Bombay High Court
Salman Bilal Qureshi vs The State Of Maharashtra And ... on 9 April, 2021
Bench: V. V. Kankanwadi
937-Apeal-95-2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
937 CRIMINAL APPEAL NO.95 OF 2021
SALMAN BILAL QURESHI
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER
...
Advocate for Appellant : Mr. Muley Pramod N
APP for Respondent - State : Mr. N. T. Bhagat
Advocate for Respondent No.2 : Mr. N. R. Thorat (Appointed)
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 9th April, 2021
ORAL JUDGMENT :-
. Admit.
2. Present appellant is apprehending his arrest in connection with
Crime No.9 of 2021 registered with Wadwani Police Station, Dist. Beed
dated 24.01.2021 for the offence punishable under Sections 354, 354D
of Indian Penal Code and under Section 3(1)(w)(ii) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act (hereinafter
referred to as the 'Atrocities Act') and, therefore, he had approached the
learned Additional Sessions Judge/Special Judge under the Atrocities
Act, by filing an application i.e. Criminal Bail Application No.34 of 2021
under Section 438 of the Code of Criminal Procedure. The learned
Special Judge, Majalgaon has rejected that application on 06.02.2021 by
(1)
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holding that there is bar under Section 18 of the Atrocities Act. Hence,
this appeal under Section 14-A of the Atrocities Act.
3. Heard learned Advocate Mr. Pramod Muley for the appellant,
learned APP Mr. N. T. Bhagat for respondent No.1 and learned Advocate
Mr. N. R. Thorat (appointed) for respondent No.2. In order to cut short,
it can be said that all of them have made submissions in support of their
respective contentions.
4. Perusal of the FIR lodged by the informant would show that she
got married about two months prior to the FIR dated 24.01.2021 and
she was residing with her husband, parents-in-laws and brother-in-law.
When she was doing her household work between 11.00 a.m. to 12.00
p.m. on 24.01.2021, she went behind the house for washing clothes, at
that time, she found one person near the wall of her house. That person
came near her by concealing his person and suddenly appeared before
her. She states that he had unroped himself and then tried to hug. She
ran from that place to a nearby area where the construction of the house
of the relative of her husband was going on and then gave a phone call
to her brother-in-law. After her brother-in-law asked her to describe that
person, she told that he is Muslim. Then she says that her brother-in-
law asked their neighbour Mujed Shaikh as to who is such person, then
(2)
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said Mujed Shaikh disclosed the name of present applicant. The
informant says that thereafter her mother-in-law went to the house of
the applicant and brought the applicant in front of the informant.
Informant identified him and then she went to police station to lodge
report.
5. The contents of the FIR would then show that though she is
stating that she is a member of Scheduled Caste, yet, the FIR lacks in
attributing the knowledge of the present applicant that the informant is
a member of the Scheduled Caste. Unless the present applicant had the
knowledge that the informant was member of a particular caste and
with that intention only the offence was committed, there is no question
of attributing any provisions under the Atrocities Act. The learned
Special Judge, under the Atrocities Act, Majalgaon, failed to consider
this important aspect, which is the mandatory requirement of attracting
any offence described under Section 3 of the Atrocities Act.
6. As regards the offence under Indian Penal Code is concerned, the
physical custody of the applicant is not required.
7. As aforesaid, there is prima facie case made out to show that
offence under the Atrocities Act are not made out against the present
applicant and, therefore, there was no question of bar under Section 18
(3)
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of the Atrocities Act in view of decision of the Hon'ble Apex Court in
Prathvi Raj Chauhan Vs. Union of India and others [AIR 2020 SC 1036] ,
wherein it has been observed :-
"Concerning the applicability of provisions of section 438
Cr.P.C, it shall not apply to the cases under Act of 1989.
However, if the complaint does not make out a prima facie
case for applicability of the provisions of the Act of 1989,
the bar created by section 18 and 18A (I) shall not apply.
We have clarified this aspect while deciding the review
petitions."
8. For the aforesaid reasons, the appeal deserves to be allowed.
Hence, the following order :-
ORDER
I) Appeal stands allowed.
II) The order passed in Criminal Bail Application No.34 of
2021 by learned Special Judge/Additional Sessions Judge,
Majalgaon, Dist. Beed on 06.02.2021 is hereby set aside.
III) In the event of arrest of the appellant - Salman Bilal
Qureshi in connection with Crime No.9 of 2021 registered with
Wadawani Police Station, Dist. Beed for the offences punishable
under Sections 354, 354-D of Indian Penal Code and under
Section 3(1)(w)(ii) of the Atrocities Act, he be released on P. R.
and S.B. of Rs.15,000/- each.
IV) The appellant shall not indulge himself in any criminal
activity.
937-Apeal-95-2021.odt
V) He should remain present before the Investigating Officer
on every Friday between 10.00 a.m. to 2.00 p.m. till filing of
charge-sheet.
VI) The fees of Advocate appointed for respondent No.2 is
quantified at Rs.5,000/- to be paid by the High Court legal
Services Authority, Sub Committee, Aurangabad.
[SMT. VIBHA KANKANWADI, J.]
scm
