Milind Ravindra Hindurao vs The State Of Maharashtra And Anr
2021 Latest Caselaw 6246 Bom

                                                                   19.21 apeal-FINAL.doc

ISM
                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CRIMINAL APPELLATE JURISDICTION

                               CRIMINAL APPEAL NO. 19 OF 2021

      Mr. ABC                                                     ....Appellant

             V/s.

      The State of Maharashtra and another                        .....Respondents

                                          WITH
                           INTERIM APPLICATION NO. 141 OF 2021
                                           IN
                             CRIMINAL APPEAL NO. 19 OF 2021

      Ms. XYZ                                                     ....Applicant

      IN THE MATTER BETWEEN

      Mr. ABC                                                     ....Appellant

             V/s.

      The State of Maharashtra and another                        .....Respondents

      Mr. Karan Bhosale i/b Mr. Raju D. Suryawanshi for Appellant
      Mr. P. S. Gautam for Respondent no. 2/Original complainant
      Smt. A. S. Pai, APP for the State


                               CORAM :   S. S. SHINDE &
                                         MANISH PITALE, JJ.

RESERVED ON: 11/03/2021.

PRONOUNCED ON: 08/04/2021.

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JUDGMENT: (PER: MANISH PITALE, J.)

1] At the outset it is required to be noted that since the allegations

against the Appellant are in respect of the alleged sexual assault and

Respondent no. 2 is the victim, their identities need to be concealed,

and they are referred to as "ABC" and "XYZ". The Registry is directed

to maintain the record accordingly.

2] The Appellant herein claims that friendship between him and

Respondent No.2 (original informant), which developed into attraction

and relationship, but which could not transform into marriage, has

resulted in registration of FIR at the behest of Respondent No. 2

against him. By the present Appeal the Appellant has challenged

order dated 19/12/2020 passed by Court of Additional Sessions

Judge, Kalyan, whereby an application for grant of pre-arrest bail

fled by Appellant under Section 438 of Code of Criminal Procedure,

1973 (Exhibit 1) stood rejected. It is brought to the notice of this

court that an application fled for grant of pre-arrest bail by the co-

accused persons i.e. family members of the Appellant, was allowed by

a separate order by the very same court on 19/12/2020 itself.

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According to the Appellant, the said Court failed to appreciate the

contentions raised on behalf of the Appellant, thereby rendering the

impugned order erroneous and liable to be set aside.

3] The Respondent No. 2 approached Shivaji Nagar Police Station,

district: Thane on 02/12/2020, with a grievance against the

Appellant and his family members. On the basis of allegations made

by Respondent no. 2, FIR dated 02/12/2020, stood registered against

the said accused persons for offences punishable under Sections 376,

420 and 506 r/w 34 of the Indian Penal Code and Sections 3(1)(w)(i),

3 (1)(w)(ii), 3(2)(va), 3(2)(V), 3(2)(VII) of The Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter

referred to as 'Atrocities Act').

4] The Respondent No. 2 alleged that being a fnal year student of

engineering and President of Nationalist Youth Congress of

Ambernath city, involved in social work, she used to regularly visit

police stations. According to Respondent No. 2, on one such visit to

police station, Ambernath, she met the Appellant who, being a

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constable was posted at the said police station. She further alleged

that the Appellant asked for her mobile number, but she refused to

give him the same. Yet, after about two days, the Appellant called

from his mobile phone and asked the Respondent No. 2 as to whether

she would like to be friends with him. According to Respondent No. 2,

she refused the said offer, but when she went to the police station in

connection with permission for a Morcha, the Appellant met her and

convinced her to develop friendship. On 07/05/2020, the Appellant

allegedly called Respondent No. 2 and expressed his love for her and

stated that he was ready to marry her. According to Respondent No.

2, she asked the Appellant to speak to her parents and then take

further steps in the matter. According to Respondent No. 2, with

passage of time, she developed faith in the Appellant and they started

to meet each other.

5] According to the Respondent No.2, on 2/06/2020, they met at a

temple, where two friends of the Appellant were also present. In their

presence, the Appellant allegedly expressed his love for Respondent

No. 2 and convinced her sister that he genuinely intended to marry

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her. On the said day, the Appellant allegedly married Respondent No.

