allowed the anticipatory bail to 13 accused out of
15. Being aggrieved, the petitioners approached this court by
filing special leave petition under Article 136 of the
Constitution of India.
5) Heard Mr. Dilip Annasaheb Taur, learned counsel for the
petitioners.
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6) Taking note of the fact that the complaint not only refers
to various offences under IPC but also under Section 3(1)(x) of
the SC/ST Act, we posed a question to the counsel by drawing
his attention to Section 18 of the SC/ST Act as to how the
petitioners are entitled to anticipatory bail. It is useful to
reproduce Section 18 of the SC/ST Act which reads as under:
“18. Section 438 of the Code not to apply to persons committing an offence under the Act.- Nothing in section 438 of the code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act.”
A reading of the above provision makes it clear that Section
438 of the Code is not applicable to persons committing an
offence under the SC/ST Act. In the complaint, the
complainant has specifically averred that she and her family
members were insulted by the petitioners by mentioning her
caste and also assaulted them by saying “Beat the Mahar so
that, they should not live in the village.”
7) In order to understand the grievance of the Complainant
and the claim of the petitioners, it is useful to extract the
complaint dated 15.06.2012.
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“COMPLAINT
I. Sau. Savita Madhav Akhade, Age-45 years, Occu. Household, R/o Takali-Khandeshwari. Tq. Karjat, (Caste- Hindu Mahar)
I am giving in writing the complaint in the Police Station that, I am residing on the above place with hushand – Madhav, my sons Ramesh, Umesh jointly. My husband is in service in the Beed district. Near my house, Dadasaheb Paraji Akhade, Sadashiv Paraji Akhade and Deelip Paraji Akhade are residing with their families and doing the agricultural work. There is my agricultural land in Khandeshwari area. Near my agricultural land, there is agricultural land of Balu Bhanudas Pawar and Arun Bhanudas Pawar and they are cultivating their lands. On 15.06.2012, we allowed the rain water to flow the lower side and that flow is running from previously.
Today on dated 15.06.2012 at about 7.00 O’Clock, my husband stood on Takali-Khandeshwari S.T. stand for going to Karjat, at that time, Balu Bhanudas Pawar came there and said my husband that, “Mahardya”, I will not be allowed your water to come in my field and started beating him. After that, the people, who gathered along with Shivaji Anna Thombe has rescued the quarrel. After that, my husband came at home. After we came at home, while I was fetching the water from water tank, the TATA ACC belongs to Vilas Pawar in that all the people, namely, Balu Bhanudas Pawar, Vilas Pandurang Pawar, Ravi Dada Pawar, Arun Bhanudas, Pawar, Shrirang Pawar, Deepak Bhagade, Parmeshwar Indrajit Phadtare, Sudhir Chhagan Phadtare, Satish Namdeo Kirdat, Raghunath Tukaram Savant, Vitthal Raghunath Savant, Sandeep Raghunath Savant, Aba Kaka Phadtare, Dattatray Namdeo Pawar, Nephew of Balu Pawar, all R/o Takali Khandeshwari (Pawar Vasti) came there and said that, beat the Mahar so that, they should not live in the village , they are behaving arrogantly, saying that, they started beating with the weapons in hand like sticks, stones, fighters. In that quarrel, I myself, Dada Paraji Akhade, Sadashiv Paraji Akhade, Kundlik Gaikwad, Ramesh Akhade, Umesh Akhade, Rahul Akhade, Asru Akhade, Deelip Akhade are beaten at the hands of these people, so also, Nanda Deelip Akhade, Chhabubai Dadasaheb Akhade including myself were snatched on corner and beaten by these people. Thereafter, Vilas Pandurang Pawar told to Raghunath
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Tukaram Savant to help them. Thereafter, we phoned to police and the quarrel is stopped after the Police came on the spot.
