Bipul S/O Anirudha Dubey And ... vs State Of Maharashtra, Through The ...
2021 Latest Caselaw 4086 Bom

                                1       12 & 13-J-APL-27 & 35 OF 15.odt


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     NAGPUR BENCH, NAGPUR
              CRIMINAL APPLICATION (APL) NO. 27 OF 2015
 Rajsingh S/o Sudansingh Rathi,
 Aged about : 53 years,
 Occupation : Service.
 Resident of India Bulls Colony,
 Additional MIDC, Nandgaon Peth,
 Near Mahuli Jahangir,
 Tah & Dist. Amravati.                            ... APPLICANT

                               VERSUS
 1. State of Maharashtra,
    Through the Police Station Officer,
    Police Station, Mahuli, Jahagir,
    Amravati.
 2. Smt. Megha W/o Nilkanthrao Bansod,
    Age : 34 years, Occupation : Service,
    R/o Benoda Jahagir,
    Tah. & Dist. Amravati.
 3. Sub-Divisional Police Officer,                   (Amendment carried out
    Amravati (Rural).                                as per Court's order
                                                     dtd.16.7.15)
                                                  ... NON-APPLICANTS
                                AND
              CRIMINAL APPLICATION (APL) NO. 35 OF 2015
 1. Bipul S/o Anirudha Dubey,
    Aged about : 32 years,
    Occupation : Service.
    Resident of Kalbande Plot,
    Rathi Nagar, Amravati.
 2. Vijay S/o Purshottam Ishwarkar,
    Aged about : 29 years,
    Occupation : Service,
    Resident of Yawli Shahid,
    Dist. Amravati.                               ... APPLICANTS

                               VERSUS

 1. State of Maharashtra,
    Through the Police Station Officer,
    Police Station, Mahuli, Jahagir,
    Amravati.




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                                    2           12 & 13-J-APL-27 & 35 OF 15.odt


 2. Smt. Megha W/o Nilkanthrao Bansod,
    Age : 34 years, Occupation : Service,
    R/o Benoda Jahagir,
    Tah. & Dist. Amravati.

 3. Sub-Divisional Police Officer,                              (Amendment carried out
    Amravati (Rural).                                           as per Court's order
                                                                dtd.16.7.15)
                                                             ... NON-APPLICANTS
 -------------------------------------------------------------------------------------------
 Shri Shyam Dewani, Advocate for applicants.
 Ms. Mayuri Deshmukh, Additional Public Prosecutor for non-
 applicant Nos.1 and 3.
 Shri A. B. Mirza, Advocate for non-applicant No.2.
 -------------------------------------------------------------------------------------------
                               CORAM: Z.A. HAQ & AMIT B. BORKAR, JJ.

DATED : 05/03/2021.

ORAL JUDGMENT : (PER : AMIT B. BORKAR, J.)

1. By way of these two applications under Section 482

of the Code of Criminal Procedure, the applicants have challenged

registration of First Information Report No.137/2014 registered

with the non-applicant No.1 - Police Station for the offences

punishable under Sections 376-D and 506 of the Indian Penal

Code r/w Section 3(1)(xii) of the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Act, 1989.

2. The First Information Report came to be registered

against all three applicants in these applications with the

accusations that the non-applicant No.2 was working as Security

Supervisor with Indiabulls Power Plant, MIDC, Nandgaonpeth,

3 12 & 13-J-APL-27 & 35 OF 15.odt

Amravati. It is alleged that on 04/07/2014 when the non-

applicant No.2 was waiting for transportation for reaching the

place of employment, accused Nos. 2 and 3 came there and asked

the non-applicant No.2 to come to the house of accused No.1. It is

alleged that the non-applicant No.2 refused to go to the house of

accused No.1. The accused Nos.2 and 3 persuaded non-applicant

No.2 to visit the house of accused No.1. It is alleged that when

the non-applicant No.2 went to the house of accused No.3, all the

three accused forcibly committed forcible sexual intercourse with

the victim and after 04/07/2014 till the filing of First Information

Report, they continuously abused sexually the non-applicant No.2.

It is alleged that since the victim was in the fear that she will be

defamed in the society, she did not file First Information Report

and ultimately, on 27/12/2014, she filed report with the non-

applicant No.1 - Police Station.

