Bombay High Court
Dwarkadas S/O. Yashwant Bansod @ ... vs The State Of Maharashtra And Anr on 29 August, 2019
Author: P.R.Bora
Bench: P.R.Bora
{1} Cri.Appeal 766 OF 2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
912 CRIMINAL APPEAL NO.766 OF 2019
1. Dwarkadas s/o. Yashwant Bansod @ Pathrikar
2. Yogesh s/o. Uttamrao Bansod @ Pathrikar
3. Varun s/o. Dwarkadas Bansod @ Pathrikar ..Appellants
(Orig. accused)
VERSUS
1. The State of Maharashtra.
2. Sheshrao Gyanuji Jadhav ..Respondents
...
Advocate for Appellants : Shri R.N.Dhorde, Sr.Counsel i/b.
Shri Vikram R. Dhorde
APP for Respondent - State : Shri A.A.Jagatkar
Advocate for Respondent No.2 : Shri Avinash M. Nagarkar
...
CORAM : P.R.BORA, J.
DATE: 29th August, 2019
PER COURT:-
1. Learned counsel Shri A.M.Nagarkar has tendered across
the bar the sur-rejoinder on behalf of respondent No.2. The
same is taken on record. The copy of it is served upon the
learned counsel appearing for the appellants as well as the
learned APP.
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2. The appellants have preferred the present appeal against
the order dated 26.07.2019 passed by the Special Judge under
the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (hereinafter referred to as 'the Atrocities
Act') in Criminal Bail Application No.1548 of 2019.
3. The appellants had preferred the aforesaid application
seeking pre-arrest bail in Crime No.169 of 2019, registered at
Wadod Bazar Polication Station, Tq.Phulambri, District
Aurangabad, for the offences punishable under Sections 277,
278, 284 read with Section 34 of the Indian Penal Code and
under Sections 3(1)(c)(x) and 3(2)(va)(v) of the Atrocities Act.
The learned Special Judge has rejected the said application;
whereupon, the appellants have preferred the present appeal.
4. The appellants have agricultural land bearing Gut No.144
ad-measuring 9 Hectares and 58 Are at village Pathri. It has
been alleged against the appellants that they were intending to
purchase the adjoining lands and had also talked about it with
the owners of the said lands. It is further alleged that the
adjacent land owners refused to accede to the request made by
the present appellants to sell their lands in favour of the
appellants, more particularly, appellant No.1 Shri Dwarkadas
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Yashwant Bansod @ Pathrikar. It is further alleged that at the
relevant time, the adjacent land owners were threatened by the
appellants with dire consequences for refusing to sell their lands
in favour of the appellants. It is further alleged that nurturing
grudge against the adjacent land owners for the aforesaid
reason, the appellants indulged in pouring and spreading in their
field some chemicals, which according to the complainants was a
poisonous substance because of which, as further complained by
the complainants, not only the adjacent lands became unfit for
cultivation, but the underground water resources and the water
in the wells in the said fields is polluted. It is further alleged
that because of consumption of the said water, several persons
have incurred several diseases and they are still suffering. In
the circumstances, First Information Report (FIR) came to be
lodged against the present appellants at Wadod Bazar Police
Station on 22.07.2019.
5. Shri R.N.Dhorde, learned senior counsel appearing for the
appellants in his exhaustive arguments submitted that absolute
false allegations are made against the present appellants. The
learned senior counsel taking me through the documents filed on
record by the appellants submitted that one Dr. Pramod Eknath
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Jadhav seems to be behind bringing complaint against the
appellants. The learned senior counsel pointed out the past
conduct of Dr.Jadhav, to urge that he is capable of causing
trouble to the appellants.
6. The learned senior counsel further submitted that the
appellants did not bring in their field any such material which
may be hazardous for human consumption or for health. It is
the consistent contention of the appellants that they did bring
sugarcane molasses and the same was spread over in their own
land, which also smells very badly but it has not caused any
adverse effect on the adjoining lands or on any person as has
been alleged. The learned senior counsel further submitted that
though before the Sessions Court, there was no such material so
as to attract offences under the Atrocities Act or the offences
under the Indian Penal Code, the Sessions Court has wrongly
rejected the request of the appellants.
7. The learned senior counsel submitted that the appellants
are the permanent residents of Aurangabad and Pathri and have
lands and other properties in the vicinity. They are ready to co-
operate with the prosecution agency for completing the
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investigation and would remain present before the Investigating
Officer as and when called. The learned counsel further
submitted that even if the contents of FIR are as it is considered,
it is difficult to draw any such inference that any offence under
Sections 277, 278, 284 read with Section 34 of the Indian Penal
Code or under Sections 3(1)(c)(x) and 3(2)(va)(v) of the
Atrocities Act, would be attracted. The learned counsel
submitted that the alleged offences under the Indian Penal Code
are all bailable offences. In the circumstances, request is made
for allowing the appeal and to grant the appellants the pre-arrest
bail.
8. The request so made is strongly opposed by learned APP
Shri A.A.Jagatkar. The learned APP submitted that despite
sincere efforts made by the prosecution, the investigation is yet
not completed. Earlier reports, which were received from the
Forensic Lab and from Maharashtra Pollution Control Board
(MPCB) though are on record, the subsequent reports are also
received evidencing the pollution in the water samples, which
were subsequently examined by the said authorities. It is
further submitted that the medical papers on record show that
several persons residing at village Pathri had at a time suffered
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from the similar diseases. Prima-facie, it appears that the said
disease is the outcome of the polluted water. The learned APP
further submitted that evidence, which has been collected by the
prosecution prima-facie show that not the sugarcane molasses
but spent-wash might have been brought in the fields of the
appellants. The averments in the spot Panchnama clearly
indicate the said fact. The learned APP further submitted that
from the reports, which are received, the complaint lodged by
the complainants, who are the villagers from Pathri and belong
to Scheduled Caste, cannot be disbelieved. The learned APP
submitted that in such type of matters some more time is
required for completing the investigation. The learned APP
further submitted that several such aspects are yet to be
investigated for which the custodial presence of the appellants is
required by the Investigating Officer. The learned APP, in the
circumstances, prayed for rejecting the appeal.
