Bombay High Court
Adarsh S/O. Sureshrao Pote vs State Of Mah. Thr. Pso, Ps Gadge Nagar ... on 7 December, 2023
2023:BHC-NAG:17040
J.55.cri.appeal.618.23-1.odt 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.618 OF 2023
Adarsh s/o Sureshrao Pote
Age 29 years, Occupation - Labour,
R/o. Baripura, Nandgaon-peth,
Tq. and District Amravati
...APPELLANT
VERSUS
1. State of Maharashtra,
through Police Station Officer,
Police Station Gadge Nagar,
District Amravati
2. XYZ
Victim in Crime No.930/2023
Registered with P.S. Gadge Nagar,
Amravati
...RESPONDENTS
_______________________________________________________
Mr. S.B. Gandhe, Advocate for the appellant.
Mr. A.G. Mate, Advocate for respondent No.1/State.
Mr. A.N. Darunde, Advocate (appointed) for respondent No.2.
_______________________________________________________
CORAM : URMILA JOSHI-PHALKE, J.
DATED : DECEMBER 07, 2023.
ORAL JUDGMENT :
ADMIT. Heard finally with the consent of learned Counsel for
the parties.
J.55.cri.appeal.618.23-1.odt 2/7
2. By preferring this appeal under Section 14A of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the
appellant has challenged the order dated 04/09/2023 passed in Criminal
Bail Application No.987/2023 whereby the Additional Sessions Judge-2,
Amravati has rejected the anticipatory bail application of the present
appellant.
3. The appellant is apprehending arrest at the hands of police as
Crime No.930/2023 is registered against the present appellant on
18/07/2023 at police station Gadge Nagar, Amravati for the offence
punishable under Sections 376(2)(n) of the Indian Penal Code and
Sections 3(1)(w)(i), 3(1)(w)(ii), 3(2)(va) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter
referred to as 'the Act of 1989' for short).
4. Heard learned Counsel for the appellant. He submitted that
the present appellant is prosecuted on the basis of report lodged by the
victim girl on an allegation that she got acquaintance with the present
applicant when she was working in one Shraddha family shop. It is
alleged by the victim that the present applicant has promised her for
marriage and subjected her for sexual assault. Victim girl was alleged to
be 17 years of age at the time of incident but she has already attained 18
years of age. Now, victim girl has performed the marriage with third
person. Custodial interrogation of the present applicant is not required
J.55.cri.appeal.618.23-1.odt 3/7
and hence, the applicant be released on anticipatory bail in the event of
his arrest.
5. The appeal is strongly opposed by the State as well as learned
Counsel for the victim on the ground that victim was 17 years of age at
the time of incident. Present applicant on the basis of false promise
subjected her for sexual assault and committed the offence.
Subsequently, present applicant denied to marry with her, and therefore,
crime is registered against him. It is submitted by the learned Additional
Public Prosecutor that in view of the bar provided under Section 18 and
18A of the Act of 1989, the application deserve to be rejected.
6. Learned Counsel for the victim endorsed the same
contentions and prays for rejection of the application.
7. Heard learned Counsel for the applicant and learned
Additional Public Prosecutor for the State and learned Counsel for the
victim. Perused recitals of the FIR. From the recitals of the FIR, it reveals
that the victim has lodged the FIR on an allegation that in the year 2021,
she was working in Shraddha family shop where she got acquaintance
with the present applicant. Present applicant promised her for marriage,
thereafter he took her in one flat and demanded sexual favour from her.
On her denial he shown his displeasure and assured her that he will
perform the marriage with her and subjected her for sexual assault.
Thereafter time to time, he promised her for marriage and subjected her
J.55.cri.appeal.618.23-1.odt 4/7
for sexual assault and subsequently, denied to marry with her. Therefore
she approached to the police and lodged the FIR. During investigation,
the Investigating Officer recorded her statement. She was referred for
the medical examination. The medical certificate which is on record
shows hymen is having old tear. The necessary samples have obtained
and forwarded to chemical analyser. Chemical analyser report is yet to
be received. It is submitted by the learned Counsel for the appellant that
the victim girl was 18 years of age at the time of incident. During
investigation, the Investigating Officer has collected her birth certificate.
From the birth certificate, it reveals that at the time of first incident
alleged by her, she was below 18 years of age. Thus, the prima facie
material on record sufficiently shows the involvement of the present
applicant in the alleged offence.
