Case Note & Summary
The appellant, Udhav Gyanoba Budhwant, filed a criminal appeal under Section 14-A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, challenging the order dated 31-12-2018 passed by the Additional Sessions Judge, Parbhani, rejecting his anticipatory bail application in Crime No. 417 of 2018 registered at Police Station Jintur, District Parbhani. The FIR was lodged by Deepali Narayan Thoke on 15-11-2018 alleging that on 09-11-2018, co-accused Bhaskar Rathod informed her brother-in-law that her husband's brother Ramesh Pandurang Thoke had not repaid an advance of Rs. 4,00,000/- taken for harvesting sugarcane crop and had not completed the work. Consequently, the accused kidnapped her husband Narayan Pandurang Thoke to recover the outstanding amount. On 10-11-2018, the victim informed his wife that he was kidnapped in a Cruiser Jeep and confined in the premises of Kranti Agragani Sahakari Sakhar. The FIR was registered under Section 365 read with Section 34 of the Indian Penal Code and under Sections 3(2)(va) and 3(1)(a) of the SC/ST Act. The appellant sought pre-arrest bail contending that he was not named in the FIR, no specific role was attributed to him, and the victim was not a member of SC/ST community, thus the provisions of the SC/ST Act were not attracted. The State opposed the bail citing the bar under Section 18 of the SC/ST Act. The court examined the FIR and found that the victim was not alleged to be a member of SC/ST, hence Section 3(2)(va) was not applicable. Further, Section 3(1)(a) requires intentional insult or intimidation with intent to humiliate in public view, which was not disclosed. The court held that the bar under Section 18 does not apply when the allegations do not prima facie constitute an offence under the Act. Considering that the appellant was not named, no custodial interrogation was necessary, and the offence was triable by Magistrate, the court allowed the appeal and granted pre-arrest bail to the appellant on certain conditions.
Headnote
A) Criminal Procedure Code - Anticipatory Bail - Section 438 - Bar under Section 18 of SC/ST Act - The bar under Section 18 of the SC/ST Act does not apply if the allegations do not prima facie constitute an offence under the Act. The court must examine the FIR and material to see if a prima facie case is made out. (Para 4-6) B) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 3(2)(va) - Kidnapping - The provision applies only if the victim is a member of SC/ST. In this case, the victim is not alleged to be a member of SC/ST, hence Section 3(2)(va) is not attracted. (Para 5) C) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 3(1)(a) - Intentional Insult or Intimidation - The provision requires intentional insult or intimidation with intent to humiliate in public view. The FIR does not disclose any such act by the appellant. (Para 5) D) Indian Penal Code, 1860 - Section 365 - Kidnapping - The allegation of kidnapping is for recovery of a loan amount. The appellant is not named in the FIR and there is no specific overt act attributed to him. The custodial interrogation may not be necessary. (Para 6-7)
Issue of Consideration
Whether the appellant is entitled to pre-arrest bail under Section 14-A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, when the allegations involve kidnapping for recovery of a loan amount and the victim is not a member of SC/ST community.
Final Decision
Appeal allowed. The impugned order dated 31-12-2018 is set aside. The appellant is directed to be released on pre-arrest bail in Crime No. 417 of 2018 on executing PR bond of Rs. 15,000/- with one solvent surety. Conditions: appellant shall not tamper with prosecution evidence, shall attend police station as required, shall not commit similar offence, and shall furnish his address and contact details.
Law Points
- Anticipatory bail under Section 438 CrPC is not barred by Section 18 of SC/ST Act if prima facie case is not made out
- Kidnapping for recovery of debt may not attract Section 3(2)(va) of SC/ST Act if victim is not a member of SC/ST
- Section 3(1)(a) of SC/ST Act requires intentional insult or intimidation with intent to humiliate in public view
