Bombay High Court
Rajendra Prabhakar Kingre vs The State Of Maharashtra And ... on 11 August, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
2023:BHC-AUG:17173-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.455 OF 2023
1 Jayshree Prabhakar Kingre,
Age 28 yrs., Occ. Advocate,
R/o Chudhary Nagar, Mantha Road,
Jalna.
2 Gajanan Prabhakar Kingre,
Age 25 yrs., Occ. Farmer,
R/o Chudhary Nagar, Mantha Road,
Jalna.
3 Rajendra Prabhakar Kingre,
Age 24 yrs., Occ. Farmer,
R/o Chudhary Nagar, Mantha Road,
Jalna.
4 Rambhau Kisan Kalkumbe,
Age 40 yrs., Occ. Farmer,
R/o Antrwala, Post Manegaon,
Tq. & Dist. Jalna.
5 Rajesh Pralhadrao Kalkumbe,
Age 33 yrs., Occ. Farmer,
R/o Sawangi Talav, Jalna,
Tq. & Dist. Jalna.
6 Vitthal Karbhari Jadhav,
Age 41 yrs., Occ. Farmer,
R/o Sawangi Talav, Jalna,
Tq. & Dist. Jalna.
[Appeal is disposed of against appellant
Nos.2 to 6 vide order dated 04.07.2023.]
... Appellants
... Versus ...
::: Uploaded on - 11/08/2023 ::: Downloaded on - 12/08/2023 10:15:38 :::
2 Cri.Appeal_455_2023+1_Jd
1 The State of Maharashtra
Through Police Station Officer,
Police Station Seoli,
Tq. & Dist. Jalna.
2 Nilam Pralhad Randhve,
Age 43 yrs., Occ. Farmer,
R/o Sawangi Bardi,
Tq. & Dist. Jalna.
... Respondents
...
Mr. G.M. Deshmukh, Advocate for appellants
Mr. A.M. Phule, APP for respondent No.1
Mr. D.G. Nagode, Advocate for respondent No.2
...
WITH
CRIMINAL APPEAL NO.563 OF 2023
Rajendra Prabhakar Kingre,
Age 24 yrs., Occ. Farmer,
R/o Chudhary Nagar, Mantha Road,
Jalna.
... Appellant
... Versus ...
1 The State of Maharashtra
Through Police Station Officer,
Police Station Seoli,
Tq. & Dist. Jalna.
2 Nilam Pralhad Randhve,
Age 43 yrs., Occ. Farmer,
R/o Sawangi Bardi,
Tq. & Dist. Jalna.
::: Uploaded on - 11/08/2023 ::: Downloaded on - 12/08/2023 10:15:38 :::
3 Cri.Appeal_455_2023+1_Jd
3 Mr. More,
Assistant Police Inspector,
Police Station, Mojpuri,
Tq. & Dist. Jalna.
4 Satish Shriwas,
Police Station, Mojpuri,
Tq. & Dist. Jalna.
... Respondents
...
Mr. G.M. Deshmukh, Advocate for appellant
Mr. A.M. Phule, APP for respondent No.1
Mr. D.G. Nagode, Advocate for respondent No.2
...
CORAM : SMT. VIBHA KANKANWADI
ABHAY S. WAGHWASE, JJ.
RESERVED ON : 25th JULY, 2023
PRONOUNCED ON : 11th AUGUST, 2023
JUDGMENT : (PER : SMT. VIBHA KANKANWADI, J.)
