Pradeep Ramanbhai Patel v. State of Maharashtra and Anr

1/11 40 APEAL-1025-23.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1025 OF 2023 Pradeep Ramanbhai Patel .. Appellant Versus The State of Maharashtra & Anr. .. Respondents … Mr.S.R.Samel with Mr.Shirish Sawant and Mr.P.K.Sanghrajka i/b Rajeev Sawant & Associates for the Appellant. Mrs.M.R.Tidke, A.P.P. for the State/Respondent. Mr.Suresh B. Bhosle, Respondent No.2, present in person. PSI S.H. Bhundeve, attached to Bazarpeth Police Station, Kalyan, present. ... CORAM: BHARATI DANGRE, J.

DATED : 26th OCTOBER, 2023 P.C:-

¶1The Appeal fled under Section 14-A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, "the Act of 1989") seek relief of quashing and setting aside the order dated 22/08/2023, passed by the Sessions Court, Kalyan on Anticipatory Bail Application No.944 of 2023 and for enlargement of the Appellant on bail, in connection with the subject C.R. registered with Bazarpeth Police Station, Kalyan for the alleged commission of offences under Sections 3(1)(r), 3(1)(s), 3(1)(u) and 3(1)(v) of the Act of 1989 alongwith Section 506 read with Section 34 of the Indian Penal Code (for short, "the IPC"). MANDIRA MILIND SALGAONKAR Date: 2023.11.02 15:30:50 +0530 2/11 40 APEAL-1025-23.odt

¶2Heard the learned counsel Mr.Samel for the Appellant and the learned A.P.P. Mrs.Tidke for the State. The Complainant/Respondent No.2, Mr.Suresh Bhosle is present in person and expressed his desire to oppose the Appeal himself and I have granted him the necessary permission to that effect.

¶3The Complainant, Mr.Suresh Bhosle, working as Junior Telecome Offcer, Department of Telecommunication, lodged a complaint on 01/06/2023 with Bazarpeth Police Station, Thane city against the two offcers of BSNL, Kalyan; being Mr.Pradeep Patel, Deputy General Manager and Mr.Hari Om Solanki, General Manager, complaining about their humiliating and intimidating behaviour, knowing well that he belongs to Scheduled Caste, by pressurizing him to withdraw the complaint fled by him against the superior offcers of BSNL in Porvorim Police Station, Goa, Panaji and also with an intent to deprive him of the necessary facilities, so that he shall not be in a position to perform his duties effectively and this would offer them an opportunity to fnd fault with him as regards his offcial duties, which would result in adverse action against him, including the action of transfer. It is the narration of the Complainant that, he is in the service of BSNL, since the year 2000 and during his various postings, he was subjected to mental harassment by his superiors and by misusing the powers, he was transferred from time to time and his adverse reports were prepared and this resulted in a complaint being fled by him on 17/07/2017 3/11 40 APEAL-1025-23.odt against the senior offcials, the Chief Engineer and the Superintendent Engineer at Goa and the proceedings are in progress. Thereafter, in the month of November 2020, when he was transferred to Kalyan, the Appellant, working as Deputy General Manager and Mr. Hari Om Solanki, working as General Manager, though having knowledge that he belongs to Scheduled Caste, questioned him as to why he had fled complaint against the superior offcers under atrocities and from time to time pressurised him to withdraw the same. When he did not wriggle out, he was posted to work under his junior Mr.Amit Patil in Electric Wing. Being aggrieved by this act, he fled a representation with the Chief Managing Director, Delhi. Being unpleased on this issue, punitively he was placed as Junior Telecom Offcer in the month of May, 2021 and on 07/06/2022, he was assigned the work of Special Exclusive BBC for area under Divisional Engineer, Kalyan and this required him to undertake travel in Shahapur, Murbad, Kalyan. Although he was expected to carry out his offcial duties faithfully, he was not provided the required facilities like car, cabin, computer, printer etc., is the grievance highlighted in the complaint.

¶4In specifc, the complaint refers to two incidents; the frst is alleged to have occurred on 28/06/2022, when the Appellant called the Complainant in his cabin to report on the progress of the work, but when he complained that the necessary and basic facilities like the vehicle was not made available to him, as per the Complainant, he was told that he 4/11 40 APEAL-1025-23.odt has to work in the existing conditions, which are provided, but nonetheless he must give the necessary output. Once again he was threatened that the complaint, which was fled by him at Goa, should be withdrawn or else, he will have to repent. It is also alleged by him that abusive words were uttered against the father of the nation and what was indicated in insulting manner was, that the community is given long rope, but they will never improve and move ahead. Another incident dated 04/08/2022 also fnd mention in the complaint, when it is alleged that the Appellant once again called the Complainant in his chamber in presence of the General Manager, Mr.Hari Om Solanki and at that time, even he uttered somehow similar words, by referring to Dr.Babasaheb Ambedkar, a person held in high esteem by the Scheduled Caste community and the utterances, according to the Complainant, were intended to humiliate, insult and intimidate him as well as high fgure on the ground of caste.

