Siddhesh Gopinath Repal And Anr vs The State Of Maharashtra And Ors
2021 Latest Caselaw 13453 Bom

          Digitally
          signed by
                                                                    33-APEAL-476-2021.odt
          SHAMBHAVI
SHAMBHAVI NILESH
NILESH    SHIVGAN
SHIVGAN   Date:
          2021.09.22     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
          15:58:10
          +0530               CRIMINAL APPELLATE JURISDICTION

                                 CRIMINAL APPEAL NO.476 OF 2021

                       Mr. Siddhesh G. Repal and Anr.          ... Appellants
                            Vs
                       The State of Maharashtra & Anr.
                                                              ... Respondents
                                                   ...

Mr. Vishal Deshmukh for the Appellants. Mr. A.R.Patil , APP for the Respondent Nos.1 and 2- State.

Mr. Shailendra S. Kanetkar for Respondent No.3. IO Bhagwat Sonawane, Kharghar Police Station present.

CORAM : SANDEEP K. SHINDE J.

DATE : 20th SEPTEMBER, 2021.

P.C. :

Heard the learned counsel for the appellants,

complainant and Prosecutor for the State.

2 This Appeal under Section 14-A(2) of the

Scheduled Caste and Scheduled Tribe (Prevention of

Atrocities) Act, 1989 ("The Act of 1989" for short),

challenges the order, declining pre-arrest bail in Crime

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No.0103 of 2020, registered with Kharghar Police Station

under Sections 323, 341, 504 of the Indian Penal Code,

1860 and Section 3 of the Act of 1989.

3 This Court vide order dated 2 nd June, 2021

granted interim pre-arrest protection to the appellants and

directed notice to the complainant as required under

Section 15A-(5) of the Act of 1989.

4 At the outset, it may be stated that the Hon'ble

Apex Court in the case of Prathvi Raj Chauhan v. Union

of India and Ors. reported in AIR 2020 SC 1036 in

paragraph 10 of its judgment held that 'Concerning the

applicability of provisions of S. 438 Cr.P.C., it shall not apply

to the cases under the Act of 1989. However, if the

complaint does not make out a prima-facie case for

applicability of the provisions of the Act of 1989, the bar

created by Section 18 shall not apply' and emphasised, that

while considering the application seeking pre-arrest bail,

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the High Court has to balance the two interests: i.e. that the

power is not so used as to convert the jurisdiction into that

under Section 438 of the Criminal Procedure Code and it is

used sparingly in very exceptional cases where no prima-

facie ofence is made out as shown in the First Information

Report.

5 This Court, while granting interim pre-arrest

protection to the appellants has observed in paragraph3

thus;

"3. It is settled law that bail decision must enter the cumulative efect of variety of circumstances justifying grant or refusal of bail. Herein, the material on record indicates complaint is actuated with malice and with sole intention to harm the reputation of the applicants/ appellants, in the society. It appears the Complainant hostility towards Mr. Nitin Lad, over a dispute instituted by him before the Competent Authority, Rent Control Act is the root cause. Facts of the case show that Complainant had refused to vacate the License premises rented out by Mr. Nitin Lad to him. The subject premises were in building called Swapnapoorti. The Competent Authority's order under Rent Act was executed and Complaint was evicted. The Appellants are residing in the Swapnapoorti Building. Appellants being supporters and favouring Mr. Lad; complainant and his wife had fled complaints/FIR, also against Mr. Lad under the Atrocity Act. In consideration of the facts of the

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case, a prima-facie case is made out for granting interim pro-arrest protection, to suggest that the Appellants have been falsely implicated in this case."

. Indisputably, the complainant was evicted from

the licensed premises by the Competent Authority under

the Rent Control Act, on 10th March, 2021. The material on

record clearly suggests that the complainant and the

licensor of the premises had fled complaints and cross-

complaints against each other. It is to be stated that the

appellants are residents of building/society and a fat

therein was occupied by the complainant and his family as

licensee of Mr. Nitin Lad. A day, after the complainant was

evicted from the licensed premises, appellants had fled a

complaint against the respondent no.3. It shows the

complainant, was continuous source of nuisance and left no

stone unturned to harass the members of the society either

by threatening them that case would be fled under the Act

of 1989 or otherwise. It is evident from material that the

appellants and society members were fade up with the acts

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and omissions of the complainant, while he was occupying

the licensed premises in the building.

6 Just not complaints, with the police, but wife of

the complainant had approached the Maharashtra State

Human Rights Commission, making grievances against the

residents of the building. That apart the complainant, after

being evicted from the licensed premises, has taken

another premises on leave and licence basis of which one

Jaydeep Babar is licensor. On 2nd July, 2021, the respondent

no.3 fled First Information Report against Jaydeep Babar

under Sections 504, 506 of the Indian Penal Code, 1860 and

Sections 3(1)(g) and 3(1)(r) of the Act of 1989. Thus,

conduct of complainant distinctly indicates, the First

Information Report was lodged by him since the appellants

were allegedly lending their support to licensor. Apparently,

therefore, complaint lodged against the appellants was

actuated with malice, and, it is a case of "abuse of process

of law".

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                                             33-APEAL-476-2021.odt




7          In Consideration of these facts of the case, in my

view, the complainant has falsely implicated the appellants

in this case.

8 For the reasons stated above, no prima-facie

ofence has been made out under the Act of 1989.

9          Appeal is, therefore, allowed.



10         In the event of arrest of the appellants in Crime

No.0103 of 2020 registered with Kharghar Police Station,

they shall be released on executing PR bond for the sum of

Rs.25,000/- each with one or more sureties in like sum.

                                 (SANDEEP K. SHINDE, J.)




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