Bombay High Court
Kavita Shivaji Nikam vs State Of Maharashtra And Anr on 2 January, 2024
Author: M. S. Karnik
Bench: M. S. Karnik
2024:BHC-AS:43
Darshan Patil 19-apeal-1236-23 ors.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
APPEAL NO. 1236 OF 2023
SAMEER RASUL SHAIKH ..APPELLANT
VS.
THE STATE OF MAHARASHTRA AND ANR. ..RESPONDENTS
WITH
APPEAL NO. 894 OF 2023
BHARAT BHABUTMAL OSWAL ..APPELLANT
VS.
THE STATE OF MAHARASHTRA AND ANR. ..RESPONDENTS
WITH
APPEAL NO. 925 OF 2023
KAVITA SHIVAJI NIKAM ..APPELLANT
VS.
THE STATE OF MAHARASHTRA AND ANR. ..RESPONDENTS
WITH
APPEAL NO. 1234 OF 2023
SHRIKANT RAJARAM NIKAM ..APPELLANT
VS.
THE STATE OF MAHARASHTRA AND ANR. ..RESPONDENTS
------------
Mr. Rupesh Zade a/w Adv. Priyanka Gupta for the Appellants
in Appeal Nos. 1236/23, 925/23 and 1234/23.
Mr. A.R. Gole for the Appellant in Appeal No. 894/23.
Ms. Nisha S. Gaikwad for Respodent No.2 in all appeals.
Mr. A.R. Patil, APP for the State.
------------
CORAM : M. S. KARNIK, J.
DATE : JANUARY 02, 2024
1/9
Darshan Patil 19-apeal-1236-23 ors.doc
JUDGMENT:
1. Heard learned counsel for the appellants, learned
counsel for respondent No.2 and learned APP for the State.
2. The First Information Report (FIR) No. 390 of 2023
dated 25/06/2023 is filed by the complainant against
various accused for the offence punishable under Sections
376, 420, 504, 506 read with 34 of the Indian Penal Code
and Sections 3(1)(r),(s) and 3(2)(va) of the Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities)
Act, 1989 ("Atrocities Act" for short) with Baramati City
Police Station. Accused Nos. 2, 3, 5 and 6 are before this
Court by way of aforesaid appeals challenging the orders
passed by the Special Court rejecting the application for
anticipatory bail filed by the appellants.
3. These appeals are opposed by the learned APP. It is
contended that the accusations are serious in nature.
Learned APP further submitted that the complainant belongs
to the scheduled caste community was subjected to such
atrocities which constitute an offence under the aforesaid
provisions.
Darshan Patil 19-apeal-1236-23 ors.doc
4. Though the complainant was represented on the
previous occasion through an advocate, there was no
appearance on her behalf later on. I have heard learned
counsel Ms. Nisha Gaikwad appointed through legal aid on
behalf of the complainant. She has submitted that the
accusations are serious and these appeals, therefore, be
rejected.
5. This Court while granting interim protection to accused
No.2 - Bharat Bhabutmal Oswal on 29/08/2023 passed the
following order:-
"1. At the outset, the learned counsel seeks
permission to implead the complainant as
Respondent no.2, since she is necessary party in the
Appeal fled by the Appellant, seeking protection from
arrest in the subject C.R., which invoked Sections
376, 420, 504, 506 read with Section 34 of the
Indian Penal Code as also Sections 3(1)(r), (s) and
3(2)(va) of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989.
The amendment is permitted to be carried out
forthwith.
Upon the Complainant being added as a party
Respondent, the Investigating Officer of Baramati
City Police Station, shall serve the notice of
proceedings upon Respondent No.2, intimating that
the Appeal is fled by the Appellant and she has right
to oppose the prayer of the Appellant, either by
appearing in person or through the counsel of her
choice or if she is unable to arrange for the same,
she will be provided a counsel through the Legal Aid
Darshan Patil 19-apeal-1236-23 ors.doc
Services.
2. On hearing Mr.Gole, I have perused the
complaint, lodged on 25/06/2023, in which the
period of occurrence of the offence is described from
04/09/2018 to 16/06/2023.
Perusal of the complaint would reveal that the
prime Accused in the C.R. is Accused No.1, whereas
the present Appellant is implicated, as Accused No.1
introduced him to the Complainant, who is a Jeweller
by profession and, vaguely, without referring to any
date or further details being offered, it is alleged that
Accused No.1 alongwith present Appellant and other
persons, committed rape upon her. Admittedly, she
never spoke about the incident nor did she lodge any
complaint for all these years. The vagueness of the
accusations could be ascertained, only when the
complaint is read in its entirety.
3. Considering the obscure nature of allegations
about rape and even the allegations as regards the
money transactions, which are alleged to have
occurred on a subsequent point of time, the
Appellant deserve protection from arrest, as prima
facie, reading of the complaint do not make out the
offences against him.
Till the Complainant is served and mark her
appearance, the following order is passed.
: ORDER :
(a) In the event of arrest in connection with
C.R.No.390 0F 2023 registered with Baramati City
Police Station, Appellant-Bharat Bhabutmal Oswal
shall be released on bail on furnishing P.R. Bond to
the extent of Rs.25,000/- with one or two sureties in
the like amount.
