Supreme Court of India
VILAS PANDURANG PAWAR & ANR.versusSTATE OF MAHARASHTRA & ORS.
- Citation
- 2012 INSC 386
- Decided
- 10 September 2012
- Disposal
- Dismissed
- Bench
- P SATHASIVAM
Holding
Section 18 of the SC/ST Act creates a statutory bar to the grant of anticipatory bail under Section 438 CrPC unless the court prima facie finds that the offence under Section 3(1) of the Act is not made out.
Summary
The complainant, Savita Madhav Akhade, alleged that she and her family were insulted and assaulted on caste grounds by Vilas Pandurang Pawar and others, leading to an FIR under the Indian Penal Code and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The accused applied for anticipatory bail under Section 438 of the Code of Criminal Procedure, which was rejected by the Sessions Judge and partially granted by the High Court. The petitioners challenged this decision before the Supreme Court, raising the question of whether Section 438 applies when the offence is punishable under the SC/ST Act. The Court held that Section 18 of the SC/ST Act expressly bars the operation of Section 438 unless the court is satisfied that the offence under Section 3(1) of the Act is not prima facie made out. Examining the complaint, the Court found specific averments of caste-based insult and intimidation, establishing a prima facie case under the SC/ST Act, and therefore denied anticipatory bail. The special leave petition was dismissed, leaving the trial court free to decide the case on its merits.
Issues considered
- Whether an accused charged with offences under the IPC and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is entitled to anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973.
Legislation cited
Subjects
anticipatory bailSection 438SC/ST ActSection 18caste based violencestatutory barprima facie
Judgment
[2012] 8 S.C.R. 270
A VILAS PANDURANG PAWAR & ANR.
v.
STATE OF MAHARASHTRA & ORS.
(SLP (Crl.) No. 6432 of 2012)
SEPTEMBER 10, 2012
B
[P. SATHASIVAM AND RANJAN GOGOi, JJ.]
Code of Criminal Procedure, 1973 - s. 438 -
Anticipatory bail - Entitlement - To the accused charged with
C offences under /PC with provisions under Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989 -
Held: s. 18 of the Act creates a bar invoking s. 438 - When
an offence is registered under provisions of the Act, no court
shall entertain anticipatory bail, unless it prima facie finds that
D such an offence is not made out - In view of the averments
in the complaint in the present case, s. 18 is applicable -
Hence, accused not entitled to anticipatory bail - Scheduled
Castes and Scheduled Tnbes (Prevention of Atrocities) Act,
1989 - ss. 3(1) and 18 - Penal Code, 1860 - Ball.
E
The question for consideration in the present petition
was whether an accused charged with various offences
under IPC along with the provisions of the Scheduled
Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 is entitled for anticipatory bail under
F Section 438 Cr.P.C.
Dismissing the petition, the Court
HELD: 1. Section 18 of Scheduled Castes and
G Scheduled Tribes (Prevention of Atrocities) Act, 1989
creates a bar for invoking Section 438 Cr.P.C. However,
a duty is cast on the court to verify the averments in the
complaint and to find out whether an offence u/s. 3(1) of
the Act has been prima facie made out In other words, if
H 270
VILAS PANDURANG PAWAR v. STATE OF 271
MAHARASHTRA
there is a specific averment in the complaint, namely, A
insult or intimidation with intenf to humiliate by calling
with caste name, the accused persons are not entitled to
anticipatory bail. When an offence is registered against
a person under the provisions of the Act, no Court shall
entertain application for anticipatory bail, unless it prima B
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 c
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 u/s. 438 Cr.P.C., the provision in the Special
Act cannot be easily brushed aside by elaborate
0
discussion on the evidence. [Paras 8 and 9] [276-E-H;
277-A-8]
2. 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 E
assaulted them by saying "Beat the Mahar so that, they
should not live in the village." In the light of the specific
averments in the complaint made by the complainant-
respondent No.3, Section 18 of the Act is applicable to
the case on hand and in view of the same, the petitioners F
are not entitled to anticipatory bail u/s. 438 Cr.P.C. [Paras
6 and 12] [27 4-A-8; 277-F-G]
Dr. R.K. Sangwan and Anr. vs. State 2009 (112) ORJ
473(08); Ramesh Prasad Bhanja and Ors. vs. State of Orissa G
1996 Cri. L.J. 2743 - referred to.
Case Law Reference:
2009 (112) ORJ 473(08) Referred to Para 10
H
272 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 1996 Cri. L.J. 2743 Referred to Para 10
CRIMINAL APPELLATE JURISDICTION: Special Leave
Petition (Crl.) No. 6432 of 2012.
