RAJENDRA SHRIVASHTAVA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The Learned Single Judge (Coram: D.B.Bhosale, J) by his order dated 30th June 2009 has referred the following question for determination by a larger bench :

(2.) The applicant has filed the present application under section 438 of the Code of Criminal Procedure, 1973. The applicant is the husband of the complainant. The complainant lodged a First Information Report No.125 of 2008 on 8th April 2008. The allegation is of commission of offences under sections and 498A, 406, 494, 34 of the Indian Penal Code read with the provisions of section 3(1)(ii) and section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the said Act"). An offence under section 7(1)(d) of the Protection of Civil Rights Act, 1955 (hereinafter referred to as "the said Act of 1955") was also alleged in the said first information report. The offence was registered against the applicant, his brother and his sister . By birth the complainant belongs to a scheduled caste. The caste of the applicant is "kayastha" which is admittedly neither a scheduled caste nor a scheduled tribe. An application for anticipatory bail was filed by the applicant's sister. The said application was decided by this Court by order dated 2nd March 2009. The submission before this Court was that after her marriage, the caste of the complainant had merged with the caste of the applicant and that on marriage of the Complainant, she ceased to belong to a scheduled caste and therefore, the bar created by section 18 of the said Act of 1989 will not apply. This Court (Coram:Kanade, J) accepted the said contention and held that the application for grant of anticipatory bail was maintainable. This court observed,

(3.) When the present application came up before another learned single Judge (Coram:D.B.Bhosale,J), he was of the view that a person acquires caste by birth and not by marriage. In paragraphs 10 and 11 of the order dated 30th June 2009, the learned Judge observed thus: