Bombay High Court
Dr. Rajendra Ambadas Band And Others vs The State Of Maharashtra And Another on 17 April, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.266 OF 2023
1) Dr. Rajendra Ambadas Band,
Age-48 years, Occu:Medical Practitioner,
R/o-"Gopika Niwas", Someshwar Nagar,
Beed, Tq. & Dist-Beed,
2) Jivan Govardhan Band,
Age-39 years, Occu:Business,
R/o-"Sagar Niwas", Shivaji Dhande Nagar,
Beed, Tq. & Dist-Beed,
3) Sadashiv Ambadas Band,
Age-64 years, Occu:Pensioner,
R/o-"Gopika Niwas", Ganpatinagar,
Beed, Tq. & Dist-Beed.
...APPELLANTS
VERSUS
1) The State of Maharashtra,
Through Office In Charge,
Police Station, Shivaji Nagar,
Beed, Dist-Beed,
2) Pavan Navnath Gaikwad,
Age-35 years, Occu:Driver,
R/o-Purgrasta Colony,
Beed, Tq. & Dist-Beed.
...RESPONDENTS
...
Mr. Sudarshan J. Salunke Advocate for Appellants.
Mr. R.D. Sanap, A.P.P. for Respondent No.1 - State.
Mr. R.G. Hange Advocate for Respondent No.2.
...
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CORAM: SMT. VIBHA KANKANWADI AND
Y.G. KHOBRAGADE, JJ.
DATE : 17th APRIL, 2023
ORDER [PER SMT. VIBHA KANKANWADI, J.] :
1. Present Appeal has been filed under Section 14-A(2) of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act (for short "the Atrocities Act"), to challenge
rejection of anticipatory bail application by learned Special
Judge, Beed on 17th March 2023 filed by the present appellants.
Present appellants have been arrayed as accused Nos.1 to 3 in
Crime No.97 of 2023 registered with Shivajinagar Police Station,
Beed for the offence punishable under Sections 307, 327, 324,
323, 504, 506 read with Sections 149, 143, 147, 148 of the
Indian Penal Code, Sections 3(1)(r), 3(2)(va) of the Atrocities
Act, and Section 3 and 4 read with Section 25 of the Arms Act.
The appellants had filed Criminal Bail Application No.177 of 2023
before the learned Special Judge, Beed under Section 438 of the
Code of Criminal Procedure, which came to be rejected.
2. Heard learned Advocate Mr. Salunke appearing for the
appellants, learned APP Mr. Sanap for the State and learned
Advocate Mr. Hange appearing for respondent No.2.
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3. It has been vehemently submitted on behalf of the
appellants that the learned Special Judge has not considered the
facts properly and failed to consider that there was political
motive behind the registration of the First Information Report
(for short "FIR"). The learned Special Judge has in fact
considered in Paragraph No.13 that the FIR is totally silent, as to
when the abuses in the name of caste were given any
independent witnesses were present and therefore, it is doubtful
as to whether the provisions of the Atrocities Act are applicable.
Therefore, there was no hurdle for considering the anticipatory
bail application. The application appears to have been rejected
on the ground that the allegations have been made that the
applicants have used rifle (pistol), kukri and iron rod in the
commission of crime and it is stated that one Sachin Ghodke was
robbed off the gold chain and therefore, custodial interrogation
would be necessary. Appellant No.1 is a medical practitioner,
appellant No.2 is a businessman and appellant No.3 is the
pensioner, aged 64 years, why they would rob any person when
they are from well to do family. This Court had granted interim
protection by order dated 29th March 2023 and the appellants
have not misused the liberty. They have attended the police
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station as directed and co-operated with the investigation. As the
impugned order is bad in law, it deserves to be set aside.
4. Learned Advocate for the appellants, in support of his
submissions, relied on the decision in Pravin S/o Shrimant
Bhutekar vs. State of Maharashtra and another, 2010 ALL
MR (Cri) 1223 by the learned Single Judge of this Court,
wherein it was held that when there is smell of political rivalry to
the FIR and there is also no explanation for the delay in lodging
the report, then even though there is bar under Section 18 of
the Atrocities Act, exception was made out to grant anticipatory
bail. Learned Advocate further relied on the three Judge Bench
decision of the Hon'ble Supreme Court in Hitesh Verma vs.
State of Uttarakhand and another, 2021 CRI. L.J. 1,
wherein it has been held that when the alleged act of abusing
informant was within the four walls of the building and not within
the public view, the offence under Section 3(1)(r) of the
Atrocities Act is not made out merely because informant is
belonging to a scheduled caste.
5. Per contra, the learned APP as well as learned Advocate
appearing for respondent No.2 strongly opposed the Appeal.