1 Both the appeals are under Section 14-A(2) of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for the
sake of brevity hereinafter referred to as 'the Atrocities Act') challenging the
respective orders by the learned Special Judge, under the Atrocities Act,
Jalna, thereby rejecting the bail applications. The appellant No.1 in Criminal
4 Cri.Appeal_455_2023+1_Jd
Appeal No.455 of 2023 had filed application under Section 438 of the Code
of Criminal Procedure bearing Criminal Miscellaneous Application (Bail)
No.486/2023 and it came to be rejected on 11.05.2023. It will not be out of
place to mention here that there were in all six appellants in Criminal Appeal
No.455 of 2023, however, a statement was made on 04.07.2023 that
appellant Nos.2 to 6 came to be arrested on 08.06.2023 and, therefore, by
order dated 04.07.2023 the appeal as against them was disposed of as it was
rendered infructuous. Therefore, the said appeal proceeded only for
appellant No.1 (henceforth referred to as 'original accused No.1', as has been
referred in the First Information Report). Criminal Appeal No.563 of 2023 is
filed by original accused No.3 in the First Information Report and he had
filed Criminal Bail Application No.681/2023 before the Special Judge under
Section 439 of the Code of Criminal Procedure Code and his bail application
came to be rejected on 26.06.2023. Both the appellants were the accused in
Crime No.57/2023 filed at the behest of respondent No.2 - original
informant with Seoli Police Station, Dist. Jalna, for the offence punishable
under Sections 307, 326, 324, 323, 506, 427, 143, 144, 147, 148 read with
Section 149 of the Indian Penal Code, 1860, under Section 3(1)(r), 3(1)(s),
3(1)(u), 3(2)(va) of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989, under Section 4 punishable under
Section 25 of the Indian Arms Act, 1959 and under Section 135 of the
5 Cri.Appeal_455_2023+1_Jd
Maharashtra Police Act, 1951.
2 Heard learned Advocate Mr. G.M. Deshmukh for the appellant,
learned APP Mr. A.M. Phule for respondent No.1 and learned Advocate Mr.
D.G. Nagode for respondent No.2 - original informant, in both appeals.
3 It has been vehemently submitted on behalf of the appellants
that one Prabhakar Appasaheb Kingre is the owner of land Gat No.87
situated at village Sawangi Talav, Tq. Jalna, Dist. Jalna to the extent of 95 R.
According to the appellants, all of a sudden the informant, his family
members and other 15 people had assembled with weapons like sword in the
said land, however, the appellants in defence had told that they should leave
the place, but taking disadvantage of the caste false First Information Report
has been lodged. In respect of the said incident accused No.3 i.e. appellant in
Criminal Appeal No.563 of 2023 lodged First Information Report on
09.04.2023 at about 3.25 p.m. for the offence punishable under Section 324,
323, 504, 506 read with Section 34 of the Indian Penal Code and under
Section 4 punishable under Section 25 of the Indian Arms Act vide Crime
No.55/2023. In retaliation to that though the alleged incident is stated to
have taken place at 11.30 a.m. on 09.04.2023, the impugned First
Information Report vide Crime No.57/2023 came to be lodged at 19.06 hours
6 Cri.Appeal_455_2023+1_Jd
on 10.04.2023. The belated lodging of the report has not been considered by
the learned Special Judge, which appears to be with ill intention. Further,
original accused No.1, as per First Information Report, has lodged offence
vide Crime No.155/2022 with Badlapur West Police Station, Dist. Thane for
the offence punishable under Section 354-D of the Indian Penal Code against
Police Officer Mr. Kshirsagar. The said Police Officer Mr. Kshirsagar is
attached to Seoli Police Station, Jalna and, therefore, her name has been
falsely implicated. There is no bar under Section 18 or 18-A of the Atrocities
Act as against original accused No.1, who had sought relief under Section
438 of the Code of Criminal Procedure. As regards another appellant is
concerned, the investigation appears to be on the verge of completion and his
further physical custody is not required. Therefore, his application also ought
to have been allowed. He prayed for allowing both the appeals.
4 Learned APP as well as learned Advocate appearing for the
original informant strongly objected the appeals. They have submitted that
the original accused No.1 i.e. appellant No.1 in Criminal Appeal No.455 of
2023 had uttered the abuses in the name of caste, in the field, which was
within the public view and, therefore, there was bar under Section 18 and
18-A of the Atrocities Act for her bail application under Section 438 of the
Code of Criminal Procedure. As regards appellant in Criminal Appeal No.563
7 Cri.Appeal_455_2023+1_Jd
of 2023 is concerned, it is specifically stated that he had caused serious injury
to the chik of informant's brother Lahu. He had also caused injury to the left
calf of the informant by sword. Learned Advocate appearing for the victim-
informant has produced photographs of the video shooting of the incident
and also pointed out that the lady with black dress is the original accused
No.1. She has assaulted informant's wife Savita with stick and also tried to
strangulate his wife Savita with the help of her sari. Under such
circumstance, a proper investigation is required and, therefore, the decision
by the learned Special Judge is correct and legal.
