Bombay High Court
Dr. Rajendra Ambadas Band And Others vs The State Of Maharashtra And Another on 29 March, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
903 CRIMINAL APPEAL NO. 266 OF 2023
1. DR. RAJENDRA AMBADAS BAND
2. JIVAN GOVARDHAN BAND
3. SADASHIV AMBADAS BAND
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER
...
Advocate for Appellants : Mr. Salunke Sudarshan J.
APP for Respondents/State : Mr. R.D. Sanap
Advocate for R/2 : Mr. A.R. Hange
...
CORAM : SMT. VIBHA KANKANWADI &
Y.G. KHOBRAGADE, JJ.
DATE : 29th March, 2023
P.C. :-
1. The learned advocate Mr. A.R. Hange submits that he has
instructions to appear for respondent no.2. He may file Vakalatnama within a
period of one week.
2. We have heard learned advocate for the appellants, learned APP
and learned advocate for respondent no2., though, actually today is the first
date and notice was yet to be issued to the respondent no.2, it appears that he
has appeared through advocate suo moto. However, learned APP is yet to
receive the police papers. We are considering the matter today for the interim
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protection of the appellants. The appellants have been arrayed as accused
nos.1 to 3 in Crime No.97/2023 registered with Shivajinagar Police Station,
Beed registered around 23.26 hours on 02.03.2023 for the offence under
Section 307, 327, 324, 323, 504, 506, 143, 147, 148, 149, under Section 3, 4
read with Section 25 of the Ams Act and under Section 3(1)(r), 3(2)(va) of
the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.
3. It will not be out of place to mention here that the learned Special
Judge under the Atrocities Act has rather expressed that it is doubtful whether
the provisions of SC-ST Act have been attracted or not that means it was not
considered that the application that was filed by the applicants under Section
438 of the Cr.P.C. before the learned Special Judge as barred under Section
18 or 18A of the Atrocities Act. However, it appears that the application
came to be rejected on the ground that the allegations in the FIR show that
the appellants had used rifle (pistol), kukri and iron rod in the commission of
crime as well as the victim-Sachin Ghodke was robbed off the gold chain and
under such circumstance the custodial interrogation of the appellants would
be necessary.
4. We have considered the contents of the FIR. The respondent no.2
has stated that he is the member of Scheduled Caste and he says that around
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10.30 p.m. on 01.03.2023 when he was proceeding on vehicle no.MH-23-AS-
4141 along with the victim-Sachin Ghodke and when they were in front of
grocery shop in Gopika Nagar where they found that 2 to 3 motorcycles were
parked on the road and he had blown the horn, appellant no.1 came and
asked him as to why he was blowing the horn and then abused him in the
name of caste. He told appellant no.1 that he is the son in law of the said
village and why he is speaking with him in such a manner even the victim also
asked appellant no.1 as to why he is saying so and then it is stated that
appellant no.1 asked both of them to get down from the car and come to the
hospital of appellant no.1. The further incident is stated to have taken place
inside the hospital. Therefore, first of all it is required to be considered
whether prima facie case in respect of Atrocities Act was made out for the
incident which has allegedly taken place in front of the grocery shop. The
entire FIR is silent as to how appellant no.1 was knowing the respondent
no.2-informant and since when, why appellant no.1 should have the
knowledge about the caste of the informant is the obvious question that is
arising in the mind of this Court and therefore we also expressed doubt
regarding the applicability of the offence under the Atrocities Act. Further the
FIR is also silent as to who was the third person apart from the friend of the
informant who had heard appellant no.1 giving abuses to the respondent no.2
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in the name of caste. Further it is also to be noted that as per the FIR itself
appellant nos.2 and 3 were not present in front of the grocery shop when the
alleged abuses were given and therefore there was no question of offence
under the Atrocities Act against the appellant nos.2 and 3. When prima facie
it is not shown that the offence under the Atrocities Act is made out then
there is no question of bar for the entertainment of the application for the
anticipatory bail under Section 438 of the Cr.P.C. as has been so held in
Prathvi Raj Chauhan V/s. Union of India and Others; [(2020) 4 SCC 727].
