Bombay High Court
Satish S/O Keshaoraoji Bajait vs State Of Maharashtra, Thr. Pso Ps Sindi ... on 15 October, 2024
2024:BHC-NAG:11728
J.40.apeal.591.24.odt 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.591 OF 2024
Satish s/o Keshaoraoji Bajait
Aged about 53 years,
Occupation - Service
R/o. Vaidya Layout, Arvi Naka,
Wardha, Tah. & District Wardha
...APPELLANT
VERSUS
1. State of Maharashtra,
through P.S.O., P.S. Sindi (Rly.)
Tahsil Wardha, District Wardha
2. Ms. XYZ
(In Crime No.25/2020 at P.S. Sindi (Rly.)
Tah. Wardha, District Wardha
...RESPONDENTS
_______________________________________________________
Mr. P. Ghare, Advocate for the applicant.
Mr. H.D. Dubey, APP for the State.
Ms N.G. Choubey, Advocate (appointed) for respondent No.2.
_______________________________________________________
CORAM : URMILA JOSHI-PHALKE, J.
DATED : OCTOBER 15, 2024.
ORAL JUDGMENT :
ADMIT. Heard finally with the consent of learned Counsel
for the parties.
2. This is an appeal under Section 14A of the Scheduled Caste
and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter
referred to as 'the Atrocities Act' for short) challenging the order dated
30/07/2020, whereby the District Judge-1 and Special Judge (POCSO
Act), Wardha has rejected the bail application of the appellant bearing
Misc. Criminal Application No.224/2020.
3. The appellant came to be arrested on 11/02/2020 in
connection with Crime No.25/2020 registered with Police Station Sindi,
District Wardha for the offence punishable under Sections 376AB,
376(2)(n), 376(2)(f) of the Indian Penal Code, 1860 and Sections 6 and
10 of the Protection of Children from Sexual Offences Act, 2012.
4. The crime is registered on the basis of report lodged by the
victim herself aged about 8 years. It is alleged that she is studying in 2 nd
standard and present applicant is serving as a Head Master in her school
and he used to call her in the last room in the school and used to subject
her for the sexual assault as well as unnatural sexual assault. On the
basis of the said report, police have registered the crime against the
present applicant. During investigation, victim was referred for medical
examination. The necessary statements are recorded and after
completion of the investigation, charge-sheet is filed.
5. Learned Counsel for the appellant submitted that the
present appeal is filed mainly on the ground of delay in conclusion of the
trial. The appellant is arrested on 11/02/2020 but there is no substantial
progress in the trial through appellant is behind bar from last 4 years. He
submitted that now material witnesses i.e. the victim, her mother and
her friend are examined and the Medical Officer's chief examination is
already recorded. Thus, material witnesses are already examined. Still
the prosecution has cited 31 witnesses, and therefore, it would not
conclude in a near future. Considering the inordinate delay in conclusion
of the trial, the appellant cannot be kept behind bar for an indefinite
period; hence, he be released on bail.
6. In support of his contention, he placed reliance on Sheikh
Javed Iqbal @ Ashfaq Ansari @ Javed Ansari Vs. State of Uttar Pradesh
in Criminal Appeal no. 2790 of 2024 decided on 18th July, 2024 and
orders of this Court in Criminal Application (BA) No.512/2024
(Sonusingh s/o Jitisingh Tak Vs. State of Maharashtra) decided on
09/07/2024, Criminal Application (BA) No. 429 of 2024 (Dattatray
Shrikrushna Shejole Versus The State of Maharashtra) decided on
06/08/2024.
7. On the other hand, learned Additional Public Prosecutor
strongly opposed the appeal and submitted that eight years girl was
subjected for sexual assault by the present appellant. The contention of
the victim is substantiated by the other evidence also. In view of that, the
appeal deserves to be rejected.
8. Learned Counsel for the victim also reiterated the same
contentions and submitted that considering the nature of the offence,
the application deserves to be rejected.
