Shila W/O Purushottam Shahane vs State Of Maharashtra, Thr. Pso ...
2022 Latest Caselaw 7626 Bom

                                               1                            12.apeal.48.2021judge.odt




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

                         CRIMINAL APPEAL NO. 48 OF 2021

Smt Shila W/o. Purushottam Shahane
Aged about : 60 Years, Occ.: Household,
R/o. Sai Gajanan Nagar, Goulkhed Road,                            .. Appellant
Shegaon, Tah. Shegaon, Dist. Buldhana

                    Versus

1. State of Maharashtra,
Through P.S.O., Police Station Shegaon,
Tah. Shegaon and Dist. Buldhana

2.Bhimsen S/o. Vasantrao Ambilkar
Aged about: Major
R/o. Vaibhav Nagar, Behind Athavan,
Dhaba, Shegaon, Tah. Shegaon and Dist.                            .. Respondents
Buldhana

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                  Mr. Ashwin Deshpande, Advocate for appellant
                  Mr. S. M. Ghodeswar, APP for respondent No.1
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               CORAM            :      MANISH PITALE AND G. A. SANAP, JJ.

DATE : 04/08/2022

ORAL JUDGMENT (PER : MANISH PITALE, J.)

Heard. ADMIT. Heard finally by consent of learned

counsel for the parties.

(2) By this appeal, the appellant has challenged the

order dated 05.01.2021 passed by the learned Special Judge, 2 12.apeal.48.2021judge.odt

Khamgaon, thereby an application for anticipatory bail filed on behalf

of the appellant was rejected. The appeal has been filed under Section

14A of the Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989 (For short "Act of 1989").

(3) In the present case, a First Information Report

(FIR) was lodged on 10.12.2020 at the behest of respondent No.2 on

the basis of which offences were registered against the appellant, her

husband and son for the offences punishable under Sections 304-B,

498-A, 323, 504 read with 34 of the Indian Penal Code and Section 4

of the Dowry Prohibition Act, 1961. It is an admitted position that

when the FIR was registered, offences under the Act of 1989 were not

invoked.

(4) Subsequently, offence under Section 3(2)(v) of the

Act of 1989 was added. The appellant had filed application for grant of

anticipatory bail in the context of the aforesaid FIR, registered against

her. By the impugned order, the application stood rejected, primarily

for the reason that there is a specific bar under Section 18 and Section

18-A(a) of the Act of 1989 for grant of anticipatory bail.

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(5)                In this appeal, while issuing notice on 25.01.2021,

this Court considered the fact that the appellant is a woman, aged

about 60 years, and considering the facts and circumstances of the

case, directed interim protection to be granted to the appellant. The

nature of interim order passed in favour of the appellant reads as

follows:

"5. Hence, the following order:-

(i) In the event of arrest in connection with Crime No. 492/2020 registered with the respondent No.-1- Police Station, the appellant be released on provisional bail on executing P.R. bond of Rs.20,000/-

(ii) The appellant shall attend the respondent No.1- Police station as and when summoned."

(6) When the application was called out for hearing, the

learned counsel for the appellant has brought to the notice of this

Court that co-accused persons i.e. the husband and son of the

appellant were granted regular bail by an order dated 05.01.2021

passed by the Court below. It was specifically recorded that the

custodial interrogation in this case is no longer necessary and

accordingly, they were granted bail.

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(7)                 The learned counsel for the appellant submitted that

in the present case, in the first place, offence under the Act of 1989

was not registered, when the FIR came to be registered on 10.12.2020.

It was submitted that the grievance raised by the respondent No.2. i.e.

the brother of the deceased is that there was dowry demand by the

accused persons and that the deceased was harassed by the accused

persons leading to registration of the aforesaid offences. It was

submitted that, in the facts and circumstances of the present case, no

purpose would be served by rejecting the present appeal, which may

lead to the appellant being put behind bars, while co-accused persons

have been already released on regular bail with the observation that

their further custody was not necessary.

(8) The learned APP has relied upon the reply filed in

the present appeal and he has opposed the prayer made in the appeal.

(9) We have considered the facts and circumstances of

the present case. The FIR stood registered on 10.12.20220, but,

initially offence under the Act of 1989 was not registered. The crux of

the grievance raised by respondent No. 2 was with regard to alleged

harassment meted out to the deceased by the accused persons, 5 12.apeal.48.2021judge.odt

including the appellant herein, which resulted in the death of the

victim, leading to registration of the offences under the

aforementioned provisions of the IPC and the Dowry Prohibition Act.

It is an admitted position that offence under Section 3(2)(v) of the Act

of 1989, was added later on.

(10) A perusal of the aforesaid provision shows that the

offence alleged against the accused persons under the IPC, which is

punishable with imprisonment for a term of ten years or more must

have been committed against the victim, knowing that such a person is

a member of Scheduled Caste or Scheduled Tribe. We find that there

has to be an intention on the part of the accused person while

committing such an offence under the IPC, which demonstrates that

such offence was committed also because the victim belonged to the

specific community.

(11) We find that in the present case, the son of the

appellant had married with the deceased, who belonged to the

aforesaid category of Scheduled Tribe/Schedule Caste. The crux of the

allegation pertains to harassment meted out allegedly by the appellant,

or her husband and her son to the deceased. P rima facie the nature of 6 12.apeal.48.2021judge.odt

allegations has its roots in alleged dowry demand and matrimonial

dispute between the parties and prima facie it appears that in this

case, so far as the appellant is concerned, the alleged acts of

harassment can not be said to have been committed only because the

deceased happened to belong to the Scheduled Caste/ Scheduled Tribe

community.

(12) Even otherwise regular bail is already granted to

the co-accused persons and while issuing notice, this Court had

granted interim protection to the appellant.

(13) In view of the above, we are convinced that the

present appeal deserves to be allowed. Accordingly, the appeal is

allowed. The impugned order is quashed and set aside. The interim

protection granted by the order dated 25.01.2021, to the appellant,

stands confirmed.

                                [ G.A.SANAP, J. ]               [ MANISH PITALE, J. ]

                 Kavita




Signed By:KAVITA PRAVIN
TAYADE
P. A.

Signing Date:05.08.2022 15:32