Bombay High Court

Mohammed Hanif Sharif Khan And Anr vs The State Of Maharashtra on 7 April, 2017

Bench: V.K. Tahilramani

                                                                  906. APEAL 224.17.doc

Urmila Ingale

                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CRIMINAL APPELLATE JURISDICTION
                                    CRIMINAL APPEAL NO.  224 OF 2017

                 1.  Mr.Mohammed Hanif Sharif Khan
                 Aged about 45 years, of Mumbai, 
                 adult, Indian Inhabitant, residing 
                 Being in lawful use, occupation 
                 and possession in respect of the 
                 premises situated at Shariff
                 Compound, Kanyapada, Near 
                 Hina Gaurav Building, 
                 Gen.A.K.Vaidya Marg, Goregaon,
                 Mulund Link Road, Goregaon (East),
                 Mumbai 400 063.

                 2.  Mr.Pradip Udayshankar Shukla
                 Aged about 30 years,
                 of Mumbai, adult, Indian Inhabitant,
                 having Address at Flat No. 601 
                 Vasundhara Enclave,
                 Bengali Compound Gokuldham,
                 Gen.A.K.Vaidya Marg,
                 Goregaon (E), Mumbai 400 063                     .. Appellants

                                  Vs.

                 The State of Maharashtra,
                 through Inspector Incharge,
                 Dindoshi Police Station,
                 To be served through 
                 Public Prosecutor,
                 High Court, Mumbai                               .. Respondent




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                                                           906. APEAL 224.17.doc

 Mr. A.M. Saraogi, for the Appellants.
 Mr.H.J.Dedia, APP  for State.

                               CORAM : SMT. V.K.TAHILRAMANI &
                                              M.S.KARNIK, JJ.

07th APRIL, 2017

ORAL JUDGMENT (PER V. K.TAHILRAMANI J.) :

1. Leave to amend granted. Amendment to be carried

out forthwith.

2. Heard learned Counsel for the appellants - original

accused Nos. 1 & 2 and learned APP for the State.

3. The appellants have preferred this Appeal being

aggrieved by the order dated 28/02/2017 passed by the learned

Additional Sessions Judge, City Civil and Sessions Court,

Borivali Division, Dindoshi whereby anticipatory bail application

No. 229 of 2017 of both the appellants came to be rejected. The

appellants are accused in C.R.No. 974 of 2016 on the basis of

FIR lodged by Kamla Bari. It is the case of Kamla Bari that she

belongs to Scheduled Tribe. In the FIR Kamla Bari has stated

906. APEAL 224.17.doc

that she is the owner of land at survey No. 266, part 617, CTS

No. 699 situated at Kanyapada, Goregaon (East), Mumbai. It is

her case that she is in possession of the said land and present

appellants had tried to encroach on the said land. Hence, prior

to this she had lodged C.R.No. 742 of 2016. In the said FIR, she

has stated that on 29/09/2016, the appellants had tried to

encroach on her land. However, with the help of relatives, she

managed to drive them away.

4. As far as the incident relating to present FIR is

concerned, Kamla Bari has stated that on 22/12/2016 she along

with her relatives was present on the said plot of land at about

4.05 p.m. Both the appellants removed the tin sheets which

were at the back of her plot of land and forcibly entered into the

plot of land. The appellants then abused them and also

assaulted the first informant and her relatives. The sister-in-law

of the first informant then called the police and that time,

appellant No. 1 while abusing pushed the first informant and

her relatives towards gate. He then opened the main gate

906. APEAL 224.17.doc

whereupon 10 - 20 persons entered inside the said plot of land.

These people pulled the first informant and her relatives and

took them out of the plot of land. After that while they were

closing iron gate of the plot of land, the police who were on

bandobast intervened. The first informant and her relatives did

not allow the appellants and their people to close the gate.

Meanwhile, the police van arrived at the spot. The police then

intervened and tried to control the situation. The police even

used force. Thereupon the appellants and persons with them

ran away from the spot. Thereafter the first informant got

herself medically treated and lodged FIR. It is pertinent to note

that the incident is dated 22/12/2016 at about 4.05 p.m. and

FIR is lodged on the very same day.

