Bunty @ Bharat Mohan Acchada vs The State Of Maharashtra And ...
2021 Latest Caselaw 9683 Bom

                                                                 335.21APPEAL
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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                       9 CRIMINAL APPEAL NO.335 OF 2021

                BUNTY @ BHARAT MOHAN ACCHADA
                                VERSUS
            THE STATE OF MAHARASHTRA AND ANOTHER
                                   ....
 Mr.Shaikh Mazhar A. Jahagirdar, Advocate for the appellant.
 Mr.S.J. Salunke, A.P.P. for Respondent/State.
 Mr.A.D. Sonar, Advocate for respondent no.2 (appointed)

                                     ....
                               CORAM : V.K. JADHAV AND
                                       S.G. DIGE, JJ.

DATE : 26th JULY, 2021 PER COURT:-

. The appellant - accused is seeking pre-arrest bail in

connection with Crime no.0368 of 2021 registered with Shrirampur

City Police Station, Shrirampur, Dist. Ahmednagar for the offence

punishable under sections 376, 376(2)(n) and 420 of the Indian

Penal Code, 1860 (for short, IPC) and section 3(1)(w), 3(2)(5) and

3(2)(5-A) of the Scheduled Caste and Scheduled Tribe (Prevention of

Atrocities) Act, 1989. His application with similar prayer came to be

rejected by the Special Court by order below Exhibit-1 in Criminal

Bail Application No.123/2021 dated 28.06.2021.

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2. Brief facts of the case are as follows :-

The informant, who is 45 years of age, has lodged a

complaint in the concerned Police Station against the appellant -

original accused alleging therein that her husband died 16 years back

and thereafter, the appellant - accused had performed marriage with

her secretly in one temple under the pretext of giving flat to her. It

has also alleged that the appellant-accused had developed illicit

sexual relations with her. It has also alleged that in the year 2016, the

appellant - accused had taken amount of Rs.2,80,000/- from her

under the pretext of purchasing of the flat, however, instead of giving

her flat, shown her one open space. However, the informant came to

know from some other person that the said open space belongs to

some different owner. The Informant belongs to scheduled caste

category. The appellant- accused, though knowing her caste, had

committed rape on her under the false promise of giving her flat and

also cheated her in connection with the said promise.

3. The learned counsel for the appellant-accused submits

that in the year 2016 itself, one agreement was executed. The said

agreement was executed on 30 th September, 2016, wherein it has

been specifically stated that the mother of the appellant-accused has

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returned the amount of Rs.1,00,000/- and the balance amount of

Rs.1,80,000/- will be agreed to be paid by monthly installment of

Rs.10,000/- to the informant in connection with the transaction in

respect of purchase of flat for an amount of Rs.2,80,000/-, which the

appellant -accused had obtained from her and also there is one

another document, which is titled as " Bharna Pavati" dated

06.02.2017, wherein the mother of the appellant had paid balance

amount of Rs.1,40,000/- to the informant. The learned counsel for

the appellant-accused submits that both the said agreements bears the

thumb impression of the informant and both the documents were

executed before the Notary. The learned counsel submits that despite

executing those agreements, the informant started giving trouble to

the appellant-accused. Consequently, the appellant-accused has issued

legal notice on 14.02.2017 through his Advocate to the informant.

The learned counsel for the appellant-accused submits that, the

informant has, thus, falsely implicated the appellant-accused in

connection with the present crime. There are no antecedents. The

appellant-accused is ready to abide by conditions, if any, imposed by

this Court. The appellant is also ready to co-operate with the

investigation in the present crime. The learned counsel for the

appellant-accused submits that the appellant-accused is a married

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person and he is residing along with his wife, children and mother.

There is no possibility of absconding.

4. The learned A.P.P. strongly resisted the Appeal on the

ground that under the false promise of purchasing of flat for the

informant, the appellant-accused have not only obtained the cash

amount of Rs.2,80,000/- from the informant, but also shown to have

performed secrete marriage with her. The learned APP submits that

the appellant-accused is knowing the caste of the informant and even

then committed rape on her under the false promise and also cheated

her by obtaining cash amount from her.

