Bombay High Court
Sandeep Lavkush Joshi vs State Of Maharashtra And Anr on 9 January, 2024
Author: M. S. Karnik
Bench: M. S. Karnik
2024:BHC-AS:966
Urmila Ingale 17-apeal-610-23.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 610 OF 2023
SANDEEP LAVKUSH JOSHI ..APPELLANT
VS.
THE STATE OF MAHARASHTRA AND ANR. ..RESPONDENTS
ALONG WITH
CRIMINAL APPEAL NO. 530 OF 2023
JITENDRA BABAN KANTHE ..APPELLANT
VS.
THE STATE OF MAHARASHTRA AND ANR. ..RESPONDENTS
Mr. Sanjeev Kadam a/w Mr. Prashant Raul, Ms. Aditi Rajput
and Mr. Pratik Deshmukh, for Appellant in Appeal No. 610 of
2023.
Mr. Shivraj Kunchge, for Appellant in Appeal No. 530 of
2023.
Mr. Zakir Hussain, for Respondent No.2.
Ms. S. D.Shinde, APP for the State.
API- Sandeep Mhaske, Borivali police station is present.
CORAM : M. S. KARNIK, J.
DATE : JANUARY 9, 2024
ORAL JUDGMENT :
1. Heard learned counsel for the appellants, learned APP
and learned counsel appointed to represent the respondent
no.2.
2. By these appeals, preferred under section 14-A of
Scheduled Caste and Scheduled Tribes (Prevention of
Atrocities) Act, 1989, the appellants-accused seek pre-arrest
Urmila Ingale 17-apeal-610-23.doc
bail in connection with C.R. No.203/2023 registered with
Borivali Police Station, Mumbai for the alleged offences
punishable under sections 376(2)(f), 376(2)(j), 328, 346,
354, 386, 387, 506(2), 506, 323, 504, 34 of Indian Penal
Code and under section 3(1)(r), 3(1)(s), 3(1)(w)(i), 3(1)(w)
(ii), 3(2), 3(v) of the Scheduled Castes and the Scheduled
Tribes (Prevention of Atrocities) Act, 1989 (for short "the
Atrocities Act") Castes an 1989 and under sections 3, 13 of
the Maharashtra Prevention and Eradication of Human
Sacrifice and other Inhuman, Evil and Aghori Practices and
Black Magic Act, 2013.
3. By order dated 03/05/2023, this Court had granted
interim protection to the appellant-Jitendra Baban Kanthe,
the relevant portion of which reads thus :
"3. Learned counsel for the appellant states that the
appellant is the husband of respondent No.2, as such the
provisions of SC/ST Act would not apply. He further
submitted that the appellant and respondent No.2 got
married on 28/11/2001 and the couple has a daughter
aged 19 years. He further submits that the respondent
No.2 till date has lodged 4 FIR's i.e. one against the
advocate on 15/5/2022 alleging an offence punishable
under section 376 of Indian Penal Code with the Virar Police
Station; 2nd FIR as against the appellant and his family
members on 24/3/2023 alleging offences punishable under
section 376 (2)(f), 354-A, 498- A, 323, 504, 506 and 34 of
Indian Penal Code with the Bhoiwada Police Station; the
present FIR (3rd FIR) as against the appellant and one
astrologer on 29/3/2023 with Borivali Police Station alleging
Urmila Ingale 17-apeal-610-23.doc
offences under section 376(2)(f), 376(2)(j), 328, 346, 354,
386, 387, 506(2), 506, 323, 504, 34 of IPC and under
section 3(1)(r), 3(1)(s), 3(1)(w)(i), 3(1)(w)(ii), 3(2), 3(v) of
the Scheduled Castes and the Scheduled Tribes (Prevention
of Atrocities) Act, 1989 and under section 3, 13 of the
Maharashtra Prevention and Eradication of Human Sacrifice
and other Inhuman, Evil and Aghori Practices and Black
Magic Act, 2013; and the 4th FIR with Arnala Sagari Police
Station on 15/4/2023 against the appellant and his
daughter. According to the learned counsel for the
appellant, the allegations are false and baseless and that
no offences as alleged under the SC/ST are disclosed as
against the appellant.