(b) The Appellant shall report to the concerned police
station on Thursday and Friday between 3.00 p.m.
and 5.00 p.m. for a period of two weeks and,
thereafter, as and when called for.
(c) The Appellant shall not directly or indirectly make
any inducement, threat or promise to any person
acquainted with the facts of the case so as to
dissuade him from disclosing the facts to Court or
Darshan Patil 19-apeal-1236-23 ors.doc
any Police Officer and shall not tamper with
evidence.
4. Re-notify to 21/09/2023."
6. The other appellants are protected by interim orders
of this Court. The FIR was filed by the complainant on
25/06/2023. The accusations are mainly against accused
No.1 - Shivaji. No doubt, there are accusations against the
appellant - accused No.2 - Bharat that he too committed
rape on the complainant.
7. It is pertinent to note that during the pendency of
these appeals, the charge-sheet has been filed against all
accused including the appellants. A copy of the charge-
sheet has been placed on record.
8. I have pursued the supplementary statement of the
complainant dated 28/06/2023 as well as her further
supplementary statement dated 29/06/2023. So far as the
FIR is concerned, as observed by this Court in the order
dated 29/08/2023, the nature of the allegations about the
rape is vague without reference to any date or further
details being offered. In the supplementary statement dated
28/06/2023, it is alleged that accused No.1 as well as the
Darshan Patil 19-apeal-1236-23 ors.doc
appellant - Bharat i.e. accused No.2 with two other
unknown accused committed rape on the complainant on
24/03/2023. In the later supplementary statement dated
29/06/2023, it is mentioned that the complainant was raped
by these persons on 25/04/2021. Relying on the FIR,
learned counsel for the appellants contended that there is a
reason for changing the date from 24/03/2023 to
25/04/2021. According to the learned counsel for the
appellants this was done as the prosecutrix had narrated in
the FIR that all the incidents took place before August 2021
and hence the date change in the statement. However,
these are the matters which will be dealt with at the time of
trial. I do not want to make any observation at this stage on
the contentions raised by the learned counsel for the
appellants which may have the effect of influencing the
trial. Suffice it is observe that prima facie there is a delay in
lodging the FIR and considering the vagueness of the
accusations, the appellants should not be deprived of the
facility of pre-arrest bail.
9. The appellant Kavita i.e. accused No.3 - is the wife of
Darshan Patil 19-apeal-1236-23 ors.doc
accused No.1. The appellant Shrikant who is accused No.5
is the real brother of accused No.1. Accused No.6- Sameer
is alleged to be the acquaintance of accused No.1. So far
as the appellants Shrikant, Sameer and Kavita are
concerned, it is alleged that they have abused the
complainant in the name of her caste on 19/08/2021 which
is the first incident. There are no independent eyewitnesses
in respect of this incident. So far as the second incident of
caste abuse against these appellants, there are no details
set out by the complainant as to when this incident took
place. Even in respect of the first incident, prima facie the
delay is unexplained.
10. The prosecution case is that against the prosecutrix
there was a criminal case pending. It is alleged that
accused No.1 who works in the police department had
assured the prosecutrix that he will help her. He was
knowing the prosecutrix since 2018. It is alleged that to
help the prosecutrix get rid of the criminal case, accused
No.1 had taken monies from her. It is further alleged that
accused No.1 assured the prosecutrix that he will ensure
Darshan Patil 19-apeal-1236-23 ors.doc
release of her gold ornaments which she pledged with some
jeweller. Accused No.1, therefore, introduced the
prosecutrix to the appellant i.e. accused No.2 who himself
was a jeweller and a money lender. Even according to the
prosecutrix there was a monetary transaction between the
prosecutrix and accused No.2 in respect of the gold which
she had pledged with some other jeweller for which she had
taken a loan from the appellant - Bharat.
11. There is nothing on record to indicate that during the
period when the appellants were on interim bail, the liberty
has been misused or the complainant has been threatened
in any manner by these appellants. Taking an overall view
of the matter, and in the facts and circumstances of the
present case, also considering that the charge-sheet has
now been filed, I am inclined to allow these appeals by
confirming the interim order passed by this Court as the
custody of the appellants is not required. The facts and
circumstances of the case are sufficient to overcome the bar
under Section 18 of the Atrocities Act.
12. The appeals are accordingly allowed. The interim
Darshan Patil 19-apeal-1236-23 ors.doc
orders of this Court stand confirmed.
13. The appellants are put to notice that if they indulge in
any activities of tampering with evidence or if the
prosecutrix is intimidated or threatened, the same shall be
viewed seriously and in such case, it will be open for the
respondents/ prosecutrix to apply for cancellation of this
bail.
14. In the event of arrest of the appellants in connection
with C.R. No. 390 of 2023 registered with Baramati City
Police Station, the appellants - Sameer Rasul Shaikh,
Bharat Bhabutmal Oswal, Shrikant Rajaram Nikam and
Kavita Shivaji Nikam shall be released on bail on furnishing
P.R bond to the extent of Rs.25,000/- each with one or two
sureties each in the like amount.
15. The appellants shall remain present before the Special
Judge on the assigned date of hearing.
16. The appeals are disposed of accordingly.
(M. S. KARNIK, J.)
Signed by: Darshan Patil
Designation: PA To Honourable Judge
Date: 02/01/2024 18:50:45
