Pawan Diliprao Sonwane vs The State Of Maharashtra And ...
2023 Latest Caselaw 922 Bom

                                                                      apeal-5-2023.odt




           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               BENCH AT AURANGABAD

                         CRIMINAL APPEAL NO.5 OF 2023


       Pawan Diliprao Sonwane
       Age: 32 years, Occu.: Pharmacist
       R/o. Bhavani Road, Tuljapur,
       Tq. Tuljapur, Dist. Osmanabad                            .. Appellant

                Versus

1.     The State of Maharashtra
       Through Police Station Tuljapur,
       Dist. Osmanabad.

2.     Dattatraya Rambhau Salunke
       Age: 54 years, Occu.: Service,
       R/o. Vishwasnagar, Tuljapur,
       Tq. Tuljapur, Dist. Osmanabad                            .. Respondents

                                   ...
Mr. S. J. Salunke, Advocate for appellant.
Mrs. V. S. Choudhary, APP for respondent No.1 - State.
Mr. Yogesh H. Jadhav, Advocate for respondent No.2 (Appointed).
                                   ...

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

                         DATE       :   January 30, 2023.

ORDER :-         [Per Smt. Vibha Kankanwadi, J.]

.      Admit.

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

Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act,

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1989 (hereinafter referred to as the "Atrocities Act") to challenge the

order of rejection of bail application by learned Special Judge, under

the Atrocities Act, Osmanabad in Bail Application No.642 of 2022 on

17.12.2022. The said application was filed under Section 439 of the

Code of Criminal Procedure. The appellant was arrayed as accused

in Crime No.381 of 2022 registered with Tuljapur Police Station, Dist.

Osmanabad for the offences punishable under Sections 307, 353, 504,

506 read with Section 34 of Indian Penal Code and under Sections

3(2)(va), 3(1)(r), 3(1)(s) of the Atrocities Act.

3. Heard learned Advocate Mr. S. J. Salunke for the appellant,

learned Advocate Mrs. V. S. Choudhary for respondent No.1 - State

and learned Advocate Mr. Yogesh H. Jadhav for respondent No.2

(Appointed).

4. Learned Advocate for the appellant has vehemently submitted

that the investigation is now over and charge-sheet has been filed on

13.01.2023. It has been alleged by the informant - respondent No.2

that the appellant by abusing the informant in filthy language also

involving his caste had assaulted him by iron katti (Sickle). He had

received injuries to his head and abdomen. Now, the weapon

allegedly used in the commission of the crime has been seized. The

informant is regular in filing such complaints. The Medico Legal

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Certificate issued by Rural Hospital, Tuljapur is doubtful and it could

not have been stated that one of the injury to the informant was

dangerous to life. When the evidence is collected and charge-sheet is

filed, then the custody is not further required. It was also pointed

out that it was stated before the trial Court that there are criminal

antecedents of the applicant and he is involved in three cases,

however, two out of those three cases have resulted in acquittal and

only one under Sections 353, 332, 504 of Indian Penal Code is

pending. For that purpose, bail cannot be denied to the appellant.

5. Per contra, the learned APP as well as learned Advocate, who is

appointed to represent the cause of respondent No.2, strongly

opposed the appeal and supported the reasons given by the learned

Special Judge. It is specifically stated in the FIR that the informant

had gone to the spot along with other employees for removal of

encroachment. The informant is serving as Inspector and Head of

Encroachment Removal Department of Nagar Parishad, Tuljapur.

When the informant went in front of the medical shop of the

appellant, the appellant started abusing the informant and by taking

iron katti (sickle), he assaulted the informant on his head and

abdomen. The medical certificate shows that the injury to the

informant was dangerous to his life. He was admitted for a

considerable time in the hospital. The appellant has criminal

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antecedents. Perusal of the charge-sheet would also disclose that

there is sufficient evidence against the appellant, therefore, the

learned Special Judge has rightly refused to exercise discretion in

favour of the appellant.

6. The first and the foremost fact that is required to be noted is

that the learned Special Judge has decided the application on

17.12.2022 and the charge-sheet came to be filed on 13.01.2023.

Therefore, the charge-sheet was not before the learned Special Judge,

however, the police papers were before him. They could have been

called by him for perusal. The appellant was seeking bail under

Section 439 of the Code of Criminal Procedure and, therefore, the

yardsticks to be applied for dealing such applications are different

from those applications under Section 438 of the Code of Criminal

Procedure. Whether the further physical custody of the applicant is

required or not should be the prime requirement. The appellant

came to be arrested on 04.12.2022 and since 09.12.2022, he is in

magisterial custody. During his police custody period, it is stated that

he has discovered the weapon also. Perusal of the FIR would show

that it was not stated by the informant as to what was the reason for

the appellant to react in such a way, however, in the supplementary

statement all those facts have been stated. The FIR was lodged on

14.10.2022 and the supplementary statement was recorded on

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16.10.2022. The said delay in recording the supplementary statement

as well as the delay in disclosure of the history would be considered

by the learned Trial Judge at the time of trial.

7. As regards the lodging of FIR by the informant against other

persons under Sections 353 etc. of Indian Penal Code and the

judgment in that case acquitting all those accused cannot be taken

into consideration, as the law does not require antecedents of

informant to be considered. Rather the law requires that the

antecedents of the accused are required to be considered and in this

case there were three offences against the appellant. It is stated that

out of those three cases, he is acquitted in two cases and only one

case under Section 353 of Indian Penal Code is still pending. The

Medico Legal Certificate definitely shows that the informant has

suffered injury to his head, which was dangerous to life. Both the

certificates have been produced at the initial stage i.e. provisional as

well as final certificate. The bed-ticket of the informant has also been

collected. Statements of witnesses have been recorded under Section

161 of the Code of Criminal Procedure, which prima facie supports

the prosecution.

8. Taking into consideration note of all these material, it can be

said that the part of collecting evidence is over and, therefore, the

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further physical custody of the appellant is not required. It will

definitely take time to stand his trial and till then he need not be kept

behind bars. He can be released on bail by imposing strict conditions

taking into consideration his past conduct as well as the evidence

that has come in this case. Even the learned Special Judge could have

come to the same conclusion, if he would have perused the police

papers in proper perspective. Every accused is not required to be

kept behind bar till the trial is concluded. Appeal, therefore,

deserves to be allowed. Hence, the following order :-

ORDER

i) The appeal stands allowed.

ii) The order passed by learned Special Judge under the Atrocities Act, Osmanabad in Special Case No.642 of 2022 dated 17.12.2022 stands set aside. The said application stands allowed.

iii) Appellant - Pawan Dilip Sonwane, who has been arrested in connection with Crime No.381 of 2022 registered with Tuljapur Police Station, Dist. Osmanabad for the offences punishable under Sections 307, 353, 504, 506 read with Section 34 of Indian Penal Code and under Sections 3(2)(va), 3(1)

(r), 3(1)(s) of the Atrocities Act, be released on P.R. Bond of Rs.30,000/- with two solvent sureties of

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Rs.15,000/- each.

iv) The appellant shall not enter the jurisdiction of Tuljapur, Dist. Osmanabad 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 Trial Court as well as to the Investigating Officer.

             v)           He shall not tamper with the evidence of
             the prosecution in any manner.

             vi)          He shall not indulge in any criminal activity.

             vii)         Bail before the Trial Court.

             viii)        Fees of learned Advocate, who is appointed

for respondent No.2, is quantified at Rs.5,000/- to be paid by the High Court Legal Services Sub Committee, Aurangabad.

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

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