4. Issue notice. Learned APP waives notice on behalf of
respondents and seeks time to take instructions. Mr.
Satpute waives notice on behalf of Respondent No.2 and he
too seeks time.
5. Having heard learned counsel for the appellant we are
prima facie of the opinion that the bar of section 18 of the
SC/ST Act will not apply. Accordingly, in the meantime, till
the next date, the appellant is granted interim protection
from arrest on the following terms and conditions:"
4. So far as the appellant- Sandeep Lavkush Joshi is
concerned, by an order dated 21/08/2023, this Court
granted interim protection to the appellant-Sandeep Joshi,
the relevant portion of which reads thus :
"3. Learned Counsel for the appellant states that
the allegations as against the appellant, a certified
astrologer, are false and baseless. He states that
the present C.R pertains to an incident dated 11th
May 2022 and the FIR has been lodged on 29 th
March 2023 with the Borivali Police Station,
Mumbai. He submits that the respondent No.2 i.e.
the prosecutrix has suppressed from the police of
the Borivali Police Station of the lodging of an
earlier FIR dated 24th March 2023 registered vide
C.R. No.128 of 2023 with the Bhoiwada Police
Station, as against Jitendra Baban Kanthe, also a
co-accused in the present case alleging the same
Urmila Ingale 17-apeal-610-23.doc
offences i.e. the offences punishable under
Sections 376(2)(n), 354A, 323, 504, 506 r/w 34 of
the Indian Penal Code. He submits that there is not
a whisper in the said C.R. i.e. C.R No.128 of 2023
lodged before the Bhoiwada Police Station with
respect to the allegations made as against the
appellant pertaining to an incident dated 11 th May
2022. He submits that there are 4 CRs lodged by
the respondent No.2 as against her husband, his
family members including her own daughter and
even an Advocate.
4. Issue notice to the respondents, returnable on
8th September 2023. Learned A.P.P waives notice
on behalf of respondent No.1 - State and seeks
time to take instructions.
7. Having heard the learned counsel for the
appellant and having perused the papers, the
appellant has prima facie, made out a case for
grant of interim protection. Accordingly, in the
meantime, till the next date, the appellant is
granted interim protection from arrest, on the
following terms and conditions"
5. Learned APP as well as learned counsel for the
respondent no. 2 appointed by this Court opposed the
appeals for anticipatory bail. It is submitted that the
allegations levelled against the appellants are serious in
nature and therefore this is not a fit case where the
appellants should be enlarged on anticipatory bail. It is
submitted that the custodial interrogation is required having
regard to the seriousness of the accusations.
6. So far as the present FIR i.e. CR. No. 203 of 2023
lodged with Borivali police station against the appellants on
29/03/2023 is concerned, the same pertains to the incident
Urmila Ingale 17-apeal-610-23.doc
dated 11/05/2022. The prosecutrix is the wife of the
appellant - Jitendra. It is alleged that the marriage of the
prosecutrix was solemnized with the appellant-Jitendra in
2001. The appellant- Jitendra also belongs to the Scheduled
Caste community. The prosecutrix realised that the
appellant - Jitendra is impotent. The prosecutrix felt
cheated. The prosecutrix however continued to reside in
the matrimonial home as the financial condition of her
parents was very bad and therefore she had no choice. The
prosecutrix alleged that she was treated like a maid servant.
The prosecutrix alleged that though the appellant-Jitendra
was residing at Oman, he never took her to Oman as his
only intention was to make use of the prosecutrix as a
household and domestic help. The prosecutrix was never
treated by the appellant-Jitendra or her in-laws with respect.
7. It is then alleged that Jitendra asked her to visit a
tantrik by name Sandeep Joshi- the appellant in Appeal No.
