Bombay High Court
Yogita Ketan Shah @ Yogita Vijay Shelar vs State Of Maharashtra And Anr on 2 December, 2022
Bench: A. S. Gadkari, Prakash D.Naik
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31-APEAL-712- 2022-803-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 712 OF 2022
Yogita Ketan Shah @ Yogita Vijay Shelar ...Appellant
V/s.
1. State Of Maharashtra
2. Tushant Gangadhar Aarde ...Respondents
WITH
CRIMINAL APPEAL NO. 803 OF 2022
Yatish Vijay Shelar ...Appellant
V/s.
1. State Of Maharashtra
2. Tushant Gangadhar Aarde ...Respondents
Mr. Samir A. Vaidya and Ms. Devyani R. Dhawale, Advocate for the
Appellants in both Appeals.
Mr. Ajay Patil, A.P.P. for the Respondent No.1 - State.
Mr. Kishor D. Walanju, Advocate for Respondent No.2 in both Appeals.
Mr. Trushant G. Aarde, Respondent No.2 in-person is Present.
CORAM : A. S. GADKARI AND
PRAKASH D.NAIK, JJ.
DATE : 2nd DECEMBER, 2022.
P.C. :
. Both the Appeals are preferred under Section 14(A) of The
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act,
1989 (for short 'SC/ST Act). The Appellants are apprehending arrest in
C.R. No.32 of 2022 registered with Kulgaon Police Station, Badlapur,
District : Thane, for offences punishable under Sections 354, 329, 323, 504,
506 of Indian Penal Code (for short 'IPC') and Sections 3(1)(r),
3(1)(s), 3(1)(va) and 3(2) of SC/ST Act.
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2. By a speaking Order dated 28 th July 2022, the Appellant in
Appeal No.712 of 2022 has been granted interim protection by the
Co-ordinate Bench. By an Order dated 12 th August 2022, the Appellant in
Appeal No.803 of 2022 has been granted ad-interim relief by this Court.
3. The case of the Complainant is that, he belongs to
Nav-bouddha caste. He is an Advocate by profession. On 10 th March 2022,
he had been to Mahad for Court work. On 11 th March 2022, he was
proceeding by his Innova car from Mahad to Badlapur. He picked up his
wife from Karjat and both of them were proceeding towards Badlapur.
While they reached at Vangani Petrol Pump, near Kullad Tea Stall at about
3.15 pm. they halted for tea. At that time, Yatish Shelar and Yogita Shelar
i.e. Appellants came in their Innova car. The Complainant gave signal to
them. However, Yatish Shelar deliberately tried to give dash to the vehicle
of Complainant. The Complainant questioned him about it. The
Complainant stopped his vehicle at the side of road and alighted from his
vehicle. Yatish Shelar and Yogita Shelar i.e. Appellants herein, got down
from their vehicle. They caught the collar of Complainant and abused him
on his caste. When Complainant's wife got down from the vehicle to rescue
him, Accused - Yatish shelar outraged her modesty. Yogita Shelar pulled
hair of Complainant's wife. Complainant's wife told the accused that, her
husband is Advocate. The accused abused them. The accused used filthy
language against wife of Complainant and threatened them. In this brief
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premise, the First Information Report (for short 'FIR' ) was registered on
11th March 2022 at about 23.37 (11.37 pm.) vide C.R. No.32 of 2022.
4. Cross FIR was registered on 12th March 2022 vide C.R. No.33
of 2022 by Yogita Ketan Shah/Appellant in Criminal Appeal No.712 of 2022
against two persons for offences under Sections 354, 329, 341, 506 read
with Section 34 of IPC. In the said FIR it is alleged that, the Complainant
was travelling with her brother Yatish Shelar. While they reached at
Vangani Petrol Pump near Kullad Tea Stall, they noticed that, an Innova car
was halted on road and two persons were sitting in the car. They were
unknown persons. When the Complainant's brother questioned the inmates
of the car, the driver of the car got down with a steel rod and abused the
Complainant's brother. He also assaulted him. The Complainant got down
from the car to save her brother. The woman sitting in the said car got
down and started assaulting Complainant and her brother. Injury was
caused to the finger of Complainant. The accused committed an act
amounting to outraging the modesty of Complainant.
