Sau. Vandana W/O Raju Rathod vs State Of Mah. Thr. Pso Ps Dharni Ps ...
2021 Latest Caselaw 14252 Bom

                                         1




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

                           CRIMINAL APPEAL NO. 15 OF 2021



               Sau. Vandana w/o Raju Rathod,
               Aged about 40 years,
               Occ.- Labour, Resident of Dharni,
               Tq. Dharni, District Amravati.
                                                           ... APPELLANT

                                      VERSUS

       1.     State of Maharashtra,
              through Police Station Officer,
              Police Station, Dharni Police
              Station, Dharni, Tq. Dharni,
              Distt. Amravati.

       2.     Sau. Mamta w/o Pradip Jawarkar,
              Aged - 30 years,
              Resident of Near Vitthal Temple,
              Dharni, Tq. Dharni,
              Distt. Amravati.

                                                      ... RESPONDENTS

  _____________________________________________________________
         Shri D.S. Khushalani, Advocate for the Appellant.
         Ms. T.H. Udeshi, A.P.P. for respondent no.1/State.
         Respondent No.2/informant - served
  ______________________________________________________________

                       CORAM      :    VINAY JOSHI, J.

                       DATED :    :    01/10/2021








  ORAL JUDGMENT                :



                Heard. ADMIT.

2. Respondent No.2/Informant though served absent. By

consent of learned Counsel appearing for the parties, the appeal is

taken up for final hearing.

3. Perused the report and case papers. It is the prosecution case

that the informant-lady alleged that at the time of occurrence, when

she was proceeding on the road, the appellant accosted to her, slapped

and abused in the name of caste. So also, other co-accused abuses and

threatened her.

4. Learned Counsel for the appellant would submit that the

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

Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the

Atrocity Act') would not apply since there is no material to infer that

the incident had occurred within public view. This Court in case of

Pradnya Pradeep Kenkar vs. State of Maharashtra 2005(3) Mh.L.J.368

has held that, in order to constitute the offence punishable under

Sections 3(1)(r) and 3(1)(s) of the Atrocity Act, both ingredients i.e.

the place accessible to public and in presence of independent witness is

necessary. The First Information Report nowhere refers about presence

of any member of public at the place of incident.

5. Learned A.P.P. would submit that the Police have recorded

statement of one 'S' on 12.08.2020, who has witnessed the occurrence.

It is apparent that, near-about after one month, said statement came to

be recorded. Having regard to these facts, prima facie, case is not made

out to constitute the offence punishable under the Atrocity Act.

6. The rest of the allegations are of giving slap, scratching and

abuses. In view of these allegations, there is no necessity of custodial

interrogation. Moreover, the appellant has pointed out that on the

same day, four hours prior to the lodging of existing First Information

Report, the appellant has already filed N.C. report against the

informant. Therefore, possibility of lodging existing First Information

Report as a counter blast cannot be ruled out. Learned Counsel for the

appellant submits that investigation is complete and charge-sheet has

been filed on 09.03.2021. Having regard to that, the appellant is

entitled for pre-arrest protection. In view of that, following order :

(a) The Criminal Appeal stands allowed.

(b) Impugned order dated 17.09.2020 in Criminal Bail Application No.477 of 2020 by the Additional Sessions Judge, Achalpur, District Amravati is hereby quashed and set aside.

(c) Ad-interim order dated 06.01.2021 is hereby made absolute upon same terms and conditions with a modification that the appellant shall attend the concerned Police Station as and when called.

JUDGE

Trupti