5. It is then alleged that the appellant no.1 asked both of them to
come inside the hospital and after they went, the door of the hospital was
closed from inside. The appellant no.1 pointed out gun / revolver to Sachin
Ghodke and told that the Sarpanch of Gram Panchayat is his man, though,
Sachin Ghodke is the member of the Gram Panchayat he should not intervene
in any way. It is then stated that the appellant no.2 who was present at the
said place assaulted victim-Sachin Ghodke with knife like weapon i.e. kukri
and the blow was given on the head of Sachin Ghodke. The appellant no.3
had assaulted informant by iron rod on his head, right wrist and neck. It is
then stated that there were also further three persons present who had
assaulted them with fist and kicks and respondent no.2 was abused in the
name of caste, threatened to kill the informant and Sachin Ghodke. The
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appellant no.3 had then taken the gold chain from the neck of Sachin Ghodke
who was lying in unconscious state and then it is stated that all of them fled
away. Informant says that he had then called one Nikhil Naikwade and
Sandip Ghodke who had then taken them to Govt. Hospital. The incident is
stated to have taken place around 10.30 p.m. of 01.03.2023, however, the FIR
came to be lodged on 23.26 hours of 02.03.2023, definitely there is delay in
lodging the FIR. It appears that FIR vide crime no.102/2023 came to be
lodged with the same police station around 22.08 hours of 03.03.2023 against
the said Sachin Ghodke and seven others on the basis of FIR lodged by one
Savita Band i.e. wife of present appellant no.1 and which has been registered
for the offence under Section 323, 327, 354, 452, 143, 147, 504, 506 of the
I.P.C., definitely this is the subsequent FIR which the appellants intend to
justify by giving reasons for the delay in their application under Section 438 of
the Cr.P.C. We may not consider the said FIR being belated and subsequent
to the present FIR, however, it is then required to be noted as to whether the
custodial interrogation of the appellants is required. From the contents of the
FIR which is very much clear that there is political rivalry between the victim-
Sachin Ghodke and the appellant no.1. Learned advocate for the appellant
had also tried to bring it to our notice offence registered vide crime no.
07/2021 with Peth Police Station, District Beed on 11.01.2021 which was
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lodged by the present respondent no.2 against some other persons but at that
time also it is stated that said Sachin Ghodke was with the informant and that
offence was also involving the offence under the Atrocities Act. We have our
own reservations to consider the alleged antecedents in a way that habitual
lodging of the FIRs as a motive but at the same time taking into consideration
the fact that there is political rivalry the exaggeration cannot be ruled out.
Here important point noted is to be that the appellant no.1 is the member of
Juvenile Justice Board. So we presume that he has the knowledge of law.
Under such circumstance, we do not feel that the custodial interrogation of
the appellants is necessary, however, making them available for the
investigation would suffice the purpose and therefore till the papers are
perused, case is made out for grant of interim protection. Hence the following
order is passed:
ORDER:
i) In the event of arrest of the appellants in connection with Crime No. 97/2023 registered with Shivajinagar Police Station, Beed for the offence punishable under under Section 307, 327, 324, 323, 504, 506, 143, 147, 148, 149, under Section 3, 4 read with Section 25 of the Ams Act and under Section 3(1)(r), 3(2)(va) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 the appellants be released on PR and SB of Rs.15,000/-
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ii) Issue notice to the respondents. Learned APP waives for
respondent no.1 and learned advocate Mr. A.R. Hange waives notice for respondent no.2. Notices are made returnable on 13.04.2023.
iii) The interim protection granted is till 13.04.2023.
iv) In the meantime, the appellants should remain present before the Investigating Officer i.e. Dy.S.P. Beed on Friday, Monday and Wednesday between 3.00 p.m. to 6.00 p.m. till further orders. They should cooperate with the investigation and shall not tamper with the evidence of the prosecution in any manner.
[Y.G. KHOBRAGADE, J.] [SMT. VIBHA KANKANWADI, J.] mub ::: Uploaded on - 29/03/2023 ::: Downloaded on - 31/03/2023 05:20:14 :::