2 by exchanging garlands and also promised that they would

undertake actual ceremonies of marriage in the near future.

Thereafter, Respondent No. 2 has alleged that on 30/06/2020, the

Appellant visited her house when her parents were not at home. He

allegedly desired to establish physical relations on the ground that

they were already married. When Respondent No. 2 resisted, the

Appellant allegedly forcibly had physical relation with Respondent No.

2. Thereafter he quarreled with her in the morning and broke her

mobile phone, but thereafter, apologized profusely.

6] According to statements made by Respondent No. 2 in her

aforesaid complaint, when she further insisted on a proper marriage

between the parties, the Appellant stated that her father belonged to

Mahar caste, although her mother was Maratha and that Respondent

No. 2 should get an amount of Rs. 50 lacs from her parents if she

wanted that marriage should be solemnized between them.

Respondent No. 2 has further alleged that on 24/11/2020, the

Appellant and other accused persons i.e. his family members came in

front of her house and made abusive statements against her by

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referring to her caste. It is on the basis of such allegations that the

complaint was lodged, leading to registration of FIR for the said

offences.

7] As noted above, while application for grant of pre-arrest bail

fled by other accused persons i.e. family members of the Appellant

was allowed, on the same day, by the impugned order, the

jurisdictional Court rejected the application fled by the Appellant.

The said Court did record the fact that the Appellant and Respondent

No. 2 had developed friendship and they were also in love with each

other, but on the basis of allegations regarding sexual exploitation

and harassment due to caste of Respondent No. 2, it found that a

prima facie case was made out against the Appellant. On this basis,

the said Court held that bar against grant of anticipatory bail under

Section 18 of the Atrocities Act operated and thereby rejected the

application.

8] Mr. Karan Bhosale, learned counsel appearing for the Appellant

submitted that the Court below committed an error in rejecting the

application of the Appellant, for the reason that there was material

on record to indicate that a prima facie case was not made out

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against the appellant for offences under the Indian Penal Code and

the Atrocities Act. It was submitted that Respondent No. 2 is a well

educated person, pursuing fnal year engineering course and she is

President of youth wing of a political party i.e. Nationalist Youth

Congress of Ambernath city, thereby showing that she is suffciently

capable of taking care of her own self. It was submitted that even

according to Respondent No. 2, she was at the forefront of

highlighting grievances of the youth by regularly approaching police

stations and in that context, delay in approaching the police station

with her allegations was a crucial factor, which the court below has

failed to appreciate. It was submitted that there was obvious delay on

the part of Respondent No. 2 in approaching the police with her

grievances.

9] It was further submitted that there were two complaints

submitted by Respondent No. 2, on 20/11/2020, before the Assistant

Commissioner of Police and on 27/11/2020, before the Home

Minister in respect of her grievances. It was further submitted that,

on 27.11.2020, mother of Respondent No. 2 had also submitted a

complaint before Assistant Commissioner of Police. It was vehemently

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submitted that neither in the two aforesaid complaints submitted by

Respondent No. 2 nor the complaint submitted by her mother, was

there any reference to forcible physical relations on 30/06/2020 or

the incident dated 24/11/2020 involving Appellant and his family

members. On this basis, it was submitted that complaint leading to

registration of FIR dated 02/12/2020 was nothing but an attempt to

falsely implicate the Appellant and his family members in the said

offences.

10] It was further submitted that the Appellant and Respondent No.

2 had both voluntarily entered into friendship, leading to interaction

with each other. It was only when the same did not fructify into

marriage that the Respondent No. 2 had lodged the aforesaid

complaint. It was also highlighted that in the complaints addressed to

the Assistant Commissioner of Police and the Home Minister, the

Respondent No. 2 herself stated that marriage of the Appellant was

fxed with someone else on 21/01/2021, thereby showing that

complaint making false allegations was triggered because relationship

between Appellant and Respondent No. 2 did not transform into

marriage. The allegations pertaining to rape and offences under the

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Atrocities Act were falsely and maliciously levelled against the

Appellant. As regards bar under Section 18 of the Atrocities Act,

learned counsel appearing for the Appellant submitted that when no

prima facie case was made out for the said offences, the aforesaid bar

will not operate. The learned counsel relied upon the Judgment of the

Hon'ble Supreme Court in the matter of Sonu @ Subhash Kumar Vs.

