The only fact is that in the charge sheet it is stated that the
present applicants are absconding and the charge sheet is filed under Section
299 of the Code of Criminal Procedure against them. It is to be noted that
Section 299 of the Code of Criminal Procedure is an enabling provision for
the Courts to record the evidence in absence of an absconding accused. It
does not give any right to police to file charge sheet under that section. The
evidence has been collected against the present applicants also and there is
no such procedure contemplated that for the accused, who would be arrested
at a later point of time, there should be a separate charge sheet. On the point
of absconding of the applicants it is certain from the charge sheet that no
procedure as contemplated under Section 82 of the Code of Criminal
Procedure has been adopted by the Investigating Officer, who is of the rank of
Sub Divisional Police Officer. It is presumed that he has knowledge of the
procedure that is required to be adopted as per the Code of Criminal
Procedure in connection with the absconding accused. All those reports,
which have been referred above, are nothing but the copy paste and it can be
definitely stated that the print out of these reports has been taken at one and
the same time by only changing the date. This is obvious when we see report
dated 13.11.2021 which is given by A.S.I., Police Station, Newasa to S.D.P.O.,
Shevgaon. Thereafter, the next report is by Police Inspector, Police Station,
Newasa dated 22.11.2021. While making copy paste he has not changed the
date below ek- lfou; lknj. Though while making signature he has given the
date but still it has also correction. There is no much gap between the date
just above his signature; yet, he has not noticed that the blunder has been
committed while doing copy paste. Wordings have also not been changed in
all these reports. With whom the inquiry was made in respect of the
absconding accused, whose statements have been recorded, is absolutely not
clear. It is unfortunate that such kind of activities are undertaken by police
and, therefore, the faith in the Department is decreasing. When the said
report itself is unbelievable, it cannot be said that the applicants are
absconding. The Investigating Officer has not explained as to why he has not
undertaken the procedure under Section 82 of the Code of Criminal
Procedure. Interesting point to be noted is that on 10.01.2021 the District
Superintendent of Police, Ahmednagar appears to have given directions, as to
how the investigation is to be made in respect of absconding accused. Mere
attachment of the same without taking any step as contemplated in those
guidelines it is absolutely not fruitful. The Police Officer of the rank of Sub
Divisional Police Officer has not followed the said guidelines issued by his
own District Superintendent of Police. Under such circumstance, the said
point of objection cannot be appreciated. The interim protection granted
earlier to the applicants deserves to be confirmed. {Para 10}
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
ANTICIPATORY BAIL APPLICATION NO.1524 OF 2021
MANDA SUNIL PAWAR AND OTHERS Vs THE STATE OF MAHARASHTRA AND ANOTHER
CORAM : SMT. VIBHA KANKANWADI, J.
PRONOUNCED ON : 08th APRIL, 2022
1 The applicants are apprehending their arrest in connection with
Crime No.656/2021 dated 29.08.2021 registered with Newasa Police Station,
Dist. Ahmednagar, for the offence punishable under Section 354, 354-B, 324,
323, 504, 506, 143, 147 of the Indian Penal Code, 1860, under Section 3(1)
(r), 3(1)(s), 3(2)(V-a), 3(1)(w)(i) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 and under Section 7, 8 of the
Protection of Children from Sexual Offences Act, 2012.
2 Heard learned Advocate Mr. S.S. Jadhav for applicants, learned
APP Mrs. V.N. Patil-Jadhav for the respondent No.1 and learned Advocate Mr.
A.C. Sisodiya for the respondent No.2.
3 It has been vehemently submitted on behalf of the applicants
that the applicants have been falsely implicated. Applicant Nos.1 and 2 are
the women and, therefore, provisions of Section 354, 354-B of the Indian
Penal Code will not be attracted against them. Applicant No.3 is also old
aged man of 70 years. It cannot be said that he had any kind of ill intention.
Perusal of the First Information Report would show that main role is
attributed to accused Nos.1 and 2, who have been released on bail. Now
investigation is complete and charge sheet has been filed. Under such
circumstance, the custodial interrogation of the applicants is not necessary.
They are ready to abide by the terms of the bail.
4 The learned APP resisted the application and submitted that
application under Section 438 of the Code of Criminal Procedure is not
maintainable, in view of the bar under Section 18 of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The informant
girl, who is a minor, is member of scheduled caste and the applicants had
every knowledge about the caste of the informant and her family, since they
are the resident of same village. Still the informant was strict in public and
that can be only with an intention to bring defame to her. Applicant No.2
had assaulted her by coconut leaves on the uncovered body of the informant.
The applicant No.1 had twisted the fingers of the informant and uttered that
she should be made naked. Applicant No.3 then threatened that she should
be killed. Specific role is attributed to the applicants and, therefore, there is
bar under Section 18 of the Atrocities Act. Another fact to be noted is that
the applicants are absconding since the registration of the offence. The
Investigating Officer had made efforts to arrest the accused-applicants.
Report has been submitted by ASI, Police Station, Newasa on 27.09.2021,
24.10.2021, 13.11.2021, 22.11.2021, 24.11.2021 and 30.11.2021.