5 At the outset, it is to be noted that the parameters for both the
applications i.e. under Section 438 and under Section 439 of the Code of
Criminal Procedure are different. Here, it is required to be considered, as to
whether the bail application filed by the appellant in Criminal Appeal No.455
of 2023 under Section 438 of the Code of Criminal Procedure was barred
under Section 18 or 18-A of the Atrocities Act and as regards Criminal Appeal
No.563 of 2023 is concerned, there is no question of any bar, as the bar
under Section 18 and 18-A is restricted to applications under Section 438 of
the Code of Criminal Procedure and not under Section 439 of the Code of
Criminal Procedure. At this stage, we are guided by the contents of the First
Information Report and other documents, which have been produced.
8 Cri.Appeal_455_2023+1_Jd
6 As regards the First Information Report lodged with Badlapur
West Police Station by original accused No.1 against the police person on
11.07.2022 is concerned, it can be certainly said that it has no connection
with the present First Information Report. At this stage, we can import that
said police person was acting on behalf of the present respondent. That was
an independent cause of action, of which the cognizance appears to have
been taken by the police.
7 As regards the incident dated 09.04.2023 is concerned, as per
First Information Report lodged by original accused No.3 vide Crime
No.55/2023 is concerned, it had taken place at about 11.00 a.m. on
09.04.2023 in land Gat No.87. The present respondent No.2, his brother and
wife are the accused persons and the said First Information Report was
lodged around 15.25 hours. If we peruse First Information Report vide Crime
No.57/2023 lodged by present respondent No.2, it can be seen that it is
stated to have occurred at 11.30 a.m. on 09.04.2023 in land Gat No.87 and
the First Information Report has been lodged at 19.06 hours. Alleged belated
First Information Report cannot be the only ground to allow the application.
The point of delay is then required to be considered with the other
circumstances. The informant in his First Information Report has stated that
land Gat No.87 admeasuring 1½ acre was given in 1997 to one Devchand
9 Cri.Appeal_455_2023+1_Jd
Ekhande on mortgage by informant's father, however, he says that the
possession was with informant and family. According to him, said Devchand
Ekhande had sold the said land to one Sandesh Diwakar without giving
information to them and for that purpose Regular Civil Suit No.126/2016
was filed by informant in Civil Court, Jalna. The said suit is still pending. It
is then stated that in 2022 said Sandesh Diwakar had sold the said property
to the neighbouring land holder Prabhakar Kingre, who has erected a tin
shed. According to the informant, Prabhakar Kingre is trying to take the
possession of the said agricultural land since July, 2022. He was attacked at
Chaman, Jalna on 20.01.2023, for which offence has been registered with
Kadim Police Station. According to him, Prabhakar Kingre's daughter i.e.
present appellant No.1 and son-in-law are Advocate by profession and,
therefore, they are threatening him. He says that around 11.00 a.m. of
09.04.2023 he was informed by his wife that some persons with vehicle have
come to the field and they are destroying the shed. He, therefore, went to
the field and he found the accused persons. He has then stated the role
played by each and every person. We are mainly concerned with the role
attributed to the present appellant - accused No.1. Then it is said that the
appellants abused the informant in the name of caste and accused No.1 asked
as to how he is not giving the possession of the land. He was assaulted by
another unknown person. When he was being rescued by his wife and
10 Cri.Appeal_455_2023+1_Jd
mother, at that time, the present accused No.1 dragged his wife and tried to
strangulate her with the help of pallu of her sari by saying that she would kill
her, but the wife herself rescued. Then, he says that the original accused
No.1 had assaulted his wife with stick. As per the First Information Report,
the incident has taken place in the field. Even as per the First Information
Report lodged by original accused No.3, the said incident had taken place in
the field itself. Though the agricultural land can be termed as private
property i.e. not a public property, but it can be within the public view and,
therefore, when the utterance of the abuses in the name of caste is attributed
to accused No.1, then prima facie it attracts ingredients of Section 3(1)(r)
and 3(1)(s) of the Atrocities Act. Further, when it is said that she has caused
injury, prima facie it attracts Section 3(2)(va) of the Atrocities Act. Now,
coming to the fact that whether the said First Information Report is lodged
with mala fides is concerned or delay, it is to be noted that it is supported by
the documentary evidence. Prima facie it can be seen that the informant and
his wife were taken to Civil Hospital, Jalna. Therefore, the said fact cannot
be taken in favour of the appellant - original accused No.1. There appears to
be bar under Section 18 and 18-A of the Atrocities Act to entertain an
application under Section 438 of the Code of Criminal Procedure and,
therefore, the rejection of the bail application by the learned Special Judge,
under the Atrocities Act, Jalna on 11.05.2023 in Criminal Miscellaneous
11 Cri.Appeal_455_2023+1_Jd
Application (Bail) No.486/2023 appears to be justified. No interference is
required.