8. Learned Counsel Mr. Gandhe placed his reliance on the order
passed by this Court on Criminal Application (ABA) No.168/2021. After
going through the facts of the case, it reveals that on the day of lodging
of the FIR, the victim therein was 23 years old. The provisions of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989 are not attracted against the applicant therein. He further placed
reliance on ABC Vs. State of Maharashtra 2021 ALL MR Cri.3664
wherein also the application for pre-arrest bail was considered by the
Court wherein para No.21 it is observed that in the complaint submitted
J.55.cri.appeal.618.23-1.odt 5/7
by her on the letter heads of Nationalised Youth Congress to the
Assistant Commissioner of Police and the Home Minister, she did not
refer to the incident of forcible physical relationship on 30/06/2020 and
the alleged incident on 24/11/2020. The incident of 24/11/2020 was
not mentioned in her complaint addressed to the Assistant Commissioner
of Police dated 20/11/2020. These complaints to refer the alleged extent
of Garland and marriage in temple and the allegation that the appellant
and his family members were demanding Rs.50,00,000/-. By observing
that the incidents which are narrated by her were not mentioned in her
earlier complaints. The prayer for anticipatory bail was considered by
the Court.
9. The nature of material presented on record in the instant case
indicates that victim girl was 17 years of age at the time of initial
incident. As far as the allegation regarding the forcible sexual
intercourse is concerned, she specifically alleged that applicant took her
in one flat at Kamal residency and demanded from her the sexual
favours. On her denial he assured her that he will perform marriage with
her and against her will subjected her for sexual intercourse. As regards
the offence under the Atrocities Act, the provisions of Section 3(w)(i),
3(w)(ii), 3(2)(v), 3(2)(va) and 3(2)(vii) have been invoked. Section
3(w)(i) and 3(w)(ii) of the Atrocities Act pertains to the use of words,
acts or gestures of a sexual nature and intentionally touching a woman
J.55.cri.appeal.618.23-1.odt 6/7
belonging to a Scheduled Caste or a Scheduled Tribe in a sexual manner
without her consent. These ingredients are appearing to be present in
the present case.
10. It is well settled that if a person is even alleged of accusation
of committing an offence under the Act of 1989 the intention of Section
18 is clearly to debar him from seeking the remedy of anticipatory bail
and it is only in the circumstances where there is absolutely no material
to infer as to why Section 3 has been applied to implicate a person for an
offence under the Act of 1989, the courts would be justified in a very
limited sphere to examine whether the application can be rejected on the
ground of its maintainability. What is intended to be emphasized is that
while dealing with an application for anticipatory bail, the Courts would
be justified in merely examining as to whether there is at all an
accusation against a person for registering a case under Section 3 of the
Act of 1989 and once the ingredients of the offence are available in the
FIR or the complaint, the Courts would not be justified in entering into a
further inquiry by summoning the case diary or any other material as to
whether the allegations are true or false or whether there is any
preponderance of probability of commission of such an offence. Such an
exercise is intended to put to a complete bar against entertainment of
application of anticipatory bail which is unambiguously laid down under
Section 18 of the Act of 1989, which is apparent from the perusal of the
J.55.cri.appeal.618.23-1.odt 7/7
section itself and thus the court at the most would be required to
evaluate the FIR itself with a view to find out if the facts emerging
therefrom taken at their face value disclose the existence of the
ingredients constituting the alleged offence.
11. In the light of the well settled legal position if the facts of the
present case are considered there is sufficient material to show that the
allegations or the accusation of the present appellant is on the basis of
the statement of the victim who stated that she was subjected for sexual
assault by the appellant and she belongs to the Scheduled Caste. False
promise was given to her and on the false assurance she was subjected
for the sexual assault. Whether the allegations are true or false, is not
necessary to go into. What is necessary to attract the Section 18 or 18A
of the Act of 1989 is that whether there is a prima facie allegations
against the present appellant reflects from the FIR or not. The prima
facie allegations against the present appellant are present in the FIR,
therefore, bar is attracted under Section 18 of the Act of 1989 and
therefore, the application for anticipatory bail is not maintainable. In
view of that appeal deserves to be dismissed.
12. Hence, the criminal appeal stands dismissed. No costs.
13. The fees of the appointed Counsel be quantified as per rules.
(URMILA JOSHI-PHALKE, J.)
Signed by: Mrs. Divya Baldwa
*Divya
Designation: PA To Honourable Judge
Date: 12/12/2023 15:11:17
