Case Note & Summary
The appellant, Udhav Gyanoba Budhwant, filed an appeal under Section 14-A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Act of 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 crime was registered under Section 365 read with Section 34 of the Indian Penal Code (IPC) and under Sections 3(2)(va) and 3(1)(a) of the Act of 1989. The first informant, Dipali Narayan Thoke, alleged that on 09-11-2018, co-accused Bhaskar Rathod informed her brother-in-law that her brother Ramesh Pandurang Thoke had not repaid an advance of Rs. 4,00,000/- 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 10-08-2018, the victim informed his wife that he was kidnapped in a Cruiser Jeep and confined in the premises of Kranti Agragani Sahakari Sakhar. The appellant sought anticipatory bail, which was rejected by the Sessions Court. The High Court considered the submissions of the appellant's counsel that the allegations were civil in nature and the victim was not a member of SC/ST, and the respondent's counsel argued that the bar under Section 18 of the Act of 1989 applied. The court held that the bar under Section 18 does not apply if the allegations under the Act are not prima facie made out. Since the dominant intent was recovery of money and the victim was not a member of SC/ST, no prima facie case under the Act was made out. The court allowed the appeal, set aside the impugned order, and granted anticipatory bail to the appellant on conditions including furnishing a personal bond of Rs. 25,000/- with one surety, cooperating with the investigation, and not tampering with evidence.
Headnote
A) Criminal Procedure Code, 1973 - Section 438 - Anticipatory Bail - Bar under Section 18 of SC/ST Act - Applicability - Where the allegations under the SC/ST Act are not prima facie made out, the bar under Section 18 does not apply and the court can entertain an application for anticipatory bail under Section 438 CrPC (Para 7). B) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 3(1)(a) and 3(2)(va) - Prima Facie Case - Kidnapping for recovery of debt - The dominant intent of the accused was to recover money, not to humiliate the victim on caste grounds. The victim is not a member of SC/ST. Therefore, no prima facie case under the Act is made out (Paras 8-9). C) Criminal Procedure Code, 1973 - Section 438 - Anticipatory Bail - Conditions - The appellant is directed to be released on bail in the event of arrest on furnishing a personal bond of Rs. 25,000/- with one surety, subject to conditions including cooperation with investigation and not tampering with evidence (Para 10).
Issue of Consideration
Whether the bar under Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against grant of anticipatory bail applies when the allegations under the Act are not prima facie made out, and whether the appellant is entitled to pre-arrest bail.
Final Decision
The appeal is allowed. The impugned order dated 31-12-2018 passed by the Additional Sessions Judge, Parbhani, is set aside. The appellant is directed to be released on bail in the event of arrest in Crime No. 417 of 2018 on furnishing a personal bond of Rs. 25,000/- with one surety. Conditions include: the appellant shall not tamper with prosecution evidence, shall attend the police station as required, shall not leave India without court permission, and shall cooperate with the investigation.
Law Points
- Anticipatory bail under Section 438 CrPC is not barred by Section 18 of the SC/ST Act if the allegations do not prima facie constitute an offence under the Act
- especially when the dominant intent is recovery of money and not caste-based humiliation
- and the victim is not a member of SC/ST.
