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2022 DIGILAW 1145 (BOM)

Rahul v. State of Maharashtra

2022-04-20

ANIL S.KILOR

body2022
JUDGMENT 1. Heard Shri Gandhe, learned counsel for the appellant, Shri Sirpurkar, APP for the respondent/State and Shri Dhengale, learned counsel for the respondent Nos.2 to 5. 2. ADMIT. 3. This is an appeal filed under Sec. 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (for short 'the Atrocities Act') for the cancellation of bail granted by the learned Sessions Court vide order dtd. 29/4/2021 in Criminal Bail Application No.368 of 2021, in Crime No.107 of 2021 registered with Police Station Nandgaon Peth, District : Amravati, for the offence punishable under Ss. 3(1)(r) and 3(1)(s) of the Atrocities Act and under Ss. 323, 294, 504, 506 of the Indian Penal Code (IPC). 4. Shri Gandhe, learned counsel for the appellant submits that on a wrong consideration, the learned trial court granted bail to the respondent Nos.2 to 5 vide order dtd. 29/4/2021. He further submits that as the finding recorded by the learned Sessions Judge is perverse, the bail granted to the respondent Nos.2 to 5 needs to be cancelled. 5. The learned counsel for the appellant has drawn attention to the complaint lodged by the appellant immediately on the date of incident i.e. on 21/3/2021 of which, the cognizance was not taken by the police till 6/4/2021 and by giving advantage of the same, the learned Sessions Judge, while granting bail, has observed that there was a delay in lodging the FIR. He therefore, submits that the finding recorded by the learned Sessions Court is contrary to the record. 6. The learned counsel for the appellant further argues that though there is a specific bar under Sec. 18 of the Atrocities Act, it was not taken into consideration while granting bail to the respondent Nos.2 to 5 and the Court has recorded a perverse finding that prima facie there is no material to attract the provisions of the Atrocities Act. He therefore, prays for cancellation of bail. For this purpose, he has placed a reliance upon the judgment in the case of Vilas Pandurang Pawar and Ors. Vs. State of Maharashtra and Ors., (2012)8SCC795. 7. On the other hand, Shri Sirpurkar, learned APP fairly states that in this case, the State has not moved any application for cancellation of bail. He therefore, prays for cancellation of bail. For this purpose, he has placed a reliance upon the judgment in the case of Vilas Pandurang Pawar and Ors. Vs. State of Maharashtra and Ors., (2012)8SCC795. 7. On the other hand, Shri Sirpurkar, learned APP fairly states that in this case, the State has not moved any application for cancellation of bail. He further states that there are no supervening circumstances available in this case and there is no complaint about breach of conditions by the respondent Nos.2 to 5. 8. Shri Dhengale, learned counsel for the respondent Nos.2 to 5 has argued that there is a land dispute going on between the respondent Nos.2 to 5 and the appellant. A suit for declaration, eviction, possession and damages is pending. He further points out that the learned trial Court by its order dtd. 21/2/2019 allowed the temporary injunction application of the appellant with a condition that the appellant shall deposit Rs.27, 89, 576.00 in the Court within a month, which the appellant failed to deposit therefore, to built pressure on respondent Nos.2 to 5, he has lodged a false complaint against the respondent Nos.2 to 5. 9. The learned counsel for the respondent Nos.2 to 5, has further pointed out that a complaint was lodged by respondent No.2-Rakesh Ravindrakumar Agrawal, alleging that on 21/3/2021, the appellant had threatened the respondent No.2 about filing a false complaint against him alleging that he abused the appellant on his caste. He further submits the above referred N.C. Report supports the case of the respondent Nos.2 to 5 that the appellant not only had threatened to lodge false complaint but also he has actually lodged a false complaint. 10. The learned counsel for the respondent Nos.2 to 5 further submits that there are criminal antecedents against the appellant and there are many complaints filed against the appellant. He has further drawn attention of this Court to the FIR lodged on 24/7/2017 by the respondent No.2 against the appellant, alleging that the appellant had threatened to kill the respondent No.2, his father and his representatives and also to falsely implicate in a criminal case. He therefore, submits that the facts referred above take to the only conclusion that the appellant lodged a false complaint against the respondent Nos.2 to 5 to get the land dispute settled. He therefore, submits that the facts referred above take to the only conclusion that the appellant lodged a false complaint against the respondent Nos.2 to 5 to get the land dispute settled. He further submits that there is no perversity or illegality committed by the learned Sessions Court in granting bail to the respondent Nos.2 to 5. 11. The learned counsel for the respondent Nos.2 to 5 further submits that it is a settled law that the bar under Sec. 18 of the Atrocities Act is not an absolute bar if no prima facie case is made out. He therefore, submits that the learned Sessions Court has rightly held that there is no prima facie case made out against the respondent Nos.2 to 5 to attract the provisions of the Atrocities Act and accordingly, the trial Court has held that the bar under Sec. 18 of the Atrocities Act would not apply to the case of the respondent Nos.2 to 5. 