High Court
Facts
{1} criapel1188-23.docdrpIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.1188 OF 2023Deepak Annasaheb Patil APPELLANTVERSUSThe State of Maharashtra Through PoliceInspector Anandnagar Police Station Dharashiv and Another RESPONDENTS.......Mr. V. D. Salunke h/f Mr. Mayur Salunke, Advocate for appellantMr. S. B. JadhavAPP for respondent - State Mr. Ajinkya Kale for Talekar and Associates for respondent No.2.......WITHCRIMINAL APPEAL NO.1109 OF 2023Shivaji Bhausaheb Kale and Others APPELLANTSVERSUSThe State of Maharashtra Through PoliceInspector Anandnagar Police Station Dharashiv and Another RESPONDENTS.......Mr. V. D. Salunke, Advocate for appellantMr. S. B. JadhavAPP for respondent - State Mr. Ajinkya Kale for Talekar and Associates for respondent No.2....... [CORAM : NITIN B. SURYAWANSHI, J.] RESERVED ON : 6 th FEBRUARY, 2024 PRONOUNCED ON : 27 th FEBRUARY, 2024 ORDER :1.By these appeals, filed under Section 14-A of the {2} criapel1188-23.docScheduled Castes and the Scheduled Tribes (Prevention ofAtrocities) Act, 1989 (hereinafter, for short “Atrocities Act”),appellants challenge orders passed by learned Special Judge(Atrocity), Osmanabad in Criminal Bail Application Nos.614 of2023 and 621 of 2023.2.Prosecutorix, who belongs to Schedule Caste, lodged FIRon 3rd November, 2023, alleging that she had purchased a motorfor bore-well from the shop of Dilip Bhausaheb Kale, at thattime, he had obtained her cellphone number for mentioning it onthe bill. Thereafter, he contacted her on her cellphone and toldher that she is staying alone and he has sympathy for her.Thereafter, while prosecutorix was alone, he came to her houseand when she went to kitchen to bring water, he embraced herfrom behind. When she tried to push him, he gagged her andthreatened that if she raises hue and cry or opposes, she will bekilled and if she shouts, she will be defamed. Then he forciblyestablished physical relations with her. Thereafter, from time totime, he used to come to her home and by taking name of hercaste, used to threaten her that she will be killed and used toforcibly keep physical relations with her, against her wish.Prosecutorix, being fed up with the atrocities committed by DilipKale, went and told her sufferings to Dilip’s brother, Shivaji Kale. {3} criapel1188-23.docShivaji also abused her in the name of her caste and assaultedher with fists and kick blows. She, therefore, lodged complaintwith Barshi Police Station against appellant Shivaji. Prosecutorixalso informed wife and son of Dilip Kale about the acts done byDilip. Thereafter, on 8th October, 2023, family members of DilipKale called her at his cousin’s house where, Dilip Kale, ShivajiKale, Ketan Kale, Sharmila Kale and two others were present.When she went there, Dilip Kale and his relatives called name ofher caste and threatened and assaulted her with fists and kickblows. On 12th October, 2023, while prosecutorix was at herhome, one unknown boy gave message to her that Dilip Kale andhis relatives have called her in the Court to settle the matter.When she went at Osmnabad Court, appellant Deepak Patil tookher towards Panchayat Samiti Road and abused her by takingname of her caste and assaulted her with fists and kick blows.3.After registration of the crime, appellants Shivaji, Ketanand Sharmila preferred Criminal Bail Application No. 614 of 2023and appellant Deepak Patil preferred Criminal Bail ApplicationNo. 