State of Uttar Pradesh & Another 1 in support of the aforesaid

contentions.

11] On the other hand, Mr. P. S. Gautam, learned counsel

appearing for Respondent No. 2 submitted that bar under section 18

of the Atrocities Act clearly operated in the facts and circumstances

of the present case. It was submitted that the bar is absolute and

that even though exception in rarest of the rare case was recognized

by the Hon'ble Supreme Court, the present case did not fall within

such exception. It was submitted that on this short ground, the

present Appeal deserved to be dismissed. It was further submitted

that the court below had correctly appreciated the material on record

and that the impugned order did not deserve any interference. It was

further submitted that offences under the Atrocities Act registered

1 [Criminal Appeal No. 233 of 2021]

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against the Appellant were clearly made out from the contents of the

complaint leading to registration of FIR and therefore, the order

rejecting pre-arrest bail did not deserve interference. It was further

submitted that the Appellant had given false promise of marriage to

Respondent No. 2 and he had sexually exploited her, thereby showing

that offences under sections 376 and 420 of the Indian Penal Code

were also made out against the Appellant. On this basis, it was

submitted that Appeal deserved to be dismissed.

12] Mrs. Pai, learned APP appearing on behalf of the State opposed

the appeal and supported the impugned order rejecting pre-arrest

bail. The learned APP placed copies of investigation papers before this

court.

13] We have heard counsel appearing for the rival parties and

perused the material on record. Before considering the case of the

Appellant for grant of pre-arrest bail, it needs to be appreciated that

when the question of grant of pre-arrest bail is to be considered in

the context of offences registered under the Atrocities Act, scope for

grant of such relief is reduced considerably. Section 18 of the

Atrocities Act clearly states that section 438 of Code of Criminal

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Procedure, 1973 (Cr.P.C.), pertaining to grant of pre-arrest bail would

not apply to the persons committing an offence under the said act. A

person accused of offences under the Atrocities Act cannot claim

such relief.

14] Yet, the Hon'ble Supreme Court has considered the scope and

ambit of sections 18 & 18A of the Atrocities Act in the case of Prathvi

Raj Chauhan Vs. Union of India and Ors 2. It has been held therein

that the aforesaid provisions are clear about non-availability of

section 438 of Cr.P.C. when offences under the Atrocities Act are

registered. The Hon'ble Supreme Court has recognized that in

exceptional cases where the complaint does not make out a prima

facie case for applicability of the provisions of the Atrocities Act, the

bar created by Sections 18 and 18A of the said Act shall not apply.

15] Thus, it becomes clear that while considering the question of

grant of pre-arrest bail to the accused under the Atrocities Act, there

is scope for the court to consider as to whether a prima facie case for

applicability of the Atrocities Act is made out or not. It is pertinent to

note that in the present case itself, the very same court granted pre-

arrest bail to the other accused persons i.e. family members of the 2 [(2020) 4 SCC 727]

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Appellant.

16] In the present case, the Respondent No. 2 has indeed made

statements in the complaint alleging forcible physical relationship by

the Appellant on 30/06/2020 and there is also reference to an

incident dated 24/11/2020 involving Appellant and his family

members wherein they threatened and allegedly intimidated

Respondent No. 2 by referring to her caste. There are also allegations

regarding demand of certain sum of money as pre-condition for

marriage. But, it is signifcant that the complaint leading to

registration of FIR was lodged on 02/12/2020, while the allegations

pertaining to forcible physical relationship pertained to 30/06/2020,

which was more than fve months ago. The complaint itself refers to

the manner in which friendship developed between Respondent No. 2

and Appellant and their interaction with each other. Since the

allegation regarding forcible physical relationship pertained to

30/06/2020, it would have been natural for the said incident being

mentioned in the two complaints dated 20/11/2020 and 27/11/2020

submitted by Respondent No. 2 before the Assistant Commissioner of

Police and the Home Minister respectively. It is crucial that

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Respondent No. 2 has not denied the said complaints submitted by

her. It is also relevant that mother of the Respondent No. 2 also did

not refer to any such incident of 30/06/2020 in her complaint dated

27/11/2020 addressed to the Assistant Commissioner of Police.

17] This becomes even more signifcant when it is appreciated in

the context that the Respondent No. 2 is an educated person, in the

fnal year of engineering course at the time when the complaint was

lodged and more importantly that she was the President of the

Nationalist Youth Congress. In that capacity, even as per her own

statements, she was highlighting the grievances of students and

others by regularly approaching police stations and other authorities.

In that context, it becomes signifcant that Respondent No. 2 lodged

her complaint as late as on 02/12/2020, while she had allegedly

suffered forcible physical relationship at the hands of the Appellant

as far back as on 30/06/2020. Even the alleged incident dated

24/11/2020 does not fnd mention in her complaints or the

complaint lodged by her mother prior to registration of FIR dated

02/12/2020. In fact, the allegations pertaining to said incident dated

24/11/2020 appear to be general in nature and this is the very

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ground on which other co-accused persons were granted pre-arrest

bail.

18] This is apart from the fact that by way of additional affdavit,

the Appellant has placed on record copy of complaint leading to

registration of non-cognizable offence at the behest of Appellant on

24/11/2020, at around the time when Respondent No. 2 claims that

Appellant and other accused persons had reached her house and

harassed her in the name of her caste. It is signifcant that the said

non-cognizable offence was registered at the behest of the Appellant

at police station, Murbad, which is admittedly at a considerable

distance from the house of Respondent No. 2. The said material can

be considered to examine whether a prima facie case is made out on

the basis of statements made by Respondent No. 2, which led to

registration of FIR.

19] In this backdrop, it would be necessary to appreciate the

material on record to examine as to whether during the relationship

between Appellant and Respondent No. 2, Appellant sought to exploit

Respondent No. 2 due to her caste or that he sought to dominate her

in any manner. Respondent No. 2 has placed on record copies of

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Whats App chats between her and the Appellant. In the investigation

papers also, copies of such Whats App chats have been included

which have not been disputed by the Respondent no. 2. We have

perused the same and examined the nature of interaction between

the Appellant and Respondent No. 2. A perusal of the same prima

facie shows that friendship between the Appellant and Respondent

No. 2 developed into attraction and love for each other. In the chats,

the Appellant as well as Respondent No. 2, both have expressed their

love for each other. It appears that the Respondent No. 2 desired that

Appellant should be clear about their relationship going to the next

level of marriage. The Appellant also expressed a similar desire. The

chats also show that Respondent No. 2 was apprehensive that family

members of the parties may not be positively disposed towards such

marriage and she wanted assurance in that regard. The Appellant

appears to have given such assurances and there is no reference to

caste of Respondent No. 2 in these interactions between the parties.

We have referred to the said material, not to sift through or examine

any kind of evidence in detail, but to appreciate as to whether

allegations levelled by Respondent No. 2 prima facie indicate that

Appellant started the friendship and entered into relationship with

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Respondent No. 2 from the very beginning to dominate her due to her

caste or to exploit her physically and emotionally.

20] On a perusal of said material, prima facie it appears that such

a fnding at this stage cannot be reached that the whole purpose of

the Appellant to develop friendship and going further with

Respondent No. 2 was with a view to exploit her, particularly because

of her caste. At this stage, prima facie, it appears that friendship

between Appellant and Respondent No. 2, which developed into

attraction and love between them could not be fructify into marriage.

It is when such a situation arose, the Respondent No. 2 sought to air

her grievances.

21] It is crucial that in the complaints submitted by her on the

letter heads of Nationalist Youth Congress to the Assistant

Commissioner of Police and the Home Minister, she did not refer to

the incident of forcible physical relationship on 30/06/2020 and the

alleged incident on 24/11/2020. It can be understood that incident of

24/11/2020 was not mentioned in her complaint addressed to

Assistant Commissioner of Police dated 20/11/2020, but in her

complaint submitted before the Home Minister on 27/11/2020,

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Respondent No. 2 has admittedly not referred to such an incident of

24/11/2020. These complaints do refer to alleged exchange of

garlands and marriage in temple and the allegation that the

Appellant and his family members were demanding Rs. 50 lacs, but

the crucial incidents dated 30/06/2020 and 24/11/2020 are not

mentioned at all. Similarly, in the complaint lodged by the mother of

Respondent No. 2, such incidents are not mentioned.

22] A perusal of the impugned order passed by the Court below

would show that these aspects were not referred to in the impugned

order. It appears that since the impugned order was passed on

19/12/2020 and it was not even a month after the FIR dated

02/12/2020 was registered, the Court below did not feel it

appropriate to grant pre-arrest bail to the Appellant as the

investigation was at initial stage.

23] We have perused the copies of the investigation papers which

show that it has progressed further. While granting interim protection

to the Appellant, we had directed him to appear before the

investigating offcer and pursuant thereto, the Appellant did appear

before investigating offcer on 27/01/2021 and thereafter everyday till

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3/02/2021. It is a matter of record that the Appellant submitted a

pen drive containing Whats App chat messages copied from his

mobile phone before the investigating offcer. In the affdavit fled

before this court, the Appellant stated that he was always ready and

willing to submit his mobile phone and to undergo medical

examination. It is stated in the affdavit that the investigating offcer

had informed the Appellant that his mobile phone was not required

at that juncture. As per the directions given by this court, the

Appellant appeared on dates of hearing before this court till it was

reserved for Judgment. It is an admitted position that the Appellant

is a police constable and that his being arrested would certainly have

an adverse effect on his service.

24] As regards the Judgment of the Hon'ble Supreme Court Sonu @

Subhash Kumar [cited supra] relied upon by learned counsel

appearing for the Appellant, it pertains to a case where the accused

sought quashing of charge-sheet when he was said to have committed

an offence under section 376 of the Indian Penal Code by allegedly

sexually exploiting the complainant on a false promise of marriage. In

the present case, we are not concerned with the question of quashing

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of FIR and therefore, to that extent, the said Judgment may not be of

assistance. But, the principle laid down in the said Judgment

pertaining to "misconception of fact" that vitiates "consent" of a

woman can be of assistance to gauge as to whether a prima facie case

is made out against the Appellant in the context of offence under

section 376 of the Indian Penal Code. It has been held in the said

Judgment that a distinction has to be made between a promise to

marry which is false at its inception and the intention of the maker at

the time of making the promise itself was not to abide by it, as

compared to promise which could not be fulflled.

25] The nature of material presently on record in the instant case

indicates prima facie that the intention of marriage between the

parties could not be fulflled and in any case the Respondent No. 2

did not allege forcible physical relationship, at the outset when she

started raising grievances against the Appellant. It is also crucial that

in the two complaints which she lodged on the letterheads of

Nationalist Youth Congress as its President, before the ACP and the

Home Minister, she referred to the fact that the Appellant intended to

get married to someone else on 21.01.2021, thereby showing that she

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started raising her grievances after she became aware that the

Appellant intended to marry someone else. It is also relevant that

medical examination report of Respondent no. 2 does not indicate

anything signifcant. This is obviously because the alleged incident of

forcible physical relation happned on 30/06/2020, while medical

examination was conducted after 2/12/2020, when the F.I.R. was

registered at the behest of Respondent no. 2. Therefore, it can be said

that Court below erred in rejecting the pre-arrest bail to the

Appellant.

