Bombay High Court
Shaikh Sardar Shaikh Birham vs The State Of Maharashtra And ... on 25 February, 2021
Bench: Mangesh S. Patil
(1)
931 Cri Appeal 13 - 63-21
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
931 CRIMINAL APPEAL NO.13 OF 2021
Shaikh Sardar s/o Shaikh Birham,
Age 55 years, Occ. Agri.,
R/o. Gandheli, Tq. & Dist.Aurangabad. ...Appellant
VERSUS
1) State of Maharashtra,
Through Police Station,
Chikalthana, Aurangabad.
2) Alka W/o Bapurao Apte,
Age 35 years, Occ. Household,
R/o. Gandheli, Tq. & Dist.Aurangabad. ...Respondents
...
Advocate for Appellant : Mr. Deshpande Jagdish V and Shivaji
Namdeorao Dudhate
APP for Respondent No.1-State : Mrs. R.P. Gaur
Advocate for Respondent No.2 : Mr. Mohanish V. Thorat
...
WITH
CRIMINAL APPEAL NO.63 OF 2021
1) Juber Gulmahammad Pathan,
Age 50 years, Occ. Agri.,
R/o. Mu-Gandhili, At Post-Adgaon,
Gandheli, Tq. & Dist.Aurangabad.
2) Javed Khan Fayyaz Khan Pathan,
Age 32 years, Occ. Agri.,
R/o. Mu-Gandhili, At Post-Adgaon,
Gandheli, Aurangabad. ...Appellants
VERSUS
1) State of Maharashtra,
Through the Police Sub Inspector,
Police Station, Chikalthana, Aurangabad.
2) The Superintendent of Police,
Chikalthana, Aurangabad.
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(2)
931 Cri Appeal 13 - 63-21
3) Alka W/o Bapurao Apte,
Age 35 years, Occ. Household,
R/o. Gandheli, Chikalthana, Aurangabad,
Tq. & Dist.Aurangabad. ...Respondents
...
Advocate for Appellant : Mr. Ali Zeeshan M.Zaidi
APP for Respondents No.1 & 2-State : Mrs. R.P. Gaur
Advocate for Respondent No.3 : Mr. Mohanish V. Thorat
...
CORAM : MANGESH S. PATIL, J.
DATE : 25 FEBRUARY 2021
PER COURT :
These are the appeals under Section 14-A of the Scheduled
Castes & Scheduled Tribes (Prevention of Atrocities) Act (Hereinafter
referred to as, "the Atrocities Act") by three different accused from
Crime No.0445/2020 registered with Chikalthana Police Station,
Aurangabad for the offences punishable under Section 143, 147, 148,
179, 323, 504 and 506 of the Indian Penal Code and under Section 3(1)
(r) (s) and 3(2) (va) of the Atrocities Act, seeking bail in the event of
their arrest.
2. It is alleged in the FIR that on 08.12.2020 at about 4.00
p.m., when the informant along with her friend were going to the
market they saw that some of the accused were assaulting few persons.
They were also threatening them of dire consequences, if they
interfered in the functioning of the Grampanchayat. The two group
were separated and one Deelip Kondiba Talekar, who was assaulted
went towards the police station.
931 Cri Appeal 13 - 63-21
3. It is then alleged afterwords the appellants and their
colleagues started pelting stones. They also assaulted one Sayyed
Aayub Sayyed Halim. It is then alleged that when the informant and
her friend were trying to pacify the quarrel and started questioning as
to why these persons were pelting stones, they retorted by questioning
her as to why she and her colleague were giving testimonies against
them. It is then alleged that abuses on the caste times were hurled and
they also threatened her of consequences, if she would reach the Police
Station.
4. On the basis of such FIR, the offence was registered and the
investigation is going on.
5. The learned Advocates for the appellants referring to the
decision in the case of Prathvi Raj Chauhan Vs. Union of India and
Others, (2020)4 SCC 727 submit that there would be no bar to grant
anticipatory bail under Section 18 and 18-A of the Atrocities Act. They
point out that there is no prima facie material to reveal offences
punishable under the Atrocities Act.
6. The learned Advocates would then submit that the
allegations in the FIR are vague and omnibus. When the incident has
taken place on the spur of moment and that there being no pre-
meditation, the appellants cannot be singled out to attribute the
931 Cri Appeal 13 - 63-21
allegations under the Atrocities Act. They would also cite the decision
in the case of Hitesh Verma Vs. State of Uttarakhand and Another,
(2020)10 SCC 710 and submit that there cannot be an offence under
the Act unless such intimidation is on account of victim being from the
Scheduled Castes or Scheduled Tribes category.
