State of Maharashtra v. Rashid Osman Shaikh

Mr. A. B. Vagyani, AGP for petitioner. Mrs. Ranjana Todankar for respondent. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. DECEMBER 22, 2010. P.C.

1. This writ petition filed by the State of Maharashtra through the Secretary, Public Works Department, is directed against the order dated 19/11/2010 passed by the Maharashtra Administrative Tribunal (for short the Tribunal) in O. A. No. 279 of 2010. 2 wp-9807-10

2. The respondent (Original Applicant) came to be appointed as Junior Engineer in 1981 and was promoted to the post of Sectional Engineer in 1986 and to the post of Sub Divisional Officer in March, 2005. While he was posted at Andheri, an F.I.R. came to be registered against him on 28/6/2008 with the Bhosari Police Station at Pune at the instance of the prosecutrix, who was to be employed at his residence as a maid servant. The F.I.R. registered against the applicant was for the offences punishable under Sections 376 and 377 of IPC. It was alleged that before the prosecutrix was taken by the applicant to his home in Mumbai on 19/6/2008, she ran away with mobile and cash from his home at Pune and after she was apprehended by one Ms. Rani, he returned the stolen mobile, but not the cash. On 26/6/2008 she was admitted in Sassoon Hospital at Pune with 80% burn injuries. Her dying declaration was recorded on the same day i.e. on 26/6/2008 and the second dying declaration was recorded on 28/6/2008. The applicant had obtained anticipatory bail and, therefore, he was not arrested. But on 1/7/2008, the prosecutrix succumbed to her injuries and, therefore, on 28/7/2008 the applicant again obtained anticipatory bail so as to avoid his arrest under the amended charge. In the meanwhile, he was suspended, against which he submitted his representation. By relying upon the Government Resolutions 3 wp-9807-10 dated 14/12/1995 and 20/7/2006, his representation was rejected on 8/10/2008. He was informed that he would be kept under suspension till the completion of the trial. After the charge-sheet was filed, he was granted regular bail on 23/10/2008 but on certain conditions. He applied for discharge before the Sessions Court and the said application was rejected. He, therefore, approached this court by filing Criminal Revision Application No. 458 of 2009.

3. The applicant had filed O.A. No. 1317 of 2009 which was dismissed on 5/11/2009 on the ground that he had not exhausted the remedy of appeal against the order of suspension. Hence, he submitted an appeal, waited for six months and thereafter filed O.A. No. 279 of 2010.

4. The Tribunal considered the rival contentions of the parties, including the order passed by this court in Criminal Revision Application No. 458 of 2009 and held that the continuation of the applicant’s suspension till the conclusion of the trial of the criminal case was not justified. While allowing the O.A. filed by the applicant, the order of suspension dated 28/7/2008 came to be quashed and set aside. 4 wp-9807-10

5. This court (Single Bench) in Criminal Application No. 2320 of 2008 which was filed by the applicant for seeking anticipatory bail referred to the alleged dying declarations of the prosecutrix recorded on 26/6/2008 and 28/6/2008 and observed in paras 4 and 5 as under:- “4. The prosecutrix was aged 17 years at the time of the incident. Though the incident has occurred on 19.6.2008 the first statement of the prosecutrix came to be recorded on

26.6.2008. In the said statement she stated that Rani got her employed with the present applicant. That night when the applicant went to sleep, she robbed cash as well as mobile phone of the applicant. She gave the mobile phone to her friend Pramod and she gave the money to her brother. Thereafter Rani traced the prosecutrix. Rani poured kerosene on the prosecutrix and the husband of Rani, Rajesh Agarwal set the prosecutrix on fire. It is pertinent to note that in the first statement the prosecutrix has made no reference to the applicant committing rape on her or any other act which was sexual in nature. However, in her second statement, recorded on 28.6.2008 she has stated that on the day that she was 5 wp-9807-10 employed with the applicant, the applicant made her to drink liquor against her will and thereafter he committed rape on her. In the morning, she robbed the mobile phone and cash of the applicant and ran away. In both the statements the prosecutrix had admitted that she has committed theft of the cash as well as mobile phone of the applicant.

5. Thus, it is seen that first in point of time, the prosecutrix has not implicated the applicant and it is only in her further statement she has implicated the applicant. No reason has been given by the prosecutrix as to why she did not implicate the applicant in her first statement. The prosecutrix has clearly admitted that she has committed robbery of the cash and mobile phone of the applicant. Looking to these facts, I find much merit in the submission that it appears that the applicant is falsely implicated by the prosecutrix as she was afraid that the applicant would lodge a complaint against her of theft.”

6. Mr. Vagyani, the learned AGP, while challenging the order passed by the Tribunal, relied upon the decision of the Supreme Court in 6 wp-9807-10 the case of State of Orissa vs. Bimal Kumar Mohanty [(1994) 4 SCC 126]. We have given our anxious considerations to the said decision as well as the reasoning set out by the Tribunal in the impugned order. We are satisfied that the said order does not suffer from any infirmities and, therefore, no interference is called for in the same.

7. Hence, the petition is rejected summarily. (U.D. SALVI, J.) (B. H. MARLAPALLE, J.)