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2019 DIGILAW 986 (BOM)

Harshal Suresh Sonawane v. State of Mharashtra

2019-04-09

K.K.SONAWANE

body2019
JUDGMENT : K.K. Sonawane, J. Heard. Admit. The matter is taken up for its adjudication on merit with the consent of both sides. 2. The present appeal is directed against the impugned order of rebuffing the relief of pre-arrest bail of the appellant in Crime No.12 of 2009, registered with Nizampur police station, District Dhule for the offence punishable under Sections 354-A, 506 of IPC and Section 3(1)(w)(i)(ii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act, 1989 (hereinafter referred to as "the Act of 1989", for the sake of brevity), the appellant/original accused taking recourse of the provisions of Section 14(A)(2) of the Act of 1989, preferred the present appeal to redress his grievances. 3. The allegations nurtured on behalf of prosecution, in short compass, is that the prosecutrix - girl came into contact with the appellant/accused since year 2012-13, when both of them were taking education in the Adarsh College at Nizampur. There was love affair in between them. It has been alleged that the appellant used to indulge in the activities of indecent behaviour with the prosecutrix. She ventilated the grievances about objectionable conduct of the appellant to her parents. Thereafter, understanding was given to the appellant, pursuant to which he had also tendered apology for his disgusting behaviour with the prosecutrix. According to prosecution, the programme of 'Ring Ceremony' of the prosecutrix for her proposed marriage with one Dilip Gangaram Sable, resident of Amsarpada, Taluka Navarpur, Dist. Nandurbar was scheduled to be held on 10/02/2019. Taking umbrage of the proposed marriage of the prosecutrix with another person, the appellant put his photographs with prosecutrix on the Facebook, to cause damage to her character. He had also given threats of life to the father of the prosecutrix. A police complaint was lodged against the appellant to that effect on behalf of father of the prosecutrix. But there was no change in the behaviour of appellant/accused. According to prosecution, on 7.2.2019, in the morning at about 10.30 a.m. when the prosecutrix girl was proceeding towards her house by road, that time, the appellant arrived on his bullet motor bike and attempted to intercept her. He had given threats that he would not allow her to marry with other person. He pulled her Dupatta and caught hold her hand. He had given threats that he would not allow her to marry with other person. He pulled her Dupatta and caught hold her hand. He insisted the prosecutrix to accompany with him on motor bike, but the prosecutrix did not pay any heed to his threats and after returning home, she verbalized the incident to her parents, brother and other members of the community. Eventually, the prosecutrix filed report to the concerned police of Nizampur P.S. for penal action against the appellant. 4. Pursuant to FIR of the prosecutrix, the concerned police of Nizampur police station, registered the Crime No. 12 of 2019 under Section 354-A, 506 of IPC and Section 3(1)(W)(i)(ii) of the Act of 1989. The police of Nizampur Police Station swung into action. I.O. visited to the scene of occurrence, recorded the statements of witnesses acquainted with the facts of the case. The appellant, apprehending his arrest into the crime, rushed to the court of learned Sessions Judge, Dhule, for the relief of his pre-arrest bail under Section 438 of Cr.P.C. However, the learned Sessions Judge, did not favour the appellant/accused and refused to grant relief of anticipatory bail as contemplated under Section 438 of Cr.P.C. It has been observed by the learned Sessions Judge, that the allegations nurtured in the FIR explicitly made out a prima-facie case against the appellant for the offence under Section 3(1)(w)(i) (ii) the Act of 1989. Therefore, in view of statutory bar as prescribed under Section 18 and 18A of the Act of 1989, the application for pre-arrest bail cannot be entertained. Therefore the application for anticipatory bail of the appellant came to be rejected. The learned Sessions Judge passed the impugned order, which is the subject matter of present appeal. 5. The learned counsel Mr. Chaudhari, appearing for the appellant, vehemently submits that the appellant has not committed any crime as alleged by the prosecution but he has been falsely implicated in this case. There was a love affair in between the prosecutrix and the appellant. The prosecutrix girl was not inclined to marry with the another person. Therefore, she filed the false complaint against the appellant/applicant with an intention to create hurdles for her proposed marriage with another person. There were no abuses to the prosecutrix girl on her caste, nor there was any recovery from the appellant for the sake of investigation. The prosecutrix girl was not inclined to marry with the another person. Therefore, she filed the false complaint against the appellant/applicant with an intention to create hurdles for her proposed marriage with another person. There were no abuses to the prosecutrix girl on her caste, nor there was any recovery from the appellant for the sake of investigation. There is also no possibility of tampering with the evidence. According to learned counsel Shri Chaudhari, the statutory bar under Section 18 and 18-A would not be made operational against the appellant, as the allegations do not constitute the offence under the Act of 1989. The appellant is ready to abide conditions, if any, imposed on him for his pre-arrest bail in this crime. 