Therefore, such absconding accused should not be given discretionary relief
under Section 438 of the Code of Criminal Procedure.
5 It is to be noted that the informant-respondent No.2, who had
given her age as 18 years while lodging the First Information Report has
stated that the incident had taken place at about 7.15 to 8.00 (it is not clear
whether it is a.m. or p.m.) on 27.08.2021. She was going for answering
nature’s call. When she came on road from the garden of lady finger near her
house, at that time, accused Nos.1 and 2 had come on two wheeler and gave
cut to the informant. She asked them, as to why they cannot cannot drive
the vehicle properly. At that time, accused No.1 got down, caught hold of her
hair and caused her to lie down and then his brother i.e. accused No.2 got
down from the vehicle and kicked the informant in her back. When she was
trying to run, accused No.1 torn her clothes from front side and he scratched
her chest. It caused embarrassment to the informant and then by pushing
him when she tried to run accused No.2 caught hold of her hair. In the
meantime, the wives of accused Nos.1 and 2 came running towards
informant. Accused Nandini had twisted hair of the informant and then
slapped her. Accused Renuka abused her and assaulted her by stick. Accused
Nos.1 and 2 had then kicked on her private part. Thereafter present
applicant No.2 came, who assaulted her with coconut leaves. Applicant No.1
twisted her fingers and told that why the remaining clothes should be kept on
her person. Accused Yenabai then pulled her cheeks and applicant No.3 gave
threat to kill the informant. The informant then just put on her clothes and
went running towards the house of one Kisanrao Patil. Kisanrao Patil asked
as to what has happened and at that time also accused Yenabai and Renuka
had assaulted her by pulling her hair. Informant states that she became
unconscious and then she was shifted to hospital in the vehicle of one Vitthal
Patil. Thereafter she was shifted Lifeline Hospital, Ahmednagar. Informant
lodged the report from hospital on 28.08.2021.
6 Her supplementary statement came to be recorded on
08.09.2021, which is the reproduction of her First Information Report, except
the fact that she has disclosed that in her school leaving certificate as well as
bona fide certificate a wrong birth date has been mentioned. Her birth date
is different and her age on the date of her supplementary statement was 17
years 7 months. She also disclosed that she is the member of scheduled
caste. By that time statements of witnesses were recorded, which were
almost in the hearsay form and thereafter their supplementary statements
have been also recorded on 08.09.2021. Statement of one Kisan Bhausaheb
Ghodechor has also been recorded and most part of it is hearsay. But then he
says that when the informant had come to him, the informant was assaulted
by accused Yenabai and Renuka. However, his statement does not say that he
had called lady member from his family, gave something to the informant to
cover and then he had left her to her house. His statement as well as
supplementary statement gives an impression that when she came to him and
he had seen accused Yenabai and Renuka assaulting her, informant became
unconscious and in that state of affairs itself she was taken in the four
wheeler of Vitthal to hospital. This appears to be an unnatural conduct.
Interesting point to be noted is that even in his statement he has not given
whether it was 7.15 to 8.00 a.m. or p.m., but if we go by the way police write
the time, then, 7.15 to 8.00 would be a.m. and not p.m. Interestingly that
has been thereafter changed it appears and in the charge sheet column No.13
it is stated that the incident had taken place at 19.15 to 20.00 hours. There
was no hurdle for getting a clarification at any earlier point of time. The
medical certificate of one Lifeline Superspeciality Hospital, Ahmednagar gives
the history of assault at 7.30 p.m. on 27.08.2021. It gives only one injury in
the nature of blunt trauma over chest and abdomen. Age of the injury is
stated to be one day and the nature is stated to be simple. There is
absolutely no mention about scratches on the chest. For such kind of injury it
is hard to believe that the girl should have been admitted. There is no record
collected from the earlier hospital Kukana Lande Hospital.
7 No doubt, it appears that the informant was minor on the date of
incident and so also that she is a member of scheduled caste, however, we are
also require to consider as to whether such incident had taken place and how
much substance is there in the allegations.
8 The statement of the informant is also recorded under Section
164 of the Code of Criminal Procedure before Judicial Magistrate First Class,
Newasa. Perusal of that statement would show that she has given some
different story. She states that at about 7.30 p.m. on 27.08.2021 she had
gone to the lady finger garden adjacent to her house for answering nature’s
call, at that time, one four wheeler came and it gave cut to her and,
therefore, she asked the driver as to why he is driving the vehicle in such a
way. Thereafter, she says that the person, who was sitting next to the driver,
caught hold of her hair and made her to lie on the ground. There were three
persons in the vehicle. All of them have got down and they were accused
Nos.1, 2 and third was unknown to her. She has stated that all the three
persons had assaulted her by kicks and fist blows and accused No.1 told her
that they should take her to the sugarcane crop and should ravish her. Then
accused No.2 told that she should be taken in the vehicle and should be taken
far away. When the third person opened the door of the vehicle and they
were dragging her towards vehicle, she fell down. All of them had touched
her with ill intention and when she was shouting they had gagged her mouth.
