Bombay High Court
Javed Raza Shroff vs State Of Maharashtra And Anr on 20 December, 2022
Bench: A.S. Gadkari, Prakash Deu Naik
16-APEAL-1119-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1119 OF 2022
Javed Raza Shroff
Age : 51 Years,
Chariman Habib Group Trusts Mumbai,
R/o. Hazari Baug, 10th Road, Juhu,
Mumbai - 400049 ...Appellant
Versus
1. The State of Maharashtra,
(Dongri Police Station)
(through the office of the Government Pleader)
2. Mrs. Bodhi Darastekar,
Age : 32 Years,
R/o. Flat No.1603, Building No.20,
Prabhat Society, Shastri Nagar,
Goregaon West, Mumbai - 400104 ...Respondents
....
Dr. Yusuf Iqbal Yusuf, Ms. Shaista Pathan, Mr. Parth Sanghrajka i/by Y
& A Legal, Advocate for the Appellant.
Mr. Raja Thakare, Senior Advocate a/w Mr. Akash Kavade, Mr. Kaushik
Waghwase, Mr. Aadarsh Joshi, Mr. Hemant Kenjalkar & Mr. B. Mohd.
i/by Bellator Legal Services, LLP, for the Respondent No.2.
Mrs. A.s. Pai, PP a/w Mrs. M.H. Mhatre, APP for the Respondent-State.
CORAM : A.S. GADKARI AND
PRAKASH D. NAIK, JJ.
DATE OF RESERVING JUDGMENT : 7th DECEMBER ,2022.
DATE OF PRONOUNCEMENT : 20th DECEMBER, 2022.
JUDGMENT - (PER : PRAKASH D. NAIK, J.) :-
Digitally signed
by SUNNY
ANKUSHRAO
SUNNY THOTE 1. This is an appeal under Section 14-A of Scheduled Castes
ANKUSHRAO
Date:
THOTE 2022.12.20
14:46:03
+0530 and Scheduled Tribes (Prevention of Atrocities) Act, 1989
(hereinafter refer to as Atrocities Act). The appellant has
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challenged the Order dated 14th November, 2022 passed by the
Court of learned Additional Sessions Judge, Sessions Court,
Mumbai in Anticipatory Bail Application No.2420 of 2022.
2. The appellant is apprehending arrest in C.R. No.571 of
2022 registered with Dongri Police Station for offences under
Sections 354-A, 504, 506, 509 of Indian Penal Code (for short
'IPC') and Sections 3(1)(W)(I)(II) of Atrocities Act.
3. The First Information Report (for short 'FIR') was
registered at the instance of Respondent No.2. The brief
allegations in the FIR are as follows :
i. The complainant belongs to Boudha community and
Scheduled Caste. In the year 2012, she joined Habib Ismail
Education Trust. She is working with Rahmatbai Habib
Girls Primary School Division. She is teaching students of
1st to 4th standard. She worked as co-ordinator during
Covid-19 period at Habib Hospital in month of June, July
and August. She was directed to visit hospital wards and
submit daily report of hospital to Mr. Javed Shroff
(Appellant). Although she was working as a teacher, she
was asked to do work at hospital and while she protested,
the accused used to shout at her causing mental
disturbance.
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ii. In respect to her complaint dated 19th October, 2022
and 22nd October, 2022 submitted to Dongari Police
Station, she stated that while she had joined the school for
employment, the Chairman of the trust was Mohib Ali
Nasir. He continued to be Chairman till 2018-2019.
Presently Mr. Javed Shroff is the Chairman of the trust.
While Javed Shroff was Chairman, the complainant was
appointed as temporary incharge from 15th August, 2017.
She continued to hold that post till 30 th August, 2022. The
work assigned to complainant included issuing salary to
teachers, supervising teachers, distribution of classes to
teachers of 1st to 4th standard, performing administrative
work. After she was removed from the said post, the said
post has been assigned to Kaniz Nanjiyani. The
complainant continues to work as teacher having
responsibility of 2nd standard. There are 36 girls in her
class. In the school there are above 280 girls studying in
1st to 4th standard. The school is aided by Government and
Municipal Corporation.
