Bombay High Court
Akhtarbee W/O. Vazir Shaikh vs The State Of Maharashtra on 2 March, 2020
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
(1) Cri.Appeal 1246/2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.1246 OF 2019
1) Akhtarbee w/o Vazir Shaikh
and Ors. = APPELLANTS
VERSUS
1) The State of Maharashtra
& Anr. = RESPONDENTS
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Mr.NS Ghanekar, Advocate for Appellants;
Mr.PK Lakhotiya, APP for Respondent-State;
Mr.GG Suryawanshi,Advocate for Respondent No.2
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CORAM : SMT.VIBHA KANKANWADI,J.
DATE : 2nd March, 2020. COURT'S ORDER
1. Heard learned Advocate appearing for the respective parties.
2. Admit. With consent of learned Advocate appearing for the respective parties, taken up for final disposal.
3. Present appeal has been filed by original accused persons under Section 14(A) of The Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, (herein after referred to as the Atrocities Act, to challenge rejection of their bail petition No.1796/2019 under Section 438 of Code of Criminal Procedure (for short, Cr.P.C) by ::: Uploaded on - 17/03/2020 ::: Downloaded on - 07/06/2020 06:59:25 ::: (2) Cri.Appeal 1246/2019 learned Additional Sessions Judge and Special Judge under the Atrocities Act on 15.11.2019.
4. It has been vehemently submitted on behalf of the appellants that the learned Special Judge has not taken into consideration the facts alleged in the FIR and mechanically came to the conclusion that prima facie case has been made out to attract the provisions of the Atrocities Act and, therefore, it was held that there is a complete bar. The contents of the FIR would show that the informant, who is a girl of 16 years and 5 days old, had on 25.5.2019 gone along with her aunt to fetch water from the hand-pump, which is situated opposite to the house of appellant No.1. There was quarrel between them. But the aunt took the informant back to the house in order to avoid further incident. The second incident, which is stated to have taken place immediately thereafter, was inside the house of the informant. It was not within "public view" and, therefore, the provisions of Section 3(1)(r) and 3(1)(s) of the Atrocities Act, are not at all attracted. It was pointed out to the learned trial Judge that a civil dispute is pending and even the hand pump is also private ::: Uploaded on - 17/03/2020 ::: Downloaded on - 07/06/2020 06:59:25 ::: (3) Cri.Appeal 1246/2019 property of the appellants. The learned Special Judge also failed to see that appellant No.3 had delivered on 5.10.2019. She was not physically fit and even her daughter was very small. Appellant No.4 is also in advanced stage of pregnancy and her delivery may take place at any time. The appellants are in possession of the land which is owned by Bismillah Khan Sardar Khan resident of Bismillah colony, Aurangabad. Bismillah had purchased the land from one Sitabai Asaram Nade. The civil dispute is going on amongst the informant, her family members, Bismillah Khan and Sitabai Nade. Therefore, the appellants could not have refused or obstructed the informant, the way she intends to say. The contents of the FIR do not disclose commission of the offence especially under the Atrocities Act and, therefore, the appeal deserves to be allowed.
5. Per contra, learned APP as well as learned Advocate appearing for Respondent No.2, i.e. original informant, submitted as well as stated in the affidavit in reply of the guardian of the informant that, since the contents of the FIR disclose not only the offences under the IPC as ::: Uploaded on - 17/03/2020 ::: Downloaded on - 07/06/2020 06:59:25 ::: (4) Cri.Appeal 1246/2019 well as the Atrocities Act; yet it also discloses the offence under Section 8 of the POCSO Act. The appellants had knowledge about the caste of the informant and her family and they could not have resisted the informant and her family members to take water from the hand pump. The civil dispute is not against the appellants and there is no single document produced by the appellants to show that they possess the suit land, that too under which capacity. Therefore, the learned trial Judge has rightly rejected the claim. Further, appellant No.1 - Akhtarbee has suppressed that she has been released on regular bail by the Special Judge of the Atrocities Act in Criminal Bail application No. 1583/2018 and it was in respect of Crime No. 283/2018, which was registered at the instance of the present informant in respect of the incident occurred on 25.9.2018. When she is on regular bail; yet she has committed the offence again and, therefore, her criminal antecedent is required to be seen.
