Ashok Talwatkar vs The State Of Maharashtra And Anr
2021 Latest Caselaw 12576 Bom

                                                                                     apeal-453-2021.doc

                                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          CRIMINAL APPELLATE JURISDICTION

                                             CRIMINAL APPEAL NO.453 OF 2021

                      Ashok Talwatkar                                         ...Appellant
                                 vs.
                      The State of Maharashtra and Another                    ...Respondents

                      Mr. A.P. Mundargi, Senior Counsel i/b. Ms. Manisha Devkar, for the
                      Appellant.
                      Mr. S.C. Daswadikar, for Respondent No. 2.
VISHAL
                      Mr. J.P. Yagnik, APP for the Respondent-State.
SUBHASH
PAREKAR                                                  CORAM :    S.S. SHINDE &
Digitally signed by                                                 N.J. JAMADAR, JJ.

VISHAL SUBHASH PAREKAR Date: 2021.09.03 17:43:01 +0530 JUDGMENT RESERVED ON : 23rd AUGUST, 2021 JUDGMENT PRONOUNCED ON: 3rd SEPTEMBER, 2021

---------------

JUDGMENT : (Per N.J.Jamadar, J.)

1. This appeal under section 14A of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, 1989 ('SC and ST

Act, 1989'), is directed against the order dated 26th February, 2020

passed by the Additional Sessions Judge, Mangaon, Raigad in

Criminal Misc. Application No. 15 of 2020 whereby the application

for pre arrest bail, came to be rejected.

2. Admit. With the consent of the counsel for the parties, heard

finally.

3. Shorn of unnecessary details, the background facts leading to

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this appeal can be summarized as under:

a] People's Education Society, a public charitable trust, runs

various instututions, including Dr. Babasaheb Ambedkar College,

Mahad. Mr. Suresh Athavale (hereinafter referred to as 'the first

informant'), claimed to have been appointed as the principal of said

college, and worked in the said capacity during the period 2013 to

2015. In the wake of dispute over the management of the affairs of

People's Educatio Society, Mr. Dhanaji Gurav, allegedly usurped the

said position forcibly. Eventually, by an order dated 14.08.2019, the

Charity Commissioner decided that Mr. Ashok Talwatkar, the

appellant, who claimed to be a trustee, had no concern with the

trust. The said decision was upheld by the High Court by an order

dated 21.11.2019.

b] The first informant alleges that Shri. S.P. Gaikwad, Chairman

of the society appointed him as the principal of said college.

Pursuant thereto the first informant took charge on 23.12.2019.

c] On 26.12.2019, at about 7.00 am while he was discussing

administrative matters with Smt. Aruna Ajgaonkar and Smt. Chitra

Sallvi, employees of the college, in his chamber, he noticed that 30 to

35 persons rushed into college premises amidst shouting slogans

"Dhanajii Gurav Jindabad". The mob comprised of Dhanaji Gurav,

appellant Ashok Talwatkar, Chinmay Gurav, Rakesh Sonar, Ganesh

Mahadik, Sachin Patre, Ramesh Patil, Anil Jadhav, Rohidas

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Kashinath Chavan and others.

e] The first informant claimed to have instructed the college staff

to lock the grill door leading to the principal's office. The members

of the said assembly were armed with deadly weapons. They

assaulted Arvind Salvi, Vitthal Gaikwad and Sanjay Hate, who were

resisting their march towards principal's office. The grill door was

broken open. Thereafter, according to the first informant, Dhanaji

Gurav, Gnaesh Mahadik, Sachin Parte, Ramesh Patil and Anil

Jadhav and 5 to 7 other bouncers entered into the chamber. Ganesh

Mahadik and Ramesh Patil exhorted the persons to unleash the

assault upon the first informant. The accused Dhanaji Gurav

attempted a blow by means of iron rod on the head of the first

informant. He took defensive action and suffered the blow on his

right hand, which was fractured. Rest of the persons also assaulted

him. He was dragged out of his office. Smt. Aruna Ajgaonkar and

Smt. Chitra Salvi were also dragged out of his office. While feeing

away the members of the accused party took away the DVR machine

which was installed to record the CCTV footage. The first informant

thus lodged the report.

4. Pursuant to the aforesaid FIR, crime was registered at C.R. No.

146 of 2019 for the aforesaid offences. Investigation commenced.