7. The learned APP and the learned Advocate for the
informant-respondent No.2 and 3 strongly oppose the appeals. They
would submit that there are specific allegations against the accused
persons, about having hurled abuses on caste lines and even threatened
the informant and her friend of consequences, if they approached
Police. Prima Facie at this juncture, this much of material is enough to
reveal that complicity of the appellants in committing the offences
under the Atrocities Act.
8. They would also submit that this is not the first incident so
far as appellant Juber Gulmahammad Pathan is concerned. He is
involved in similar crime under the Atrocities Act regarding which crime
was registered as Crime No.I-180/2017. He is bent upon to
commit/repeat the crime, if he is released on bail. They would further
point out that there are witnesses for the prosecution to corroborate the
version of the informant in the FIR. Though, apparently, the allegations
do not attribute the abuses to any specific individual one can infer that
all the appellants were acting in unison. They all are responsible for all
931 Cri Appeal 13 - 63-21
the consequences that ensure from anything done in furtherance of the
common object. Several persons had sustained injuries and custodial
interrogation of the appellants is necessary.
9. I have carefully gone through the judgments passed by the
learned Sessions Judge and the papers of the investigation.
10. If one takes into consideration the FIR carefully, it appears
that it involves three episodes. In the first episode, two groups were
involved, wherein, allegedly, the appellants' group was assaulting the
members of the other group. Couple of persons had intervened. In the
second episode, the appellants are stated to have started pelting stones
towards a palace. In the third episode it is alleged that the appellants'
group then started assaulting few persons and when the informant and
her sister tried to intervene, the abuses were hurled at them, including
the one on caste lines and these two women were threatened.
11. Accepting the statement of the witnesses, including that of
the friend of the informant, who was accompanying her it is apparent so
far as the aspect of assault is concerned, the informant and her friend
were not involved and they were not at the receiving it. Going by the
injuries sustained by the persons stated to have been assaulted by the
appellants, they having sustained only simple injuries, the offences
being charged in that respect would be trifle besides being bailable.
931 Cri Appeal 13 - 63-21
12. So far as the offences under the Atrocities Act are
concerned, the present scrutiny would need to be restricted in verifying
the facts and circumstances. Though, there are criminal antecedents
against appellant Juber, the allegations in the FIR and the statements of
the witnesses are prima facie vague and omnibus. Though the
informant and her friend were identifying the persons from both the
sides, they are conspicuously not attributing the abuses to any specific
individual. They are also not identifying any specific individual for
having threatened them. The allegations are vague and omnibus. All
the accused persons have been collectively referred to.
13. If such is the state of affairs, when there is no pre-
meditation so far as the third episode, wherein, the appellants
attributed to have committed offences under the Atrocities Act, in my
considered view, in the peculiar facts and circumstances of the case and
the quality of the allegations the bar contained under Section 18 and
18-A of the Atrocities Act would not be applicable in view of the
decision in the case of Prathvi Raj Chauhan case (supra).
14. The learned Sessions Judge has not appreciated these
circumstances in their proper perspective and has refused to grant
anticipatory bail. The orders are clearly illegal and need to be quashed
and set aside and reversed.
931 Cri Appeal 13 - 63-21
15. Both the Appeals are allowed.
16. The impugned orders are quashed and set aside.
17. In the event of arrest of the appellants in connection with
Crime No.0445/2020 registered with Chikalthana Police Station,
Aurangabad for the offences punishable under Sections 143, 147, 148,
179, 323, 504 and 506 of the Indian Penal Code and under Section 3(1)
(r) (s) and 3(2) (va) of the Scheduled Castes & Scheduled Tribes
(Prevention of Atrocities) Act, they shall be released on bail on their
executing personal recognizance for an amount of Rs.20,000/- (Rupees
twenty thousand) each and furnishing a solvent surety in the like
amount each, subject to following conditions :
a) The appellants shall attend concerned Police Station
on three consecutive Saturdays, starting from
27.02.2021 between 11.00 a.m. and 01.00 p.m. and
shall co-operate the Investigating Officer.
b) They shall not tamper the evidence or influence the
witnesses.
c) They shall not repeat the crime.
( MANGESH S. PATIL, J. )
sarowar
