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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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