Bombay High Court: The present appeal was filed under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (‘SC & ST Act’) challenging the order dated 29-08-2024 passed by the Special Judge, Kalyan whereby the application for grant of pre-arrest bail under provisions of Section 482 of the Nagarik Suraksha Sanhita, 2023 in connection with a case registered with Badlapur Police Station under Sections 74 and 79 of the Nyaya Sanhita, 2023 ‘(BNS, 2023’) and under Sections 3(1)(w)(ii) and 3(2)(v-a) of the SC & ST Act was rejected.
A Single Judge Bench of Sandeep V. Marne, J., noted that the FIR statement indicated that the utterances and gestures were made by appellant because he was perturbed by reporting of the incident by the complainant and not because she belonged to the Scheduled Caste and prima facie there was no intention on appellant’s part to humiliate the complainant’s caste. The Court opined that prima facie the offences under provisions of SC & ST Act were not made out against appellant and thus, the interim protection granted in favour of appellant was made absolute and the order dated 29-08-2024 passed by the Special Judge, Kalyan was set aside.
Background
The complainant belonged to the Scheduled Caste and was working as a Journalist for Daily Sakal Newspaper. On 20-08-2024, the complainant visited near Adarsh School to cover protests organized at the School. Since the complainant received information about rail roko protest being held at Badlapur Railway Station, she and her colleague approached the Station to report the incident. While the complainant and her colleague were on their way to Adarsh School after having lunch, appellant, who was a social worker, intercepted the duo and made certain utterances.
According to the FIR statement, the last utterance was made by making gestures in a manner outraging the complainant’s modesty. It was submitted that appellant belonged to the Agari community and was aware that the complainant belonged to the Buddha community and despite such knowledge, he insulted her. Thus, FIR was lodged on 21-08-2024 for offences punishable under Sections 74 and 79 of BNS 2023 and Sections 3(1)(w)(ii) and 3(2)(va) of the SC & ST Act against appellant. The Special Judge passed an order dated 29-08-2024 rejecting appellant’s application for pre-arrest bail and thus, appellant filed the present appeal challenging the said order.
Analysis, Law, and Decision
The Court stated that though the sections under BNS, 2023 were non-bailable, considering the nature of allegations levelled in the FIR statement, the Sessions Judge would have hesitated in granting anticipatory bail to appellant if only BNS sections were included in the FIR. However, appellant was also accused of committing offences under Sections 3(1)(w)(ii) and 3(2)(va) of the SC & ST Act and therefore, the Judge rejected the application for anticipatory bail in view of bar under Section 18 of the SC & ST Act.
The Court opined that if prima facie case of commission of offences under the SC & ST Act was not made out, the bar under Section 18 did not apply. The Court observed that under Section 3(1)(w)(ii) of SC & ST Act, use of words or commission of acts or making of gestures of sexual nature towards woman belonging to Scheduled Caste, knowing that she belonged to Scheduled Caste becomes a punishable offence.
The Court stated that the exact gestures made by appellant were not reflected in the FIR statement, which merely alleged making of bizarre gestures and whether the gestures allegedly made by appellant fit into the expression “gestures of a sexual nature” was questionable at this stage. The Court stated that offence under Section 3(1)(w)(ii) of the SC & ST Act could not be made out unless there was knowledge on the part of the accused that the person to whom the gestures were made was a member of Scheduled Caste. The Court opined that though FIR statement alleged that appellant had knowledge about the complainant belonging to Budha community, he was a mere acquaintance of the complainant and prima facie there was no reason for him to have prior knowledge of the fact that she belonged to the Scheduled Caste.
The Court noted that the FIR statement indicated that the utterances and gestures were made by appellant because he was perturbed by reporting of the incident by the complainant and not because she belonged to the Scheduled Caste and prima facie there was not any intention on appellant’s part to humiliate the complainant’s caste. Therefore, the Court opined that it was doubtful whether the offences under Sections 3(1)(w)(ii) and 3(2)(va) of the SC & ST Act could be made out against appellant. Thus, prima facie the offences under provisions of SC & ST Act were not made out against appellant and therefore, the bar prescribed under Section 18 of the SC & ST Act would not be attracted.
The Court noted that appellant was already on interim protection granted by this Court since 30-08-2024 and had co-operated with conduct of investigations. Thus, the interim protection granted in favour of appellant was made absolute and the order dated 29-08-2024 passed by the Special Judge, Kalyan was set aside.
[Waman Barku Mhatre v. State of Maharashtra, 2024 SCC OnLine Bom 3222, decided on 07-10-02024]
Advocates who appeared in this case :
For the Appellant: Viresh Purwant with Rushikesh Kale, Rajendra Bamane and A.K. Sheikh
For the Respondents: Shilpa K. Gajare-Dhumal, APP; Samir Vaidya with Vinod Satpute, Sheetal Satpute, Tejali Jagdhone and Lubdha Bhoir
