Bombay High Court
Arun Dagadu Mhaske vs State Of Maharashtra And Anr on 7 September, 2022
Author: Bharati Dangre
Bench: Bharati Dangre
(40)BA-282-2022.doc
rajshree
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.282 OF 2022
Arun Dagadu Mhaske ] .. Applicant
vs.
State of Maharashtra & Anr. ] .. Respondents
Mr.Shyamrishi Pathak, for the Applicant.
Mr.S.V. Gavand, APP for the State.
Ms.Megha Bajoria, for Respondent No.2.
CORAM : BHARATI DANGRE, J
DATE : 7th SEPTEMBER, 2022.
P.C.
1] It is informed that Advocate on record Mr. Akshay Kapadia has
accorded his no objection to another counsel and therefore his name
shall be removed from the board.
The Registry shall take note the above development and take
necessary steps.
2] The Applicant is charge-sheeted in CR No.509/2021 registered
with Kanjurmarg Police Station on 17.09.2021. The subject CR invoke
Sections 354A, 114 of the Indian Penal Code and Sections 4,8,12,16
and 17 of the POCSO Act.
3] In the subject CR, two persons are arraigned as accused and
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the Applicant is arraigned as accused No.2. He is charged for
committing the offence under Section 114 of the Indian Penal Code and
Section 16 and 17 of the POCSO Act.
4] The prosecution case is that, the victim girl aged 11 years is
residing in the society and on account of lock-down when the schools
were shut, she alongwith other children in the society used to play in
the precincts (basement). She allege, that one day in August 2021
while she was playing with her friends, accused No.1 who was working
as watchman called her and took her mobile number. Since she was
knowing him as watchman working in the society, she gave him her
mobile number.
She further added that on 15.08.2021, she was called by
accused No.1, behind a car which was parked in the basement and he
pulled her close to him, kissed her and also pressed her chest and
touched her body inappropriately. Since she was scared, she did not
disclose the incident either to her friends or parents. Again after 2-3
days, same incident was repeated and she was threatened by
Accused No.1 that she should not disclose the incident to any one, else
she will be made to suffer consequences.
After few days, it is alleged that Accused No.1 again called her
and when she abided by his directions since she was threatened, he
inappropriately exhibited his private organ. This scared her and she
informed about the incident to her parents.
The FIR came to be lodged on the very same day and accused
No.1 came to be arrested.
5] As far as present Applicant who is arraigned as Accused No.2 is
concerned, who came to be apprehended on 05.11.2021, he is working
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as liftman in the same society. His involvement, according to the
prosecution, has surfaced through the supplementary statement of the
victim girl, recorded on 21.09.2021.
In her supplementary statement, the girl has indicted the
Applicant by stating that while she was playing alongwith her friends,
the Applicant i.e. liftman of the building told her to go upstairs as Anil
(Accused No.1) is there. The victim girl, however, stated that she did
not follow the said directions and left the place.
She reiterated her earlier version in her supplementary statement
of accusing Anil of inappropriately touching her and outraging her
modesty.
6] Another statement of the victim girl recorded on 29.10.2021 is
also relevant, as she state that one day when Anil i.e. Accused No.1
was standing in the washroom, she was called there by him and
suddenly the Applicant arrived at the spot and he saw her coming out
of the washroom. He scolded her by asking what she is doing there
and some quibble ensued between him and accused No.1.
7] Applicant faces accusation under Section 16 and 17 of the
POCSO Act. Section 17 prescribe punishment for abetment of any
offence under the Act and Section 16 defines what would amount to
'Abetment'.
In terms of the aforesaid provision, a person is said to have
abetted an offence, of he has either instigated any person to do that
offence or engaged with one or more person or persons in any
conspiracy for the doing of that offence, or he intentionally aids, by any
act or illegal omission, the doing of that offence.
The three explanations appended to Section 16 of the Act, clearly
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require something more that what act is attributed to the Applicant and
in terms of the explanation, a particular act is said to instigate the
doing of that thing or aiding, doing of that act, in the peculiar situation
which would fall within the purview of three explanations.
8] The prosecution accuses the Applicant of not reporting of the
incident, despite knowing about the same. But in that case, his action
would attract Section 21 of the POCSO Act which prescribe punishment
to be imposed upon a person who fails to report the commission of
offence under sub-section(1) of Section 19 or 20 and in such situation,
when the Applicant has been merely charged under Section 16 of the
POCSO Act, alleging abetment of the offence committed by Accused
No.1, from the material compiled in the charge-sheet, prima-facie no
case is made out under Section 16 of the POCSO Act, as the act of the
Applicant, as per the victim girl, would not amount to instigating the
doing of the act complained of by Accused No.1 or intentionally aiding
the commission of the offence alleged to have been committed by him.
In the supplementary statement of the victim girl, she has stated that
present Applicant asked her to go upstairs, but she did not follow the
instructions and ran away. This is the only role attributed by the victim
to the present Applicant.
9] The Applicant remain incarcerated since 05.11.2021 and in any
case on the prosecution being able to establish charge under Section
16 of the POCSO Act, he shall take consequences and suffer the
penalty under Section 17 of the POCSO Act, which is a special
enactment to protect sexual harassment and sexual assault on
children.
Offence levelled against accused No.1 being serious, it would
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take the legal course in subject trial by the Special Judge, however, it
appears that since the investigation is complete and role attributed to
the Applicant has clearly surfaced on record, he deserves his release
on bail.
10] The learned counsel for the complainant made a serious
grievance, that though the Applicant is behind bars his wife who is
working as maid servant in the building is threatening the victim girl
and her mother in order to retract from the complaint and this must be
taken care of while releasing the Applicant on bail.
11] The observations made above are prima facie in nature and
limited for the purpose of determination of the present Application and
the learned Judge trying the Applicant for the offences, with which he is
charged, shall not in any manner be influenced by the above order.
12] I must place on record my appreciation to Ms.Bajoria who has
assisted the Court and represented the case of the complainant before
this Court. High Court Legal Services Committee is directed to make
payment of her legal remuneration within a period of four weeks from
today.
Hence, the following order :
ORDER
(a) Application is allowed.
(b) Applicant Arun Dagadu Mhaske shall be released on
bail in connection with C.R.No. 509/2021 registered at Kanjurmarg Police Station on furnishing P.R. bond to the extent of Rs.25,000/- with one or two sureties of the like amount.
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(c) The applicant shall report to the concerned Police Station on first Monday of every trimester between 10.00 a.m. to 12.00 noon.
(d) The Applicant shall not establish contact with the victim girl and her family and he alongwith his wife shall not step into the society in which the victim girl and her family members are presently residing.
(e) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with facts of case so as to dissuade him from disclosing the facts to Court or any Police Officer and should not tamper with evidence.
(f) The Applicant shall regularly attend trial, on every date, unless exempted.
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