Asif @ Ashu Liyakat Pathan vs The State Of Maharashtra
2023 Latest Caselaw 1626 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                    CRIMINAL APPEAL NO.850 OF 2022


 Asif @ Ashu Liyakat Pathan,
 Age-30 years, Occu:Driver,
 R/o-Ward No.02, Shrirampur,
 Taluka-Shrirampur, Dist-Ahmednagar
                                                         ...APPELLANT
        VERSUS

 1) The State of Maharashtra,
    Through Police Station Officer,
    Shrirampur City Police Station,
    Taluka-Shrirampur, Dist-Ahmednagar,

 2) X. Y. Z.
                                                         ...RESPONDENTS

                   ...
      Mr. Shaikh Mazhar A. Jahagirdar Advocate for Appellant.
      Mrs. P.V. Diggikar, A.P.P. for Respondent No.1. -State.
      Mr. Mohit Lalit Deoda Advocate appointed for Respondent No.2.
                   ...

                CORAM: SMT. VIBHA KANKANWADI AND
                       ABHAY S. WAGHWASE, JJ.

DATE OF RESERVING JUDGMENT : 25th JANUARY 2023

DATE OF PRONOUNCING JUDGMENT : 17th FEBRUARY 2023

JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :

1. Admit.

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2. Present Appeal has been filed under Section 14A (2) of the

Scheduled Castes and Scheduled Tribes Act (for short "the

Atrocities Act") by original accused No.4 to challenge the order

of rejection of his bail under Section 439 of the Code of Criminal

Procedure in Criminal Bail Application No.234 of 2022 by learned

Special Judge under the Atrocities Act / Additional Sessions

Judge, Shrirampur, District-Ahmednagar on 13th October 2022.

3. Present respondent No.2 is the original informant who has

filed First Information Report (for short "FIR") vide Crime No.

733 of 2022 with Shrirampur City Police Station, Shrirampur,

District-Ahmednagar on 30th August 2022 alleging that the

present appellant - original accused No.4 and other three

accused persons have committed offence punishable under

Sections 376(2)(n), (l), 376(d) of the Indian Penal Code and

Sections 3(1)(w)(i)(ii) and 3(2)(V-A) of the Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities) Amendment Act,

2015. In the FIR, the informant has contended that she is the

member of scheduled caste. However, it will not be out of place

to mention here that when the charge-sheet has been filed, at

that time it was found that informant is not the member of

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scheduled caste and therefore, the charge-sheet has been filed

only for the offences under the Indian Penal Code and that too,

the charge-sheet is presented before the learned Judicial

Magistrate First Class, Shrirampur. The charge-sheet came to be

filed on 10th November 2022 i.e. after the rejection of the bail

application by the learned Special Judge.

4. Heard learned Advocate Mr. Jahagirdar appearing for the

appellant, Mrs. Diggikar, learned APP appearing for respondent

No.1. -State and Mr. Deoda, learned Advocate appointed for

Respondent No.2.

5. It has been vehemently submitted on behalf of the

appellant that perusal of the FIR would show that the prosecutrix

- informant is 40 years old lady and in the FIR itself she has

stated that she has adopted Christianity and thereafter married

with the person from Muslim community. Therefore, according to

the appellant, the offence ought not to have been registered for

any of the offences under the Atrocities Act. Further in the FIR it

is stated that about a year prior to the FIR, as son of the

informant was beaten by someone and she was crying, accused

Nos.1 and 2 met her, tried to offer support and asked for sexual

favour. It is then stated that accused Nos.1 and 2 had committed

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rape on her in presence of each other. The informant is

handicapped and she says that therefore she could not resist.