6. Learned Advocate for Respondent No.2 has relied on the judgment of this court in the case of Saliquddin s/o Ziyauddin Chisty Vs. State of ::: Uploaded on - 17/03/2020 ::: Downloaded on - 07/06/2020 06:59:25 ::: (5) Cri.Appeal 1246/2019 Maharashtra - 2019 All MR (Cri.) 664, wherein earlier criminal record of the accused and police papers were considered and it was held that the order, rejecting the bail application, was proper.
7. As regards appellant no.1 - Akhtarbee is concerned, the facts are clear. It appears that she is involved in CR No.283/2018 registered with Khultabad police station for the offences punishable under Sections 354-D, 354-A, 323, 504 read 34 of IPC and Section 3(1)(w)(I)(II), 3(2)(va) of the Atrocities Act and Section 8 of the POCSO Act. A copy of order passed in Criminal Bail application No.1583/2018 shows that certain conditions were imposed and condition No.(C) thereof is specific, which reads thus, -
"(C) All the accused/applicants shall prevent themselves their involvement in commission of any crime."
The said order was passed by the learned Special Judge on 6.10.2018 under Section 439 of Cr.P.C. Therefore, when she has committed breach of that order, definitely now, she cannot seek anticipatory bail. Her earlier criminal record is definitely required to be considered in this way.
8. As regards the other appellants are ::: Uploaded on - 17/03/2020 ::: Downloaded on - 07/06/2020 06:59:25 ::: (6) Cri.Appeal 1246/2019 concerned, it is to be noted that though in the FIR it is stated that the informant was not knowing the whereabouts and specific names of these appellants; yet she has given relationship of those appellants with appellant No.1. Further, taking into consideration the fact that in earlier crime also, the offence under the Atrocities Act is involved; the appellants have every kind of knowledge about the caste of the informant. The civil suit appears to be pending between different parties and not amongst the present appellants and informant or her family members. It is not stated as to how the appellants can make use of the civil suit. Mere pendency of the civil suit will not prove possession of the appellants. Even if for the sake of argument it is accepted that the appellants are possessors of the land, on which the hand pump is installed; yet it is to be noted that as regards the incident, which had taken place near the hand pump, admittedly, there were no utterances in respect of the caste. Thereafter it is stated that when the informant came to her house all the accused persons came inside her house and then after assaulting her, they uttered, saying that, " ::: Uploaded on - 17/03/2020 ::: Downloaded on - 07/06/2020 06:59:25 ::: (7) Cri.Appeal 1246/2019
Isako Nanga Karke Maro, Dhed Mango Tumhari Jat Faltu hain). Even if for the sake of argument, at this stage, we may say that when the incident is said to have taken place inside the house, it may not attract the provisions of Section 3(1)(r) and 3(1)(s); yet the offence is also registered under Sections 3(1)(za)(A) and 3(2)(va) of the Atrocities Act, which run thus, -
"3. Punishments for offences of atrocities, -
(1) Whoever, not being a member of a Scheduled Caste or a Schedule Tribe,
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(za) obstructs or prevents a member of a Scheduled Caste or a Scheduled Tribes, in any manner with regard to, -
(A) using common property resources of an area, or burial, or cremation ground equally with others or using any river, stream, spring, well, tank, cistern, water-tap or other watering place, or any bathing ghat, any public conveyance, any road, or passage;
3(2)Whoever, not being a member of a Scheduled ::: Uploaded on - 17/03/2020 ::: Downloaded on - 07/06/2020 06:59:25 ::: (8) Cri.Appeal 1246/2019 Caste or a Scheduled Tribe, -
(va)commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code (45 if 1860) for such offence and shall also be liable to fine."
9. Therefore, taking into consideration the said provisions, definitely, prima facie ingredients are attracting. No doubt there appears to be a delay in lodging the report, but that is not sufficient to hold that there is false implication of the appellants. We also cannot forget the age of the informant, which is now 16 years and 5 days. When prima facie case is made out, only on the count that one of the appellants has delivered a child recently and another is in advanced stage of pregnancy, they cannot claim pre- arrest bail. There is clear bar under Section 18 of the Atrocities Act to seek pre-arrest bail and, therefore, there is no illegality or error ::: Uploaded on - 17/03/2020 ::: Downloaded on - 07/06/2020 06:59:25 ::: (9) Cri.Appeal 1246/2019 committed by the learned Special Judge in rejecting the application. There is no merit in the present appeal. It deserves to be dismissed and accordingly it is dismissed.
(SMT. VIBHA KANKANWADI,J.) BDV ::: Uploaded on - 17/03/2020 ::: Downloaded on - 07/06/2020 06:59:25 :::