Shaikh Ayan Shaikh Anwar vs The State Of Maharashtra And ...
2023 Latest Caselaw 9329 Bom

2023:BHC-AUG:19318-DB

                                                                          appeal-539.23
                                                        1



                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                               BENCH AT AURANGABAD


                                    CRIMINAL APPEAL NO.539 OF 2023


                 Shaikh Ayan Shaikh Anwar,
                 Age-23 years, Occu:Labour,
                 R/o-Nai Abadi, Nanded,
                 District-Nanded.
                                                                      ...APPELLANT
                        VERSUS

                 1) The State of Maharashtra,
                    In-charge of Shivaji Nagar
                    Police Station, Nanded,
                    District-Nanded,

                 2) Aditya Ramesh Ingole,
                    Age-21 years, Occu:Labour,
                    R/o-Jaybheem Nagar, Nanded,
                    District-Nanded.
                                                                      ...RESPONDENTS

                                 ...
                    Mr. M.K. Bhosale Advocate for Appellant.
                    Mr. S.D. Ghayal, A.P.P. for Respondent No.1 - State.
                    Mr. V.B. Kale Advocate for Respondent No.2.
                                 ...


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

DATE OF RESERVING JUDGMENT : 17 th AUGUST 2023

DATE OF PRONOUNCING JUDGMENT : 6th SEPTEMBER 2023

appeal-539.23

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

1. Admit.

2. 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 passed below bail application in Crime No.148 of 2023

under Section 439 of the Code of Criminal Procedure, by learned

Special Judge under the Atrocities Act / Additional Sessions

Judge-1, Nanded on 2nd June 2023. The learned Special Judge

has rejected the said application wherein the appellant was

seeking bail as he was arrested in connection with the said crime

registered with Shivaji Nagar Police Station, District-Nanded for

the offence punishable under Sections 307, 323, 504 read with

Section 34 of the Indian Penal Code, Section 3(1)(r), 3(1)(s),

3(2)(va) of the Atrocities Act, Section 4 punishable under

Section 25 of the Indian Arms Act.

3. Heard learned Advocate Mr. Bhosale appearing for the

appellant, learned APP Mr. Ghayal appearing for the State and

learned Advocate Mr. Kale appearing for respondent No.2.

appeal-539.23

4. It has been vehemently submitted on behalf of the

appellant that the appellant is an innocent person, who came to

be arrested on 15th May 2023 in connection with the said crime.

Since the date of his arrest the applicant is behind the bars and

there is no incriminating evidence against him. The alleged

weapon was discovered by original accused No.4 Shaikh Aziz.

Involvement of present appellant was not shown even after filing

of the charge-sheet. If we consider the facts of the case,

especially the First Information Report (for short "the FIR"), then

it can be seen that the present appellant was not known to the

informant and not even his caste. Now there is settlement

between the appellant and the informant. They have filed

application under Section 482 of the Code of Criminal Procedure

for quashment of the FIR as well as the entire proceedings.

Under the said circumstance the appellant ought to have been

released on bail. Original accused No.1 Shaikh Aamer and

accused No.4 Shaikh Aziz have been released by the same Court

on regular bail on 2nd June 2023 but the application of the

present appellant came to be rejected. The charge-sheet is also

filed and therefore, the further physical custody of the appellant

is not required. The learned trial Judge has not exercised the

appeal-539.23

discretion judiciously and therefore, the Appeal deserves to be

allowed.

5. It will not be out of place to mention here that the

informant - respondent No.2 has appeared through Advocate

and he has filed the affidavit-in-reply. In the affidavit he has

stated that he was discharged from the hospital on 17 th May

2023 and thereafter on receiving the notice of the present

Appeal, there is an amicable settlement of the dispute in

presence of senior members and respected persons from the

society, between them. Respondent No.2 states that he has not

received any amount of compensation as provided under the

Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Rules, from the Government after he had lodged the

FIR. In future also he has no intention to receive any

compensation from the Government. He states that he has not

received any amount from the accused persons also. His consent

for the settlement is with free will. The criminal application for

quashment of the FIR i.e. bearing Criminal Application No.2517

of 2023 is filed. There was no previous enmity between them

and therefore, he has no intention to prosecute the accused

persons further. It is stated that the crime came to be registered

appeal-539.23

purely due to misunderstanding and out of grave and sudden

provocation. Respondent No.2 has no objection for granting bail

to the appellant.

