CAUSE TITLE:
Yogesh Laxman Pandav V/s The State of Maharashtra
DATE OF ORDER:
05th January 2023
JUDGE(S):
SMT. VIBHA KANKANWADI AND ABHAY S. WAGHWASE, JJ.
PARTIES:
Petitioner: Yogesh Laxman Pandav
Savita d/o Laxman Pandav
Laxman Totaram Pandav
Respondent: The State of Maharashtra, through its Investigation Officer, Pathardi Police Station
Shailaja w/o Rajendra Kamble
SUBJECT:
The Hon’ble High Court of Bombay bench at Aurangabad (hereinafter referred to as ‘High Court’ or ‘the Court’), has set aside the impugned order of the sessions court and held that the protection given to the accused, alleged under the section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (herein referred as “the Atrocities), is absolute and they should be released with penalty.
IMPORTANT PROVISIONS:
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
- Section 14 – states the constitution of the special courts for speedy trials
- Section 3 – states the punishment for certain offences such as a cruel conduct of somebody towards the Scheduled Tribe or a Scheduled Caste.
- Section 18 - states regarding any situation in which a person is arrested after being accused of committing an offence under this Act, nothing in section 438 of the Code shall be applicable.
Criminal Procedure Code 1973
Section 438 – states the direction by the court in granting the bail on the arrest. Any individual may apply to the High Court or the Court of Session for a way under this section if they have reason to believe they may be arrested on suspicion of committing a crime for which there is no provision for bail. If the court deems it appropriate, it may order that the individual be granted bail in the incident of such an arrest.
BRIEF FACTS:
- An FIR was filed by the informant, the appellant No. 1 used to look at her improperly or in a way that offended her modesty. However such act was not given attention by the informant. Later she found the appellant taking videos of her which was complained to the landlord by her husband upon the husband got abused on the phone call.
- At that time, the informant had also been mistreated by the appellants on the basis of caste. It was claimed that by recording video on his phone, appellant No. 1 was displaying it to neighbours and disparaging the informant including her family. Such harassments were being ignored by them.
- For three days the appellant committed some cheap acts in order to hares the informant. One of the incident took place in front of the watchman where stones where thrown at her which caused her certain injury. She was warned about lodging any complaint at the police station by the appellant.
- The original accused have brought this appeal under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act, 1989) (subsequently referred to as "the Atrocities Act") in an effort to overturn the decision made by the learned Additional Sessions Judge on November 9, 2022, dismissing the application made by the mentioned appellants under Section 438 of the Code of Criminal Procedure, 1973.
QUESTIONS ROSE:
- Whether the interpretation of the word ‘cast’ by the informant has justified the verbal abuse?
- Whether the FIR made by the informant under section 3 of the Atrocities Act justifies the allegations and the evident ambiguity?
ARGUMENTS ADVANCED BY THE APPELLANT
- It has been submitted that the alleged incident took place on March 24th 2022 whereas the FIR was lodged on June 15th 2022 which shows that there has been delay form the informant side.
- On June 2nd 2022 a complaint has already been lodged by the appellant against the informant and her husband. The appellants claim in each of these complaints that despite going to file the report, the police did not recognise the offences, thus they were still compelled to submit the complaint forms.
- The FIR filed by the informant is worthless. The landlord is unwilling to sell the house in which the appellants live to the complainant and her husband, notwithstanding their requests. The aforementioned property is not associated with the appellants. They are paying rent to live there. They don't want to do anything wrong, but the informant is taking advantage of her caste.
- The learned Special Judge failed in concluding that the application was prohibited under Section 18 of the Atrocities Act since the FIR was filed with an underlying agenda and, even on the surface, does not appear to be subject to the restrictions of Section 3 of the Atrocities Act.
- It was seen that the acts done by the appellant was ignored by the informant. The question arises on the interpretation of the word ‘cast’ by the informant which formed the part of verbal abuse.
- We cannot automatically assume that just because someone makes some noise in his home, it is done with the goal to harass the informant sexually. Therefore, it cannot be stated that even a prima facie offence under Section 3(1)(w)(ii) of the Atrocities Act is attracted.
- The incidence on the phone call strongly rejects the contention of the informant about verbal abuse in the public place. Also, the act of throwing stones where she sustained some head injuries, the location is not clarified by the complainant. Therefore such ambiguity at the time of filing FIR and later before the magistrate, questions the applicability of section 3 of the Atrocities Act.
- Section 3 of the Atrocities Act states that a woman should be touched intentionally with sexual intention and without her consent, whereas the FIR did not depict any physical contact. The compromise has already been taken place between the parties which cannot be ruled out.
- There was no discussion of a ban under Section 18 of the Atrocities Act since the offences appeared to be exempt from the Act's provisions. To that regard, the learned Special Judge's decision is incorrect. The direct custody of the appellants is not necessary for the crime under the Indian Penal Code; hence the appeal needs to be permitted.
ARGUMENTS ADVANCED BY THE RESPONDENT
- It has been argued that according to the FIR filed by the informant, the appellant No. has harassed her on the bases of the cast and has also caused her head injuries by throwing stones at her and not only her but also at the watchman.
- The informant has also been told by the appellant that she would suffer serious repercussions if she filed any report to the police.
- The appeal has been aggressively resisted by the learned APP for the State and the learned Advocate for respondent No. 2. Respondent No. 2 has submitted an affidavit in response that almost exactly duplicates the terms of the FIR. However it is to be noted that certain statements did not match the FIR filed before.
- In light of the prohibition under Section 18 of the Atrocities Act, the counsel claimed that there is no need for interference with the order made by the learned Special Judge. And the present appeal should not be allowed
ANALYSIS BY THE COURT:
- The order of the subordinate court has been set aside
- The appellants' temporary protection, which this Court previously granted to them in an order dated 18.11.2022, is therefore reaffirmed and rendered unconditional.
- The court ordered that the accused to be freed on personal recognisance of Rs. 15,000/- (Rupees Fifteen Thousand Only) each with one financially sound guarantee of Rs. 15,000/-
- Appellants must refrain from engaging in any illegal behaviour and must not in any way interfere with the prosecution's evidence. They ought to assist the inquiry.
CONCLUSION
It is necessary to determine whether the current First Information Report establishes a prima facie argument for the admissibility of the regulations of the Atrocities Act in order to determine whether Section 18 of the Atrocities Act bars the consideration of an application under Section 438 of Criminal Procedure. In this instance the majority of the First Information Report has already been described in the preceding paragraphs, thus it was not duplicated.
Although Section 438 of the Code of Criminal Procedure's authority to free an alleged offender is exemplary in character and should only be used in exceptional circumstances, law-abiding citizens who are following the law and who went to the police station to file a report but whose report was not taken are entitled to protection.
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