iii. After performing work as incharge, the complainant
tendered her resignation. The accused started threatening
and pressurizing her to tender resignation of her job as
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teacher. While the complainant was working as incharge,
she was made to wait under the garb of meeting till late in
the night. The accused used to call her in the cabin and
touch her inappropriately. The accused used to make
What's app calls to her at odd hours which affected her
family life. Although the complainant was the employee of
school, the accused used to call her to Hotel Marine Plaza
for meetings. The meetings were attended by Javed Shroff,
Shaukatbhai Manekia, Charniya and Halani who were
trustee of the said Trust. The accused used to shout at her
in the presence of others in abusive language. She was
called cheap and worthless lady in the institution. She was
insulted. She was made to wait till 1 o'clock in the night
for attending meetings in the school and hotel Marine
Plaza. While she was working at Habib Hospital the
accused abused her in the presence of people and doctors
on the basis of her caste by referring to her as 'Dalit Ladki'
and belonging to the lower caste. The accused used to
make obscene gestures by looking at her and repeatedly
demand sexual favours causing mental trauma to her. Her
family life was destroyed. She had no option but to
commit suicide. The accused used to pressurize her to
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leave the job. She was threatened. There is danger to her
family from the accused.
4. The submissions of the learned Advocate for the appellant
can be summarized as under :
a. The FIR is false. It is based on concocted version of the
complainant.
b. The allegation in the FIR are vague. The period of alleged
incidents is not specified. It is alleged that the harassment to
the complainant had commenced from 15 th August, 2017
onwords. The FIR has been registered after a period of five
years from alleged incidents.
c. The complaint is motivated. The complaint was lodged
after inquiry was commenced against the complainant.
d. The complaints were received against the complainant
from Education Department and the parents.
e. The complaint dated 19th October, 2022 is silent about the
alleged incident of outraging modesty, objectionable gestures
and abuses on caste. The allegations in the FIR dated 30 th
October, 2022 are after thought.
f. The complainant had given interview to the newspaper
Mid Day and her version was published does not refer to
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alleged objectionable conduct of the appellant as reflected in
the FIR. The interview was published on 24 th October, 2022
which is prior to registration of FIR dated 30th October, 2022.
g. Due to insufficiency and deficiency of service and on going
inquiry against Respondent No.2 for her conduct, she was not
given extension as interim incharge of Rahmatbai Habib High
School for Girls Primary Department since 30 th August, 2022.
Interim committee was appointed of three senior teachers of
Rahamatbai Habib School for looking after school and
rectifying mistakes of Respondent No.2 and submit a report on
the complaint received against Respondent No.2. The circular
was issued on 20th October, 2022. The FIR was registered
thereafter on 30th October, 2022.
h. The FIR suffers from mala fide. There are no independent
witnesses to support the version of complainant. The alleged
incident of abuses on caste has not occurred within public
view. The allegations are false. The bar under Section 18 of
Atrocities Act would not be attracted for entertaining the
present appeal seeking pre-arrest bail.
i. Reliance is placed on the following decisions:
i. Prathvi Raj Chauhan V/s. Union of India and Another,
AIR 2020 Supreme Court, 1036.
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ii. ABC V/s State of Maharashtra And Anr. is delivered by
Division Bench of this Court in Criminal Appeal No.19
of 2021.
iii. Sharad Shankarrao ChavanV/s State of Maharashtra
And Anr. delivered in Criminal Appeal No.418 of 2012
by the Nagpur Bench of this Court.
5. Learned APP submitted that, the investigation of the case
is in progress. The FIR makes out the case against the appellant.
The statement of complainant is recorded under Section 164 of
Cr.P.C. One of the witness Shabir Ali Ahmed Ali Lokhandwala
whose statement was recorded, during the course of investigation
had submitted complaint against the appellant that he was
threatened for withdrawing the statement. The statement of the
said witness supports the grievance of the complainant that she was
abused on caste. The statement of another witness which supports
the version of complainant was recorded under Section 161 and
164 of Cr.P.C.
6. Learned Senior Advocate Mr. Thakare appearing for
Respondent No.2 submitted as under:
i. The complainant had suffered at the instance of the
accused.
