Criminal Appeal No. 950 of 2024 · The High Court
Case Details
901Cri.appeal950-24.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD901 CRIMINAL APPEAL NO. 950 OF 2024SANDIP SANJAY RATHOD AND ANOTHERVERSUSTHE STATE OF MAHARASHTRA AND ANOTHER….Mr. Vivekanand Bhagwanrao Deshmukh, Advocate for AppellantsMr. S. M. Ganachari, APP for Respondent No.1-StateMr. T. S. Lodhe h/for Mr. R. M. Deshmukh, Advocate forRespondent No.2 (Appointed through Legal Aid)….CORAM: Y. G. KHOBRAGADE, J.DATE:20.02.2025PER COURT :- 1.Heard the learned counsel for the Appellants, thelearned APP for Respondent No.1-State and the learned counselfor the Respondent No.2.2.By the present Appeal, under Section 14A (2) of theScheduled Castes and Scheduled Tribes (Prevention of Atrocities)Act, 1989 read with Section 482 of the Bharatiya NagarikSuraksha Sanhita (BNSS), 2023, the Appellants have challengedthe order dated 01.10.2024 passed by the learned Special Court(Atrocity), Osmanabad, in Anticipatory Bail Application No.435 of2024, thereby declined to release the accused on Anticipatory Bail. 1 of 8
Legal Reasoning
(( 6 ))901Cri.appeal950-24blackmailed with the threat of a false case being registered underAtrocities Act, without any protection of law. Even a non public servantcan be blackmailed to surrender his civil rights. This is not the intentionof law. Such law cannot stand judicial scrutiny. It will fall foul ofguaranteed fundamental rights of fair and reasonable procedure beingfollowed if a person is deprived of life and liberty. In paragraphs 57 itwas observed that exclusion of 438 Cr.P.C. applies when a prima faciecase of commission of offence under the Atrocities Act is made out. Onthe other hand, if it can be shown that, the allegations are prima faciemotivated and false, such exclusion will not apply.”9.In State of M.P. V/s. Ram Krishna Balothia (1995) 3 SCC221, it is held that exclusion of provision for anticipatory bail will notapply when no prima facie case is made out or the case is patentlyfalse or mala-fide. This may have to be determined by the Courtconcerned in facts and circumstances of each case in exercise of itsjudicial discretion. In cases under the Atrocities Act, exclusion of rightof anticipatory bail is applicable only if the case is shown to bonafideand that prima facie it falls under Atrocities Act and not otherwise.Section 18 does not apply where there is no prima facie case or tocases of patent false implication or when the allegation is motivatedfor extraneous reasons by following judgment reported in AIR 2018SC 1498) as follows:“79.1. Proceedings in the present case are clear abuse of process ofCourt and are quashed. 79.2.There is no absolute bar against grant of anticipatory bail in thecases under Atrocities Act, if no prima facie case is made out or whereon judicial scrutiny the complaint is found to be prima facie mala fide. 6 of 8 (( 7 ))901Cri.appeal950-24We approve the view taken and approach of Gujarat High Court inPankaj D. Suthar and N.T. Desai and clarify the Judgments of this Courtin Balothia and Manju Devi.79.3.In view of acknowledged abuse of law of arrest in the casesunder Atrocities Act, arrest of a public servant can only be afterapproval by the SSP appointing authority and of a non-public servantafter approval of S.S.P,. which may be granted inappropriate cases, ifconsidered necessary for reasons recorded. Such reasons must bescrutinized by the Magistrate for permitting further detention. 79.4. To avoid false implication of an innocent, a preliminary inquirymay be conducted by the DSP concerned to find out whether theallegations make out a case under Atrocities Act and the allegations arenot frivolous or motivated. 79.5. Any violation of directions (79.3) and (79.4) will be actionable byway of disciplinary action as well as contempt.79.6. The above directions are prospective.”10.In case-in-hand, it appears that nothing is to be recoveredfrom the accused persons and there is also no necessity to interrogatethe present Appellants accused. Therefore, considering the nature ofCrime, the Appellants are entitled for the Anticipatory Bail withcertain terms and conditions, hence, I proceed to pass the followingorder.ORDER(i)Criminal Appeal is hereby allowed. (ii) The impugned order dated 01.10.2024 passed inAnticipatory Bail Application No.435 of 2024 passed by the SpecialCourt (Atrocity) Osmanabad is hereby quashed and set aside. 7 of 8 (( 8 ))901Cri.appeal950-24(iii)In the event of arrest, the Appellant No.1 Sandip SanjayRathod and Appellant No.2 Sushil Sanjay Rathod be released on bailin Crime No.0333 of 2024 registered at Naldurg Police Station Dist.Osmanabad for the offence punishable under Section 105, 351(2) ofBhartiya Nyaya Sanhita, 2023 & under Section 3(2), 3(2)(va) ofScheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,on execution of PR and SB Bond in the sum of Rs.25,000/- (TwentyFive Thousand Rupees) with solvent surety of the like amount.(iv)The Appellants shall attend the concerned InvestigatingOfficer on every Monday between 10:00 a.m. to 02:00 p.m. till filingof the charge-sheet and co-operate with the Investigating Officer, . (v)The Appellants shall not issue threat to the witness andshall not tamper with the prosecution evidence.(vi) Fees of Mr. R. M. Deshmukh, the learned Advocate forRespondent No.2 (Appointed Through Legal Aid) is quantified atRs.5,000/-, to be paid by the Legal Aid. [ Y. G. KHOBRAGADE, J. ] HRJadhav 8 of 8