Few of the accused came to be arrested. It transpired that the

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appellant and co-accused had committed alleged offences in

pursuance of the conspiracy hatched at Saitej Hotel. The prosecution

further alleged that the members of the unlawful assembly

comprised of bouncers, who were brought to the college by co-

accused Chinmay Gurav. The appellant had allegedly arranged the

vehicles to carry those persons.

5. In the light of aforesaid indictment, the appellant and co-

accused Ganesh Mahadik, preferred an application for pre-arrest

bail being Criminal M.A. No. 15/2020.

6. In the backdrop of the aforesaid indictment, the appellant

preferred an application for anticipatory bail. The appellant claimed

to be a member of the governing body of 'People's Education Society'.

There is a dispute over the management of the affairs of the said

trust. Therefore, the appellant has been implicated to wreak

vengeance at the instance of the group led by Mr. S.P. Gaikwad. The

first informant, was never appointed as the Principal of the college.

Thus, there was no occasion for the first informant to take charge of

the said post. The appellant further asserted that even if the case of

the prosecution is taken at its face value, no prima facie offence can

be said to have been made out against the appellant. The

investigation is complete for all intent and purpose. The custodial

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interrogation of the appellant is not at all warranted. Hence, the

appellant deserves to be released on pre-arrest bail.

7. The learned Special Judge was not persuaded to accede to the

submissions of the appellant. Though the learned Special Judge

found that no offence punishable under the provisions of SC & ST

Act, 1989 could have been alleged against the appellant as he

himself was a member of the Scheduled Caste, yet, in the backdrop of

the material on record, which established the presence of the

appellant at the place of occurrence and the necessity of custodial

interrogation to recover the DVR machine, which was allegedly

taken away by the assailants after the assault, the learned Special

Judge declined to exercise the discretion in favour of the appellant.

Being aggrieved, the appellant has preferred this appeal.

8. An affidavit in reply is filed by the first informant Suresh

Athavale. The substance of the resistance put forward by the first

informant is that the claim of the appellant that he was an office

bearer of the trust is not sustainable. There is ample material in the

form of the statements of the first informant and other eye witnesses

to show that the appellant was very much present at the time and

place of the occurrence and instigated the bouncers to mount assault

on the informant and the injured witnesses. The appellant had

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allegedly arranged vehicles to bring the bouncers to the place of

occurrence. As the serious offences were committed in pursuance of

the conspiracy, of which the appellant was a prime confederate, the

appellant does not deserve the relief of pre-arrest bail.

9. We have heard Mr. Mundargi, learned senior counsel for the

appellant, Mr. Yagnik, learned APP for the State and Mr.

Daswadikar, learned counsel for respondent No. 2.

10. With the assistance of the learned counsel, we have perused

the material on record including the documents tendered by

respondent No. 2.

11. Mr. Mundargi, learned senior counsel submitted that the sole

material against the appellant is that he was allegedly a part of the

mob which barged into the campus of the college. The only source of

this material is the singular assertion in the first information report

that the appellant was amongst the persons who accompanied Mr.

Dhanaji Gurav. Apart from the first informant, no other person has

named the appellant as the member of the alleged unlawful

assembly. Even the first informant has not attributed any role to the

appellant. Premised on this backdrop, Mr. Mundargi would urge that

the presence of the appellant on the campus of the college was not

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unnatural as the appellant was admittedly an office bearer of the

trust, on the date of the occurrence. It was further submitted that

the endevour of the prosecution to rope in the appellant as a co-

conspirator on the strength of the statements of the hotel manager

that the appellant had stayed over in hotel Saitej, is also of no

assistance as the said status of the appellant also explains the

presence at the hotel as well.

12. Mr. Yagnik, learned APP for the State would urge that once it is

established that the appellant was a member of the unlawful

assembly, in the prosecution of common object of which, serious

offences were committed, the fact that no overt act is attributed to

the appellant does not detract materially from the prosecution. In

addition, according to Mr. Yagnik, since there is a charge of criminal

conspiracy, the fact that no active role is attributed to the appellant

pales in significance.

13. Mr. Daswadikar, the learned counsel for respondent No. 2, on

the other hand, assailed the very tenability of the appeal under

section 14A of the SC and ST Act. Indisputably, the appellant is a

member of Scheduled Caste and, thus, the learned Special Judge has

recorded that the offences punishable under the provisions of SC

and ST Act, 1989 can not be invoked against the appellant. Once, the

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applicability of the provisions of SC and ST Act, 1989 qua the

appellant is ruled out, the appeal under section 14A of the Act

cannot be entertained, urged Mr. Daswadikar.

