In CRIMINAL APPEAL NO.229 OF 2022-BOM HC- Under SC/ST Act, prosecution is enjoined to establish that perpetrator of alleged offence u/s 3 is not member of Scheduled Caste or Tribe: Bombay HC Justice N.J. Jamadar [26-04-2022]

Read Order: RAMRAO KASHINATH Vs. THE STATE OF MAHARASHTRA 

Mansimran Kaur

Mumbai, April 28, 2022: While dismissing an appeal filed by the appellant-accused against the order whereby his application for pre-arrest bail in connection with the offences punishable under Sections 3(1)(r) and 3(1)(s) of the SC & ST Act was rejected, the Bombay High Court has held that it would be hazardous to lay down a broad proposition of law that mere reference to the caste or tribe of the victim, does not fall within the dragnet of the offences punishable under Section 3(1)(r) and 3(1)(s).

The Bench of Justice N.J. Jamadar said, “The prosecution is enjoined to establish that the perpetrator of the alleged offence under Section 3 of the SC and ST Act is not a member of Scheduled Caste and Scheduled Tribe. However, this burden on the prosecution does not necessarily support a proposition that the fact that the accused does not belong to Scheduled Caste and Scheduled Tribe must be mentioned in the first information report and failure to do so entails the consequence of drawing an inference that no prima facie offence is made out, or for that matter, quashing the prosecution.

The appeal in the present case was instituted under Section 14 of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 to assail an order dated February 24, 2022, whereby the Special Judge rejected the application of the applicant – accused seeking anticipatory bail in pursuance to the FIR wherein he was arraigned for the offences punishable under Sections 3(1)(r) and 3(1)(s) of the SC and ST Act.

Facts in brief were that the appellant interviewed the prosecutrix for the post of Tele Caller for a company based in Mumbai. Thereafter the prosecutrix was apprised of the fact that she was not selected. However, the appellant tried to establish rapport with the prosecutrix and made advances towards her. The prosecutrix did not cave in to the advances of the appellant with ill motive.

Thereafter, the prosecutrix was offered the position of Tele-caller in the Nearby Plut Company. The cause of action in the present case arose when the prosecutrix alleged that on January 25, 2022, the appellant came to her office accompanied by four other persons. The prosecutrix being the receptionist asked the appellant- accused and  his associates to jot their names in the visitor book. However, the appellant shunned her request and barged into the office of CMD along with his four associates. Thereafter a heated argument took place in his cabin and the employer of the prosecutrix asked the appellant and his associates to leave the cabin. The prosecutrix requested the appellant and the associates again to note their names in the visitor book, however the appellant – accused humiliated the prosecutrix by uttering a few words. In pursuance of the same, the prosecutrix lodged a report

Apprehending his arrest, the appellant preferred an application for seeking anticipatory bail which was rejected the same by observing that there was prima facie material present in record to support the alleged allegations on the appellant and therefore he does not deserve the exercise of discretion under Section 438 of Cr.P.C. Aggrieved by the same, the appellant preferred the present appeal.  

The Counsel for the appellant submitted that the FIR did not disclose the caste of the appellant. To bolster up this contention, the Counsel produced Section 3 of the SC and ST which commences with the expression that “Whoever, not being a member of Scheduled Caste or a Schedule Tribe” and in view of the same the Counsel submitted that it was on the prosecution to demonstrate that the appellant does not belong to Schedule Caste or Schedule Tribe. In the absence of such positive assertion in the FIR, it was contended that the offences punishable under Section 3(1)(r) and 3(1)(s) cannot be said to have been prima facie made out.

The Court opined that undoubtedly, a person who is a member of Scheduled Caste and Scheduled Tribe cannot be prosecuted for commission of atrocities on the other members of Scheduled Caste and Scheduled Tribe. It is on the prosecution  to establish that the perpetrator of the alleged offence under Section 3 of the SC and ST Act is not a member of Scheduled Caste and Scheduled Tribe but this burden does not support the proposition that the fact that the accused does not belong to Scheduled Caste and Scheduled Tribe must be mentioned in the first information report and on failure to do so an interpretation is deduced that no prima facie offence is made out.

The bench placed reliance on the judgment of the Top Court in Ashabai Machindra Adhagale vs. State of Maharashtra wherein it was opined that whether the accused belongs to scheduled caste or scheduled tribe can be gone into when the matter is being investigated. It was mentioned therein that even if the charge sheet is filed at the time of consideration of the charge, it is open to the accused to bring to the notice of the Court that the materials do not show that the accused does not belong to scheduled caste or scheduled tribe. Even if charge is framed at the time of trial materials can be placed to show that the accused either belongs or does not belong to scheduled caste or scheduled tribe.

The Counsel for the appellant contended that mere reference to the caste of the prosecutrix in the allegations attributed to the accused is not sufficient to bring the conduct of the accused within the dragnet of Section 3(1)(r) and 3(1)(s) of the SC and ST Act.  The Court  opined that the intent of the accused is important while dealing with such cases. The accused intended to humiliate or insult the victim with reference to her caste or tribe by uttering foul words is the proposition that is to be dealt with.  It would be hazardous to lay down a broad proposition of law that mere reference to the caste or tribe of the victim, does not fall within the dragnet of the offences punishable under Section 3(1)(r) and 3(1)(s) of the Atrocities Act, noted the Bench. 

Reference was also made to the judgement of the Supreme Court in  Swaran Singh and others vs. State through Standing Counsel and another wherein it was held that treating the allegations in the FIR to be correct, an offence under section 3(1)(x) of the Act was prima facie made out against the appellants because it prima facie seemed that the intent of the appellants was to insult or humiliate the first informant, and this was done within the public view.

Moreover the Court stated that it was clear from the specific allegations made in the FIR and from the statements of three more witnesses and of the prosecutrix herself that were  recorded under Section 164 of the CrPC, that the appellant humiliated the prosecutrix by uttering words with reference to her caste. In this view of the matter,the Court opined that it would be difficult, at this stage, to draw an inference that the offences punishable under Section 3(1)(r) and 3(1)(s) of the SC and ST Act are not prima facie made out. 

Lastly reliance was placed on the judgment of the Supreme Court in Vilas Pandurang Pawar and another vs. State of Maharashtra and others, to deal with appellant’s contention that the offences were not committed in public view. In this case it was ruled that 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. It was held therein that 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

In light of the above observations and findings, the Court observed that the Special Judge was right in rejecting the application of the appellant seeking anticipatory bail. Accordingly, the appeal was dismissed.