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ii. The FIR makes out the offences of outraging modesty and
the offences under the Atrocities Act.
iii. Section 18 of the Atrocities Act prohibits the Court for
exercise of power under Section 438 of Cr.P.C. in relation to the
offences under the said act.
iv. Prima facie case is made out against the accused. Section
18 would act as a bar for granting relief prayed in this appeal.
v. The complainant was made to approach the Police at 1:00
a.m. to record her statement. She has suffered mental trauma.
vi. Reliance is placed on affidavit-in-reply filed by Respondent
No.2 and the complaint annexed to the said affidavit. It is
submitted that complaint dated 22nd October, 2022 addressed to
Senior Inspector of Police, Dongri Police Station refers to
harassment caused to the complainant by the accused. The
complaint refers to the act of inappropriate touching by the
accused to the complainant. The complainant was also required
to file the Non-congnizable Offence (N.C.) complaint against
Smt. Kaniz Naziyani.
vii. The complainant was continuously harassed at the intance
of the accused.
viii. Reliance is placed on the following decisions :
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i. Prathvi Raj Chauhan V/s Union of India, AIR 2020
Supreme Court 1036.
ii. Sumitha Pradeep V/s Arun Kumar C.K. and Another,
2022 SCC Online SC 1529.
iii. Vilas Pandurang Pawar and Another v/s State of
Maharashtra and Others, 2012 (8) SCC 795.
7. We have perused the FIR, documents forming part of the
proceedings and investigation papers. The FIR has been registered
on 30th October, 2022. The contents of FIR would indicate that the
complainant had joined the concerned school in the year 2012.
She was also appointed as a interim incharge. The complainant
has alleged that, she had tendered her resignation for the post of
interim incharge and thereafter, she was threatened by the accused
for tendering her resignation as a teacher. The period of incident of
threats is not reflected in the FIR. It is also alleged that she was
called in the cabin by the accused/appellant and inappropriately
touched by him. The period of the said incident is not mentioned.
She was called for attending meetings at Hotel Marine Plaza which
was also attended by the appellant and others and she was
allegedly abused and insulted by the accused. She was made to
wait till late in the night for attending the meetings. The period of
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these incidents is also not mentioned in the FIR. It is also alleged
that while she was at Habib Hospital, she was abused on caste in
the presence of people and doctors. The date of incident is not
reflected in the FIR. It is also alleged that accused used to make
objectionable gestures at her and give calls to her at odd hours.
The period of these acts is also not specified in the FIR. While
summarizing the contents of FIR in the concluding paragraph, it is
alleged that aforesaid acts were committed by the accused during
the period from 15th August, 2017 to 30th August, 2022. It is
pertinent to note that the FIR was registered on 30 th October, 2022.
In the event, such incidents had occurred continuously from 2017
onwards, there is no explanation as to why there were no
complaints in the past. The appellant has placed on record the
complaint dated 19th October, 2022 addressed to Senior Inspector
of Police, Dongri Police Station by Respondent No.2. It bears the
acknowledgment of Dongri Police Station dated 20 th October, 2022.
The alleged complaint was approximately ten days prior to the
registration of FIR. The said complaint does not refer to any acts of
sexual abuse, demand of sexual favours and abuses on the basis of
caste. The appellant has also placed on record the interview
published in Mid Day newspaper given by the Respondent No.2
which also does not refer to aforesaid allegations. This interview
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was also published few days prior to the registration of FIR. In the
affidavit-in-reply filed by Respondent No.2, reliance is placed on
complaint dated 22nd October, 2022 purportedly forwarded by
Respondent No.2 to Senior Inspector of Police, Dongri Police
Station. The said complaint does not bear the acknowledgment of
the Police Station. It runs counter to the complaint dated 19 th
October, 2022. The said complaint refers to the alleged sexual
abuse by the accused in his cabin and the fact that the complainant
was made to wait till late hours for attending the meetings. Even
the said complaint does not specify the date/period of alleged acts
committed by the accused. Prima facie it appears that the
allegations are after thought and concocted.
8. The Investigating Officer has recorded statement of one
Shabir Ali Lokhandwala and Smt. Yasmin Arif Khan. Their
statements were recorded on 1st November, 2022. On perusal of
statement of Shabir Ali Lokhandwala it is apparent that he had
served at Habib Hospital during the Covid-19 pandemic period in
the year 2020. He has alleged that he was illtreated by the accused
and others. He has referred to the alleged abuses on caste made by
the accused against the Respondent No.2 which were allegedly
heard by him. According to him the incident had occurred in July-
2020 at 11:00 p.m. He heard the accused saying that no work
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should be provided to Dalits. They are not fit to do any work. It is
necessary to note that the complainant had referred to different
version regarding abuses on caste. Even if the version of the
witnesses is accepted, the alleged incident had occurred in July-
2020. The FIR was lodged in October-2022. Thus the incident had
occurred more than two years prior to the lodging of FIR. The
complainant is silent about the date of said incident. The
statement of Yasmin Khan also refers to alleged abuses on caste
made by the accused/appellant against the complainant. According
to her the said incident had occurred on 15 th August, 2021. Thus
her version is contradictory to complainant and other witnesses.
