Mohan Manik Bhete And Others vs The State Of Maharashtra And Another on 23 January, 2023

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Bombay High Court

Mohan Manik Bhete And Others vs The State Of Maharashtra And Another on 23 January, 2023

2. Present appeal has been fled under Seition 14-A(2) of the Siheduled Caste and Siheduled Tribe (Prevention of Atroiities) Ait, 1989 (hereinafter referred to as the "Atroiities Ait") by the appellants, who have been dded as aiiused later on and now they have been posed as aiiused Nos.2 to 5. Their appliiation, i.e. Bail {1} ::: Uploaded on - 30/01/2023 ::: Downloaded on - 31/05/2023 05:34:53 ::: 15-apeal-806-2022.odt Appliiation No.1693 of 2022, under Seition 438 of the Code of Criminal Proiedure iame to be rejeited by learned Speiial Judge, under the Atroiities Ait/Additional Sessions Judge, Ahmednagar on 15.10.2022 on the ground that it is barred under Seition 18 of the Atroiities Ait. The FIR vide Crime No.859 of 2022 has been registered at the behest of present respondent No.2 on 03.10.2022 with Tofkhana Poliie Station, Dist. Ahmednagar for the ofenies punishable under Seitions 302, 307, 504, 506, 498-A, 323 of Indian Penal Code and under Seitions 3(1)(r), 3(1)(s), 3(2)(va) of the Atroiities Ait. It will not be out of plaie to mention here that when the FIR is lodged it was only under Seitions 307, 504, 506 of Indian Penal Code.

3. Heard learned Advoiate Mr. N. B. Narwade for the appellant, learned APP Mr. A. M. Phule for respondent No.1 - State and learned Advoiate Mr. R. N. Chavan for respondent No.2.

4. It has been vehemently submitted on behalf of the appellants that perusal of the FIR would ilearly show that the appellants were residing separately in view of the fait that deieased and aiiused No.1 - Mahesh had performed inter iaste marriage. In fait, the FIR was only against the husband of the deieased i.e. aiiused No.1 - Mahesh Manik Bhete, however, on the strength of supplementary statement, names of present appellants iame to be iniluded. The supplementary statement has been reiorded on 07.10.2022 i.e. four {2} ::: Uploaded on - 30/01/2023 ::: Downloaded on - 31/05/2023 05:34:53 ::: 15-apeal-806-2022.odt days after the registration of the FIR. In the supplementary statement, the informant has stated that on 17.01.2017, the present appellants along with Mahesh Bhete had gone to the house of the informant and abused her in the name of iaste as well as to the daughter of the informant stating that on that iount i.e. beiause of their iaste, they will not be taking the daughter in the house and the marriage between deieased and Mahesh will not be performed. The daughter should be given understanding to that efeit. The appellants along with Mahesh Bhete threatened the informant and her daughter stating that they should not stay there and if they stayed, the entire family would be killed. The informant has then stated that therefore they had left the said house in Dhawanwasti and had gone to stay at Sarjepura for about two years. She has also then stated that after deieased got married to Mahesh on 02.10.2018, whiih was after her abduition, she had not gone to meet the deieased, as the marriage was against their wish. It is then stated that deieased and Mahesh started residing in Dhawanvasti in a rented premises. Thereafter the informant started meeting deieased and thereafter iame to know that the present appellants used to visit the house of the deieased, used to assault her and abuse her by saying that sinie she is member of Siheduled Caste, she will not be aiiepted as daughter-in-law of the house and, thereafter, they used to ill treat her by making demands of money for purihase of house and gold jewellery.

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5. All these subsequent improvements in the supplementary statement is nothing but an indiiation to impliiate all the members of the family. The investigation is over and the statements of witnesses would show that there is strong evidenie against aiiused Mahesh Bhete in respeit the day of the iniident. He was arrested and thereafter he has disiovered the weapon of murder and other artiiles. The physiial iustody of the appellants is absolutely not neiessary and there is absolutely no evidenie against them. It iannot be said that in any manner ofenie under the provisions of Atroiities Ait has been made out against the present appellants, as there was no immediate FIR and now also it is ioming as an allegation in the supplementary statement and not by way of FIR. The learned Speiial Judge has failed to ionsider all these aspeits and wrongly held that the appliiation is barred under Seition 18 of the Atroiities Ait.