Arguments
(( 2 ))901Cri.appeal950-243.Having regard to the submissions canvassed on behalf ofboth the parties, I have gone through the record. On face of record itappears that, on 27.08.2024, the Informant (Balu Sopan Suravse)present Non-Applicant No.2 lodged a report with Naldurg PoliceStation Dist. Osmanabad alleging that, on 27.08.2024, his son AkshaySurvase was at home at morning and at that time he was feeling wellbut on that day, at about 9:30-10:00 a.m., one Manisha Rathod whowas working with Dhanwantari Hospital as a Nurse made a call frommobile of Akshay to the Rajesh Lahu Bansode, who is friend ofAkshay and thereby informed that, Mr. Akshay the son ofComplainant is suffering by some ailment. Therefore, Shri. RajeshBansode visited Dhanwantari Hospital and noticed that Akshay waslying on bed and foam was coming from his mouth. Therefore, onadvice of the Medical Officer the victim was taken to Dr. PatilHospital, Naldurg. On information, the Complainant with his wifevisited there and thereafter victim was taken to Civil Hospital,Solapur, where on examination of the Medical Officer he declareddead. Accordingly, the Inquest Panchanama was drawn on the deadbody of Akshay and the dead body was referred for the post-mortem. 2 of 8 (( 3 ))901Cri.appeal950-244.According to the Complainant, the Appellants were issuedlife threat to his son deceased Akshay on ground that, his deceasedson was having love affair with a girl who is from their community.Therefore, the present Appellants are implicated in the CrimeNo.0333 of 2024 registered with Naldurg Police Station for theoffence punishable under Section 105, 351(2) of Bhartiya NyayaSanhita, 2023 & under Section 3(2), 3(2)(va) of Scheduled Castesand Scheduled Tribes (Prevention of Atrocities) Act. 5.The learned counsel for the Appellants canvassed that,the entire F.I.R. does not reveal about abusing the victim on his casteat the hands of present Appellants or they have assaulted the victimsoon before the death of the deceased (Akshay). It is furthercanvassed that, the main accused Smt. Manisha Rathod has alreadyreleased on Regular Bail. The present Appellants are not involvedwhile committing the Crime. However, they are apprehended fortheir arrest in Crime No.0333 of 2024 registered with Naldurg PoliceStation on 27.08.2024.6.The learned counsel for the Respondent No.2Complainant canvassed that, the son of the Informant was married 3 of 8 (( 4 ))901Cri.appeal950-24and was working as a driver, however, these Appellants SandipRathod and Sushil Rathod were issued life threat prior to eight daysof the incident that, if he did not keep away from the girl who isbelong to their community in that event he will have to faceconsequences. Thereafter within a period of 8 days, the son of theComplainant died. Therefore, the offence under Section 3(2), 3(2)(va) of Scheduled Castes and Schedule Tribes (Prevention ofAtrocities) Act and Section 105, and 351(2) of the Bhartiya NyayaSanhita, 2023 is attract. Therefore, as per the provisions of Section18 and 18 (A) of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, the Appellants are not entitled forAnticipatory Bail.7.On perusal of F.I.R. it appears that, the Informant onlymade allegation as against the present Appellants Sandip Rathod andSushil Rathod about issuance of threat to the deceased Akshay, theson of the Complainant, prior to eight days to keep away from the girlof their community. The F.I.R. does not reveal about abusement to thevictim on his caste at the hands of the Appellants accused. TheInvestigation Officer recorded statement of one victim Babu Rathod,the mobile shoppe owner, who stated that prior to three months of 4 of 8 (( 5 ))901Cri.appeal950-24recording his statement the present Appellant No.1 Sandip Rathodhad abused the deceased Akshay in filthy language and at that timethe Appellant No.2 Sushil Rathod visited there and also assaultedvictim with fist and blow and abused him in filthy language. As perthe Post-mortem report, the Medical Officer found Therapeuticinjection mark in the from the puncture wound present over rightsorrsum of hand, reddish in color. The viscera was collected and sentto the chemical analysis, however, the opinion of the chemicalanalysis is awaited. 8.In the case of Dr. Subhash Kashinath Mahajan V/s Stateof Maharashtra and Another, (2018) 6 SCC 454 the Hon’ble SupremeCourt considered the question whether there is an absolute bar to thegrant of anticipatory bail under SC/ST Act and referred to severaldecisions including the decisions in the case of Vilas Pandurang Pawar(Supra) and Shakuntala Devi V/s Baljinder Singh (2014) 15 SCC 521and observed in Para 56 as under: “There can be no dispute with the proposition that mereunilateral allegation by any individual belonging to any caste, whensuch allegation is clearly motivated and false, cannot be treated asenough to deprive a person of his liberty without an independentscrutiny. Thus exclusion of provision for anticipatory bail cannotpossibly, by any reasonable interpretation, be treated as applicablewhen no case is made out or allegations are patently false or motivated.If this interpretation is not taken, it may be difficult for public servantsto discharge their bona-fide functions and in given cases, they can be 5 of 8