12. For this purpose, he has placed reliance upon the judgments of the Hon'ble Supreme Court of India in the case of Hitesh Verma Vs. State of Uttarakhand and another, (2020) 10 SCC 710 . Vasant s/o Kerba Shinde & Ors. Vs. State of Maharashtra & Anr. and the Co, 2020(10)SCC 710. ordinate Bench of this Court in the case of Shashikant Ramhari Tambe & Ors. Vs. State of Maharashtra, 2008 ALLMRCRi)2132. 13. To consider the rival contentions of the parties, I have perused the charge-sheet and also the documents filed on record. 14. Before dealing with each of the contentions raised by the respective parties, I am of the opinion that at this stage, it would be relevant to refer to the findings recorded by the learned Sessions Court while granting bail to the respondent Nos.2 to 5. Paragraph No.10 of the impugned order reads thus: "10. In the present matter, the complainant had alleged that, he was assaulted by several persons but surprisingly his medical examination report is not on record. He has alleged that, the accused entered his hotel and started breaking things but, the photographs which he has filed on record prima faice point out that, a temporary bamboo shade erected on an open plot is half broken. The photographs are not of any damaged or destruction allegedly caused by the applicants in the hotel Greenland of the complainant. He has alleged that, the accused entered his hotel and started breaking things but, the photographs which he has filed on record prima faice point out that, a temporary bamboo shade erected on an open plot is half broken. The photographs are not of any damaged or destruction allegedly caused by the applicants in the hotel Greenland of the complainant. There is an inordinate delay of more than 15 days in giving the FIR. The complainant has alleged that he had given complaint on 25/03/2021 to the C.P. Amravati regarding the non registration of his FIR but, the FIR registered on 06/04/2021 states that, the incident occurred on 29/03/2021 and in the said report there is no explanation about the reasons for delayed registration of the FIR. Thus, all these aspects of pending civil dispute between the parties, filing of several complaints by the applicant no. 1 against the complainant and absence of any medical examination report of the complainant if, considered together, creates serious doubt regarding the veracity of the complaint. The observations of Hon'ble Bombay High Court in the matter of Ashok and Shashikant (supra) are applicable to the facts of the present case. Prima facie, the complaint against the applicants appears to be counterblast to the complaints given by applicant no. 1 against complainant Rahul Mohod. Thus, prima facie the offence punishable under the provisions of the said Act are not made out therefore, the bar u/s 18 of the said Act is also not attracted against the present application. In the facts of the case, the custodial interrogation of the applicant is not necessary." 15. The above referred findings recorded by the learned Sessions Court make it clear that the Court has given weightage to the alleged delay in lodging the FIR, the civil dispute between the parties and no prima facie case is made out under the provisions of the Atrocities Act, while granting bail. 16. As far as the delay is concerned, from the charge-sheet, it is clear that immediately on the date of the incident i.e. on 21/3/2021, the report was lodged, which was belatedly registered on 6/4/2021. However, while recording the date of occurrence, the wrong date i.e. 29/3/2021 had been recorded. There is no complaint on record lodged by the appellant about any incident dtd. 29/3/2021, but the complaint is about the alleged incident dtd. 21/3/2021. 17. However, while recording the date of occurrence, the wrong date i.e. 29/3/2021 had been recorded. There is no complaint on record lodged by the appellant about any incident dtd. 29/3/2021, but the complaint is about the alleged incident dtd. 21/3/2021. 17. The learned Sessions Court ignored this material aspect that the delay in registering the FIR was on the part of police and not on the part of the appellant. 18. There is no dispute that the civil proceeding is pending between the parties. However, this fact itself is not sufficient to doubt the veracity of the complaint, particularly, when there is prima facie evidence available supporting the alleged incidence. 19. There are two eye witnesses to the incident, who corroborate the case of the prosecution in regard with the Atrocities Act. 20. The Co-ordinate Bench of this Court in the case of Shashikant Ramhari Tambe & Ors.(Supra) has held thus: "5. Useful reference may be made to a decision of the Supreme Court in the case of Mukesh Kumar Saini vs. State (Delhi Administration) reported in 2002 ALL M.R. (Cri.) JOURNAL 41. In the said case, it was observed that there must be specific accusation alleged against each of the accused and Sec. 34 of the Indian Penal Code cannot be pressed into service. Omnibus statement that all the accused persons uttered allegedly humiliating word may not be enough. In the present case, there is no specific accusation alleged against each of the accused. Looking to the above facts, I am inclined to grant anticipatory bail to the applicants." 21. This Court, in the above referred judgment has observed that only the omnibus statement of the accused persons uttered allegedly humiliating word may not be enough. 22. In the present case, the complainant has made specific allegations against the respondent Nos.2, 3 and 4 as regards abuse on caste and words uttered by them abusing on caste. For this purpose, it would be necessary to reproduce the relevant part of the complaint, which reads thus: 23. Similarly, two eye witnesses support the aforesaid version of the complainant. Thus, there is sufficient material to show that the respondent Nos.2, 3 and 4 have abused the appellant on his caste and there is no omnibus statement that all the accused persons uttered allegedly humiliating words. 