26] As regards offences under the Atrocities Act, provisions of

Section 3(w)(i), 3(w)(ii), 3(2)(v), 3(2)(va) and 3(2) (vii), have been

invoked. Sections 3 (w)(i) and 3(w)(ii) of the Atrocities Act pertain to

use of words, acts or gestures of a sexual nature and intentionally

touching a woman belonging to a Scheduled Caste or Scheduled Tribe

in a sexual manner without her consent. In the present case, we have

found hereinabove that alleged incident of forcible physical

relationship on 30/06/2020, was not divulged by Respondent no. 2

in her complaints addressed to the Assistant Commissioner of Police

and Home Minister in November 2020. It was for the frst time in her

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complaint dated 02/12/2020, leading to registration of F.I.R. that

such incident was stated. The Whatsapp messages exchanged

between the Appellant and Respondent no. 2 do not mention any

such words, gestures or acts of sexual nature and they do not refer to

any touch of sexual nature without the consent of Respondent no. 2.

In fact, as noted above, the Appellant as well as Respondent no. 2

expressed love for each other. Thus, the said offences under the

Atrocities Act, prima facie, do not appear to be made out.

27] Section 3(2)(v) of the Atrocities Act states that if a person

commits an offence under the IPC punishable with imprisonment for

a term of ten years or more against a person belonging to Scheduled

Caste or Scheduled Tribe, he shall be punishable with imprisonment

for life. In the present case, offence under Section 376 of IPC has

been registered against the Appellant, which is punishable with

imprisonment for at least ten years and upto imprisonment for life.

But, as noted above, prima facie the allegation under Section 376 of

IPC appears to be made by Respondent no. 2 upon being aggrieved

by the fact that relationship with the Appellant did not fructify into

marriage. As a consequence, prima facie case under Section 3(2) (v)

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of the Atrocities Act does not appear to be made out.

28] Similarly, offence under Section 3(2)(va) of the Atrocities Act,

does not appear to be prima facie made out because it pertains to

offence specifed in the Schedule committed against a person

belonging to Scheduled Caste or Scheduled Tribe. In the present case

offences under Sections 376 and 506 of IPC, mentioned in the

Schedule to the Atrocities Act, have been registered against the

Appellant. But, for the reasons stated hereinabove, indicating that

prima facie the relationship between the Appellant and Respondent

no. 2 appears to be consensual, the said offence under Section 3(2)

(va) also prima facie does not appear to be made out.

29] Section 3(2)(VII) of the Atrocities Act, provides that when a

public servant commits any offence under the said Section, he shall

be punishable with imprisonment for a period not less than one year.

In the instant case, there can be no dispute about the fact that the

Appellant is a public servant. But, since we have found hereinabove

that prima facie offences under Section 3 of the Atrocities Act, do not

appear to be made out, the offence under Section 3(2)(VII) thereof,

prima facie does not appear to apply to the Appellant.

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30] Hence, we are of the opinion that when allegations levelled in

the complaint dated 02/12/2020 are seen in the context of the

relationship that developed between the Appellant and Respondent

no. 2, which could not fructify into marriage, it cannot be said that a

prima facie case is made out for offences under the Atrocities Act, to

deny pre-arrest bail to the Appellant.

31] In view of above, we are of the opinion that present Appeal

deserves to be allowed and the Appellant deserves to be granted pre-

arrest bail, although conditionally.

32] Accordingly, in the event Appellant is arrested in connection

with F.IR. No. 274/2020 registered with Shivaji Nagar, Police Station,

Ambarnath, he shall be released on the following conditions:

(a) He shall furnish P.R. bond in the sum of Rs. 50,000/- and surety in the like amount.

(b) Appellant shall not enter the jurisdiction of Shivaji Nagar Police Station, Ambarnath, District: Thane till the fling of the charge-sheet.

(c) Appellant shall not in any manner contact Respondent no. 2.

(d) Appellant shall not himself or through any person

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threaten or pressurize Respondent no. 2.

(e) He shall not in any manner tamper with evidence.

(f) Appellant shall co-operate with investigation and he shall make himself available before the Investigating Offcer as and when required.

(g) He shall submit his mobile phone before the Investigating Offcer, if not already submitted.

33] The Appeal is allowed in the above terms. Needless to say the

observations made hereinabove are only for the purpose of deciding

the present Appeal and they shall not affect further proceedings in

pursuance of the said FIR.

34] In view of disposal of Appeal, Intervention Application also

stands disposed of.

 [MANISH PITALE, J.]                                       [S. S. SHINDE, J.]