Aniket Ashok Nage And Another vs The State Of Maharashtra And ...
2023 Latest Caselaw 5496 Bom

                                                              appeal-350.23
                                         1



      IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                    CRIMINAL APPEAL NO.350 OF 2023


 1) Aniket Ashok Nage,
 Age-20 years, Occu:Agril.,

 2) Dinesh Pramod Rathod,
    Age-34 years, Occu:Agril.,

 Both- R/o-Bokud Jalgaon,
 Tq-Paithan, Dist-Aurangabad
                                                           ...APPELLANTS
        VERSUS

 1) The State of Maharashtra,
    At the instance of Bidkin
    Police Station, Dist-Aurangabad,

 2) Bhausaheb S/o Baburao Lokhande,
    Age-42 years, Occu:Agri/Business,
    R/o-Bokud Jalgaon, Tq-Paithan,
    Dist-Aurangabad.
                                                          ...RESPONDENTS

                ...
    Mr. A.K. Bhosle Advocate for Appellants.
    Mrs. V.S. Choudhari, A.P.P. for Respondent No.1.
    Mr. S.G. Kawade Advocate for Respondent No.2.
                ...

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

                 DATE :        13th JUNE, 2023





                                                          appeal-350.23



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

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

Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act (for short "the Atrocities Act") to challenge the

order of rejection of bail application under Section 439 of the

Code of Criminal Procedure filed by the present appellants before

the learned Special Judge under the Atrocities Act, Aurangabad

on 1st April 2023 in bail application No.559 of 2023. Present

appellants have been posed as accused Nos.1 and accused No.4

in Crime No.1 of 2023 registered with Bidkin Police Station,

Taluka-Paithan, District-Aurangabad (Rural), for the offence

punishable under Sections 307, 324, 323, 143, 147, 148, 149,

504, 506 of the Indian Penal Code and under Sections 3(1)(r),

3(1)(s), 3(2), 3(2)(va) of the Atrocities Act and under Sections 4

and 25 of the Arms Act.

2. Heard learned Advocate Mr. Bhosle for the appellants,

learned APP Mrs. Choudhari for respondent No.1 and learned

Advocate Mr. Kawade for respondent No.2.

appeal-350.23

3. After disinclination is shown to grant any relief to appellant

No.1 - Aniket Ashok Nage, learned Advocate for the appellants,

on instructions, seeks withdrawal of the Appeal as against

appellant No.1 and there is no hurdle in allowing the said prayer.

Matter proceeded for the relief claimed by appellant No.2.

4. Admit.

5. It has been submitted on behalf of appellant No.2 that

perusal of the First Information Report (for short "FIR") would

show that informant's brother had contested Gram Panchayat

election from the panel of one Bhausaheb Subhas Tarmale.

Bhausaheb's mother and wife of one Ashok Nage were contesting

for the post of Sarpanch. Bhausaheb's mother was declared as

elected. Informant then states that he had asked Ashok Nage to

clear the outstanding bill of his hotel for the expenses which

occurred during election. At that time Ashok Nage had abused

him in the name of caste by saying that:- " या चांभारड्याची झोपडी

फुकून टाकील ". The elections had taken place on 18 th December

2022. There was no FIR lodged by respondent No.2 - informant

regarding the alleged abuses / insult in the name of the caste

appeal-350.23

nor he give the details as to where he had demanded the said

amount and where those abuses were given, who were the

persons present at the said spot etc.

6. It is further submitted that the contents of the FIR as

regards role attributed to appellant No.2 is concerned, would

disclose that name of Dinesh Rathod is appearing in respect of

both the incidences, one alleged to have happened with

witness / victim Vikas in front of the hotel and the second which

had allegedly occurred near the house of one Bandu Kolhe. It is

stated that appellant No.2 was holding knife. But the statements

under Section 313 of the Code of Criminal Procedure of the

victim as well as other witnesses would show that appellant No.2

has not used the said knife thereby he has not caused injury

with the help of that knife. Now the investigation is over and

charge-sheet is also filed. Under such circumstance, his custody

is not required. The application under Section 439 of the Code of

Criminal Procedure, in respect of appellant No.2, ought to have

been allowed by the learned trial Judge.

appeal-350.23

7. Per contra, the learned APP as well as learned Advocate

appearing for respondent No.2 strongly opposed the Appeal and

supported the reasons given by the Special Judge under the

Atrocities Act while rejecting the application for bail filed by

present appellant No.2. It has been submitted that Bhausaheb

Tarmale is in fact real victim who had suffered injuries by knife

and it was the intention to kill him. Said Bhausaheb Tarmale is

the District President of Nationalist Congress Party and he was

hospitalized from 31st December 2022 to 14th January 2023 in

Intensive Care Unit and thereafter from 15 th January 2023 to 20th

January 2023 in General Ward. The accused persons are still

giving threats to the informant and the witnesses involved in this

case and therefore another crime alleging that they have

committed offence under Section 506 of the Indian Penal Code

has been registered on 19 th February 2023 with same police

station by Bhausaheb Tarmale against one Lahu Bhimrao Nage.