The FIR further says that thereafter accused Nos. 1 and 2 made

phone call to accused No.3, who came there and asked for the

sexual favour contending that when she has allowed accused

Nos. 1 and 2 to do the sexual act with her, why he should not do

the act with her and then he has done the said act. She has then

stated that accused No.1 called the present appellant and then

the appellant was pushed by accused No.1 on the person of the

prosecutrix and thereafter he had committed rape on her. She

has then stated that accused Nos.1 and 2 came to her house 5

to 6 days thereafter and for about a month later they were

committing rape on her. During that period the appellant once

and accused No.3 had committed rape on her twice. With these

allegations the informant has arrayed the appellant as accused

No.4. Thus, there is apparent delay of about a year in lodging

the report. At no point of time the informant has stated that the

present appellant had the knowledge that the informant belongs

to scheduled caste.

6. Learned Advocate for the appellant has further stated that

now the investigation is over and charge-sheet is also filed and

therefore, further physical custody of the appellant is not

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required. It was also pointed out that the statement of the

informant has been recorded under Section 164 of the Code of

Criminal Procedure before the learned Judicial Magistrate First

Class, Shrirampur on 3rd October 2022 and in that statement as

against the preset appellant is concerned, she has not made

allegations that he had done sexual intercourse with her. Taking

into consideration all these aspects, the application under

Section 439 of the Code of Criminal Procedure ought to have

been allowed by the learned Special Judge. For rejection of the

application the criminal antecedents of the appellant were also

considered, however, out of nine offences now six are pending.

In one offence i.e. Crime No.136 of 2014 closure report was filed

on 2nd January 2023 by Shrirampur City Police Station. Frome

Crime No.13 of 2017 i.e. Sessions Case No.7 of 2017 and Crime

No.169 of 2020 i.e. Sessions Case No.25 of 2021 the appellant

has been acquitted. The copy of the Judgments in both the cases

has been produced. For the said alleged criminal antecedents the

appellant need not be asked to remain in jail as in this case

there is no evidence against him.

7. Learned APP as well as learned Advocate Mr. Deoda

appointed to represent the cause of respondent No.2 strongly

opposed the Appeal by submitting that in fact now the Appeal

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will not be maintainable in view of the fact that after the

investigation it has been transpired that offence under the

Atrocities Act has not been made out and therefore, the charge-

sheet has been filed before the learned Judicial Magistrate First

Class. Further, on merits of the case there is evidence even

against the present appellant. A conviction for the offence under

Section 376 of the Indian Penal Code can be based on the sole

testimony of the informant if it inspires confidence and therefore,

when the statements of the witnesses, especially prosecutrix,

her son support each other and it is also supported by the

medical evidence, this cannot be taken as a fit case in which

discretion should be exercised.

8. In support of his submissions, learned Advocate for

respondent No.2 has relied on the decisions in Meena Devi vs.

State of U.P. and another, 2022 All SCR (Cri.) 1642, Ms. Y

(Manisha) vs. State of Rajasthan and another, 2022 (9)

SCC 269, Kamla Devi vs. State of Rajasthan and another,

2022 AIR (SC) 1524, Sunil Kumar vs. the State of Bihar

and another, 2022 AIR (SC) 715, State of Orissa vs.

Mahimananda Mishra, 2019 (1) SCC (Cri.) 325,

Chandrakeshwar Prasad @ Chandu Babu vs. State of Bihar

and another, 2016 (9) SCC 443, Neeru Yadav vs. State of

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U.P. and another, 2015 AIR (SC) 3703 and Mansoor Alam

vs. State of U.P. and another, 2015(4) SCC 731. In the

nutshell learned Advocate for respondent No.2 wanted to submit

that the criminal antecedents of the appellant are required to be

considered as it appears that accused is history-sheeter. Even at

times the Hon'ble Supreme Court has rejected the bail or even

cancelled the bail that was granted as the antecedents of the

accused were not considered. When a reasoned order has been

passed, it need not be quashed and set aside. The criterias for

considering an application under Section 439 of the Code of

Criminal Procedure have been laid down by the Hon'ble Supreme

Court in many cases including Neeru Yadav vs. State of U.P.

and another (supra). When prima facie case is made out for the

charge then in such heinous crimes bail should not be granted.