Even if it is accepted that the incident had occurred in August-
2021, even than there is delay of about one year in lodging FIR.
Learned counsel for appellant on instructions submitted that both
these witnesses are at loggerhead with Trust. Their services were
terminated. They are having animosity against the appellant. Thus
it can be seen that these two witnesses cannot be termed as
independent witnesses. Although the complainant had referred to
the fact that the incident of abuses on caste had occurred at Habib
Hospital in the presence of several persons, we do not find the
statements of any other person recorded in support of version of
the complainant.
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9. Section 18 of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 reads as follows :
"18. Section 438 of the Code not to apply to persons
committing an offence under the Act. - Nothing in Section
438 of the Code shall apply in relation to any case involving
the arrest of any person on an accusation of having
committed an offence under this Act."
10. In the case of Vilas Pandurang Pawar V/s State of
Maharashtra and Others (Supra) it was observed that Section 18 of
the SC/ST Act creates a bar for invoking Section 438 of the Code.
However, a duty is cast upon the Court to verify the averments in
the complaint and to find out whether an offence under Section
3(i) of the SC/ST Act has been prima facie made out. In the case of
Sumitha Pradeep V/s Arun Kumar C.K. and Another (Supra) the
Apex Court was dealing with cancellation of anticipatory bail
granted by High Court in a case involving offence under POCSO
Act. The Apex Court had observed that in many anticipatory bail
matters, it is noticed that one common argument being canvassed
that, no custodial interrogation is required and therefore,
anticipatory bail may be granted. There appears to be a serious
misconception of law that, if no case for custodial interrogation is
made out by the proecution, then that alone would be a good
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ground to grant anticipatory bail. Custodial interrogation can be
one of the relevant aspects to be considered alongwith other
grounds while deciding an application seeking anticipatory bail.
There may be many cases in which the custodial interrogation of
the accused may not be required, but that does not mean that, the
prima faice case against the accused should be ignored or over
looked and he should be granted anticipatory bail. In the case of
Dr. Subhash Kashinath Mahajan V/s State of Maharashtra and
Another (2018) 6 SCC 454 the Hon'ble Supreme Court had
considered the question whether there is an absolute bar to the
grant of anticipatory bail under SC/ST Act. The Court referred to
several decisions including the decisions in the case of Vilas
Pandurang Pawar (Supra) and Shakuntala Devi V/s Baljinder Singh
(2014) 15 SCC 521. In Paragraph 56 of the decision it was
observed that, there can be no dispute with the proposition that
mere unilateral allegation by any individual belonging to any caste,
when such allegation is clearly motivated and false, cannot be
treated as enough to deprive a person of his liberty without an
independent scrutiny. Thus exclusion of provision for anticipatory
bail cannot possibly, by any reasonable interpretation, be treated as
applicable when no case is made out or allegations are patently
false or motivated. If this interpretation is not taken, it may be
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difficult for public servants to discharge their bonafide functions
and in given cases, they can be blackmailed with the threat of a
false case being registered under Atrocities Act, without any
protection of law. Even a non public servant can be blackmailed to
surrender his civil rights. This is not the intention of law. Such law
cannot stand judicial scrutiny. It will fall foul of guaranteed
fundamental rights of fair and reasonable procedure being followed
if a person is deprived of life and liberty. In paragraphs 57 it was
observed that exclusion of 438 Cr.P.C. applies when a prima facie
case of commission of offence under the Atrocities Act is made out.
On the other hand, if it can be shown that, the allegations are
prima facie motivated and false, such exclusion will not apply. The
decision of Gujarat High Court in Pankaj D. Suthar V/s State of
Gujarat (1992) Guj. L.R.405, N.T. Desai V/s. State of Gujarat
(1997)2 Guj. L.R. 942 and State of M.P. V/s. Ram Krishna Balothia
(1995) 3 SCC 221 were referred and in paragraph 60 it was
observed that the above Judgments correctly lay down the scope of
exclusion as well as permissibility of anticipatory bail in cases
under the Atrocities Act. In paragraphs 65 and 71 of the decision it
is observed that exclusion of provision for anticipatory bail will not
apply when no prima facie case is made out or the case is patently
false or malafide. This may have to be determined by the Court
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concerned in facts and circumstances of each case in exercise of its
judicial discertion. In cases under the Atrocities Act, exclusion of
right of anticipatory bail is applicable only if the case is shown to
bonafide and that prima facie it falls under Atrocities Act and not
otherwise. Section 18 does not apply where there is no prima facie
case or to cases of patent false implication or when the allegation is
motivated for extraneous reasons. The view of Gujarat High Court
in Pankaj D. Suthar (Supra) and N.T. Desai (Supra) was approved.