Appellant No.2 would create terror. Further, present appellant

No.2 has criminal antecedents. Offence punishable under

Sections 363, 364, 364-A, 365, 323, 504, 506 read with Section

34 of the Indian Penal Code bearing Crime No.297 of 2022 is

appeal-350.23

registered against him. Therefore, it would be dangerous to the

life of the informant and the witnesses.

8. At the outset it is to be noted that settled principle of law is

that merely an accused is involved in previous crime his bail

application in the subsequent case cannot be rejected solely on

that count. His involvement and the role attributed to him in the

second case is also required to be considered apart from the

other factors those are required to be considered while

considering bail application. It appears that the earlier crime is

based on some loan transaction and therefore, it cannot be said

that it has any connection with the present case. It appears from

the FIR that informant Bhausaheb, is running a hotel in village

Bokud Jalgaon. He had supplied food articles to Ashok Nage on

credit at the time of election and then after the elections, he had

demanded his amount due, which was refused by Ashok Nage.

Now it is required to be proved by the prosecution that appellant

No.2 is a party-man for said Ashok Nage and appellant No.2 was

having common intention in the act. It is then stated that around

10.45 p.m. on 31st December 2022 incident took place with Vikas

outside the hotel and at that time the informant was in his

appeal-350.23

house. If we consider the statement of Vikas under Section 161

of the Code of Criminal Procedure, it is stated that appellant

No.2 who was alleged to be along with other accused, had

assaulted him by fists and kicks but then Vikas escaped and

started running towards the village. Alleged abuses in the name

of caste are not attributed to appellant No.2. Vikas says that

while he was running, he gave phone call to Bhausaheb Tarmale

about the said incident and when he was near house of Bandu

Kolhe, at that time Bhausaheb Tarmale, Sayaji Kolhe,

Rameshwar Lokhande joined Vikas. When Bhausaheb was asking

about the incident to Vikas, at that time informant, his wife and

aunt came there. Two scorpio vehicles came, of which even the

numbers have been given and it is stated that appellant No.2

was one of the seven persons who got down from two vehicles.

It is stated that present appellant No.2 was holding knife, but

none of the witnesses including the informant and the victim

have stated that present appellant No.2 has used the said knife.

9. Now the investigation is over. The knife has been

recovered. Under such circumstance, the further physical

custody of appellant No.2 was not required. The bail application

appeal-350.23

under Section 439 of the Code of Criminal Procedure of

appellant No.2 has been rejected only on the ground of previous

antecedents, which appears to be wrong and therefore needs to

be set aside. Appellant No.2 ought to have been released on bail.

However, when we are interfering with the said order, at that

time we are required to consider the conditions to be imposed on

appellant No.2. The protection is required to be granted to the

informant as well as witnesses, so that they can depose

fearlessly. The prosecution is submitting that appellant No.2 has

created his own terror in the vicinity. Under such circumstance, it

is just and legal to keep him away from the village. With these

observations, following order is passed:-

ORDER

(I) The Appeal stands partly allowed.

(II) On the statement made on behalf of appellant No.1, the

Appeal stands dismissed as withdrawn as against appellant No.1

- Aniket Ashok Nage.

(III) Appeal stands allowed for appellant No.2 - Dinesh Pramod

Rathod.

appeal-350.23

(IV) The order passed by learned Special Judge under the

Atrocities Act, Aurangabad in Bali Application No.559 of 2023

dated 1st April 2023 stands set aside, so far as appellant No.2 is

concerned. The application of appellant No.2 stands allowed.

(V) Appellant No.2 - Dinesh Pramod Rathod, who has been

arrested in connection with Crime No.1 of 2023 registered with

Bidkin Police Station, Taluka-Paithan, District-Aurangabad

(Rural), for the offence punishable under Sections 307, 324,

323, 143, 147, 148, 149, 504, 506 of the Indian Penal Code and

under Sections 3(1)(r), 3(1)(s), 3(2), 3(2)(va) of the Atrocities

Act and under Sections 4 and 25 of the Arms Act, be released on

bail on P.R. Bond of Rs.50,000/- with two solvent sureties of

Rs.25,000/- each.

(VI) Appellant No.2 shall not reside and visit the jurisdiction of

village Bokud Jalgaon, Taluka-Paithan, District-Aurangabad till

conclusion of the trial. Appellant No.2 should reside elsewhere,

and before submission of bail papers he should give complete

address of his proposed residence with his Mobile Number to the

Trial Court as well as Investigating Officer.

appeal-350.23

(VII) Appellant No.2 shall not tamper with the evidence of the

prosecution in any manner.

(VIII) Appellant No.2 shall not indulge in any criminal activity.

(IX) Bail before the Trial Court.

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

 asb/JUN23