Bombay High Court
Lokesh S/O Gyanchand Vaswani vs State Of Mah., Thr. P.S.O. ... on 8 January, 2021
Bench: Z.A. Haq, Amit B. Borkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH: NAGPUR
CRIMINAL APPEAL NO.43 OF 2020
Lokesh S/o. Gyanchand Vaswani,
Aged:- 24 years, Occupation - Student,
R/o. Plot No. 55-B, Khushinagar,
Jaripatka, Nagpur. ....APPELLANT
// VERSUS //
1. State of Maharashtra,
(Through P. S.O. Jaripatka,
District :- Nagpur)
2. Miss Saloni Paunikar,
Aged 20 years, R/o. M.S.E.B. Colony,
Prakash Nagar, Ward No.5, Near D.A.V.
Zilla Parishad School, Khaparkheda,
District - Nagpur. .... RESPONDENTS
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Shri K.H.Dodani, Advocate for the appellant.
Ms. Mayuri Deshmukh, A.P. P. for the respondent No.1/State.
Shri Y.B.Mandpe, Advocate for the respondent no.2.
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CORAM : Z. A. HAQ AND
AMIT B. BORKAR, JJ.
DATED : 08/01/2021.
ORAL JUDGMENT (PER: AMIT B. BORKAR, J.) :
1. Heard.
2. Admit.
3. This is an appeal under Section 14-A of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act,
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1989 (for short "the Act of 1989") rejecting the pre-arrest bail
application of the appellant by order dated 09.01.2020 passed by the
learned Additional Sessions Judge-10, Nagpur, in Misc. Criminal
Application No.10/2020 in connection with the First Information
Report No.1364/2019 for offence punishable under Section 376 of the
Indian Penal Code and Section 3(1)(w)(i) of the Scheduled Castes and
the Scheduled Tribes (Prevention of Atrocities) Act, 1989.
4. First Information Report came to be registered with the
respondent no.1 - Police Station against the appellant on 24.12.2019
with the accusation that the appellant introduced himself through
social net-work App in June 2019. On 19.07.2019, when the
appellant came to Nagpur from Mumbai, he called the respondent
no.2 to meet him, but the respondent no.2 refused. Thereafter, on
26.09.2019, the appellant called the respondent no.2 at Poonam
Chambers and had forcibly intercourse with her. The First Information
Report came to be registered on 24.12.2019. The appellant, therefore,
moved the learned Additional Sessions Judge-10, Nagpur, by way of
an application under Section 438 of the Code of Criminal Procedure
seeking pre-arrest bail, which was rejected by the impugned order
dated 09.01.2020.
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5. The appellant, therefore, filed the present appeal in
this Court and this Court on 28.01.2020 issued notice to the
respondents and granted protection to the appellant from arrest.
6. On 27.01.2020, the respondent no.1 has filed reply
and has opposed grant of protection in favour of the appellant.
Though, the respondent no.2 is served with the notice of the
present appeal, however, she has appeared through her Advocate
but she has not filed reply.
7. We have considered the contents of the First
Information Report and other material on record. On careful
consideration of the First Information Report, it is seen that the
respondent no.2 at the time of the incident was about 20 years of
age and was major. It also appears that from the material on
record that though the sexual encounter took place on
27.07.2019 in the house of the appellant, the mother of the
appellant was present in the house when the incident occurred. It
also appears that even after the alleged incident, the respondent
no.2 continued to look after business of the appellant, though she
has stated that she has done so reluctantly. Though the incident
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occurred on 26.07.2019, the First Information Report came to be
registered only on 24.12.2019, after lapse of five months from
the alleged incident.
8. Considering the nature of allegations, we are of the
view that the appellant has made out prima facie case for
confirmation of his protection. The prosecution has not pointed
out that the appellant has misused the liberty granted to him by
the order dated 28.01.2020. The appellant in paragraph no.44
has stated that the appellant has no criminal antecedent to his
discredit.
9. We have carefully considered the averments in the
First Information Report in the context of the applicability of the
Act of 1989 and we find that prima facie, the accusations in the
First Information Report, provisions of Section 3(1) (w) (i) of the
Act of 1989 against the appellant are not attracted. We,
therefore, pass the following order:
ORDER
(i) Criminal Appeal is allowed;
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(ii) The impugned order dated 09.01.2020 passed by the
Additional Sessions Judge-10, Nagpur in Misc. Criminal
Application No.10/2020 is quashed and set aside; and
(iii) The order of grant of protection dated 28.01.2020 is
confirmed, subject to the same conditions stated in the said
order.
Criminal Appeal is disposed in the above terms.
JUDGE JUDGE
Ambulkar