9. I have heard learned Counsel for both the parties. Perused
the investigation papers from which it reveals that the allegation against
the present appellant is that he has subjected the minor victim girl for
sexual assault who is eight years of age. As far as the statement of the
victim is concerned, which is recorded by the Investigating Officer as
well as under Section 164 of Cr.P.C. In both statements she is consistent
as to the role of the present appellant. As far as the medical examination
is concerned admittedly, no injuries are found on the person either on
the genitals or on the anus of the victim but the opinion given by the
Medical Officer is that the possibility of the sexual assault cannot be
ruled out. Thus, as far as the statement of the victim and evidence
adduced by her before the Court is concerned which shows the
involvement of the present appellant. Present appeal is filed on the
ground of delay. The certified copy of the Roznama placed on record and
the submission made by the learned Counsel shows that the material
witnesses i.e. the victim, her mother, friend of the victim and the panch
on the spot panchnama are already examined. The Medical Officer is
under the cross-examination; however, the prosecution has cited 31
witnesses. Therefore, the submission of the learned Counsel that the trial
would not be concluded in a near future has some substance. The
Hon'ble Apex Court in the case of Javed Gulam Nabi Shaikh Vs. State of
Maharashtra and another (Criminal Appeal No.2787/2024 decided on
03.07.2024) observed as under :
"If the State or any prosecuting agency including the
Court concerned has no wherewithal to provide or
protect the fundamental right of an accused to have a
speedy trial as enshrined under Article 21 of the
Constitution then the State or any other prosecuting
agency should not oppose the plea for bail on the
ground that the crime committed is serious. Article 21
of the Constitution applies irrespective of the nature of
the crime."
10. In Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari Vs.
State of Uttar Pradesh (supra), wherein also the issue regarding the
speedy trial was considered by the Hon'ble Apex Court and it is held by
the Apex Court that this Court thereafter proceeded to hold that Section
43D(5) of the UAP Act does not oust the ability of the constitutional
courts to grant bail on grounds of violation of Part III of the Constitution.
Long incarceration with the unlikelihood of the trial being completed in
the near future is a good ground to grant bail.
11. In the present case also the appellant is behind the bar since
11/02/2020. From the certified copy of the roznama it reveals the trial
was commenced but only 5 witnesses are examined. The trial is
proceeding in a snail speed. Thus, in view of the observations made by
the Hon'ble Apex Court, if the State or any prosecuting agency including
the Court concerned has no wherewithal to provide or protect the
fundamental right of an accused to have a speedy trial as enshrined
under Article 21 of the Constitution then the State or any other
prosecuting agency should not oppose the plea for bail on the ground
that the crime committed is serious. Admittedly, the crime committed is
serious but in view of the observations of the Hon'ble Supreme Court
and in view of the Article 21 of the Constitution, the appellant cannot be
kept behind the bar for indefinite period. In view of that, the appeal
deserves to be allowed. Accordingly, I proceed to pass the following
order :
(i) The appeal is allowed.
(ii) The order passed by the District Judge-1 and Special
Judge (POCSO Act), Wardha in Misc. Criminal Application
No.224/2020 dated 30/07/2020 rejecting the bail
application of the appellant is hereby quashed and set aside.
(iii) The appellant - Satish s/o Keshaoraoji Bajait in
connection with Crime No.25/2020 registered with Police
Station Sindi, District Wardha for the offence punishable
under Sections 376AB, 376(2)(n), 376(2)(f) of the Indian
Penal Code, 1860 and Sections 6 and 10 of the Protection of
Children from Sexual Offences Act, 2012, be released on
bail on executing P.R. Bond of Rs.50,000/- with one solvent
surety in the like amount.
(iv) The appellant shall not enter into the vicinity of
village Bhosa, Taluka Samudrapur, District Wardha, till the
culmination of the trial.
(v) The appellant shall attend the concerned police
Station as and when required for the investigation purpose
and shall cooperate with the investigating agency.
(vi) The appellant shall not induce, threat or promise any
witnesses who are acquainted with the facts of the case
either physically or through electronic media.
(vii) The appellant shall attend the proceeding before the
learned Special Court without seeking any exemption unless
there are exceptional circumstances.
(viii) The contravention of any of the condition imposed by
this Court would lead to cancellation of bail.
12. The appeal is disposed of accordingly.
(URMILA JOSHI-PHALKE, J.)
*Divya