5. Learned Counsel for the appellants submitted that

the first informant was not in possession of the said plot of land

and to support his contention, he has placed reliance on the

order dated 06/10/2016 passed by the City Civil Court,

Dindoshi, Mumbai in Notice of Motion No. 2397 of 2016

906. APEAL 224.17.doc

preferred by the first informant. He pointed out that the Suit in

which the Notice of Motion was filed,was preferred in relation to

very same plot of land. Mr.Saraogi pointed out that in the said

Notice of Motion, the first informant has sought an injunction

that she should not be dispossessed forcibly at the hands of the

defendants. However, ad-interim relief was refused. Being

aggrieved thereby, the first informant approached this Court by

filing Appeal From Order. The said Appeal From Order was

disposed of by order dated 25/10/2016. He pointed out that

this Court did not grant any relief to the first informant. On

perusal of order dated 25/10/2016, it is seen that this Court

directed the trial Court to decide the Notice of Motion.

Mr.Saraogi tried to contend that ad-interim relief was rejected or

status-quo was directed to be maintained which shows that the

first informant was not in possession of the property. As far as

this contention is concerned, the first informant has

categorically stated in the FIR that the plot of land belongs to

her and she is the owner of the same. The first informant stated

that she belongs to Scheduled Tribe i.e. Adivasi. Thereafter the

906. APEAL 224.17.doc

first informant has categorically stated that on 22/12/2016 the

appellants encroached on the said plot of land. Moreover, it is

an admitted fact that on account of dispute in relation to the

plot of land between first informant and appellants, proceedings

under section 145 of CrPC were initiated. The police submitted

a report in the said proceedings. The report specifically shows

that the first informant is the owner of the said plot of land. In

addition, report also shows that the possession of the land was

with the first informant. The said police report is dated

17/11/2016. Thus, the report clearly shows that the first

informant is the owner of the plot of land and was in possession

of the same.

6. Thereafter, Mr.Saraogi submitted that though the

first informant claims to be from Scheduled Tribe, she has got

married to a person from Muslim community and she has got

herself converted to Muslim religion. He submitted that in such

case, she cannot claim that she is a member of a Scheduled

Tribe. To support his contention, Mr.Saraogi placed reliance on

906. APEAL 224.17.doc

Writ Petition No. 396 of 2017 preferred by appellant No.1

against the first informant before this Court. In the said Writ

Petition it is prayed that caste validity certificate granted to first

informant be cancelled. This Writ Petition is still pending

adjudication. In fact, this Writ Petition shows that the first

informant is in possession of a caste validity certificate which

shows that she belongs to Scheduled Tribe and therefore, the

appellants have approached this Court for cancellation of the

same. So as of now, the first informant is in possession of caste

validity certificate which shows that she belongs to Scheduled

Tribe. In such case, in view of the averments in the FIR the

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act, 1989, [for short 'Atrocities Act') is attracted,

hence, section 18 thereof would come into play and Anticipatory

bail cannot be granted.

7. As stated earlier, the first informant has claimed in

the FIR that she is the owner of the land. The report filed by the

police before the Magistrate in proceedings under section 145 of

906. APEAL 224.17.doc

CrPC shows that the first informant is the owner of the land.

The first informant has categorically stated that on 22/12/2016,

the appellants encroached on her land, abused and assaulted

them. In such a case, section 3(1)(v) of the Atrocities Act is

made out.

Section 3(1)(v) of the Atrocities Act reads as under :

"3. Punishments for offences of atrocities: - (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- ............

(v) wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights over any land, premises or water...."

8. On going through FIR, prima facie, it is seen that

offence under section 3(1)(v) of the Atrocities Act is made out.

Hence, appellants cannot be granted anticipatory bail.

9. One disturbing fact has come to our notice is that

FIR was lodged on 22/12/2016. Except recording FIR and spot

panchanama and collecting medical certificates of 5 injured

persons, the Investigating Agency has not made any further

efforts to investigate this case. We cannot understand why the

Investigating Agency is showing so much indolence and laxity in

906. APEAL 224.17.doc

this case. It is obvious that the situation is still tense at the site

which is seen from the fact that police Bandobast has been