8 Now, turning towards the another appeal it is to be noted that
the said accused was arrested and it appears that the investigation was
almost completed. It has not been pointed out that anything is remaining to
be seized from him. We are not taking into consideration the photographs, as
the authenticity of the photographs is yet to be established. If there is a video
recording, then it is for the Investigating Officer to collect the same. Now,
when nothing is required to be recovered at the instance of the said
appellant, then the discretion ought to have been used by the learned trial
Judge. The rejection of the said application is on the basis of rejection of his
earlier bail application, which was about three days prior to the filing of the
second bail application. This approach should not have been taken by the
learned Special Judge. But, then he says that there was no change in the
circumstance and he could not have been reviewed his own order. No doubt,
this ground is proper that he should not have been reviewed his own order
and this appears to be the reasonable ground that within a period of three
days only there was no change in the circumstance. No doubt, the earlier
rejection of the bail application is not challenged; yet, we are of the opinion
that when the investigation as against the appellant is over, then, he need not
12 Cri.Appeal_455_2023+1_Jd
be kept behind the bars. No doubt, it appears that the appellant has made
allegations against certain Police Officers, but not in particular, that cannot be
a ground to reject his bail application. With heavy conditions the bail
application can be allowed and the discretion can be used in such judicious
manner. Hence, we proceed to pass following order.
ORDER
1 Criminal Appeal No.455 of 2023 stands dismissed.
2 We clarify that the interim protection granted earlier to appellant
No.1 Jayshree Prabhakar Kingre now stands vacated.
3 Criminal Appeal No.563 of 2023 stands allowed.
4 The order passed by learned Special Judge, under the Atrocities
Act/Additional Sessions Judge, Jalna, Dist. Jalna in Criminal Miscellaneous
Application (Bail) No.681/2023 dated 26.06.2023, is hereby set aside. Said
application stands allowed.
5 The appellant Rajendra Prabhakar Kingre, who has been arrested
in connection with Crime No.57/2023 dated 10.04.2023 registered with Seoli
Police Station, Dist. Jalna, for the offence punishable under Sections 307,
326, 324, 323, 506, 427, 143, 144, 147, 148 read with Section 149 of the
Indian Penal Code, 1860, under Section 3(1)(r), 3(1)(s), 3(1)(u), 3(2)(va) of
13 Cri.Appeal_455_2023+1_Jd
the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act,
1989, under Section 4 punishable under Section 25 of the Indian Arms Act,
1959 and under Section 135 of the Maharashtra Police Act, 1951, be released
on P.R. of Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties
of Rs.25,000/- (Rupees Twenty Five Thousand only) each.
6 Appellant shall not indulge in any criminal activity nor shall
tamper with the prosecution evidence, in any manner.
7 Appellant shall cooperate with the investigation and shall attend
office of the Sub Divisional Police Officer, Partur, Tq. Partur, Dist. Jalna, on
every Monday between 10.00 a.m. to 02.00 p.m., till filing of charge sheet.
8 He shall not enter the jurisdiction of village Savangi Bardi, Tq. &
Dist. Jalna till the conclusion of trial. He should reside elsewhere, and before
submission of bail papers, the appellant should give complete address of his
proposed residence with his mobile number to the Seoli Police Station as well
as to the trial Court.
9 Bail before Trial Court.
(ABHAY S. WAGHWASE, J.) ( SMT. VIBHA KANKANWADI, J. )
agd