6. Learned APP submits that settlement of the dispute

amicably cannot be the ground for grant of bail when the offence

is under Section 307 of the Indian Penal Code as well as under

the Atrocities Act. Now the entire investigation is over and

charge-sheet is filed. As per the FIR though it appears that the

accused persons were not known to the informant including his

caste, yet the facts would make it clear that before the injury

was caused, the informant made it known to the accused

persons that he is the member of scheduled caste. When the

informant and his friend had gone near the Pan shop, they found

that the Pan shop was closed. Some persons were standing there

and they started abusing the informant. Therefore, informant

asked them, as to why they were abusing. Then a person out of

them started to assault on the face of the informant. Informant

told the accused that he is from Jaibhim Nagar. Thereupon the

accused got the knowledge and reiterated that the informant is

from Jaibhim Nagar and is from Jaibhim (meaning thereby

wanted to convey that he is a member of scheduled caste).

appeal-539.23

Informant was assaulted with kicks and fists. Thereupon other

three persons came and out of them one person stated that

"Ayan Isko to Khapa de" ( अयान इसको तो खपा दे). Thereupon Ayan

i.e. present appellant took out Khanjar and tried to give blow on

the face of the informant, which he resisted by his right hand. It

resulted in cutting the veins of the right wrist and it caused

injury to the left eye brow. Thereafter the blow of the Khanjar

was given on the thigh as well as private part of the informant.

When the informant's friend tried to intervene, Ayan had told

accused Moin, as to why he is just looking and he should assault

the friend of the informant. Thereafter those persons assaulted

the friend of the informant also. With this FIR, it can be certainly

seen that the assault is with the knowledge that the informant is

a member of scheduled caste. There are statements of the

witnesses and also the supplementary statement of the

informant. There is discovery of the Khanjar at the behest of the

present appellant and therefore, when there is ample evidence

against him, appellant does not deserve to be released on bail.

The rejection of bail application by the learned trial Judge is

absolutely legal and correct.

7. Here, one of the ground which is now pressed into service

is the settlement between the informant and the accused. Very

appeal-539.23

recently in Bharwad Santoshbhai Sondabhai vs. State of

Gujarat and another (Criminal Appeal No.2495 of 2023 @

Petition for Special Leave to Appeal (Cri.) No.3552 of

2022), wherein an accused alleged to have committed offence

under Section 302 of the Indian Penal Code, was granted bail on

the ground of settlement between the accused and the son of

the deceased; the Hon'ble Apex Court expressed surprise and

questioned about the appropriateness of allowing personal

settlement in serious criminal cases and the implications of

granting bail based on such settlement in serious offences.

Therefore, in the present case the settlement between the

appellant - accused and respondent No.2 cannot be considered

at all.

8. Here, the offence against the appellant is under Section

307 of the Indian Penal Code with other Sections of the Indian

Penal Code and it is also coupled with the offences under the

Atrocities Act as well as the Indian Arms Act. The objects and

reasons for enactment of the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Act were that despite

various measures to improve the socio-economic conditions of

the Scheduled Castes and the Scheduled Tribes, they remain

appeal-539.23

vulnerable, they are denied number of civil rights and they were

subjected to various offences, indignities, humiliations and

harassment. This Act was enacted with the view to prevent the

commission of offences of atrocities against the members of the

Scheduled Castes and Scheduled Tribes. The offence against

such members is anti social and therefore, it would be a question

as to whether such offence and proceedings can be allowed to be

quashed. Of course, the said aspect would be dealt with in the

criminal application that has been filed under Section 482 of the

Code of Criminal Procedure, but certainly when the said

enactment has been enacted with specific object, then after the

investigation is over and even the charge-sheet is filed, the point

that there is a amicable settlement between the parties cannot

be a ground for releasing a particular accused on bail. At this

stage, before this Court the offence is still existing and the

special case also, as it is not yet quashed and set aside. Under

the said circumstance, the application will have to be decided on

its own merits.