14. On merits, Mr. Daswadikar submitted that the very claim of

the appellant that he was a trustee of the People's Education Society,

is fraught with infirmities. In any event, as there is material to

demonstrate that the appellant was very much present at the time

and place of occurrence and serious offences were committed in

prosecution of the common object of the unlawful assembly, of which

the appellant was a member, there can be no justification for

exercise of the discretion in favour of the appellant.

15. As regards the tenability of the appeal, it may be apposite to

extract the sub section (1) and (2) of section 14A:

(1) Notwithstanding anything contained in the Code of Criminal Procedure,1973 (2 of 1974), an appeal shall lie, from any judgment, sentence or order, not being an interlocutory order, of a Special Court or an Exclusive Special Court, to the High Court both on facts and on law.

(2) Notwithstanding anything contained in sub-section (3) of section 378 of the Code of Criminal Procedure, 1973 (2 of 1974), an appeal shall lie to the High Court against an order of the Special Court or the Exclusive Special Court granting or refusing bail.

16. From the phraseology of sub section (1) and (2) of section 14A,

it becomes abundantly clear that the appeal shall lie from any

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judgment, sentence or order of Special Court or Exclusive Special

Court to the High Court, both on facts and law. The submission on

behalf of respondent No. 2 that there can be no appeal once the

Special Judge holds that offences punishable under SC and ST Act,

1989 can not be arrayed against the accused, has the potential to

lead to absurd consequences. The determinant is not the finding by

the Special Court or Exclusive Special Court. It is the judgment or

order passed by the Special Court or Exclusive Special Court after

such Court entertainins the proceeding under the provisions of SC

and ST Act, 1989. If the submission on behalf of respondent No. 2 is

taken to its logical conclusion then there would be multiple forums

against one and the same order passed by the Special Court

depending upon the findings recorded by the Special Court qua

different accused. We are thus not inclined to accede to the

submission on behalf of the respondent No. 2.

17. On a careful perusal of the first information report, it becomes

abundantly clear that the first informant has alleged that the

appellant was a part of the mob which barged into the college

campus. Indeed, there are allegations of vandalism and causing

grievous hurt to the first informant and injured and attempt to

commit murder of the first informant by the members of the

unlawful assembly. However, the role attributed to the appellant is

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that of being a member of the unlawful assembly. The allegation qua

the appellant stops at that. It is imperative to note that neither in

the first information report nor in the supplementary statement of

the first informant nor in the statements of the injured and other

witnesses, it was alleged that the appellant was a part of the group of

assailants which broke open the grill gate and charged into the office

of the first informant and assaulted the first informant and injured

witnesses.

18. Apart from the allegations of being member of the unlawful

assembly, levelled in the FIR, the prosecution has banked upon the

statement of Mr. Jayprakash Arunkar, the Manager of hotel Saitej,

where the appellant had allegedly lodged himself during the period

24th to 26th December, 2020. As the other accused were also

allegedly present in the said lodge, the prosecution alleged that the

conspiracy was hatched in the said hotel to commit the offences.

19. The presence of the appellant in the college and the hotel was

sought to be explained on the premise that being a member of the

board of trustees of People's Education Society his presence was not

unnatural. At this juncture, we do not find it necessary to delve into

the controversy as to whether the appellant was an office bearer of

the said society. However, the claim of the appellant cannot

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jettisoned away as wholly unsustainable. The minutes of the meeting

of the governing body of the society dated 31 st May, 2021 indicate

that the appellant was removed from the membership of the said

society in the said meeting. A copy of the change report submitted

before the Charity Commissioner also records that the appellant was

removed from the membership of the governing body of People's

Education Society w.e.f. 31st May, 2021.

20. The situation which thus obtains is that apart from the

allegations that the appellant was a part of the mob which ransacked

the college and committed the alleged offences, there is no other

material which incriminates the appellant. Undoubtedly, when the

offences are committed in prosecution of the common object of an

unlawful assembly, of which the accused is shown to be a member.

proof of overt act is not warranted. The membership of the unlawful

assembly itself is sufficient to render a person liable for the offences

committed in prosecution of the common object of such assembly.

However, in the instant case, following factors assume significance.

The prosecution witnesses have alleged that the mob consisted of 30-

45 persons. It appears to be a case of mammoth rioting. In such

situation, the fact that no particular role is attributed to the accused

assumes salience. Secondly, there is material to indicate that the

genesis of the offence was in the tussle over the management of the

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affairs of the society. The relations were fractious, in the least.