From the Judgment & Order dated 19.07.2012 of the High
B Court of Bombay Bench at Aurangabad in Criminal Application
No. 3012 of 2012.
Dilip Annasaheb Taur, Anil Kumar for the Appellants.
The Judgment of the Court was delivered by
c
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
D 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').
E 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
F 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
G 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
H caste and assaulted the complainant and her family members
VILAS PANDURANG PAWAR v. STATE OF 273
MAHARASHTRA [P. SATHASIVAM, J.]
by using sticks, stones, fighters etc. Thereafter, on the same A
day, an 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 B
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 C
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 D
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 E
petitioners.
6. Taking note of the fact that the complaint not only refers
to various offences under !PC 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 F
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 G
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 H
274 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 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. "
B
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.
"COMPLAINT
c
I. Sau. Savita Madhav Akhade, Age-45 years, Occu.
Household, Rio Takali-Khandeshwari. Tq. Karjat, (Caste-
Hindu Mahar)
I am giving in writing the complaint in the Police Station
D
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
E 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
F 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 Ka~at, at that time, Balu Bhanudas Pawar came
G 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
H
VILAS PANDURANG PAWAR v. STATE OF 275
MAHARASHTRA [P. SATHASIVAM, J.]
belongs to Vilas Pawar in that all the people, namely, Balu A
Bhanudas Pawar, Vilas Pandurang Pawar, Ravi Dada
Pawar, Arun Bhanudas, Pawar, Shrirang Pawar, Deepak
Bhagade, Parmeshwar lndrajit Phadtare, Sudhir Chhagan
Phadtare, Satish Namdeo Kirdat, Raghunath Tukaram
Savant, Vitthal Raghunath Savant, Sandeep Raghunath B
Savant, Aba Kaka Phadtare, Dattatray Namdeo Pawar,
Nephew of Balu Pawar, all Rio 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 C
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 D
snatched on corner and beaten by these people.
Thereafter, Vilas Pandurang Pawar told to Raghunath
Tukaram Savant to help them. Thereafter, we phoned to
police and the quarrel is stopped after the Police came
on the spot. E
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 F
lndrajit Phadtare, Sudhir Chhagan Phadtare, Salish
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 Rio Takali Khandeshwari G
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 H
276 SUPREME COURT REPORTS [2012] 8 S.C.R.
A 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.
B
Before Hence, written
Sd!- Date: 1.5/06/12
Police Station Officer,
Karjat Police Station.
c Sent to: Hon'ble JMFC
Karjat.
Sdl-
Police Station Officer
Karjat Police Station."
D
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.
E
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
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
F 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
G 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 tha! such an offence is not made out.
H
VILAS PANDURANG PAWAR v. STATE OF 277
MAHARASHTRA [P. SATHASIVAM, J.]
Moreover, while considering the application for bail, scope for A
app-reciation 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 B
in granting bail under Section 438 of the Code, the provision
in the Special Act cannot be easily brushed aside by elaborate
discussion on the evidence. ·
' Learned counsel appearing for the petitioners, relying
10.
on the decisions of the Delhi High· Court in• of. R.K. Sangwan. c
& Anr. vs. State, 2009 (112rDRJ 473 (DB) and in Crl. M.C.
No. 386612008 and Crl. M.C. No. 122212009 titled M.A~ Rashid
vs. Gopal Cha'ncira.decided'on 23.03.2012 and a decision of
the .Orissa High Court in Ramesh Prasad Bhanja & Ors. vs.
State of Onssa, 1996 Cri. L.J. 2743, submitted that in spite of D
the specific bar under Section 438 of the Code, the Courts
have granted anticipatory bail to the accused who were ::·1,
chargedI under
. .
Section. 3(1) of the SC/ST
.
Act. ·· ii;
·1:
-. . ·11 :, In view of the 'specific statutory bar. provided under E i(
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 upoJl the nature of the averments
m'ade in the complaint. • · ' · · · · · · · · :. ···· .
- '·-
~ . ~ ;·,- - " ' ' ' .
12. In view of the above discussion and in the light of the, F
- specific averments in the complaint made by the complainant- .
respondent No.3 herein, we are of the view that Section 18 of·•
the· SC/ST Actis 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 G I
petition is dismissed. However, it is made clear that the present I
conclusion is confined only to the disposal of this petition and
the trial Court is free to decide the case on merits. I.I
"
t
K.K.T. SLP dismissed. H 'ii "
I
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