Affidavit in reply has been filed on behalf of respondent No.2. It
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has been submitted on behalf of them that the contents of the
FIR are sufficient to attract the ingredients of offence under
Section 3(1)(r) and 3(1)(s) as well as 3(2)(va) of the Atrocities
Act. The accused persons were knowing the caste of the
informant. In his affidavit in reply respondent No.2 has
reiterated the same facts and submitted that the injury
certificate of witness Sachin Ghodke reflects that he has
sustained CLW on occipital region admeasuring 3 X 2 cm., and
the CT Scan of said injury reflects that there was cerebral
oedema with concussion. It was a grievous injury and it was with
an intention to commit murder of Sachin Ghodke and therefore,
offence was made out under Section 307 of the Indian Penal
Code. It is also stated that wife of respondent No.2 hails from
village of appellant No.1 and therefore, appellants had
knowledge about the caste of the informant. The application
under Section 438 of the Code of Criminal Procedure before the
Special Judge was barred under Section 18 of the Atrocities Act.
As per the said allegations pistol, iron rod and kukri have been
used in the commission of the crime. Those weapons are
required to be seized and therefore, custodial interrogation of
the appellants was necessary. The learned Special Judge was
justified in rejecting the application.
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6. The contents of the FIR are that respondent No.2 - original
informant is a member of scheduled caste and he says that
around 10.30 p.m., on 1 st March 2023 when he was proceeding
in vehicle No. MH-24-BR-4141 along with victim Sachin Ghodke
and they were in front of grocery shop in Gopika Nagar, then
they found that 2 to 3 motorcycles were parked on the road.
Informant had blown the horn and therefore appellant No.1
came out of the hospital and started asking him as to why he
was blowing the horn. It is then stated that he has abused
informant in the name of caste. Informant then told appellant
No.1 that he is the son in law of the village and as to why he is
speaking with informant in such a manner. Appellant No.1 asked
them to get down from the car and asked them to come in his
hospital. Thereafter the incident is stated to have been taken
place inside the hospital. Though it has been alleged that
appellant No.1 had abused in the name of caste by coming out of
the hospital, yet there is no recital that the said abuses were
heard by any third person, that means who is not the friend.
Injured Sachin cannot be said to be the said third person who
would have heard accused No.1 abusing the informant in the
name of the caste. At this stage, we are not supposed to scan
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the FIR in detail but the probability of any such event is also
required to be considered. The informant says that when he
found that 2 to 3 motorcycles were standing in front of a grocery
shop, he had blown the horn of the vehicle. He is not stating
that he has no sufficient space to take out his four wheeler
ahead of the said spot. For how much time he was blowing the
horn, is another question. Further the place was in front of
hospital. Investigating Officer will have to consider, as to
whether it was the silent zone. Even if it is not a silent zone, yet
when the informant is stated to have blown the horn at 10.30
p.m., unless that act would have amounted to nuisance, nobody
would have come on road. It could not have been in the dreams
of appellant No.1 that the informant and victim Sachin would be
passing by the car at the relevant time.
7. Another fact which is to be noted is that the entire FIR is
silent as to how appellant No.1 was knowing respondent No.2 -
informant and since when. Unless appellant No.1 would have
been knowing the informant, there would not have been reason
to abuse him in the name of the caste. In the affidavit in reply
also the informant has stated that he is the son in law of the
village i.e. his wife hails from the village of appellant No.1.
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Therefore, it is doubtful, as to whether the FIR discloses offence
under Section 3(1)(r) and 3(1)(s) of the Atrocities Act, so also
under Section 3(2)(va) of the Atrocities Act, because unless
there was knowledge about the fact that informant belongs to a
particular caste, assault to him ought to have been because he
belongs to the said caste for attracting the said offence. If we
see the contents of the FIR, informant says that after the horn
was blown by him, appellant No.1 came outside and directly
abused him in the name of the caste and asked him as to why he
is blowing the horn. That means, there was no other dialogue
between them when appellant No.1 allegedly came out of the
hospital. We hold that there was no bar under Section 18 or 18-A
of the Atrocities Act for entertaining the application under
Section 438 of the Code of Criminal Procedure by the learned
Special Judge.
8. Another fact to be noted is that as per the FIR till
informant, victim Sachin and appellant No.1 went inside the
hospital; appellant Nos.2 and 3 i.e. original accused Nos.2 and 3
were not present. Therefore, the said alleged abuses, even if
taken for the sake of arguments as it is, that bar is not
applicable to appellant Nos.2 and 3. Therefore, there was
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absolutely no hurdle for entertaining the application of appellant
Nos.2 and 3 in clear terms. As per the FIR, the subsequent
incident has taken place in the hospital. FIR itself says that after
they entered into the hospital, the door was latched from inside.
