Aslam Sardar Malik Shaikh vs The State Of Maharashtra And Anr
2021 Latest Caselaw 17602 Bom

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     IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                CRIMINAL APPELLATE JURISDICTION

                CRIMINAL APPEAL NO. 946/2021


ASLAM SARDAR MALIK
SHAIKH                                  } APPELLANT

         V/S.

1. THE STATE OF MAHARASHTRA
AND ANR.                                } RESPONDENTS

                              ****

Mr. Ritesh Thobde, Advocate for the appellant.

Smt. S.V. Sonawane, APP for State-respondent no.1.

Mr. Vaibhav V. Ugle, a/w. Mr. Vikas Somawanshi and Mr.
Roshan Chavan, Advocate appointed for respondent no.2.

Investigating Offcer, Police Constable No.2137, Mr. Irfan
Shaikh present.

                    Coram : Sandeep K. Shinde, J.

Friday, 17th December, 2021.

P.C. :

1. Heard Mr. Thobde, learned Counsel for the

appellant, Smt. Sonawane, learned APP for State and Mr.

Ugle, Advocate (appointed) for the complainant.

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2. On the complaint fled by the respondent no.2,

Crime No.465/2021 has been registered against the

applicant and unknown persons under Sections 143, 147,

148, 149, 352, 323, 504 of the Indian Penal Code and

Sections 3(1)(r)(s) and 3(2)(va) of the Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities) Act, 1989

("Atrocities Act" for short).

3. Applicant is Revenue Offcer, "Talathi". At the

material time, when the offence was registered, he was

posted at Kolhapur. Soonafter the registration of crime, he

came to be arrested on 13 th October, 2021. The chargesheet

in the crime has been fled.

4. Mr. Thobde, learned Counsel for the appellant, on

instructions, submitted that in the chargesheet, appellant's

brother-Shaikh Yusuf Sardar, has been cited as accused

no.2. In fact, appellant's brother died on 23 rd June, 2019.

Mr. Thobde, has placed on record, Death Certifcate of his

brother. It is taken on record and marked "X-" for

identifcation. This fact, clearly shows, the casual approach

of the Investigating Offcer. It also amounts to abuse of

process of law at the hands of, the Deputy Superintendent Rane 3/5 APPEAL-946-2021-SR.30 17.12.2021

of Police, Mr. Hire, Investigating Offcer. This fact simply

cannot be overlooked and therefore I deem it appropriate to

request Superintendent of Police, Solapur (Rural) to

enquire into gross irregularity, committed by the

Investigating Offcerr in accordance with law.

5. Here, in this case, appellant and the complainant,

are neighbours. Dispute arose between them on account of

construction being raised by them. It appears, the

complainant constructed a wall, to which the appellant had

objected to. It was the cause which led to complaint/FIR.

Since, the dispute is regarding the construction of a wall, it

would not disclose an offence under the Atrocities Act,

unless shown that, victim was abused, intimidated,

harassed only for the reason that, he/she belongs to

Scheduled Caste or Scheduled Tribe. Mr. Thobde, has

rightly placed reliance on the judgment of the Apex Court in

the case of Hitesh Verma V/s. State of Uttarakhand, 2020

(10) SCC 710. In the cited case, there was dispute about the

possession of the land and it was pending before the Civil

Court. In consideration of these facts, the Hon'ble Apex

Court has observed in para-16 as under :

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"There is a dispute about the possession of the land which is the subject matter of civil dispute between the parties as per Respondent 2 herself. Due to dispute, the appellant and others were not permitting Respondent 2 to cultivate the land for the last six months. Since the matter is regarding possession of property pending before the civil court, any dispute arising on account of possession of the said property would not disclose an offence under the Act unless the victim is abused, intimidated or harassed only for the reason that she belongs to a Schedule Caste or Scheduled Tribe."

6. The ratio laid down in the cited case, squarely

applies to the facts of the case in hand.

7. Thus, for the reasons stated above and in view of

the fact that, investigation is over, the appellant is directed

to be released on bail on executing P.R. Bond in the sum of

Rs.20,000/- (Rs. Twenty Thousand only) with one or more

sureties in the like sum.

8. The appellant shall not tamper with the evidence

or attempt to infuence or contact the complainant,

witnesses or any person concerned with the case.

9. The Superintendent of Police, Solapur shall take

a note of gross irregularity, much less, illegality committed

by the Offcer, investigating Crime No.465/2021 registered

with Barshi City Police Station, Barshi and take appropriate

action in accordance with law.

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10. Registry to forward copy of this order to

Superintendent of Police, Solapur.

11. Appeal is allowed and disposed of.

12. It is made clear that, observations made

hereinabove, shall be construed as expression of opinion for

the purpose of granting bail only and the same shall not, in

any way, infuence the trial in other proceedings. NEETA SHAILESH SAWANT Digitally signed by NEETA SHAILESH SAWANT Date: 2021.12.17 18:52:17 +0530

(SANDEEP K. SHINDE, J.)