6. Per contra, learned APP raised the objection and submits that the recitals of the FIR clearly indicate that the appellant has committed a serious crime of outraging the modesty of a woman, punishable under Section 354-A as well as Section Section 3(1)(w)(i)(ii) of the Act of 1989. According to learned APP, the provisions of section 18 and 18-A of the Act of 1989 put an embargo on the Court for exercising powers under Section 438 of Cr.P.C. The appellant/accused attempted to pull the Dupatta and caught hold the hand of prosecutrix with malafide intention to take way the prosecutrix - girl with him on his motor bike. He had also given threats of dire consequences, if she would performed the marriage with another person. The learned APP explained that the entire circumstances reflects from the FIR are sufficient to make out an offence under Section 3(1)(w)(i)(ii) of the Act of 1989. Therefore, in view of statutory bar under Section 18A of the Act of 1989, the present appeal filed by the appellant for anticipatory bail cannot be entertained. The learned APP requested not to nod in favour of appellant, for the relief of his pre-arrest bail as prayed in the application. 7. It is to be noted that this Court in the decision of Criminal Appeal No. 787 of 2018 (Kiran Madhukar Ingle Versus State of Maharashtra and another), elaborately dealt with the issue of applicability of Section 18 of the Act of 1989 to entertain the application for pre-arrest bail under Section 438 of the Cr.P.C. and made observations in paragraph Nos. 13 and 15 as under :- 13. 13 and 15 as under :- 13. It is explicitly made clear that the Court of Sessions or High Court can entertain the application for pre-arrest bail to ascertain its maintainability. The law does not permit to reject the application for anticipatory bail merely because the case has been registered under section 3 of the Act of 1989. But, it is incumbent on the part of the Court to examine as to whether the applicant at all is a fit person to be treated as accused of the crime registered under the Act of 1989. Section 18 of the Act of 1989 does not bar judicial scrutiny of the accusation made in the complaint. When the Court is held competent to enter into scrutiny of the allegations to determine whether the person can be treated as accused of commission of offence under the Act of 1989, then question would arise as to what extent the Court would be justified to examine material to determine the prima facie case against him. 14. xx xx xx xx xx xx xx 15. The exposition of law as referred above unequivocally pointer to the inference that the application for anticipatory bail can be entertained only on the ground of inapplicability of the provisions of Act of 1989 and it would be ascertainable only on perusal of recitals of the FIR or complaint and not beyond that, because once it is gathered from the FIR that the applicant is accused of committing the offence prescribed under section 3 of the Act of 1989, a bar under section 18 of the Act of 1989 would instantly operate against him. Therefore, the Courts are not permitted to enter into roving enquiry in regard to sustainability of accusation nurtured on behalf of complainant. Moreover, further scrutiny by summoning the case diary or other material to test veracity of the allegations made in the FIR also not permissible under the law. 8. In the instant case, the prosecution applied the provisions of section 3(1)(w)(i)(ii) of the Act of 1989 against the present appellants, which reads as under : "3. Moreover, further scrutiny by summoning the case diary or other material to test veracity of the allegations made in the FIR also not permissible under the law. 8. In the instant case, the prosecution applied the provisions of section 3(1)(w)(i)(ii) of the Act of 1989 against the present appellants, which reads as under : "3. Punishments for offences of atrocities :- (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe :- (w)(i) intentionally touches a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or Scheduled Tribe, when such act of touching is of a sexual nature and is without the recipient's consent; (ii) uses words, acts or gestures of a sexual nature towards a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe." Explanation :- For the purposes of sub-clause (i), the expression "consent" means an unequivocal voluntary agreement when the person by words, gestures of any form of non-verbal communication, communicates willingness to participate in the specific act: Provided that a woman belonging to a Scheduled Caste or a Scheduled Tribe who does not offer physical resistance to any act of a sexual nature is not by reason only of that fact, is to be regarded as consenting to the sexual activities. Provided further that a woman's sexual history, including with the offender shall not imply consent or mitigate the offence. 