24. Similarly, two eye witnesses support the aforesaid version of the complainant. Thus, there is sufficient material to show that the respondent Nos.2, 3 and 4 have abused the appellant on his caste and there is no omnibus statement that all the accused persons uttered allegedly humiliating words. 24. In that view of the matter, the judgment in the case of Shashikant Ramhari Tambe & Ors.(Supra) will not help to the respondent Nos.2, 3 and 4. 25. As regards the other judgments, those will also not help to the respondent Nos.2, 3 and 4 as in this case, there is sufficient prima facie material available against them. 26. As far as respondent No5 is concerned, there is no material available on record to prima facie show that he abused the appellant on his caste. So, in absence of any prima facie case attracting the provisions of Atrocities Act against the respondent No.5, the bar under Sec. 18 of the Atrocities Act would not come in the way of the respondent No. 5. It is further pointed out that the respondent No.5 belongs to 'Khatik' caste, which is recognized as 'Scheduled Caste'. This will be the additional ground to hold that the provisions of Atrocities Act will not apply to the respondent No.5. 27. The Hon'ble Supreme Court of India in the case of Puran Vs. Rambilas and another, (2001)6SCC338. has observed thus: "10. Mr. Lalit next submitted that once bail has been granted it should not be cancelled unless there is evidence that the conditions of bail are being infringed. In support of this submission he relies upon the authority in the case of Dolat Ram vs. State of Haryana. In this case it has been held that rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already granted have to be considered and dealt with on different basis. It has been held that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. It has been held that generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. It has been held that generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. It is, however, to be noted that this Court has clarified that these instances are merely illustrative and not exhaustive. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the Society. Therefore, an arbitrary and wrong exercise of discretion by the trial court has to be corrected." 28. The Hon'ble Supreme Court of India has clearly observed that if there are perverse findings recorded by the trial Court while granting bail, the order needs to be cancelled in the interest of justice. 29. Thus, in the light of the above referred findings recorded herein above, it is clear that though there was no delay in lodging the FIR, the learned Sessions Court has observed that there was a delay in registering the offence. Similarly, the learned Sessions Court further committed error in holding that there is no prima facie case as regards the allegations relating to the offence under the Atrocities Act. 30. Whereas, it is clear from the record that there is prima facie sufficient incriminating material is available against the respondent Nos.2 to 4, attracting the provisions of the Atrocities Act and therefore, the bar under Sec. 18 of the Atrocities Act would come in the way of the respondent Nos.2 to 4 and in that view of the matter, the learned trial Court ought not to have entertained the application for grant of pre-arrest bail filed by the respondent Nos.2 to 5. 31. Thus, the perversity in this case is apparent as observed by the Hon'ble Supreme Court of Indian in the case of Puran Vs. Rambilas and another (supra), and therefore, such order needs to be setasidebycancellingthebailgrantedintheinterestofjustice 32. 31. Thus, the perversity in this case is apparent as observed by the Hon'ble Supreme Court of Indian in the case of Puran Vs. Rambilas and another (supra), and therefore, such order needs to be setasidebycancellingthebailgrantedintheinterestofjustice 32. As far as other contentions of the respondent Nos.2 to 5 are concerned, those were made on merit and since I have held that the bar under Sec. 18 of the Atrocities Act will apply to this case, it would be a futile exercise to examine those submissions for the purpose of deciding this appeal. 33. Thus, in the above referred backdrop, I pass the following order: i) The Criminal Appeal is partly allowed. ii) The order dated dtd. 29/04/2021 passed by learned Special Judge (Atro) and Additional Sessions Judge-2, Amravati, in Criminal Bail Application No.368 of 2021, is hereby quashed and set aside, qua the respondent No.2-Rakesh Ravindrakumar Agrawal, respondent No.3-Raju @ Mahendra Babulal Chirde and respondent No.4-Gajanan Haribhau Tijare. iii) The appeal against the respondent No.5-Umesh Rameshrao Diofode is dismissed. The Criminal Appeal stands disposed of accordingly. At this stage, the learned counsel for the respondent Nos.2 to 4 prays for continuation of bail granted by the learned Sessions Court for a period of four weeks. The learned counsel for the respondent Nos.2 to 4 has not pointed out any exceptional circumstances for continuation of bail granted by the learned Sessions Court, after allowing this appeal for cancellation of bail. As per the law laid down by the Hon'ble Supreme Court of India in the case of Nathu Singh Vs. State of Uttar Pradesh and Ors. (Special Leave Petition (Crl.) No.2096 of 2021, decided on 28/5/2021), no exceptional circumstance is pointed out. Therefore, the request is rejected.