Salim S/O. Daulat Patel And Anr vs The State Of Maharashtra And Anr
2021 Latest Caselaw 497 Bom

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD


                 CRIMINAL APPEAL NO.109 OF 2020

   1)      Salim s/o Daulat Patel,
           Age 41 years, Occupation Business,
           R/o Indira Nagar, New Baijipura,
           Aurangabad.

   2)      Shoeb s/o Salim Patel,
           Age 18 years, Occupation Education,
           R/o Indira Nagar, new Baijipura,
           Aurangabad.                           ...Appellants
                                            (Original Accused)

           VERSUS

   1)      The State of Maharashtra,
           Through City chowk Police Station,
           District Aurangabad.

   2)      Sunil s/o Totaram Ratnaparkhe,
           Age 50 years, Occupation Pvt.Service,
           R/o Behind Apex Hospital, Old
           Baijipura, Aurangabad.                       ...Respondents

                                 .....
           Advocate for Appellants              : Mr. K. S. Kahalekar h/f
                                                  Mr. G. M. Sharma.
           APP for Respondent No.1-State        : Ms. R. P. Gour.
           Advocate for Respondent No.2         : Mr. B. . Magar.
                               .....

                               CORAM : SMT.VIBHA KANKANWADI, J.

                               Date of Reserving the Judgment                     :
                               26-11-2020.

                               Date of Pronouncing the Judgment                   :
                               11-01-2021.




::: Uploaded on - 11/01/2021                 ::: Downloaded on - 07/02/2021 10:20:54 :::
                                               2                             CriAppeal 109-2020




JUDGMENT :

1. Heard both sides.

2. Since arguable points are made, the appeal is Admitted.

3. By consent, the appeal is taken up for final disposal.

4. Present appeal has been filed under Section 14 A (2) of the

Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989 to challenge the order dated 17-01-2020

passed by learned Additional Sessions Judge, Aurangabad in

Criminal Bail Application No.46 of 2020, whereby the application

filed under Section 438 of Code of Criminal Procedure by the present

appellants was rejected. The appellants are apprehending their

arrest in connection with Crime No.475 of 2019, registered with City

chowk Police Station Dist. Aurangabad for the offences punishable

under Section 3 (1) (r) (s) of the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Act, 1989 and under

Section 506 read with 34 of the Indian Penal Code.

5. Heard learned Advocate Mr. K. S. Kahalekar holding for Mr. G.

M. Sharma for appellants, learned Advocate Mr. B. N. Magar for

3 CriAppeal 109-2020

respondent No.2 and learned APP Ms. R. P. Gour for respondent

No.1-State.

6. It has been vehemently submitted on behalf of the appellants

that the appellants have been falsely implicated at the behest of the

rival political party leader from the area where the appellants are

residing. The informant has in fact contended that he and the

appellants are residing in the same locality and the appellants knew

the caste of the informant. According to the informant he had gone

to the office of District Supply Officer to correct his name on Ration

Card at about 12.30 p.m. on 24-12-2019. He states that he was

along with two friends. The appellant No.1 went there along with 30

to 40 persons and abused him on account of old dispute. Though

the incident is stated to have taken place on 24-12-2019, yet the

report has been lodged on 28-12-2019. The delay has not been

considered properly by the learned Additional Sessions Judge. In

fact the appellant No.1 is a social worker and is involved in many

social activities. He stands by the poor people. Earlier he was from

another political party. He had filed a complaint application in

respect of bogus voters list against one Kailash Gaikwad who was

the Corporator at that time i.e. in 2013. He had also filed Writ

4 CriAppeal 109-2020

Petition No.2117 of 2014 and 1449 of 2015 for raising cause in

respect of bogus voters list. Since last one year he is member of

another political party. He and his party members have brought

illegalities committed by fair price shop owner. A raid was also

conducted on the basis of the complaint lodged by them. The

informant is serving with the said fair price shop. The appellant

No.1 along with one Dr. Gaffar Kadri corporator and other 100

persons went to the office of District Collector on 24-12-2019. As

the Collector was not available, all of them went to District Supply

Office. Some journalist, photographers, videographers were also

present. Informant was knowing that all those persons were

intending to make a complaint about the illegalities carried in the fair

price shop, and therefore, informant abused and gave threats. It

was also then informed by the appellant and others to the said

Officer that while coming to the office threats regarding lodging of

complaint under Atrocities Act has been given by the informant and

it has been videographed. On the same day, the appellant No.1 had

lodged a complaint with the City Chowk Police Station about his

apprehension. No such incident as alleged by the informant has

taken place. Further the appellant No.2 was absolutely not

accompanying his father. The arrest of the present appellants is not

5 CriAppeal 109-2020

warranted. The FIR has been lodged with mala fide intention that

too at the behest of one Kailash Gaikwad and Manoj Gaikwad. They

are taking advantage of their caste. The learned Additional Sessions

Judge failed to consider all these aspects and especially the fact that

prima facie offence has not been made out against the appellants

under the Atrocities Act; yet, their application for pre-arrest bail has

been rejected. The said order deserves to be set aside. The

investigation is complete and charge-sheet has been filed. Learned

Advocate for appellants, therefore, prayed for setting aside

impugned order and prayed for pre-arrest bail for the appellants.

