Bombay High Court
Rashidkha Anwarkha Pathan & One vs The State Of Maharashtra Thr. P.S.O., ... on 25 February, 2019
Author: V.M. Deshpande
Bench: V. M. Deshpande
1 APEAL711.18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 711 OF 2018
APPELLANTS : 1] Rashidkha Anwarkha Pathan
Aged about 59 years, Occu. Labourer,
2] Anjumbi Rashidkha Pathan,
Aged about 53 years, Occu. Household,
R/o Adhal Nagar, Rithad,
Tah. Risod, Dist. Washim
VERSUS
RESPONDENTS : 1] State of Maharashtra,
Through Police Station Officer,
Police Station, Washim (Rural),
Dist. Washim.
2] Subhash Tukaram Sable
R/o Adhal Nagar, Rithad,
Tah. Risod, Dist. Washim.
--------------------------------------------------------------------------------------------------
Mr. Mir Nagman Ali, Advocate for the appellants.
Mr. N. S. Rao, A. P. P. for respondent no.1/State.
Mr. T. G. Bansod, Advocate for respondent no.2
-------------------------------------------------------------------------------------------------
CORAM : V. M. DESHPANDE, J.
DATE : FEBRUARY 25, 2019
ORAL JUDGMENT
1. Heard. ADMIT. Taken up for final hearing by consent of the parties.
::: Uploaded on - 25/02/2019 ::: Downloaded on - 21/03/2019 14:34:54 :::
2 APEAL711.18.odt
2. The present appeal under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Atrocities Act" for short) is filed because the application filed on behalf of the appellants under Section 438 of the Code of Criminal Procedure for anticipatory bail i.e. Misc. Criminal Application NO. 379/2018 is rejected by the learned Additional Sessions Judge, Washim on 12.11.2018, principally on the ground that there is a bar to entertain the application under Section 438 of the Code of Criminal Procedure.
3. The offence is registered against the appellants with Police Station, Washim (Rural), Washim on 28.10.2018 vide Crime No. 312/2018 for the offences punishable under Sections 452, 354, 323, 504, 506 and 34 of the Indian Penal Code and under Sections 3(1)(r)(s), 3(1)(g), 3(1)(w)(i)(ii), 3(2)(va) of the Atrocities Act.
4. I have heard Mr. Mir Nagman Ali, the learned counsel for the appellants, Mr. N. S. Rao, the learned Additional Public Prosecutor for the respondent/State and Mr. T.G. Basod, the learned counsel for respondent no.2/original complainant.
5. According Mr. Ali, the learned counsel for the ::: Uploaded on - 25/02/2019 ::: Downloaded on - 21/03/2019 14:34:54 ::: 3 APEAL711.18.odt appellants, even plain reading of the first information report, would show that the incident has occurred inside the house of the complainant and not within the public view. He also submitted that there is a delay in lodging the first information report.
6. On the other hand, it is the submission of Mr. Bansod, the learned counsel for respondent no.2/original complainant that the present appeal is required to be rejected in view of specific bar under Section 18 of the Atrocities Act, since, the present appeal is filed against rejection of the order passed by the learned Judge of the Court below dismissing the application for anticipatory bail.
7. Mr. Rao, the learned Additional Public Prosecutor for the State would submit that though, the statements of various witnesses who are in the neighbourhood of the complainant are recorded by the Investigating Officer. None of the statements show that in their presence offensive language in the name of caste was uttered against the complainant.
8. No doubt true that there is a specific bar under Section 18 of the Atrocities Act. However, in view of the law laid down by this Court in Ramchandra Govindrao Watkar and another .vs. ::: Uploaded on - 25/02/2019 ::: Downloaded on - 21/03/2019 14:34:54 ::: 4 APEAL711.18.odt State of Maharashtra, reported in 1995(2) Mh.L.J. 669, it is always left for the Court to lift the vail in order to see as to whether the offence is committed or not.