9. The charge-sheet appears to have been filed on 11 th July

2023 and the case is numbered as Special Case (Atrocity) No. 95

of 2023 before the learned Special Judge, Nanded. It is against

appeal-539.23

four accused and as per the charge-sheet present appellant has

been shown as accused No.3. The contents of the FIR are

already reproduced and therefore the same are not repeated. It

can be seen from the contents that before the informant was

allegedly assaulted, he had indicated that he is from a particular

area and is belonging to scheduled caste category. Thereupon

the accused reacted and present appellant is said to have took

out Khanjar and assaulted the informant, firstly when he has

tried to resist the blow, his right wrist veins got cut and it caused

injury to the left eye brow. Thereafter the blows were given on

the thigh and private part of the informant. The informant was

taken to Government Hospital first and thereafter it appears that

he has been shifted to private hospital. The medico legal

certificate issued by Yashosai Orthopedic Hospital, Nanded,

dated 8th June 2023 states that informant was examined on 15 th

May 2023 and injury that was found was tendon injury on right

forearm with contused lacerated wound over pelvic region and it

is said that it is with sharp object. The said blow appears to be

with utterance that informant should be killed, as one of the

accused had then told the present appellant that appellant

should kill the informant (अयान इसको तो खपा दे). There is statement

of friend of the informant i.e. Yashwant Babu Thorat which is in

appeal-539.23

consonance with the FIR. The only thing is that as regards fourth

person is concerned, Yashwant says that said person was saying

that the informant should be left. The abuses in the name of the

caste are stated to be by three accused persons. But friend of

the informant has consistently said that the blows were given by

the present appellant with Khanjar. Khanjar is actually a big

knife and as per the police papers, the discovery of the same is

at the behest of the present appellant under Section 27 of the

Indian Evidence Act. Therefore, there appears to be evidence

against the present appellant which was considered by the

learned trial Judge. The discharge summary from Yashosai

Orthopedic Hospital, Nanded has been produced, which shows

that the informant was admitted in the hospital between 15 th

May 2023 to 17th May 2023. It appears from the police papers

that by letter dated 8th July 2023 the investigating officer has

given a report to his superior for seeking permission to file

report under Section 169 of the Code of Criminal Procedure

against accused Moin Khan Feroz Khan, for which we are not

concerned. Therefore, when there is prima facie evidence against

the present appellant, this is not a fit case where he should be

released on bail.

appeal-539.23

10. Before we part, we want to place it on record that as per

the Government policy some financial assistance scheme by the

State Government as well as Central Government is in operation.

The compensation is provided to the victims/ informants who are

the members of scheduled caste and scheduled tribe, under the

said scheme. The rate of compensation is revised from time to

time. When it was pointed out to us that there is an amicable

settlement between the informant and the accused, we had

made inquiry, as to whether present respondent No.2 has

received any amount of compensation and as per his affidavit-in-

reply as well as the concerned officer from the office of the social

welfare department, who was present before this Court,

informed that the informant has not applied for getting amount

of compensation after the FIR was lodged. In this connection we

just want to say that we wanted to get information, as to

whether this was one of the case by which an attempt was made

to get the compensation amount from the Government. But this

appears to be not such a case. But certainly we would further

say that in his affidavit-in-reply the informant has not denied the

occurrence of the offence. His affidavit was only on the basis of

the settlement and he has tried to say that his FIR was the

outcome of misunderstanding. We do not want to make further

appeal-539.23

comment as to when he realized the mistake or the

misunderstanding, as we have come to the conclusion that as on

today there is prima facie evidence against the present appellant

and taking into consideration the seriousness of the offence, this

is not a fit case for releasing the appellant on bail. We do not

find any illegality or error committed by the learned trial Judge in

rejecting the application and the Appeal deserves to be

dismissed.

11. The Appeal, therefore, stands dismissed.

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

 asb/SEP23