The conclusions were formulated in paragraph 79 (Paragraph 83 of
the same decision reported in AIR 2018 SC 1498) as follows:
"79.1. Proceedings in the present case are clear abuse of
process of Court and are quashed.
79.2. There is no absolute bar against grant of anticipatory
bail in the cases under Atrocities Act, if no prima facie case is
made out or where on judicial scrutiny the complaint is found
to be prima facie mala fide. We approve the view taken and
approach of Gujarat High Court in Pankaj D. Suthar and N.T.
Desai and clarify the Judgments of this Court in Balothia and
Manju Devi.
79.3. In view of acknowledged abuse of law of arrest in the
cases under Atrocities Act, arrest of a public servant can only
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be after approval by the SSP appointing authority and of a
non-public servant after approval of S.S.P,. which may be
granted inappropriate cases, if considered necessary for
reasons recorded. Such reasons must be scrutinized by the
Magistrate for permitting further detention.
79.4. To avoid false implication of an innocent, a preliminary
inquiry may be conducted by the DSP concerned to find out
whether the allegations make out a case under Atrocities Act
and the allegations are not frivolous or motivated.
79.5. Any violation of directions (79.3) and (79.4) will be
actionable by way of disciplinary action as well as contempt.
79.6. The above directions are prospective."
11. Pursuant to the aforesaid decision, the Union of India filed
a review petitions viz. Review Petition (Cri.) Nos. 228 with 275 of
2018 in Criminal Appeal No.416 of 2018. The review petitions
were decided on 1st October, 2019AIR 2019 SC 4917. The Union of
India had filed the petition for review of above decision dated 20 th
March, 2018 in the case of Dr. Subhash Kashinath Mahajan
(Supra). In review the Apex Court dealt with the conclusions
formulated in the above decision. The Court considered the scope
and object of the Act. The final conclusion is reflected in paragraph
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67 of the decision in review petition which reads as follows:
"67. We do not doubt that directions encroach upon the field
reserved for the legislature and against the concept of protective
discrimination in favour of downtrodden classes under Article
15(4) of the Constitution and also impermissible within the
parameters laid down by this Court for exercise of powers under
Article 142 of Constitution of India. Resultantly, we are of the
considered opinion that directions Nos. (iii) and (iv) issued by this
Court deserve to be and are hereby recalled and consequently we
hold that direction No.(v), also vanishes. The review petition is
allowed to the extent mentioned above."
12. Direction No.(iii), (iv) and (v) which were recalled in
above decision relates to approval of the appointing authority
before arrest of public servant and SSP before arrest of non-public
servant be granted in appropriate cases if necessary for reasons
recorded and that reasons be scrutinized by Magistrate for
permitting further detention. Conducting preliminary inquiry by
DSP to find out whether allegations make out a case under
Atrocities Act and that allegations are not frivolous or motivated.
Violation of direction (iii) and (iv) will be actionable by way of
disciplinary action and contempt. It is pertinent to note that
direction No.79.2 (ii) viz., there is no absolute bar against grant of
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anticipatory bail in cases under under the Atrocities Act if no prima
facie case is made out or where on judicial scrutiny the complaint is
found to be prima facie malafide, was not recalled.
13. Pursuant to the decision in the case of Dr. Subhash
Kashinath Mahajan V/s State of Maharashtra (Supra) Section 18-A
was introduced in the Atrocities Act which read as follows :
"18-A. (l ) For the purposes of this Act. -
(a) Preliminary enquiry shall not be required for
registration of a First Information Report against any person; or
(b) the investigating officer shall not require approval for
the arrest, if necessary, of any person,
against whom an accusation of having committed an
offence under this Act has been made and no procedure other
than that provided under this Act or the Code shall apply.
(2) The provisions of section 438 of the Code shall not
apply to a case under this Act, notwithstanding any judgment or
order or direction of any Court."