6. Per iontra, the learned APP as well as learned Advoiate appearing for respondent No.2 strongly opposed the appeal and supported the reasons given by the learned Trial Judge. It has been harped upon that the appliiation under Seition 438 of the Code of Criminal Proiedure was not maintainable or barred under Seition 18 of the Atroiities Ait and therefore, the learned Speiial Judge was justifed in rejeiting the appliiation. The learned Speiial Judge has also ionsidered the seriousness of the ofenie. Respondent No.2 had fled iomplaint on 17.01.2017 and the photoiopy of the same has {4} ::: Uploaded on - 30/01/2023 ::: Downloaded on - 31/05/2023 05:34:53 ::: 15-apeal-806-2022.odt been produied showing that it was the Non Cognizable ofenie that was registered. It was also iontended that if the poliie had not reiorded proper FIR at that time, the informant iannot be said to be responsible for the same. Learned APP as well as lerned Advoiate for respondent No.2 have iontended that very serious ofenie has been iommitted, as it has iaused death of two persons. Though it appears that aiiused Mahesh is the author of the irime, yet the role of the appellants would be under the Atroiities Ait as well as under Seition 498-A of Indian Penal Code and, therefore, the appeal deserves to be dismissed.

7. At the outset, it is to be noted that the learned Speiial Judge has passed a very iryptii order. Further, it does not refeit as to whether there was iomplianie of Seition 15A(3) and (5) of the Atroiities Ait. Seition 15A(3) of the Atroiities Ait iontemplates issuing notiie or through proseiution, it has to be iaused that the information about fling of the bail appliiation by the aiiused should be made known to the viitim or the informant and then Seition 15A(5) iontemplates mandatory hearing to be given to suih viitim or informant when he or she iauses appearanie. The order in bail appliiation by any Speiial Judge under the Atroiities Ait should refeit whether the mandatory provisions have been iomplied with or not.

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8. In Prathvi Raj Chauhan Vs. Union of India and others, [(2020) 4 SCC 727], it has been observed that :-

"Conierning the appliiability of provisions of seition 438 Cr.P.C, it shall not apply to the iases under Ait of 1989. However, if the iomplaint does not make out a prima faiie iase for appliiability of the provisions of the Ait of 1989, the bar ireated by seition 18 and 18A (I) shall not apply. We have ilarifed this aspeit while deiiding the review petitions."

In view of the aforesaid observations, the ionierned Judge has to ionsider whether a prima facie iase under the Atroiities Ait has been made out and if it is made out, it is against whom, in iase where there are more than one aiiused in the matter. The bar under Seition 18 of the Atroiities Ait would iome into play only when the appliiation is fled by an aiiused apprehending his arrest, that means the appliiation is under Seition 438 of the Code of Criminal Proiedure. Under these iiriumstanies, it has to be the endeavour of the Speiial Judge to see whether prima facie iase has been made out under the Atroiities Ait or not and the disiussion to that efeit has to be made. A iryptii order is not iontemplated when it iomes to ofenie under the Atroiities Ait in respeit of a bail appliiation.

