Bombay High Court
Rekha S/O Madhukar Mankar @ Rekha Wd/O ... vs The State Of Maharashtra Through Its ... on 8 May, 2024
2024:BHC-NAG:5604
1 951-J-APPEAL-205-24.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 205 OF 2024
APPELLANT : Rekha S/o Madhukar Mankar
(Original applicant) @ Rekha Wd/o Vilas Ghode,
Aged about 49 years, Occ. Teacher,
R/o. C/o. Vilas Ghode, Maa Randal
Residency, Flat no.C-2, Near Krushna
Dudh Dairy, Jawahar Nagar Chowk,
Akola, Tq. & Distt. Akola.
VERSUS
RESPONDENTS : 1. State of Maharashtra
Through its Police Station Officer,
Police Station, Shegaon Gramin,
Tq. Shegaon, District Buldhana.
2. Mahendra Baburao Savdekar,
Aged about 33 years, Occ. Labour,
R/o. Jawla (BK), Tq. Shegaon,
District Buldhana.
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Shri Aniruddha C. Jaltare, Advocate for the appellant.
Shri M. J. Khan, Additional Public Prosecutor for respondent No.1.
Ms. Falguni Badani, Advocate (Appointed) for respondent No.2.
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CORAM: URMILA JOSHI-PHALKE, J.
DATED : 08/05/2024.
ORAL JUDGMENT :
1. Apprehending the arrest at the hands of police in
connection with Crime No.94/2024 registered under Sections 323,
506 of the Indian Penal Code, Sections 8 and 10 of the Protection
of Children from Sexual offences Act, 2012 and Sections 3(1)(r),
3(2)(va) of the Scheduled Castes and the Scheduled Tribes
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(Prevention of Atrocities) Act, 1989 (For short, "Atrocities Act"),
the appellant approached to this Court for grant of anticipatory
bail.
2. As per the contention of the appellant, he is prosecuted
on the basis of report lodged by one Mahendra Baburao
Saundekar, who alleged that he is residing along with his wife and
children and doing the agricultural work. His son and daughter
both are studying in Zilla Parishad Primary School at Jawala
Budruk. His son is studying in 2 nd Standard whereas his daughter
is studying in 1st Standard. The present appellant is the
Headmistress of the said school. On 15/03/2024, he approached
to the school for obtaining bonafide certificate. From his son, he
received the information that in the school, the appellant always
distributing the sub-standard foods to the students. It is further
revealed to him that the children are harassed by the present
appellant at the school. On 21/03/2024, his son came home and
disclosed that present appellant has assaulted him as the
informant has made complaint about the sub-standard food
distributed in the school. It is alleged that the present appellant
has pulled the pant of the child and pulled the private part of the
child. On the basis of said report, police have registered the crime
against the present appellant. After registration of the crime, the
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appellant approached to the Special Court for grant of pre-arrest
bail. The Special Court by considering the bar under Section 18 of
the Atrocities Act, rejected the application. Being aggrieved and
dissatisfied with the order passed by the Special Court, present
appeal is preferred by the appellant.
3. Shri Jaltare, learned counsel for the appellant
submitted that there is rift between the management and the
present appellant and therefore, she is being harassed by the
management with the help of the parents of the students as well as
by taking help of the students. He submitted that she was
transferred from one school to another on that ground and now,
only to remove her from service, the false report is filed against
the present appellant. He further submitted that as far as
allegations are concerned, it is completely baseless and false one.
Her custodial interrogation is not required. He further submitted
that as far as the allegations are concerned for which the
punishment up to 5 years is provided. In view of that, custodial
interrogation of the present appellant is not required and prays for
releasing her on anticipatory bail.
4. Learned APP for respondent No.1 and learned
appointed counsel for respondent No.2 have strongly opposed the
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appeal on the ground that the statement of the children who are
harassed by the present appellant sufficiently shows her
involvement in the alleged offence. They further invited my
attention towards the medical certificate which shows that the son
of the informant has sustained injury on his right leg in the said
incident. Considering the statement of not only the son of the
informant, but other students also, the prima facie case is made
out against the present appellant. They further submitted that the
Special Enactment is to protect the children from sexual
harassment. Considering the gravity of the offence, the bail
application of the present appellant deserves to be rejected. It is
further submitted that there is bar under Sections 18 and 18-A of
the Atrocities Act. In view of that bar also, the appeal deserves to
be dismissed.
5. Having heard learned counsel for the appellant and the
learned APP for respondent No.1 and learned appointed counsel
for the respondent No.2, perused the investigation papers. As far
as the allegations are concerned, it is alleged that present
appellant who is a Headmistress physically touched the private
part of the children who are the students studying in the said
school and caused them harassment. To substantiate the said
contention, the prosecution placed reliance on the statement of
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son of the informant who is aged about 8 years then another
witnesses namely; two other students aged about 6 years, aged
about 8 years. All the students have narrated the incident that it is
the habit of the present appellant to pull the private part of the
children. It is stated by one of the victim that prior to some days,
present appellant has pulled his urinal place and therefore, he was
having the pains. The statement of another victim is also of the
similar nature. The appellant is serving in the capacity of the
guardian of the students and she is under obligation to protect the
rights of the students. The statements of various students show
that she has harassed the small children, who are studying in the
school. The object of the Special Enactment is to protect the
children from offence of sexual offence, sexual harassment and
pornography and provide for other benefits i.e. establishing the
Special Courts for trial of such offences. As far as the offence
under Section 8 of the Protection of Children from Sexual Offences
Act, 2012 (for short, "POCSO Act") is concerned, the definition of
sexual harassment is given under Section 7 of the POCSO Act. In
view of said definition, whoever, with sexual intent touches the
vagina, penis, anus or breast of the child or makes the child touch
the vagina, penis, anus or breast of such person or any other
person, or does any other act with sexual intent which involves
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physical contact without penetration is said to commit sexual
assault. This clause defines sexual assault. It provides that if a
person commits sexual assault with sexual intent touches the
vagina, penis, anus or breast of the child or makes the child touch
the vagina, penis, anus or breast of such person or any other
person, or does any other act with sexual intent which involves
physical contact without penetration. The statement of the son of
the informant and the statements of other two students clearly
show that the appellant has not only touched to their penis, but
pulled the penis also. Whether, there was sexual intent or not is a
matter of evidence and at this stage, the prima facie case is made
out against the present appellant. It is further submitted by the
learned counsel for the appellant that the provisions of the
Atrocities Act are not applicable against the present appellant as
she belongs to "Mahadev Koli" which is also scheduled caste.