14. In the case of Prathviraj Chauhan V/s Union of India and
Others (Supra) the petitioners questioned the provisions inserted
by way of carving out Section 18-A of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989. It was
submitted that Section 18-A has been enacted to nullify the
Judgment in the case of Dr. Subhash Kashinath Mahajan V/s State
of Maharashtra and Another (Supra). The Court referred to
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conclusions in decision of Dr. Subhash Mahajan (Supra). The Apex
Court than observed that it is not disputed at the Bar that the
provision of Section 18-A in the Act of 1989 had been enacted
because of the Judgment in Dr. Subhash Mahajan's case, mainly
because of direction Nos. (iii) to (v) contained in para 83 (AIR
2018 SC 1498). The Union of India had filed review petitions, and
the same have been allowed and direction No. (iii) to (v) have
been recalled. Thus, in view of the Judgment passed in review
petitions, the matter is rendered of academic importance as the
Court had restored the position as prevailed by various Judgments
that were in vogue before the matter of Dr. Subhash Mahajan
(Supra) was decided. Only certain clarification are required in
view of provisions carved out in Section 18-A. There can be
protective discrimination, not reverse one. It was further observed
that concerning the provisions contained in Section 18-A, suffice it
to observe that with respect to preliminary inquiry for registration
of FIR, the Court has recalled general directions (iii) and (iv) issued
in Dr. Subhash Mahajan's case (AIR 2018 SC 1498). A preliminary
inquiry is permissible only in the circumstances as per the law laid
down in Lalita Kumari V/s. Government of U.P. (2014) 2 SCC 1
shall hold good as explained in the order passed by this Court in
the review petitions and amended provision of Section 18-A have
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to be interpreted accordingly. Section 18-A (I) was inserted owing
to the decision of this Court in Dr. Subhash Kashinath Mahajan V/s
State of Maharashtra and Another (Supra) which made it necessary
to obtain the approval of the appointing authority concerning a
public servant and the S.S.P. in the case of arrest of accused
persons. Court had recalled that direction in Review Petition
No.228 of 2018 decided on 1st October, 2019 (AIR 2019 SC 4917).
Thus the provisions which have been made in Section 18-A are
rendered of academic use as they were enacted to take care of
mandate issued in Dr. Subhash Kashinath Mahajan V/s State of
Maharashtra and Another (Supra) which no more prevails. The
provisions were already in Section 18-A of the Act with respect to
anticipatory bail. Concerning the applicability of provisions of
Section 438 of 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, 1989, the
bar created by 18 and 18-A(i) shall not apply. This aspect has been
clarified while deciding review petitions.
15. This Court in the case of Mr. ABC V/s State of Maharashtra
and Another (Supra) while considering the appeal under Section
14-A of the Atrocities Act for grant of anticipatory bail had referred
to the decision in the case of Prathvi Raj Chauhan V/s. Union of
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India (Supra) and observed that while considering the question of
grant of pre-arrest bail under the Atrocities Act, there is scope for
the Court to consider as to whether a prima facie case for
applicability of the Atrocities Act is made out or not. On the facts
of that case the Court noted that there was delay in registration of
FIR. There was no reference to the allegation in the complaint
lodged prior to registration of FIR. The appeal was allowed by
granting pre-arrest bail to the appellant therein.
16. In the case of Swaran Singh and Others V/s. State of
Maharashtra and Others, 2008 SCC 435. It was observed that the
abuses on the caste should be uttered in the presence of
independent witnesses. The independent person may not be those
persons who are relatives or friends of complainant.
17. Applying the principles enunciated in the aforesaid
decisions to the facts of the present case, we are of the opinion
that apparently the allegations in FIR are an afterthought and
concocted. The allegations are motivated. The complaint was
lodged beletedly. The allegations are vague. The period of
occurrences is not specified. Hence, the bar under Section 18
would not be attracted in the present case. For the reasons stated
hereinabove, this appeal deserves to be allowed.
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18. Hence, we pass the following order;
ORDER
i. Impugned Order dated 14th November, 2022 passed by
Additional Sessions Judge, Mumbai in Anticipatory Bail
Application No.2420 of 2022 is set aside.
iii. In the event of arrest in C.R. No.571 of 2022 registered
with Dongri Police Station, Mumbai, appellant be released on
bail on his furnishing P.R. Bond in the sum of Rs.25,000/- with
one or two solvent local sureties in the like amount;
iv. Appellant shall not contact Respondent No.2 and/or
any other witnesses in the present crime or pressurize them.
v. Appellant shall report Investigating Officer as an when
called for after receipt of Notice in writing in that behalf
specifying date and time thereof, till the filing of final Report.
vi. Appeal is allowed in aforesaid terms.
[PRAKASH D. NAIK, J.] [A.S. GADKARI, J.]
Sunny Thote 23 of 23