Learned APP as well as learned Advocate appointed for

respondent No.2 have prayed that the criminal antecedents of

the appellant should be taken into consideration.

9. At the outset, we would like to say that we are not

appreciating the point raised in respect of the maintainability of

the appeal. The bail application under Section 439 of the Code of

Criminal Procedure was presented before the learned Special

Judge under the Atrocities Act and then he has rejected the said

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application. Challenge to that application can only be under

Section 14(a) of the Atrocities Act. The second point is that the

charge-sheet came to be filed after rejection of the bail

application. Rather it is also after the present appeal has been

filed. Therefore, it will not lie in the mouth of the prosecution to

say that the appeal is not maintainable.

10. Another fact to be noted is that in the FIR itself the

informant has given her caste as "Hindu Mahar", but thereafter

she has categorically stated that she has adopted the

Christianity and then married to a person from Muslim

community. As to when the informant has adopted or got herself

converted to Christianity, has not been explained by her but

certainly it is before the FIR itself. Acceptance of Christianity

presupposes that informant had given up her earlier caste and

religion. She has not specified as to when her Baptisma was

made. All those details would have been necessary if anybody

wants to challenge the statement. But when that fact is admitted

or stated by the informant herself in the FIR, it presupposes that

she has given up Hindu religion and she could not have been

considered as a person from "Hindu Mahar" caste. The offence

ought not to have been then registered under the Atrocities Act.

The FIR came to be lodged on 30 th August 2022 and the charge-

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sheet has been filed on 10th November 2022. Again we would like

to say that when all these facts came up before this Court, we

had called the investigating officer and asked him as to whether

he had gone through the contents of the FIR or not immediately

after it was handed over to him for further investigation. Though

he has stated that he had studied it but in reality it does not

appear to be so. The investigating officer continued the

investigation by treating the offence under the Atrocities Act

also. It was then pointed out that on 8 th November 2022, the

investigating officer, who is of Deputy Superintendent of Police

rank, had collected the information that by birth the informant is

Hindu Wanjari and she is not the member of either scheduled

caste or scheduled tribe and therefore he decided to drop the

offence under the Atrocities Act. We are constrained to observe

that the efforts ought to have been made in the beginning itself

to know what is the caste of the informant and as aforesaid with

the confusion in the FIR stating that the informant has adopted

to Christianity and then married to the person from Muslim

community, whether still the investigation can be for the offence

under the Atrocities Act. We were not expecting such lethargy on

the part of the investigating officer, who is the rank of Deputy

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Superintendent of Police and when the allegations are in respect

of rape, that too by four persons.

11. Another point that is also required to be considered is that

the headmistress of the school from where the informant had

taken education, has given the extract of the register of

admission to the investigating officer on 13 th October 2022. Then

from 13th October 2022 till 8th November 2022 why the

investigating officer had no given a report to the Special Judge

under the Atrocities Act, is a question. If the said document

would have been made available to the learned Special Judge

then he would have taken different course and could not have

taken note of the offences under the Atrocities Act. We are

constrained to observe all these facts in view of the fact that the

FIR is also under the Atrocities Act, but now the charge-sheet

does not contain any of those offences. When the rejection of

the application is under Section 439 of the Code of Criminal

Procedure and at that time the offences were also under the

Atrocities Act, the only provision to challenge that order was

under Section 14(a) of the Atrocities Act. Hence, the appeal is

maintainable.