9. Perusal of the recitals of the FIR lodged against the present appellant, prima-facie, reveals that the ingredients of the aforesaid penal provision of Section 3(1)(w)(i)(ii) of the Act of 1989 are very well matched with the factual scenario of the present case, The basic ingredients of section Section 3(1)(w)(i)(ii) are that, there must be (I) "intentional touch to a woman belonging to Scheduled Caste or Scheduled Tribe" (ii) "knowing that she belongs to a Scheduled Caste or a Scheduled Tribe and (ii) such act of touching should be of "sexual nature" and that too without consent of such woman. The provisions of Section 3(1)(w)(ii) described that the bare use of words, acts or gestures which are of a sexual nature towards a women belonging to a Scheduled Caste or Scheduled Tribe with knowledge about her caste are sufficient to constitute offence. The provisions of Section 3(1)(w)(ii) described that the bare use of words, acts or gestures which are of a sexual nature towards a women belonging to a Scheduled Caste or Scheduled Tribe with knowledge about her caste are sufficient to constitute offence. It is evident from the ingredients of Section Section 3(1) (w)(i)(ii) of the Act of 1989 that the mens-rea is the significant factor to constitute the offence under the Act of 1989. There must be an intentional act of touching to a woman of a Scheduled Caste or Scheduled Tribe and the act must be of a sexual nature without her consent. 10. In the matter in hand, it transpires from the recitals of the FIR that the appellant is from Mali Caste which is recognized as an OBC category. The prosecutrix is belonging to Scheduled Tribe community/category. The appellant took out the objectionable photographs of prosecutrix and put it on the Facebook to damage her character. There are also specific averments in the FIR that, on the date of the incident,i.e. on 7.2.2019, when the prosecutrix was proceeding towards her house in the village, that time, the appellant attempted to intercept her. He pulled her Dupatta and caught hold her hand and indulged in the indecent activities. He also insisted the prosecutrix to accompany with him on the motor bike. All these factual aspects, prima facie, demonstrate the illintention of the appellant to commit an crime under Act of 1989. The activities of pulling her Dupatta as well as holding her hand to take her with him on motor-bike without her consent, as well as act of posting the objectionable photographs of the prosecutrix on Facebook, all are activities sufficient to constitute the offence under section 3(1)(w)(i) and (ii) of the Act 1989. Therefore, prima-facie, when on the face value of FIR, the offence is made out, the discretion under section 438 of Cr.P.C. cannot be exercised. 11. In such circumstances, after examination of the recitals of the FIR, on its face value, the inference can be drawn that the appellant is required to be treated as an accused of commission of offence under the Act of 1989. The circumstances, reflect from the FIR, are sufficient to draw adverse inference that the appellant committed offence as envisaged under Section 3(1)(w)(i) and (ii) of the Act of 1989. The circumstances, reflect from the FIR, are sufficient to draw adverse inference that the appellant committed offence as envisaged under Section 3(1)(w)(i) and (ii) of the Act of 1989. It is a rule of law that once the court has drawn inference that the appellant is an accused of committing offence prescribed under the Act of 1989, the bar under section 18 of the Act of 1989 would instantly operate against him. In the result, it is not permissible for the court to entertain the application for anticipatory bail filed on behalf of the appellant under Section 438 of Cr.P.C. 12. The learned trial court has correctly appreciated the factual aspects of the matter and rebuffed the relief of pre-arrest bail prayed on behalf of appellant. There is no error in the findings of the learned trial court. The appellant indulged in the activities of gestures of sexual nature towards the prosecutrix with knowledge that she is belonging from ST category. Despite the knowledge about the Caste of prosecutrix, he ventured to intentionally touch by holding her hand and pulled her Dupatta etc. Therefore, in view of statutory bar under Section 18 and 18A of the Act of 1989, the application for pre-arrest bail filed by the appellant under Section 438 of Cr.P.C. cannot be entertained. Hence, no question arises for grant of any relief in this appeal. There is no infirmity or perversity in the impugned order passed by the learned trial court. In contrast, the impugned order deserves to be confirmed and made absolute. In sequel, the appeal for grant of anticipatory bail stands dismissed. 13. Accordingly, the appeal stands disposed of in above terms. No orders as to costs.