7. Learned Additional Public Prosecutor and learned Advocate for

Respondent No.2 strongly opposed the appeal. Respondent No.2

has filed affidavit-in-reply and apart from reiterating the same

contents in the First Information Report, has specifically stated that

immediately after the incident he had gone to lodge a report,

however the police officer refused to take his complaint, and

therefore, on the same day he had filed complaint with

Commissioner of Police. Copy of the said complaint has been

produced. In spite of that when no offence was registered, the

informant forwarded the complaint application to Home Department

6 CriAppeal 109-2020

of the Government on 26-12-2019. It can be seen that thereafter

the police authority called the informant on 28-12-2019, took his

First Information Report in a cryptic way and registered offence. In

fact, the said First Information Report is not registered as per the

narration of the informant, and therefore, once again on 29-12-2019

he sent an application through Speed Post to the Police Station and

requested that his said application / supplementary statement

should be recorded. Perusal of the First Information Report which is

now recorded by the police and offence has been registered would

also show that specific role was attributed to the appellants No.1 and

2 and abuses were given in the name of caste by both of them,

separately, in a public place in order to insult the informant,

therefore, prima facie case has been made out for the offence under

the Atrocities Act. Under the said circumstance, bail application

under Section 438 of Code of Criminal Procedure was barred under

Section 18 of the Atrocities Act. It has been further pointed out that

appellant No.1 has criminal antecedents and at present appellant

No.1 is released on bail. Offence vide Crime No.49 of 2018 under

Section 307, 323, 143, 147, 148, 149, 504, 506 of Indian Penal

Code has been registered against appellant No.1 and others. Copy

of the said First Information Report has been produced along with

7 CriAppeal 109-2020

affidavit-in-reply and also copy of the one application has been

produced which is given by one Shaikh Afzal @ Afsar s/o Shaikh

Akhtar dated 26-04-2018 given to Police Inspector, Jincy Police

Station, Aurangabad which shows that he had made complaint

against appellant No.1 for pressurizing the witnesses. Another

application has been given by one Shaikh Younus Shaikh Laddu

against the appellant No.1 on 27-11-2018 who appear to be the

victim in Crime No.49 of 2018 and he was threatened by the

appellant No.1. Another copy of the complaint dated 26-08-2015

filed against appellant No.1 has also been given. This has been

produced to show the conduct of the appellant No.1. Though the

charge-sheet has been filed, yet the appeal for anticipatory bail itself

is not maintainable, it will have to be rejected. Both the

respondents, therefore, prayed for dismissal of the appeal.

8. At the outset, it is to be noted that there are only two accused

persons against whom the First Information Report was lodged and

the charge-sheet has been filed. Now as regards the filing of

charge-sheet is concerned, it is to be noted that this Court vide

order dated 07-02-2020 had granted ad-interim protection to the

appellants, and in view of the same, it appears that the appellants

8 CriAppeal 109-2020

had appeared before the Investigating Officer, thereafter they were

released on bail, and thereafter, the charge-sheet has been filed.

That means, as regards the investigation part is concerned, the

physical custody of the appellants is absolutely not required now.

So also the allegations those have been made, per se, do not require

physical custody of the appellants/ accused.

9. Now the question is, whether the application before the

learned Additional Sessions Judge under Section 438 of Code of

Criminal Procedure was maintainable ? or, whether there was bar

under Section 18 of the Atrocities Act for entertaining the said

application ?. In order to ascertain those facts, we will have to go to

the contents of the First Information Report. First Information Report

has been lodged on 28-12-2019. No doubt now the explanation has

been given by respondent No.2 that though the incident had taken

place on 24-12-2019, since it was not got registered, he had

approached the Commissioner of Police on the same day. He has

stated in his complaint application dated 24-12-2019 that he had

some work with the Collector Office at about 11.00 a.m on 24-12-

2019. His work was over by 02.00 to 02.30 p.m.. He was returning

to his house. Appellants have knowledge about the caste of the

9 CriAppeal 109-2020

informant. He found that the present appellants were proceeding

along with 20 to 25 ladies and 15 to 20 men towards the Collector

Office. He, therefore, went near those persons and at that time the

present appellants in loud voice stated that, " ;s lkyk /ksM] egkj dgkWa Hkh utj

vk tkrs gS vksj gekjk dke [kjkc dj nsrs gS- " He asked the informant to go

away. At that time he started asking as to why he is abusing him in

the name of caste, at that time the appellant No.2 threatened him

and uttered, ";s /ksM~;k] egkjM~;k lkyks rqe dSls jgrs ck;thiqjk esa eSa vHkh ns[krk vkSj ?kj

vkus rd rw vks ,fj;k [kkyh dj ojuk ge gekjs rjhdsls jk'kuik.kh can djds gekjs ,fj;kls ckgj

fudky nsaxs-" Appellant No.2, thereafter, slapped him in front of those

40 to 45 persons. According to him he went to police station at

about 03.00 to 03.30 p.m., however his complaint was not taken.