¶5The above referred accusations resulted in invoking Sections 3(1)(r), 3(1)(s), 3(1)(u) and 3(1)(v) of the Act of 1989 alongwith Section 506 read with Section 34 of the IPC. The occurrence of the events mentioned in the complaint are for a period commencing from 07/06/2022 to 01/06/2023.

¶6The learned counsel for the Appellant, at the outset, would submit that Respondent No.2 is persistent in his habit of lodging false complaints, by invoking the provisions of the special Act of 1989 and at the outset, he would submit that as 5/11 40 APEAL-1025-23.odt far as the complaint fled at Goa is concerned, the Division Bench of the High Court at Goa, on 21/08/2023, has quashed the same (F.I.R.No.98 of 2017), when it clearly recorded as under :- "37. ….The First Informant complained about alleged harassment against his reporting offcers. If such complaints are entertained, the reporting offcers will not be able to give the correct opinion of the employee working under him or her, as the case may be, and more specifcally, belonging to the Scheduled Caste or Scheduled Tribe community. The reporting offcers are duty-bound to give their genuine and correct opinion while reporting about the employees working under them for the specifed period. Thus, when a correct opinion is given which is found to be adverse, it cannot be considered as given with an intention to harass the employee belonging to a particular caste." It is specifcally submitted by the counsel for the Appellant that the present complaint, lodged against the Appellant as well as Mr.Solanki, the General Manager, is nothing but an attempt to vindicate them, as they are his superior offcers and it is a regular modus operandi adopted by the Complainant to implicate his superiors, whenever they make grievance. As far as the accusation that he was made to work under Mr.Amit Patil is concerned, it is pointed out to me that by order dated 30/05/2018, the charge of the post of SDE(Elect) on "Look After Arrangement basis" is assigned to the JTO(Elect) and Mr.Amit Patil was chosen as one of these offcers and, hence, there is no question of the Complainant being made to work under him and in any case, he has already made a grievance as regards this, to the appropriate forum, by addressing a representation. It is also the specifc submission of the Appellant that his posting at Kalyan is by the Assistant General Manager, by an offce order and so is the case when he was assigned the duty 6/11 40 APEAL-1025-23.odt of Exclusive BBC for area under DE KYN by the Assistant General Manager (Admin) and the Appellant has no role to play in such transfer and postings. It is also specifcally submitted that the allegations made against the two offcers, including the Appellant were inquired into at departmental level and this covered the atrocity complaint and it was reported that they are not factual.

¶7Alongwith the Appeal, the investigation report about the complaint preferred against the Appellant and the General Manager under the signature of the Committee Members, is placed on record and the fact fnding report has made the following observations :- D. Finding/General Observations : Arguments/hot discussions occurred between both parties was confrmed Caste and abusive language used could not be determined as witnesses did not confrm. However, the expressions during investigation was found to be a little sluggish, as the possibility of withdrawal of truth by witnesses could not be ruled out completely, as some were found to be not very open to discuss. His working nature was however accepted as satisfactory by his colleagues and controlling offcer. Behaviour and character was found to be satisfactory with other staff. E. Recommendation : Shri.S.B.Bhosle is apparently frustrated and isolated may be due to delay in getting promotion since last 25 years and associated tribulations. Therefore, he may be 7/11 40 APEAL-1025-23.odt encouraged & provided with empathy, so as to mitigate the feeling of negligence and humiliation that he carries with him till this day.

¶8In order to ascertain whether the offences, which are invoked are made out on reading of the complaint, it is necessary to reproduce the relevant provisions. "3(1)(r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view; 3(1)(s) abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view; 3(1)(u) By words either written or spoken or by signs or by visible representation or otherwise promotes or attempts to promote feelings of enmity, hatred or ill-will against members of the Scheduled Castes or the Scheduled Tribes; 3(1)(v) by words either written or spoken or by any other means disrespects any late person held in high esteem by members of the Scheduled Castes or the Scheduled Tribes."