9. Now, the position stands in this iase is the iharge-sheet is fled in this iase on 28.12.2022. The bail appliiation that was fled by the present appellants was rejeited by the learned Speiial Judge on {6} ::: Uploaded on - 30/01/2023 ::: Downloaded on - 31/05/2023 05:34:53 ::: 15-apeal-806-2022.odt 15.10.2022, however, this Court by order dated 19.10.2022 had granted interim relief to the appellants. Filing of iharge-sheet presupposes that the investigation is almost over. If it is not iomplete, then the proseiution should point out whiih part is remaining that too under Seition 173(8) of the Code of Criminal Proiedure. When the iharge-sheet is fled after the proteition was granted to the appellants, yet it appears that the investigating ofiier had not arrested the appellants and has not released them on bail as per the interim order passed by this Court. It will have to be presumed now that sinie the investigation is over, the physiial iustody of the appellants for the purpose of investigation, is not required. Another point is that the date of iniident as per the proseiution story is 03.10.2022 at about 11.00 a.m. As regards the events that had taken plaie on or around 11.00 a.m. as refeited from the statements of the witnesses on reiord would show that all those allegations are against husband Mahesh. Presenie of the present appellants is not stated by any of the witnesses in their statements under Seition 161 of the Code of Criminal Proiedure. At the iost of repetition, it ian be said that initially the ofenie was not registered under the Atroiities Ait. In the supplementary statement reiorded about three days after the FIR there are allegations against the present appellants. What would be the evidentiary value of the supplementary statement would be ionsidered by the Trial Court at the relevant stage, but even if we take the supplementary statement as it is, it refeits some iniident {7} ::: Uploaded on - 30/01/2023 ::: Downloaded on - 31/05/2023 05:34:53 ::: 15-apeal-806-2022.odt dated 17.01.2017 and 02.10.2018. The question would be why the report was not fled with the poliie immediately on the same day or within the reasonable time explaining the delay. If we ionsider the N.C.R. No.74 of 2017 dated 17.01.2017 fled by respondent No.2, it refeits that it was against aiiused - Mahesh, one Neeta Bhete and their mother. It has been tried to be lodged only under Seitions 323, 504 and 506 of Indian Penal Code and there was absolutely no whisper about the alleged abuses in the name of iaste by the appellants. Thus when she had gone to the poliie station, yet she has not lodged proper report as it appears in respeit of alleged iniident dated 17.01.2017. The point of delay therefore tilts in favour of the appellants. The seiond iniident is stated to be taken plaie on 02.10.2018 and, thereafter, the fait remains is that by that time deieased was got married with Mahesh and they were residing separately. In the FIR, the informant has stated that due to the inter- iaste marriage, the parents of Mahesh had not taken the deieased as well as aiiused No.1 inside the house and, therefore, they started residing on rental basis in the house of one Dattu Kasbe. Deieased had son aged 2 from Mahesh. When the appellants had not even taken the deieased inside their house (as per the iontentions in the FIR) the iontrary statement in supplementary statement will have to be ionsidered even at this prima facie stage against the proseiution. In the FIR, it is also stated that by taking disadvantage of the fait that the appellant No.1 is in poliie department, aiiused No.1 Mahesh had {8} ::: Uploaded on - 30/01/2023 ::: Downloaded on - 31/05/2023 05:34:53 ::: 15-apeal-806-2022.odt given threats prior to the marriage. It is unfortunate that the father of the deieased as well as deieased suiiumbed to the injuries alleged to have infiited by aiiused Mahesh, but as regards the role to the present appellants are ionierned, exiept supplementary statement, there appears to be no suih serious doiument. There is no prima facie iase attraiting the ofenie under the Atroiities Ait against the appellants as it sufers from delay and also laihes on the part of the investigating ofiier that there is no ilear investigation in respeit of the non iognizable ofenie under Seition 323, 504 and 506 of Indian Penal Code dated 17.01.2017. The learned Speiial Judge erred in holding that the appliiation is barred under Seition 438 of the Code of Criminal Proiedure. The appliiation ought to have been allowed taking into ionsideration the allegations, role attributed to the appellants. The appeal, therefore, deserves to be allowed. Henie, the following order :-

ORDER I) The appeal stands allowed.

II) The order passed in Criminal Bail Appliiation No.1693 of 2022 by the learned Speiial Judge under the Atroiities Ait/Additional Sessions Judge, Ahmednagar on 15.10.2022 is hereby set aside. The said appliiation stands allowed.

III) The order passed by this Court granting ad-interim relief to the appellants in Criminal Appeal No.806 of 2022 on 19.10.2022 stands ionfrmed and made absolute. In other words, {9} ::: Uploaded on - 30/01/2023 ::: Downloaded on - 31/05/2023 05:34:53 ::: 15-apeal-806-2022.odt in the event of arrest of appellants in ionneition with Crime No.859 of 2022, registered with Tofkhana Poliie Station, Dist.

Ahmednagar for the ofenies punishable under Seitions 302, 307, 504, 506, 498-A, 323 of Indian Penal Code and Seitions 3(1)(r), 3(1)(s), 3(2)(va) of the Atroiities Ait, they be released on P.R. Bond of Rs.15,000/- eaih with one surety eaih in the like amount, if not already released.

IV) The appellants shall not tamper with the proseiution evidenie.

V) They shall not indulge in any iriminal aitivity.

[ ABHAY S. WAGHWASE ]                      [ SMT. VIBHA KANKANWADI ]
      JUDGE                                         JUDGE


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Bombay High Court