3. The accused Nos.1 and 2 have filed Criminal

Application (APL) No.35/2015 and accused No.3 has filed

Criminal Application (APL) No.27/2015. This Court on

22/01/2015 in Criminal Application (APL) No.27/2015 and on

23/01/2015 in Criminal Application (APL) No.35/2015 issued

notice and directed to submit investigation report. On

02/09/2015, this Court noted order dated 22/01/2015 passed by

this Court wherein it is recorded that it is a specific case of the

4 12 & 13-J-APL-27 & 35 OF 15.odt

applicants / accused that the conversation between the victim, the

accused and the other officers are already submitted to the

Investigating Officer.

4. On 23/09/2015, this Court recorded that the non-

applicant No.2 is not co-operating with the Investigating Officer

and the affidavit to that effect is filed by the non-applicant No.1 -

State. On 14/10/2015, this Court prima facie observed that the

non-applicant No.2 is not willing to cooperate with the

investigation by giving her voice sample to verify whether the

conversation on which the applicants are relying is one in which

the non-applicant No.2 had participated. It is observed that

perusal of the said conversation would at least prima facie reveal

that the allegations made by the non-applicant No.2 do not

constitute the offences alleged in the First Information Report.

 5.                   The      non-applicant   No.1    has     filed     reply     on

 13/07/2015          stating that there is prima facie substance in the

allegations made by the non-applicant No.2. The non-applicant

No.1 has filed additional reply dated 15/09/2015 wherein it is

specifically stated that the applicants have relied upon voice

conversation between the non-applicant No.2 and accused. The

Investigating Officer visited to the house of the non-applicant No.2

for taking sample but the non-applicant No.2 was not present in

5 12 & 13-J-APL-27 & 35 OF 15.odt

the house. It is submitted that the brother of the non-applicant

No.2 told the police officials that she is not residing with him. It is

also said that the non-applicant No.2 has not given her voice

sample for verification of conversation relied upon by the

applicants.

6. Today, when the matter is called out, Shri

A.B.Mirza, learned Advocate for the non-applicant No.2 submitted

that he has no instructions from non-applicant No.2 about voice

samples. The non-applicant No.2 has not filed reply countering the

voice conversation relied upon by the applicants in the present

applications.

7. Having considered the allegations in the First

Information Report, reply filed by the non-applicant No.1 and the

material produced by applicants, it appears that the non-applicant

No.2 is not cooperating with the Investigating Agency. Though the

non-applicant No.2 is aware about the voice conversation

produced by the applicants in the present applications and there

are orders passed by this Court expressing its displeasure about

non-applicant No.2 for not cooperating with the Investigating

Agency and for not giving her voice sample. The applicants have

relied upon the complaint filed by the accused No.2 dated

26/09/2014 registered with Special Officer, Mahuli Jahangir

6 12 & 13-J-APL-27 & 35 OF 15.odt

wherein it is stated that the non-applicant No.2 is working as

Security Guard and is threatening the accused No.2, as false case

under the provisions of the Scheduled Castes and the Scheduled

Tribes (Prevention of Atrocities) Act, 1989 and offending modesty

on woman shall be filed against them and were officials of the

company. The accused No.2 also filed another complaint with the

Commissioner of Police, Amravati on 30/09/2014 wherein the

accused No.2 has stated that the non-applicant No.2 is threatening

to file false report against the applicants.

8. On consideration of the material produced by the

applicants in the form of conversation between the non-applicant

No.2 and accused persons, the complaint filed by the accused No.2

before registration of First Information Report and the conduct of

non-applicant No.2 not to co-operate with the investigation to give

her voice sample in relation to the conversation relied upon by the

applicants in the present applications, we are satisfied that the

prosecution launched by the non-applicant No.1 against all the

three accused is not legitimate prosecution. We are satisfied that

the continuation of prosecution against all the accused persons

would amount to an abuse of process of Court.

7 12 & 13-J-APL-27 & 35 OF 15.odt

9. We, therefore, pass the following order :-

First Information Report No.147/2014

registered with the non-applicant No.1 - Police

Station for the offences punishable under Sections

376-D and 506 of the Indian Penal Code r/w

Section 3(1)(xii) of the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Act,

1989 is quashed and set aside.

10. Rule is made absolute accordingly.

                      JUDGE                            JUDGE

 Choulwar