6. Learned APP submitted that the production of said
certificate before the Court cannot be considered in view of the
Judgment of the Hon'ble Apex Court. The learned APP placed
reliance in the case of State of Orissa Vrs. Debendra Nath Padhi,
reported in AIR 2005 SC 359 wherein while considering the
discharge application of the accused, it is held by the Hon'ble Apex
Court that no provision in the Code grants to the accused any right
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to file any material or document at the stage of framing of charge.
That right is granted only at the stage of the trial. The material as
produced by the prosecution alone is to be considered and not the
one produced by the accused. Considering the said observation, at
the most, the appellant can bring this fact to the notice of the
Investigating Officer that she also belongs to the scheduled caste
community. At this stage, even it is considered that provisions of
Atrocities Act are not applicable in the present case, but
considering allegations against sexual assault on the victim
children who are aged about 6 and 8 years and prima facie case is
made out showing the involvement of the present appellant in the
sexual assault, the application for grant of anticipatory bail
deserves to be rejected. Moreover, there is specific bar under
Sections 18 and 18-A of the Atrocities Act. Regarding the same,
when prima facie case is made out attracting the provisions of the
Atrocities Act, Section 18 clearly debars him or her from seeking
remedy for anticipatory bail. It is only in the circumstances where
there is absolutely no material to infer as to why Section 3 has
been applied for an offence under the Act of 1989, the Courts
would be justified to examine whether the application can be
rejected on the ground of its maintainability. In the case of Prathvi
Raj Chauhan Vrs. Union of India and others, reported in (2020) 4
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SCC 727 wherein also, it is held that grant of anticipatory bail
under Section 438 of Code of Criminal Procedure bars in respect
of offence under the 1989 Act. However, where prima facie case is
made out, the anticipatory bail can be granted in appropriate
circumstances with cautious exercise of powers. Sections 18 and
18-A of the Atrocities Act have no application where prima facie
case is made out, however, for evaluating the prima facie case, re-
appreciation of the evidence is not required. Thus, where prima
facie case is made out, bar under Section 18 of the Atrocities Act is
attracted. In view of the same also, application for grant of
anticipatory bail is not maintainable.
7. Learned APP placed reliance on Sumitha Pradeep Vrs.
Arun Kumar C. K. and others, reported in AIR 2022 SC 5705
wherein while considering the application for cancellation of bail,
the Hon'ble Apex Court considered the gravity of the offence
which are punishable under the Special Enactment Protection of
Children from Sexual offences Act, 2012 and in Para No.12, it is
observed that in a case containing the serious allegations, the High
Court ought not to have exercised its jurisdiction in granting
protection against arrest, as the Investigating Officer deserves
free-hand to take the investigation to its logical conclusion. It goes
without saying that appearance before the Investigating Officer,
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who has been prevented from subjecting the respondent No.1 to
custodial interrogation, can hardly be fruitful to find out the prima
facie substance in the allegations, which are of extreme serious in
nature. In Para No.16, it is further held that the High Court
wrongly exercised its discretion while granting anticipatory bail to
the accused in a very serious crime like POCSO and therefore, the
order passed by the High Court granting anticipatory bail to the
accused should be quashed and set aside. It is further observed
that in many anticipatory bail matters, we have noticed one
common argument being canvassed that no custodial interrogation
is required and therefore, anticipatory bail may be granted. There
appears to be serious misconception of law that if no case for
custodial interrogation is made by the prosecution, then that alone
would be a good ground to grant anticipatory bail. The custodial
interrogation can be one of the relevant aspects to be considered
along with other grounds while deciding an application seeking
anticipatory bail. There may be many cases in which the custodial
interrogation of the accused may not be required, but that does
not mean that the prima face against the accused should be
ignored or overlooked and he should be granted anticipatory bail.
The first and foremost thing that the Court hearing an anticipatory
bail application should consider if the prima facie case put up
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against the accused. Thereafter, the nature of the offence should
be looked into along with the severity of the punishment.
Custodial interrogation can be one of the grounds to decline
anticipatory bail. However, even if custodial interrogation is not
required or necessitated by itself, cannot be a ground to grant
anticipatory bail.
8. In the light of the above observations and considering
facts and circumstances of the present case, there is prima facie
material against the present appellant to show that she has
sexually assaulted the small boys within the age group of 6 to 8
years. Thus, the serious allegations are levelled against the present
appellant. In view of that, the application for grant of anticipatory
bail deserves to be rejected. Accordingly, I proceed to pass
following order :-
ORDER
The appeal is devoid of merit and liable to be dismissed.
Accordingly, the appeal is dismissed.
9. The fees of the appointed counsel for respondent No.2
be quantified as per the Rules.
[URMILA JOSHI-PHALKE, J.]
Choulwar
Signed by: V.M. Choulwar (VMC)
Designation: PS To Honourable Judge
Date: 09/05/2024 16:58:07