¶9As per the complaint on 28/06/2022, the abuses with an intention to insult and humiliate him, since he belongs to a particular caste, were hurled at him by the Appellant, but on 04/08/2022, though he was called in his chamber, the objectionable remarks are alleged to have been uttered by the co-accused. When asked, whether any statements are recorded to support the version of the Complainant, the learned A.P.P. has placed before me the statements of fve witnesses, who were present in the offce on the date and when the statements are perused, in unison, the witnesses have stated that on 28/06/2022, some altercation took place between the Appellant and the Complainant as regards the work and, in particular, it was focused on infrastructure and demand of 8/11 40 APEAL-1025-23.odt vehicle by the Complainant. None of the witness has corroborated the version of the Complainant that the casteist words or the insult to the respected and revered person of the community were uttered to insult him or to cause insult the father of the nation. As far as the incident dated 04/08/2022 is concerned, there is no person, who has overheard or witnessed the said incident. The said statements recorded by the Investigating Offcer under Section 161 of the Criminal Procedure Code (for short, "the Cr.P.C.") necessarily will form part of the charge-sheet.

¶10In the wake of the above, the offences under Sections 3(1)(r) and 3(1)(s) are, prima facie, not made out, as they contemplate intentional insult or intimidation, with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within "public view". The concept of "public view" is by now well settled and the Hon'ble Apex Court in the case of Hitesh Verma Vs. State of Uttarakhand & Anr.1 has drawn a line of distinction in the two terms, "place in public view" and "public view", by offering a clarifcation, that presence of the members of the public inside the building or enclosed place would render such place a "place in public view" due to presence of members of the public. But in any case, when the insult or humiliation is within the four walls of the building and if the abuses were not heard, by any member of the public, then the ingredient of the offence that the words were uttered in "any place within public view" is not made out.

(2020) 10 SCC 710 9/11 40 APEAL-1025-23.odt At this stage, there is no witness to the incidents of 28/06/2022 and 04/08/2022 and, hence, prima facie, no offence could be said to have been made out under the said provision. Similarly as far as the offences under Sections 3(1)

(u) and 3(1)(v) are concerned, it is only the version of the Complainant/Respondent No.2 that the Appellant spoke words, by which he has expressed disrespect towards the person held in high esteem by the members of a particular caste. However, even to prove the ingredients of the said Sections, except the bare words of the Complainant, there is no other material at this stage and in any case, it is open for him to establish the ingredients of Sections 3(1)(u) and 3(1)(v) at the time of trial, by adducing evidence to that effect. However, at this stage of grant of protection from arrest and for the purpose of custodial interrogation, the Court will have to take into account a prima facie case and where such case is not made out, the Court would always be justifed in exercising the power to grant anticipatory bail, despite existence of bar under Sections 18 and 18A of the Act of 1989. The parameters of exercise of the power under Section 438 of the Cr.P.C. and, in particular, as regards the accusations levelled under the Act of 1989 are concerned, the Court is expected to necessarily balance the two interest, i.e. the power is not so used, as to convert the jurisdiction into that under Section 438 of the Cr.P.C., but that it is used sparingly and such orders are made in very exceptional cases, where no prima facie offence is made out, as shown in the F.I.R. and further also that if such orders are not made in those class of cases, the result would inevitably be miscarriage of justice or abuse of process of law. 10/11 40 APEAL-1025-23.odt

¶11The Apex court in the case of Prathvi Raj Chauhan Vs.Union of India & Ors.2, has expressed a word of caution in exercise of this power in the following words :- "Such stringent terms, otherwise contrary to the philosophy of bail, absolutely essential, because a liberal use of the power to grant pre-arrest bail would defeat the intention of Parliament." By applying the aforesaid principle of law, fowing from the authoritative pronouncement, when the complaint fled by Respondent No.2, when read as it is, prima facie, does not make out offence under the special statute and can be expressed to have custodial interrogation of the Appellant, as prima facie reading of the FIR does not justify invocation of Sections 3(1)(r), 3(1)(s), 3(1)(u) and 3(1)(v). Needless to state that the observations made above are, prima facie, in nature and limited to the extent of adjudication of the present Appeal and the learned Judge trying the Appellant for the offences with which he is charged, shall not be infuenced by the above observations, in any manner. : ORDER :

(a) Appeal is allowed.

(b) The order passed by the Sessions Court, Kalyan dated 22/08/2023 in Anticipatory Bail Application No.944 of 2023 is quashed and set aside.

(c) In the event of arrest in connection with C.R.No.127 of 2023 registered with Bazarpeth Police Station, Kalyan, Appellant-Pradeep Ramanbhai Patel shall be released on bail on furnishing P.R. Bond to the extent of Rs.50,000/- with one or more sureties in the like amount.

(2020) 4 SCC 727 11/11 40 APEAL-1025-23.odt

(d) The Appellant shall report to the concerned police station on every Saturday between 5.00 p.m. to

6.00 p.m. for a period a period of four weeks and, thereafter, as and when directed.

(e) The Appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing the facts to Court or any Police Offcer and shall not tamper with evidence. ( SMT. BHARATI DANGRE, J.)