The Bombay High Court allowed the appeal and held that where the relationship appears to be consensual, there is no question of the hurdle of caste to attract the bar under Section 18 of the Atrocities Act.
Further, the direction was issued to the investigation agencies and trial Courts for not disclosing the name and photos of the rape victims even in the charge sheet.
Brief Facts:
The Appellant filed the present appeal under Section 14-A(2) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 ("Atrocities Act") to challenge the order of rejection of his bail application under Section 438 of the Code of Criminal Procedure by learned Special Judge, under the Atrocities Act on 04.11.2022. The learned Special Judge under the Atrocities Act rejected the application on the ground that it is barred under Section 18 and 18-A of the Atrocities Act.
The Respondent no.2/Informant alleged against the Appellant that during the period 27.07.2020 to 22.04.2022, the Appellant had committed sexual intercourse with her by promising to marry and also caused the abortion of the informant. It was also alleged that the Appellant had abused her in the name of caste.
Contentions of the Appellant:
The learned Counsel for the Appellant contended that the story of the Respondent would show that at one place, she says that there was a love affair between them, and then at another place, she denies it. If the Appellant was having a love affair with her, then there cannot be a question of insult in the name of her caste. It is not her case that she had not disclosed her caste to the Appellant. Therefore, the offence under the Atrocities Act cannot be said to have been made out against the Appellant.
Contentions of the Respondents:
The learned Counsel for the Respondents contended that there are statements of witnesses who have seen the arrogant behavior of the Appellant with the informant and even the fact that she had informed or disclosed the relationship to her friend prior to the FIR. She believed in the statement of the Appellant, but now he is not accepting the relationship and is not performing marriage with her. Therefore, this cannot be the case where discretion should be used. There was a bar under Section 18 of the Atrocities Act.
Observations of the Court:
Considering the facts, the Court noticed that as regards the abuses in the name of caste are concerned, she has not stated where those abuses were given in order to attract the offence under Sections 3(1)(r) and 3(1)(s) of the Atrocities Act. Such abuses/intentional insults should be in public view, but those ingredients are missing. Further, all the facts indicated that the relationship between the parties was consensual, and when it is consensual, there is no question of a hurdle. Therefore, the application was not barred under Section 18 or 18-A of the Atrocities Act.
After referring to the chargesheet, it came into the notice of this Court that in this case, not only the offences under the Atrocities Act are involved, but also the offence under Section 376 of the Indian Penal Code. In this regard, this Court specifically mentioned section 228-A, which was inserted to prohibit disclosure of the identity of the victim of certain offences. Therefore, once again, the direction was issued to the investigation agencies that the photographs of such victims should be filed in a sealed envelope before the concerned Courts, and failure to follow the directions may invite action for the offence under Section 228-A of the Indian Penal Code.
The decision of the Court:
The Bombay High Court allowed the appeal and set aside the order dated 04.11.2022. Directions with warning were also given to investigation agencies that the photographs of such victims should be filed in a sealed envelope before the concerned Courts.
Case Title: Sajjan s/o Hirchand Gusinge v. State of Maharashtra
Coram: Hon’ble Justice Smt. Vibha Kankanwadi and Abhay S. Waghwase
Case no.: CRIMINAL APPEAL NO.869 OF 2022
Advocate for the Appellant: Mr. M.S. Karad
Advocate for the Respondents: Mrs. Preeti Diggikar and Mr. A. K. Bhosale
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