5. The learned counsel for respondent no.2 submits that,

the Special Court, while rejecting the application of the appellant-

accused seeking bail, in para no.13 has observed that so far as the

agreements and Bharna Pavati and also legal notice allegedly issued

by the appellant-accused are concerned, the Investigating Officer

needs to investigate the same. The learned counsel for respondent

no.2 submits that so far as the document of Bharna Pavati is

concerned, there is a reference about the relations between the

informant and appellant-accused to some extent. The learned APP

and learned counsel for respondent no.2 submit that in view of the

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above, the custodial interrogation of the appellant-accused is

necessary to find out the truth.

6. We have carefully perused the contents of the First

Information Report and the police papers. The informant is 45 years

of age and as stated in the complaint itself that her husband died 16

years back. There are no details as to when the appellant - accused

had developed illicit relations with her by giving her promise of

purchasing flat. Furthermore, it has also not stated in the complaint

as to precisely when she had given amount of Rs.2,80,000/- to the

appellant-accused. It is pertinent to note that at one place, the

informant has made the allegations about secrete marriage performed

by the appellant-accused with her and developed illicit sexual

relations with her and at the same time, she has made allegations of

parting the amount of Rs.2,80,000/- for purchasing the flat. It is also

not clear from the allegations as to whether the appellant-accused

had promised to purchase the flat for her and under that pretext

developed the illicit sexual relations with her. Had it been the promise

to purchase the flat for making illicit sexual relations, in that event,

the informant would not have given the amount of Rs.2,80,000/- to

the appellant-accused. Prima facie, we find that vague allegations

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have been made in the complaint. Furthermore, the appellant-accused

has placed before us a copy of the agreement of the year 2016, so also

Bharna Pavati of the year 2017 and the legal notice issued through

the Advocate in the year 2017. We refrain ourselves to make any

comments on those documents. However, it is for the Investigating

Officer to make an investigation with regards to those documents.

However, the appellant-accused has made out a case for grant of

pre-arrest bail. In the given set of allegations, the custodial

interrogation of the appellant-accused is not required. There is no

possibility of absconding. There is no question of tampering of

prosecution evidence. By imposing certain conditions, the appellant-

accused can be released on pre-arrest bail.

7. So far as the provisions of Section 18- A of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act are

concerned, in the case of Prathviraj Chauhan V/s Union of India and

others {(2020) 4 SCC 721), the Hon'ble Apex Court in para 10 of the

judgment has made following observations :-

"10. Section 18-A(i) was inserted owing to the decision of this Court in Subhash Kashinath, which made it necessary to obtain the approval of the appointing authority concerning a public servant and the SSP in the

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case of arrest of accused persons. This Court has also recalled that direction on Review Petition (Crl.) No. 228 of 2018 decided on 1-10-2019. Thus, the provisions which have been made in Section 18-A are rendered of academic use as they were enacted to take care of mandate issued in Subhash Kashinath which no more prevails. The provisions were already in Section 18 of the Act with respect to anticipatory bail."

8. In the instant case, we do not think that the informant

has made out a prima facie case. The appellant-accused thus entitled

for pre-arrest bail. Hence the following order :-

ORDER

(i) Appeal is allowed.

(ii) In the event of arrest of the appellant-accused, namely,

Bunty @ Bharat Mohan Acchada in connection with Crime bearing

C.R. no.0368 of 2021 registered with Shrirampur City Police Station,

Shrirampur, Dist. Ahmednagar for the offence punishable under

sections 376, 376(2)(n) and 420 of the Indian Penal Code, 1860 and

section 3(1)(w), 3(2)(5) and 3(2) (5-A) of the Scheduled Caste and

Scheduled Tribe (Prevention of Atrocities) Act, 1989, he be released

on bail on furnishing P.B. of Rs.20,000/- (Rs.Twenty Thousand) with

one solvent surety of the like amount, on the following conditions :-

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(a) The appellant-accused shall not tamper with prosecution evidence in any manner;

(b) The appellant-accused shall attend the concerned Police Station on every Sunday between 8.00 a.m. to 11.00 a.m. till filing of the charge-sheet and he shall also make himself available as and when called by the Investigating Officer for making further investigation.

(c) The appellant-accused shall not make any attempt to contact the informant in any manner till filing of the charge-sheet.

 (ii)             Appeal is accordingly disposed of.


 (iii)            Since Mr.A.D. Sonar, learned counsel is appointed to

prosecute the cause of respondent no.2, we quantify his legal fees as

Rs.2000/- to be paid by the High Court Legal Services Sub-

Committee, Aurangabad.

   ( S.G. DIGE )                                          ( V.K. JADHAV)
      JUDGE                                                    JUDGE

 SGA/-




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