Rajani Dilip Shami vs State Of Maharashtra Thr. Pso Ps ...
2021 Latest Caselaw 341 Bom

   Judgment                                                          apeal349.20
                                          1



              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.


                      CRIMINAL APPEAL NO. 349 OF 2020.


  Rajani Dilip Shami,
  Aged about 59 years,
  Occupation - Service,
  resident of 337/V Soni lane,
  Sitabuldi, Nagpur.                                      ... APPELLANT.

                                     VERSUS

  1.The State of Maharashtra,
  through P.S.O. Sitabuldi,
  Nagpur.

  2.Smt. Asmita Amit Malviya,
  Aged 32 years, resident of Soni Galli,
  Near Big Masjid, Sitabuldi,
  Nagpur.                                           ... RESPONDENTS.


                                   -----------
                   Ms. R.P. Jog, Advocate for the Appellant.
                Shri S.D. Sirpurkar, A.P.P. for Respondent No.1.
             Shri B.U. Waghmare, Advocate for Respondent No.2.
                                   -----------


                                 CORAM : VINAY JOSHI, J.

                                 DATE    : JANUARY 07, 2021


  ORAL JUDGMENT :


                    Heard.

Admit. By consent of learned Counsel appearing for the

Judgment apeal349.20

respective parties, the appeal is taken up for final hearing.

2. The appellant / accused is seeking to quash the

impugned order of rejection of pre arrest bail and for grant of pre-

arrest protection. An offence vide Crime No. 251/2020 has been

registered at Sitabuldi Police Station against the appellant lady and

her children for offence punishable under Sections 354 read with 34

of the Indian Penal Code, and Section 3[1][r ] of the Scheduled

Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.

3. The informant lady stated that the accused are her long

neighbors and they used to frequently quarrel with neighboring

persons. On 09.06.2020 in the evening, when the informant

returned from her work, she noticed that all the accused were

quarreling with her husband. At that time, the appellant abused her

in the name of caste. The appellant's children also abused and her

son manhandled her, hence the report.

4. The learned counsel for the appellant would submit that

the FIR no where discloses that the informant belongs to Scheduled

Caste or Scheduled Tribe, as well as there is no mention about the

caste of the accused. It is her contention that the whole reading of

Judgment apeal349.20

the FIR no where discloses that the act of insult or intimidation was

intentional, meaning thereby there was no mensria. Lastly, it is

stated that there was no member of public present, therefore, it

cannot be said that the alleged offence was within public view.

5. The State has resisted to grant pre-arrest protection by

stating that specific abuses are mentioned in the FIR. Learned

counsel appearing for respondent no.2 also opposed to grant bail by

supporting the order of trial Court.

6. According to the appellant, though she belongs to

Muslim community, however, she was married to a person belonging

to Scheduled Caste, and as such her husband as well as sons are

members of Scheduled Caste. In such a scenario it is improbable

for her to intentionally abuse a member of Scheduled Caste. The

utterance in the name of caste "Mahar" requires consideration,

whether such utterance amounts to intentional abuse in the name of

caste.

7. In order to impress the requirement of adequate

mensria, the appellant has relied on the decision of this Court in

case of Krishna Parmeshwar Gaikwad .vrs. State of Maharashtra -

Judgment apeal349.20

2019 All MR (Cri) 1717, wherein it is observed that the mensria is a

decisive factor to constitute an offence. Moreover, to support the

contention that mere name of caste would not suffice the purpose,

reliance has been placed on the decision of the Hon'ble Supreme

Court in case of Gorige Pentaiah .vrs. State of A.P. and others -

[2008] 12 SCC 531.

8. It is submitted that merely because the occurrence took

place in front of house, does not mean that it was within public

view. In order to make distinction in between the term "public place"

and "public view", reliance has been placed on the decision in case

of Hitesh Verma .vrs. State of Uttarkhand and another - (2020) 10

SCC 710. In the said case, the Hon'ble Supreme Court has

expressed that the term 'public view' is specific and in absence of

persons of members of public, excluding relatives or friends, that

cannot be said to be within public view.

9. The contents of FIR does not disclose the specific caste

of the parties and presence of some strangers. Though the crime

was registered under Section 354 of the Indian Penal Code, the

appellant being lady, it is difficult to accept said contention against

her. It reveals that there was long drawn dispute in between the

Judgment apeal349.20

neighbors. Copy of old criminal case of the year 2000 has been

produced to show inimical terms. It is now well settled that in

absence of prima facie case the provisions of Section 438 of the

Code of Criminal Procedure can be made applicable in prosecution

under the Atrocities Act.

10. This Court has already granted interim protection to the

appellant vide order dated 10.07.2020. which is prevailing till date.

There is no complaint that the appellant has misused the liberty.

Having regard to all these factors and the nature of accusation, there

is no need for custodial interrogation. In view of that, the Appeal is

allowed. The impugned order dated 09.06.2020 passed by the

District Judge-6 and Additional Sessions Judge, Nagpur in Criminal

M.A.No. 1434/2020 is hereby quashed and set aside, so far as it

relates to rejection of application of the applicant. The interim order

passed by this Court on 10.07.2020, is hereby made absolute on

same terms and conditions, with a rider to follow the condition of

attendance till the filing of the charge sheet.

JUDGE

Rgd.