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12. Now, coming to the facts of the case, the contents of the

FIR in respect of role of the present appellant is concerned, it is

stated that about a year prior to the FIR the appellant was called

by accused No.1 by giving a phone call. The investigating officer

has not collected the CDR of the phone numbers of accused No.1

as well as this appellant. Secondly, it is stated that when the

appellant came he had stared at the informant and then accused

No.1 pushed appellant on the person of informant and thereafter

the appellant had committed sexual intercourse with the

informant in presence of the other accused persons. Thereafter,

it is stated that once the appellant had again committed rape on

informant. Admittedly the FIR is registered about a year later. At

this stage itself we would like to consider the statement of the

informant under Section 164 of the Code of Criminal Procedure

and in the said statement though she has confirmed the fact that

the appellant was called by accused No.1, accused Nos. 1 and 2

asked the appellant that he should also do the same act and at

that time appellant went near her, he made odious face and then

all of them went away. She does not say that appellant had

performed sexual intercourse with her on that day and thereafter

she does not say that the appellant had ever come to her and

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had sexual intercourse. Therefore, there is apparent different

role assigned by the informant herself to the present appellant.

13. As regards the statement of the son of the informant is

concerned, it appears that he is 23 years old youth. He also

states that on the day of incident about a year prior to the FIR

when he had returned home the informant had narrated the

entire incident to him. But then he has stated that at that time

there was terror of the accused persons and therefore, they had

not lodged any FIR. Another witness, who is friend of the son of

the informant, also states that informant had informed about the

incident to him also but the action was not taken. Except these

statements, there is almost nothing. There is also a

supplementary statement of the informant on record, dated 8 th

November 2022 giving her own history, as to how her maiden

name is different, who was her father and how her mother

performed second marriage etc. It leads to connect with her

school record.

14. With this kind of evidence in fact the learned Special Judge

ought to have allowed the application. The act of collecting

evidence was almost over when the learned Special Judge

passed the order. At the cost of repetition it can be said that he

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has not considered as to how the offence under the Atrocities Act

ought not to have been registered at all. It appears that he went

on the basis of criminal antecedents of the appellant. The

decisions relied on by the learned Advocate for respondent No.2

will not be applicable to the facts of the case, as the role of the

appellant in the present case is also required to be considered.

The role is thus assigned by the informant herself and as

aforesaid it is changed in her statement under Section 164 of the

Code of Criminal Procedure. Though about six cases are still

pending against the appellant, yet that cannot be the hurdle for

not considering the present application / appeal.

15. For the aforesaid reasons, the impugned order deserves to

be set aside and the application filed by the appellant under

Section 439 of the Code of Criminal Procedure deserves to be

allowed. Hence the following order:

ORDER

(I) The Appeal stands allowed.

(II) The order passed by the learned Special Judge under the Atrocities Act and Additional District Judge, Shrirampur, District-Ahmednagar in Criminal Bail

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Application No.234 of 2022 dated 13th October 2022 stands set aside. The said application stands allowed.

(III) The appellant - Asif @ Ashu Liyakat Pathan, who has been arrested in connection with Crime No.733 of 2022 registered with Shrirampur City Police Station, Shrirampur, District-Ahmednagar, for the offence punishable under Sections 376(2)(n), (l), 376(d) of the Indian Penal Code and Sections 3(1)(w)(i)(ii) and 3(2) (V-A) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, be released on bail on P.R. Bond of Rs.30,000/- with two solvent sureties of Rs.15,000/- each.

(IV) The appellant shall not enter the jurisdiction of Bajrang Chowk, Ahilyadevi Nagar, Ward No.2, Shrirampur, District-Ahmednagar till the conclusion of the 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 Trial Court as well as to the Investigating Officer.

(V) Appellant shall not tamper with the evidence of the prosecution in any manner.

(VI) Appellant shall not indulge in any criminal activity.

(VII) Bail before the Trial Court.

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(VIII) Fees of the learned Advocate, who is appointed to represent the cause of respondent No.2, is quantified at Rs.5000/- to be paid by the High Court Legal Services Sub Committee, Aurangabad.

[ABHAY S. WAGHWASE] [SMT. VIBHA KANKANWADI] JUDGE JUDGE

asb/FEB23