9. In the present case, the date of the alleged incident is dated 10.10.2018. However, the first information report is lodged on 28.10.2018. Obviously, therefore, there is a delay in lodging the first information report. Merely because there is a delay, that will not be sufficient to discard the prosecution case, had the prosecution case offers plausible explanation for lodging the report at belated stage.
10. In the first information report, no reasoning is offered by the respondent no.2- complainant for lodging the report at belated stage. Further, the learned Additional Public Prosecutor from the record could not point out that even during the course of the investigation of the crime, any explanation was offered by the complainant for belated lodging of the report, which could be accepted.
As per the first information report, the appellants are husband and wife and neighbour of respondent no.2 and who are in habit of picking up quarrel with the complainant. It is further ::: Uploaded on - 25/02/2019 ::: Downloaded on - 21/03/2019 14:34:54 ::: 5 APEAL711.18.odt reported that on 09.10.2018, the dog of the appellants tried to assault on the mother of the complainant. At that time when complainant tried to give a word of caution to the appellants, appellant no.1 gave abuses. It is further stated in the first information that on 10.10.2018, at 6.30 am when his wife Lata was sweeping the courtyard, at that time both the appellants entered inside the house of the complainant and used abusive language in the name of the caste and also extended threat to him. At that time the appellant no.1 gave 2-3 slaps on the complainant. On hearing the commotion, as per the first information report, the wife of the complainant took entry inside her house. At that time, appellant no.2 pulled her hairs and also used abusive language in the name of caste.
11. From a bare perusal of the first information report, it is crystal clear that the alleged incident has occurred inside the four walls of the house of the complainant. The incident has to occur within the public view . Merely because the incident has occurred inside the house that does not mean that the incident has not occurred within the public view, had there were recitals in the first information report that abusive language used by the appellant was audible and in fact those utterances were heard by any passerby . ::: Uploaded on - 25/02/2019 ::: Downloaded on - 21/03/2019 14:34:54 :::
6 APEAL711.18.odt 12 The first information report states that his wife is deaf and dumb. If that be so, the truthfulness of the first information report comes within the zone of suspicion since in the earlier paragraph of the first information report, it is stated by the first informant that after hearing commotion, she took entry inside the house and thereafter she was assaulted by "words" by using offensive language.
13. The learned Additional Public Prosecutor for the State on the basis of the case diary available with him could not point out the statement of any witness, who was a passerby and/or has heard the alleged abusive language uttered by the appellants.
14. The conspectus of the aforesaid discussion, leads me to pass the following order :
ORDER
1. The criminal appeal is allowed.
2. The order passed by the learned Additional Sessions Judge, Washim in Misc. Criminal Application No.379/2018 dated 12.11.2018 is hereby quashed and set aside.
3. The appellants - (1) Rashidkha Anwarkha Pathan and ::: Uploaded on - 25/02/2019 ::: Downloaded on - 21/03/2019 14:34:54 ::: 7 APEAL711.18.odt (2) Sau. Anjumbee W/o Rashidkha Pathan, in the event of their arrest in connection with Crime No. 312/2018 registered with Police Station, Washim (Rural), Washim for the offences punishable under Sections 452, 354, 323, 504, 506 and 34 of the Indian Penal Code and under Sections 3(1)(r)(s), 3(1)(g), 3(1)(w)(i)(ii), 3(2) (va) of the Atrocities Act, be released on bail on they executing a PR bond of Rs.5,000/- and one solvent surety of the like amount, by each of them.
4. It shall be open for the Investigating Officer to call only appellant no.1 - RashidKha Anwarkha Pathan for the purpose of investigation, however, for that, he shall give a clear-cut 48 hours written communication to the appellant No.1.
5. The appellants shall not try to influence any prosecution witness.
6. It is made clear that the Investigating Officer shall complete the investigation in accordance with law and shall file the Charge-sheet before the Court below.
7. With this, the criminal appeal is allowed and disposed of.
V.M. Deshpande, J.
Diwale ::: Uploaded on - 25/02/2019 ::: Downloaded on - 21/03/2019 14:34:54 :::