Bombay HC Grants Pre-Arrest Bail To Neighbour Booked Under SC/ST Act For Whistling, Says Making Sounds In His Own House Does Not Show Sexual Intent

The Bombay High Court recently granted anticipatory bail to three persons accused of committing atrocities against a member of a Scheduled Caste observing that mere creation of sound by accused in his own house cannot mean that it was with sexual intent.

“Merely because some sound is created by a person in his house we cannot directly infer that it is with such an intention that it is with sexual nature towards the informant. Therefore, even prima facie offence under Section 3(1)(w)(ii) of the Atrocities Act cannot be said to be attracted”, the court held.

A division bench of Justice Vibha Kankanwadi and Justice Abhay S. Waghwase also noted that the appellants had tried to lodge complaints against the informant first but the police refused to register their complaint.

“when a law abiding citizen is adopting legal procedure and had gone to the Police Station to lodge the report, but his report has not been taken, then, such person/s deserve to be protected”, the court held.

The informant, a neighbour of the appellants, alleged that one of the appellants used to look at her in such a manner which would outrage her modesty. She alleged that the appellant shot video of her house from his mobile at night. Further, he used to whistle from the terrace, make noises with help of utensils, and blow the reverse horn of his vehicle constantly. According to the FIR, the appellants pelted stones on the complainant injuring her and the watchman. A Special Judge had rejected the anticipatory bail application of the appellants. Hence the present appeal under section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

The appellants submitted that they had given several complaint applications against the informant and her husband. The police did not take cognizance of their complaints. The FIR has been lodged as revenge for this these complaints applications.

The complainant in her reply affidavit stated that offences under section 3 (Punishments for atrocities) of the Act are made out in the FIR and therefore anticipatory bail under section 438 of the CrPC is barred under Section 18 of the Act.

The court noted that in the first alleged incident of caste abuse, the complainant has alleged that accused persons had abused her in chorus. The name of the caste did not form part of the abuse. “Still if we consider that, that abuse was with an intention to insult the informant; yet, it is to be noted that it is alleged to have been uttered in chorus, which is an unbelievable act. Abuses cannot be given in chorus”, the court added.

The FIR alleged that the appellant’s landlord also abused the complainant and her husband when they called him. The court said that those abuses were given on phone and cannot be considered within public view or at a public place to attract section 3(1)(r) or 3(1)(s) of the Act.

The court noted that the FIR doesn’t clarify where exactly the complainant and the appellants were standing during the stone pelting incident. Therefore, it does not attract sections 3(1)(r) and 3(1)(s) of the Act, the court held.

To attract section 3(1)(w)(i) of the Act, the accused has to touch a woman belonging to a Scheduled Caste knowing that she belongs to that caste and the touch should be of a sexual nature without consent. The court said that the FIR doesn't show that any of the appellants actually touched the body of the informant with sexual intent.

To attract section 3(1)(w)(ii), there should be use of words, acts or gestures of a sexual nature towards a woman belonging to Scheduled Caste or Scheduled Tribe knowing that she belongs to such caste or tribe. The FIR doesn't have any details of such alleged incidents, the court said adding that there is no complaint file by complainant in the past.

The court noted there is delay in lodging the FIR as it was lodged almost three months after the last alleged incident.

The appellants produced photos in which the informant and her husband were also taking videos of the appellants’ house. The purpose of such behaviour will have to be examine at the time of trial the court held adding, “Sufficient material is before this Court to infer that the First Information Report has been lodged with ulterior motive.”

The court held that there was no question of bar to anticipatory bail under section 18 of the Act since no prima facie offence was made out in the FIR.

Case no. – Criminal Appeal No. 858 of 2022

Case Title – Yogesh Laxman Pandav and Ors. v. State of Maharashtra,

Citation: 2023 LiveLaw (Bom) 49

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