Therefore, on 15.06.2012, near about 7.00 to 7.30 A.M. the persons namely, Balu Bhanudas Pawar, Vilas Pandurang Pawar, Ravi Dada Pawar, Arun Bhanudas Pawar, Shrirang Pawar, Deepak Bhagade, Parmeshwar Indrajit Phadtare, Sudhir Chhagan Phadtare, Satish Namdeo Kirdat, Raghunath Tukaram Savant, Vitthal Raghunath Savant, Sandeep Raghunath Savant, Aba Kaka Phadtare, Dattatray Namdeo Pawar, Nephew of Balu Pawar, name is not known, all R/o Takali Khandeshwari have gathered unlawful assembly and assaulted the complainant and her relatives by means of sticks, stones, fighters and also abused on caste by saying, “Beat the Mahar so that, they should not live in the village ”, on the ground that, the rain water is allowed to flow in the filed of Balu Bhanudas Pawar. I and others have sustained injuries. We want to go in Hospital.
My complaint is read over to me and it is true as stated by me. Before Hence, written Sd/- Date: 15/06/12 Police Station Officer, Karjat Police Station.
Sent to: Hon’ble JMFC Karjat.
Sd/- Police Station Officer Karjat Police Station.”
A perusal of the complaint shows that the petitioners and
other accused persons abused the complainant and her
husband by calling their caste (Mahar) and assaulted them for
their action of letting rain water to their field.
8) Section 18 of the SC/ST Act creates a bar for invoking
Section 438 of the Code. However, a duty is cast on the court
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to verify the averments in the complaint and to find out
whether an offence under Section 3(1) of the SC/ST Act has
been prima facie made out. In other words, if there is a
specific averment in the complaint, namely, insult or
intimidation with intent to humiliate by calling with caste
name, the accused persons are not entitled to anticipatory
bail.
9) The scope of Section 18 of the SC/ST Act read with
Section 438 of the Code is such that it creates a specific bar in
the grant of anticipatory bail. When an offence is registered
against a person under the provisions of the SC/ST Act, no
Court shall entertain application for anticipatory bail, unless it
prima facie finds that such an offence is not made out.
Moreover, while considering the application for bail, scope for
appreciation of evidence and other material on record is
limited. Court is not expected to indulge in critical analysis of
the evidence on record. When a provision has been enacted in
the Special Act to protect the persons who belong to the
Scheduled Castes and the Scheduled Tribes and a bar has
been imposed in granting bail under Section 438 of the Code,
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the provision in the Special Act cannot be easily brushed aside
by elaborate discussion on the evidence.
10) Learned counsel appearing for the petitioners, relying on
the decisions of the Delhi High Court in Dr. R.K. Sangwan &
Anr. vs. State, 2009 (112) DRJ 473 (DB) and in Crl. M.C. No.
3866/2008 and Crl. M.C. No. 1222/2009 titled M.A.
Rashid vs. Gopal Chandra decided on 23.03.2012 and a
decision of the Orissa High Court in Ramesh Prasad Bhanja
& Ors. vs. State of Orissa, 1996 Cri. L.J. 2743, submitted
that in spite of the specific bar under Section 438 of the Code,
the Courts have granted anticipatory bail to the accused who
were charged under Section 3(1) of the SC/ST Act.
11) In view of the specific statutory bar provided under
Section 18 of the SC/ST Act, the above decisions relied on by
the petitioners cannot be taken as a precedent and as
discussed above, it depends upon the nature of the averments
made in the complaint.
12) In view of the above discussion and in the light of the
specific averments in the complaint made by the complainant-
respondent No.3 herein, we are of the view that Section 18 of
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the SC/ST Act is applicable to the case on hand and in view of
the same, the petitioners are not entitled to anticipatory bail
under Section 438 of the Code. Accordingly, the special leave
petition is dismissed. However, it is made clear that the
present conclusion is confined only to the disposal of this
petition and the trial Court is free to decide the case on merits.
...…………….…………………………J. (P. SATHASIVAM)
..…....…………………………………J. (RANJAN GOGOI)
NEW DELHI; SEPTEMBER 10, 2012.
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