621 of 2023, under section 438 of the Criminal ProcedureCode, which are rejected by the learned Special Judge. Hence,the present appeals.4.Heard learned advocate for appellants, learned APP for the {4} criapel1188-23.docState and learned advocate for respondent No.2 – prosecutorix.5.From the allegations made in the FIR, it is clear thatallegations of commission of rape are against accused No.1 DiilpKale, who has allegedly committed offence during the periodbetween 1st March, 2016 to 12th October, 2023. There isinordinate, unexplained delay in lodging FIR. From FIR, primafacie, possibility of consensual relations of prosecutorix withaccused No.1 Dilip Kale cannot be ruled out.6.Allegations against present appellants are that they haveabused and threatened prosecutorix by taking name of her casteand assaulted her by slaps and kick blows. Appellant Shivaji Kaleis brother, appellant Ketan is son, appellant Sharmila is wife andaccused Deepak Patil is relative of accused No.1 Dilip Kale. Thereare no allegations that appellants are involved in commission ofoffence punishable under section 376 of the Indian Penal Code. 7.Allegations against appellant Shivaji Kale are that, whenprosecutorix went to his house to complain about acts done byaccused Dilip Kale, at that time, he abused her in the name ofher caste and assaulted her with fists and kick blows. Since thisalleged incident has taken place at the house of appellantShivaji, it is not within public view. Allegations in the FIR are {5} criapel1188-23.docvague and it is not stated as to when this incident has takenplace.8.In the FIR, it is alleged against appellants Ketan andSharmila that they, along with their relatives, abusedprosecutorix in name of her caste and threatened her at thehouse of one relative of accused No. 1 Dilip Kale. Therefore, asper allegations in FIR, this incident also has taken place at thehouse of relative of accused and not within public view.9.Allegations against accused Deepak Patil are that he tookprosecutorix on the road towards Panchayat Samiti and abusedher, by taking name of her caste and threatened her. It is notstated in the FIR that anybody was present there while she wasinsulted by appellant Deepak, by taking name of her caste.Therefore, this incident also cannot be said to have taken placewithin public view.10.Ratio laid down in “Hiten Varma V/s State of Utarakhandand Another” 2020 (10) SCC 710, wherein it is held that, “allinsults or intimidation to person would not be offence under Actunless such insult or intimidation has taken place in any placewithin public view”, is squarely applicable to the facts of thepresent case. Considering the allegations, referred to above,
Legal Reasoning
{6} criapel1188-23.docsince all the alleged incidents of insult of prosecutorix have takenplace either at the house or same is not witnessed by anyone,prima facie offence punishable under the Atrocities Act are notattracted against present appellants. Therefore, bar undersection 18 of the Atrocities Act would not be attracted againstthem. 11.All the appellants are reputed persons in the society.Appellant Shivaji is a retired professor. If arrested, image ofappellants will be tarnished in the society. Their custodialdetention is not necessary for any recovery.12.Since in the present case, alleged incidents of insult havenot taken place at a place within public view and as there are noallegations against appellants that they are involved incommission of offence punishable under section 376 of theIndian Penal Code, appellants are entitled for anticipatory bail. 13.Hence the following order:ORDERA.Both the appeals are allowed. B.Impugned orders passed by learned Special Judge(Atrocity) Osmanabad in Criminal Bail Applications No. 614of 2023 and 621 of 2023 are quashed and set aside. {7} criapel1188-23.docC.In the event of arrest of appellants in Crime No. 399 of2023 registered with Anandnagar Police Station, District –Osmanabad for offence punishable under section 376 (2)(n), 323, 504, 506 read with 34 of the Indian Penal Codeand under section 3 (1) (r), 3 (1) (s), 3 (2), 3(v), 3 (1) (w)(i), 3 (1) (w) (ii) of the Scheduled Castes and theScheduled Tribes (Prevention of Atrocities) Act, they bereleased on furnishing PB and SB of Rs.15,000/- with onesurety each in the like amount.D.Till filing of the charge sheet, appellants shall attend theconcerned police station as and when called by theInvestigating Officer.E.Appellants shall not tamper prosecution evidence. [NITIN B. SURYAWANSHI]JUDGE drp/criapel1188-23.doc