Thirdly, in the backdrop of the nature of the accusation against the

appellant, it does not appear that the custodial interrogation of the

appellant is imperative.

21. A useful reference, in this context, can be made to the

Constitution Bench judgment of the Supreme Court in the case of

Sushila Aggarwal and Others vs. State (NCT of Delhi) and Another 1.

The Constitution Bench summarized the discussion and conclusions

in the case of Gurbaksh Singh Sibbia vs. State of Punjab 2 in

paragraph 52. The following propositions are instructive:

52.3 The accused is not obliged to make out a special case for grant of anticipatory bail; reading an otherwise wide power would fetter the Court's discretion. Whenever an application (for relief under section 438) is moved, discretion has to be always exercised judiciously, and with caution, having regard to the facts of every case.

52.4 While the power of granting anticipatory bail is not ordinary, at the same time, it s use is not confined to exceptional cases.

52.5 It is not justified to require Courts to only grant anticipatory bail in special cases made out by accused, since the power is extraordinary, or that several considerations spelt out in section 437 or other considerations, are to be kept in mind.

52.6 Overgenerous introduction (or reading into) of constraints on the power to grant anticipatory bail would render it constitutionally vulnerable. Since fair procedure is part of Article 21, the Court should not throw the provision (i.e. section 438) open to challenge "by reading words in it which are not to be found therein".

52.7 There is no "inexorable rule" that anticipatory bail 1 (2020) 5 SCC.

2 (1980) 2 SCC 565.

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cannot be granted unless the applicant is the target of mala fides. There are several relevant considerations to be factored in, by the Court, while considering whether to grant or refuse anticipatory bail. Nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the accused's presence not being secured during trial; a reasonable apprehension that the witnesses might be tampered with, and "the larger interests of the public or the State" are some of the considerations. A person seeking relief (of anticipatory bail) continues to be a man presumed to be innocent.

22. On the aforesaid touchstone, reverting to the facts of the case,

especially the nature of the occurrence and the role attributed to the

appellant, as borne out by the material on record, we are of the view

that a prima facie case for exercise of the discretion in favour of the

appellant was made out. To add to this, the claim of the appellant

that on the date of occurrence, he was office bearer of the People's

Education Society cannot be thrown overboard. The appellant also

appears to have roots in the society. The possibility of feeing away

from justice appears remote. Testing on the parameters which

govern the exercise of the discretion under section 438 of the Code,

in our considered view, the appellant is entitled to be given the

benefit of pre- arrest bail.

23. For the foregoing reasons, the learned Special Judge was not

justified in declining to exercise the discretion in favour of the

appellant. Thus the impugned order is required to be interfered with

and the appeal deserves to be allowed. Hence, the following order.

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                                  ORDER

1]       The Criminal Appeal stands allowed.

2]       The impugned order dated 26th February, 2020, to the extent

the prayer of the appellant for pre-arrest bail came to be rejected

thereunder, stands quashed and set aside.

3] The ad-interim order dated 29th July, 2021 stands confirmed.

4] In the event of arrest of the appellant Ashok Talwatkar in

connection with C.R. No. 146 of 2019 registered with Mahad City

police station, the appellant/accused No. 2 be released on bail on

executing a personal bond in the sum of Rs. 25,000/- with one or two

sureties in the like amount.

5] The appellant shall furnish his current address and contact

number to the investigating officer and, in the event of change in the

address and contact number, the appellant shall immediately

intimate the same to the investigating officer and/or the Court, as

the occasion may arise.

6] The appellant shall cooperate with the investigating agency.

7] The appellant shall attend Mahad City police station on

alternate Tuesday from 10 am to 12 noon for a period of two months

and thereafter as and when directed by the investigating officer, till

the filing of the chargesheet qua the appellant.

8] The appellant shall not tamper with the prosecution evidence

and/or give threat or inducement to the first informant, victims or

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any other prosecution witnesses.

9] In the event of filing of the charge sheet, the appellant shall

regularly attend the proceeding before the learned Special Judge

without fail.

10] The appellant shall not leave the country without prior

permission of the learned Special Judge.

11] In the event of breach of any of the conditions in clause (5) to

(10), the investigating agency shall be at liberty to move for

cancellation of this order.

12]      Appeal stands disposed of accordingly.



         (N.J. JAMADAR, J.)                    (S.S. SHINDE, J.)




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