9. Shri A.M.Nagarkar, learned counsel appearing for the
original complainants submitted that the appellants are so
influential that, if they are kept free, the investigation cannot be
completed properly. The learned counsel submitted that apart
from Dr.Jadhav, against whom much has been stated on behalf
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of the appellants, the facts which have been stated by the other
complainants and the sufferings which they have undergone and
are undergoing cannot be just ignored and discarded. The
learned counsel taking me through the documents and more
particularly certain correspondence between Tahsildar, Phulambri
with the MPCB, submitted that the honest attempts made by the
Tahsildar for joint visit and inspection of the affected lands and
wells with the Officers of the MPCB failed because the said
Officers did not respond and in the circumstances, the
Investigating Officer was constrained to collect the samples on
his own and to send it to respective laboratories. The learned
counsel further pointed out that even the reports, which are
there on record, are suggesting water pollution caused at the
alleged places. The learned counsel further submitted that the
correspondence made by Radico Company is also suggesting
that some material was purchased by the appellants from the
said Company, however, there is confusion as about whether that
was the item of fertilizer or any other effluent was purchased
and brought in the field and used for polluting the water of the
adjacent fields and wells in the said fields. The learned counsel
pointed out that today itself, one of the complainants has been
threatened by one of the appellants. He tendered across the
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{8} Cri.Appeal 766 OF 2019
bar, a copy of the N.C.Report. The same is taken on record. The
learned counsel, in the circumstances, prayed for rejecting the
appeal filed by the appellants.
10. I have duly considered the submissions advanced by the
learned senior counsel, learned APP and the learned counsel
appearing for the original complainants. I have perused the
voluminous documents, which are placed on record by the
appellants as well as by the complainants. Investigation papers
were also made available for my perusal and I have gone
through the said papers.
11. After having heard the arguments of the learned counsel
appearing for the parties, following queries were made by me to
the learned APP:-
(a) To point out any report, which reflects that the water
samples, collected from the alleged affected area, were found
to be contaminated/polluted or unfit for human consumption.
(b) To show any report to the effect that consumption of the
water from the wells in the alleged affected area was liable to
result in incurring the diseases, which the complainants
alleged to have incurred by them.
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(c) To point out any medical report from any competent
authority showing that the persons, who claimed to have
suffered diseases because of their consuming water from the
wells in the alleged affected area, have suffered the said
diseases only because of alleged consumption of such water
by them.
12. The learned APP sought to rely upon the report, received
from the Forensic Lab, of the water samples, to support his
contention that the water in the wells existing in the affected
area has been polluted. The learned APP, however, could not
bring to my notice any report on the aforesaid aspects. On the
contrary, the report received from GHATI Hospital, which is
tendered by the learned APP today across the bar, contains an
opinion that diseases, the symptoms of which are stated by the
aggrieved persons, are not likely to be caused by consumption of
water.
13. In spite of the facts as aforesaid, considering the
documents, which are existing on record filed by the present
appellants and by the complainants and after having gone
through the investigation papers made available for my perusal,
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it is difficult to outrightly reject the allegations made by the
complainants. The grievance made by the complainants can
also not be termed as false. After having gone through the
correspondence on record and more particularly, letters written
by Tahsildar, Phulambri to MPCB and the explanation given by
Radico Company, it appears that further investigation in the
matter is necessary. There appear serious allegations in the
complaint but the same did not seem to have been dealt with
that seriously. The documents on record reveal that Tahsildar,
Phulambri had made correspondence with the Officers of the
MPCB and has requested the said Officers for joint visit and joint
inspection of the alleged affected area, however, the request so
made was not acceded by the MPCB. The correspondence
between the MPCB and Radico Company also leads to prima-
facie inference that the grievance raised by the villagers of Pathri
is not baseless. The explanation given by Radico Company
prima-facie shows that some material was purchased by the
present appellants from it, which the complainants are alleging
to be hazardous and the appellants claim it to be not hazardous.
It appears to me that more intensive and systematic
investigation is required in the present matter.
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14. The fact, however, remains that though the FIR is
registered on 22.07.2019, till date the prosecution has not
brought on record any concrete evidence so as to attract the
offences alleged against the present appellants. In the
circumstances, while allowing the further investigation in the
matter with a caution that it needs to be more intensive and
systematic, personal liberty of the appellants cannot be lost sight
of. It, therefore, appears to me that some interim order needs
to be passed in the matter, which would safeguard individual
liberty of the appellants. I need not to state that individual
liberty is one of the most valuable fundamental rights granted by
the Constitution to the citizens of this Country. In the result, the
following order is passed:-
ORDER
I) The matter stands over to 30.09.2019.
II) In the meanwhile, in the event of their arrest in Crime No.169 of 2019, registered at Wadod Bazar Police Station, Tq.Phulambri, District Aurangabad, the appellants be released on their furnishing P.R.Bond in the amount of Rs.50,000/- each with one or more sureties in the like amount.
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III) The appellants shall not indulge in commission
of any such act, which may amount to tampering the prosecution evidence.
IV) The appellants shall not enter into the area of village Pathri until further orders.
(P.R.BORA) JUDGE SPT ::: Uploaded on - 31/08/2019 ::: Downloaded on - 31/08/2019 22:59:49 :::