In his FIR he has stated that he had gone to District Supply Office in

Collector Office, Aurangabad at about 12.30 p.m. on 24-12-2019.

The appellants came along with 30 to 40 persons in front of said

office and on account of the old dispute, appellant No.1 uttered, " ,

egkjMs dk dqrk ;gkWa D;k dj jgk gS- " He asked appellant No.1 as to why he is

abusing in the name of caste, at that time appellant No.1 uttered, " ,

egkjMs rq D;qa eLrh esa vk;k] esjs eqag dks yxuk ugh eSa rsjs ldV rsjs [kkunku dks ftank ugh

10 CriAppeal 109-2020

j[kqaxk." Thereafter, the appellant No.2 arrived and uttered, "egkjMs D;k

eLrh esa vk;k gS] buds eqag dks yxuk ugh budk dk;e dk cankscLr djuk iMsxk- " Now

the informant is coming with a case that the First Information Report

has not been taken properly by police. At this stage we may not go

much into the details but one thing is clear that even the informant

is not happy with the First Information Report. Which complaint

application should be treated as First Information Report will have to

be decided by the Special Court under the Atrocities Act. However,

those alleged abuses quoted in the complaint application dated 24-

12-2019 as well as the First Information Report ; apparently at this

prima facie stage, appear to be different. Another fact which cannot

be ignored is that the appellants are contending that the First

Information Report is politically motivated and they have narrated

the said connection. It has been specifically stated by them even to

the District Supply Office that the present informant is serving with

said Kailash Gaikwad and Manoj Gaikwad, and there are

irregularities committed by the said fair price shop. The First

Information Report makes a point that appellants started abusing

informant having connection with old dispute. That old dispute has

not been mentioned in the First Information Report as well as in the

11 CriAppeal 109-2020

affidavit-in-reply by the respondent No.2. If his complaint

application dated 24-12-2019 to Commissioner of Police is seen then

the appellants appear to be along with 40 to 45 persons for some

cause. The informant had no concern with the mob, but then he

says that, he went near the mob to see what is going on, and

thereafter, the appellants started abusing. This appears to be

unnatural at this prima facie stage, and therefore, possibility of false

implication cannot be ruled out as apprehended by the appellants.

The charge-sheet shows that some witnesses have supported the

prosecution and some have stated that no such incident had taken

place. Investigating Officer has not recorded statements of those

witnesses who were in large number with appellants.

10. Now the criminal antecedents of the appellant No.1 are tried to

be brought on record. That cannot be the sole ground to reject the

appeal. Further it will have to be segregated when the appellants

are coming with a case that they have been falsely implicated. As

aforesaid the investigation is over, further in view of the ad-interim

order, the appellants were arrested and released on bail. Therefore,

their physical custody is not required and taking into consideration

all these aspects, the appeal deserves to be allowed. It can be said

12 CriAppeal 109-2020

that the learned Additional Sessions Judge / Special Judge ought to

have seen whether there is any element of implication if the First

Information Report has been lodged with mala fide intention then we

cannot say that there is a prima facie offence disclosed. In such

circumstances, it may not amount to bar under Section 18 of the

Atrocities Act, and therefore, the said order deserves to be set aside.

Hence, following order.

                                       ORDER

               1)       Appeal stands allowed.


               2)       Order      dated   17-01-2020,        passed        by      learned

Additional Sessions Judge, Aurangabad, in Criminal Bail Application No.46 of 2020, is hereby set aside.

3) The interim order passed by this Court on 07-02- 2020, is hereby confirmed.

4) In other words, In the alternative if the appellants are not formally arrest, in the event of arrest of appellants Salim s/o Dault Patel and Shoeb s/o Salim Patel, in connection with Crime No.475 of 2019, registered with City Chowk Police Station Aurangabad, for the offences punishable under Section 3 (1) (r) (s) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act and under Section 506 read

13 CriAppeal 109-2020

with 34 of India Penal Code the appellants be released on PR and SB of Rs.15000/- each (fifteen thousand).

5) The appellants shall not indulge in any criminal activity and they shall not tamper with the evidence of prosecution in any manner.

(SMT. VIBHA KANKANWADI) JUDGE

vjg/-.