610 of 2023. Accordingly, the prosecutrix visited accused
Sandeep on 11/05/2022. The accused Sandeep told the
prosecutrix that she is possessed by some evil forces and
therefore some rituals will have to be performed which will
Urmila Ingale 17-apeal-610-23.doc
help the prosecutrix to get rid of these evil forces. The
prosecutrix was offered something to eat by the accused
whereafter she felt giddy. Later, the prosecutrix realised
that she was raped by the tantrik-accused Sandeep. In
respect of this incident which is alleged to have taken place
on 11/05/2022, the prosecutrix filed the present FIR only on
29/03/2023. There is delay in registering the FIR. The delay
in registering FIR by itself may not be a factor to hold in
favour of the accused considering the serious nature of the
allegations. However, in the present case, prima facie, I am
inclined to hold this aspect of delay in favour of the accused
having regard to some attending circumstances which
need to be noticed and cannot be ignored.
8. In another case, vide C.R. no. 490 of 2022 lodged with
Virar police station, the prosecutrix lodged FIR dated
15/05/2022 against the accused, an advocate in whose
office she was engaged as a junior, for allegedly having
committed offence under section 376, 376(2)(n) of the
Indian Penal Code ("IPC", for short) for the incident dated
16/11/2021. The accused therein, has been granted pre-
arrest bail. Surprisingly, in this FIR lodged on 15/05/2022
Urmila Ingale 17-apeal-610-23.doc
there is no whisper of the incident dated 11/05/2022 which
is the basis for registering the present FIR.
9. Thereafter on 24/03/2023, the prosecutrix lodged FIR
No. 128 of 2023 with Bhoiwada police station for the offence
punishable under sections 376(2)(n), 354-A, 323, 504, 506,
34 of IPC against the appellant i.e. her husband accused
Jitendra as well as her in-laws including her mother-in-law
and sister-in-law.
10. Then, on 29/03/2023, the prosecutrix lodged the
present FIR. On 15/04/2023 vide C.R. No. 140 of 2023, the
prosecutrix lodged a complaint with Arnala police station
against her husband i.e. the appellant-Jitendra, her own
daughter and her brother-in-law for the offences punishable
under sections 354, 379, 323, 509, 504, 506, 406, 417, 418,
419 of IPC.
11. As indicated earlier, it is pertinent to note that just 4
days prior to the lodging of the FIR No. 490 of 2022, the
incident in respect of the present offence alleged happened.
There is no reference about this incident in the FIR No. 490
of 2022 which was lodged on 15/05/2022. The appellant-
Jitendra belongs to the same caste as that of the
Urmila Ingale 17-apeal-610-23.doc
prosecutrix. Considering the nature of accusations, the
delay in registering the FIR, in the facts and circumstances
of the present case, prima facie, the possibility of the false
implication cannot be ruled out. Though learned APP and
learned counsel appointed by this Court to represent
respondent no.2 made strenuous efforts to argue that the
offence is serious and accusations do not entitle the
appellant to be released on bail, in my opinion, in the facts
and circumstances of the present case, the bar under
section 18 of the Atrocities Act can be overcome and the
appellants can be enlarged on pre-arrest bail. The
appellants must co-operate with the investigation. Hence,
the following order.
ORDER
(i) In the event of the arrest, the appellants-Jitendra
Baban Kanthe and Sandeep Lavkush Joshi be
enlarged on bail on furnishing P.R. Bond in the sum
of Rs.15,000/- each with one or two sureties in the
like amount;
(ii) The appellants shall co-operate with the
investigation and report to the Investigating Officer
of the concerned Police Station, on 18th and 19th
January 2024 between 11.00 a.m. and 01.00 p.m.,
and thereafter as and when called.
Urmila Ingale 17-apeal-610-23.doc
12. I appreciate the valuable assistance rendered by
Advocate- Mr. Zakir Hussain, who appeared on behalf of
respondent No.2 in this proceeding.
13. The appeals are allowed and disposed of.
(M. S. KARNIK, J.)
Signed by: Urmila P. Ingale
Designation: PS To Honourable Judge
Date: 10/01/2024 15:30:06