5. During the course of hearing of Appeals on 18 th November
2022, it was submitted by learned Advocate for the Appellants that,
photographs at page Nos. 31, 33 & 34 of Criminal Appeal No.803 of 2022
are the photographs of a rear side of the vehicle having Number MH-46,
BZ-8055 which is deceptively displayed as "BOSS" is the car belonging to
Respondent No.2. It was recorded in Order dated 18 th November 2022 that,
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the Investigating Officer had not taken any steps under the law to initiate
any action against the owner of the said car to remove the said number-
plate, Superintendent of Police, Thane (Rural) was directed to take
necessary remedial measures in that behalf.
6. We have heard both the sides. Despite the fact that, we heard
learned Advocate Mr. Walanju for Respondent No.2 at length and since
Respondent No.2, who was present in the Court was not satisfied with the
arguments of his Advocate and also considering the fact that, the
Respondent No.2 is an Advocate by profession, we also offered him an
opportunity of being heard in person for about 15 minutes. It appeared to
us that, he crossed all the limits of Advocacy and started raising his voice in
open Court, tending to browbeating this Court.
7. We have perused complaints lodged by both the sides. We have
also perused original record of investigation of the present crime produced
by the Investigating Officer. Perusal of the record would indicate that,
though the alleged offence has occurred at public place, the statements of
eye witnesses clearly indicate that, it was the Respondent No.2, who was
the aggressor and not the Appellants. We have scrutinized the statements
of five eye witnesses, who do not support the contention of Respondent
No.2 that, the Appellants hurled abuses on his caste. Thus, there is no
independent corroboration at all to the allegations made by Appellants with
respect to abuses on caste and at this stage, at least the same are
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unsubstantiated for want of basic rule of corroboration to that effect. Thus,
there is no independent corroborative evidence to establish the fact that,
in fact abuses on caste of Respondent No.2/Complainant were hurled by the
Appellants within public view. It is also pertinent to note that, the contents
of FIR dealing with the narration of incident does not indicate that, the
Complainant was known to the accused or they were aware of his caste.
However, in summary portion of the FIR it is stated that, inspite of knowing
that, the Complainant belongs to Nav-bouddha caste, the accused had
abused him on his caste. The contention of learned Advocate for
Respondent No.2 is that, the material contradictions if any, will have to be
considered during trial and this is not the stage to appreciate such infirmity.
8. After perusing the FIR and the record of investigation, we are
prima facie of the opinion that, the version of Complainant is concocted.
The alleged incident as claimed by first informant is not corroborated by
any independent witnesses, whose statements have been recorded during
the course of investigation. The parameters to hold the incident had
occurred within public view are therefore lacking in the present case. In
the light of factual aspects of this case, the bar under Section 18 of the
SC/ST Act, would not preclude this Court from granting pre-arrest bail to
the Appellants. Hence, interim protection granted to the Appellants
deserves to be confirmed.
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ORDER
i) Criminal Appeal Nos.712 of 2022 and Criminal Appeal No. 803 of 2022 are allowed.
ii) Interim Order dated 28th July 2022 passed in Criminal Appeal No.712 of 2022 and Order dated 12 th August, 2022 passed in Criminal Appeal No.803 of 2022 are hereby confirmed.
iii) In the event of arrest, the Appellants be enlarged on bail on furnishing P.R. bond in the sum of Rs.15,000/- each with one or two local sureties in the like amount.
iv) The Appellants shall report to the Investigating Officer as and when called after receipt of Notice in writing from the concerned Officer specifying the date and time thereof, till filing of Final Report.
v) Both Appeals are allowed in the aforesaid terms.
(PRAKASH D. NAIK, J.) (A.S. GADKARI, J.)
Digitally signed
by SAJAKALI
SAJAKALI LIYAKAT
JAMADAR
LIYAKAT Date:
JAMADAR 2022.12.05
14:34:38
+0530
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