It is then stated that appellant No.1 had taken out pistol from his
waist and put it on the head of the victim Sachin and he told that
Sarpanch of the Grampanchayat is his man. The members might
be belonging to victim's group but he should not raise any
dispute in the Grampanchayat. Then the informant says that
appellant No.2 had taken out knife or kukri like weapon and gave
blow of the same on the head of Sachin. Appellant No.3 had then
assaulted by iron rod on the head of the informant. Assault was
also given on his right wrist and neck. He had also sustained
bleeding injuries. Other 3 to 4 persons were present there who
had assaulted them by slaps, kicks and fists and then they had
abused the informant in the name of caste. Informant and
Sachin were threatened to kill. Informant then says that
appellant No.3 had snatched the gold chain from the neck of
Sachin when he was lying in unconscious condition on the
ground. It is then stated that all those three accused persons
fled away. Informant then says that he called one Nikhil
Naikwade and Sandeep Ghodke, who had taken them to hospital.
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9. The ratio laid down in Hitesh Verma vs State of
Uttarakhand and another (supra) would be applicable here, as
the further incident has taken place within the four walls of the
hospital. In ordinary parlance hospital could have been the public
place, however, the informant is saying that after they entered
the hospital, the accused had closed the door from inside. How
many persons were there in the hospital, has not been
explained. Therefore, offences under Section 3(1)(r) and 3(1)(s)
of the Atrocities Act are apparently not made out. The incident is
stated to have taken place around 10.30 p.m., on 1 st March
2023, whereas the FIR has been lodged at 11.26 p.m. on 2 nd
March 2023. Thus, there appears to be delay in lodging the FIR
and at this stage, the benefit of the same should be given to the
appellants.
10. Learned Advocate for the appellants has relied on the FIR
lodged by the wife of appellant No.1 on 3 rd March 2023 around
10.08 p.m. Crime has been registered with Shivajinagar Police
Station, Beed for the offence punishable under Sections 323,
327, 354, 452, 143, 147, 149, 504, 506 of the Indian Penal
Code. It is against Sachin Ghodke and other persons and it
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appears that the informant has been stated to be the unknown
person for her. We do not want to go to the details of the said
FIR because it is subsequent. The fact remains is that when
informant - respondent No.2 was hospitalized then what history
he has given to the hospital authorities and why the FIR was not
got registered within the reasonable time, are the points which
are required to be dealt with at the time of final hearing.
11. Appellants have also produced copy of the FIR vide Crime
No.7 of 2021 registered with Peth Beed Police Station, District-
Beed, which is against some other persons, but it is also under
the Atrocities Act. It was tried to be submitted that respondent
No.2 is in habit of lodging such reports. With respect to the
learned Advocate for the appellants, we do not want to deal with
this subject. Merely because respondent No.2 had earlier lodged
the report invoking the Atrocities Act, that does not mean that
he is in the habit of lodging the reports.
12. Learned Special Judge himself has raised doubts about the
applicability of Atrocities Act but rejected the anticipatory bail on
the ground that the weapons are required to be seized and the
victim Sachin has been robbed off gold chain. Here the FIR has
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to be considered from the political angle also. It has been shown
that appellant No.1 was politically active, but then as regards
accused Nos.2 and 3 are concerned, there is no such
background. Actually appellant No.3 is the father of appellant
No.1. That is also not sufficient to infer that some common talks
would have taken place which would be then the mens rea.
13. We have given sufficient attendance to the appellants when
their liberty was protected in the interim order. The Investigating
Officer could have utilized the said opportunity, but still he is
reporting that investigation is yet to be done in respect of the
weapons. If he had interrogated the appellants then it could
have laid to the discovery under Section 27 of the Indian
Evidence Act. Even after granting sufficient opportunity, if the
investigation has not been carried out in that direction, it cannot
be said that the custodial interrogation of the appellants would
be necessary. Learned Special Judge ought to have considered
all these points. Since those points have not been considered,
this Court would interfere and protect the liberty granted to the
appellants. What was the motive for appellant Nos.2 and 3 to
commit the said offence, is a question. The Appeal, therefore,
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deserves to be allowed and accordingly following order is
passed:-
ORDER
(I) Appeal stands allowed.
(II) The interim protection granted to the Appellants
by this Court by order dated 29th March 2023 stands confirmed. It is thus clarified that in the event of arrest of appellants i.e. appellant No.1 - Dr. Rajendra Ambadas Band, appellant No.2 - Jivan Govardhan Band and appellant No.3 - Sadashiv Ambadas Band, in connection with Crime No.97 of 2023 registered with Shivajinagar Police Station, Beed for the offence punishable under Sections 307, 327, 324, 323, 504, 506 read with Sections 149, 143, 147, 148 of the Indian Penal Code, Sections 3(1)(r), 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, and Section 3 and 4 read with Section 25 of the Arms Act, the appellants be released on PR and SB of Rs.15,000/- each, if already not released.
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appeal-266.23 14 (III) Appellants shall remain present before the Investigating Officer i.e. Dy.S.P., Beed on every Monday, Wednesday and Friday between 3.00 p.m. to 6.00 p.m. till filing of the charge-sheet and co-operate with the investigation.
(IV) Appellants shall not tamper with the evidence of the prosecution in any manner.
(V) Appellants shall not indulge in any criminal activity.
[Y.G. KHOBRAGADE] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
asb/APR23
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