Accused No.2 had latched the door of her house from outside, so that her
mother and brother should not come out. When informant was shouting, the
ladies from the house of accused came. They had assaulted informant with
stick. Some of them had pelted stone on their house. Applicant No.1 Manda
pulled the clothes on the person of the informant. Applicant No.2 Sarla had
assaulted her by stick. Accused Nandini gave her kicks and fists. Accused
Renuka had scratched her near neck. Thereafter accused Abhay’s parents and
accused Yenabai came. They had also assaulted her. Applicant No.3 told that
even if murder is committed then also nobody will do anything. Taking
advantage of the darkness informant fled towards the house of Patil and in
front of Patil also she was also assaulted by Renuka, Manda and Yenabai.
Applicant No.2 Sarla told that still the informant is not dead and, therefore,
she should be beaten more. She then became unconscious and do not know
what has happened thereafter. Interesting point to be noted is that she has
made allegation against the police also and it is then stated that police had
asked them to sit for about two days and had not taken their supplementary
statements. Police Officer Mr. Bhadane told that she should not exaggerate
and they know everything. There was avoidance by the police to take down
her supplementary statement. Thus, perusal of the said statement under
Section 164 of the Code of Criminal Procedure would give a totally different
picture. Different role has been attributed to different accused persons.
Here, in this case we are required to consider the role attributed to the
applicants and it is different from the First Information Report as well as the
supplementary statement. Advantage of the same should definitely go to the
applicants. At any point of time she has not stated that whatever was
allegedly done by the accused persons was with the intention by the
applicant that since she is member of a scheduled caste they should do it.
Therefore, prima facie the ingredients of the offence under Atrocities Act are
not made out and, therefore, the ratio laid down in Prithviraj Chavan vs.
Union of India in Writ Petition No.1015 of 2018 decided by Hon’ble Apex
Court on 10.02.2020, will have to be applied.
9 The custodial interrogation of the applicants appears to be not
required since the investigation is already over and charge sheet is already
filed before the Special Court bearing Special Case No.154/2021.
10 The only fact is that in the charge sheet it is stated that the
present applicants are absconding and the charge sheet is filed under Section
299 of the Code of Criminal Procedure against them. It is to be noted that
Section 299 of the Code of Criminal Procedure is an enabling provision for
the Courts to record the evidence in absence of an absconding accused. It
does not give any right to police to file charge sheet under that section. The
evidence has been collected against the present applicants also and there is
no such procedure contemplated that for the accused, who would be arrested
at a later point of time, there should be a separate charge sheet. On the point
of absconding of the applicants it is certain from the charge sheet that no
procedure as contemplated under Section 82 of the Code of Criminal
Procedure has been adopted by the Investigating Officer, who is of the rank of
Sub Divisional Police Officer. It is presumed that he has knowledge of the
procedure that is required to be adopted as per the Code of Criminal
Procedure in connection with the absconding accused. All those reports,
which have been referred above, are nothing but the copy paste and it can be
definitely stated that the print out of these reports has been taken at one and
the same time by only changing the date. This is obvious when we see report
dated 13.11.2021 which is given by A.S.I., Police Station, Newasa to S.D.P.O.,
Shevgaon. Thereafter, the next report is by Police Inspector, Police Station,
Newasa dated 22.11.2021. While making copy paste he has not changed the
date below ek- lfou; lknj. Though while making signature he has given the
date but still it has also correction. There is no much gap between the date
just above his signature; yet, he has not noticed that the blunder has been
committed while doing copy paste. Wordings have also not been changed in
all these reports. With whom the inquiry was made in respect of the
absconding accused, whose statements have been recorded, is absolutely not
clear. It is unfortunate that such kind of activities are undertaken by police
and, therefore, the faith in the Department is decreasing. When the said
report itself is unbelievable, it cannot be said that the applicants are
absconding. The Investigating Officer has not explained as to why he has not
undertaken the procedure under Section 82 of the Code of Criminal
Procedure. Interesting point to be noted is that on 10.01.2021 the District
Superintendent of Police, Ahmednagar appears to have given directions, as to
how the investigation is to be made in respect of absconding accused. Mere
attachment of the same without taking any step as contemplated in those
guidelines it is absolutely not fruitful. The Police Officer of the rank of Sub
Divisional Police Officer has not followed the said guidelines issued by his
own District Superintendent of Police. Under such circumstance, the said
point of objection cannot be appreciated. The interim protection granted
earlier to the applicants deserves to be confirmed. Accordingly, it is
confirmed. Hence, following order.
ORDER
1 Application stands allowed.
2 The ad-interim protection, granted by this Court earlier to
applicants vide order dated 20.12.2021, is hereby confirmed and made
absolute. In other words, if the applicants are not formally arrested, in the
event of arrest of the applicants viz. 1) Manda Sunil Pawar, 2) Sarla Maruti
Jadhav and 3) Maruti Rambhau Jadhav, in connection with Crime
No.656/2021 dated 29.08.2021 registered with Newasa Police Station, Dist.
Ahmednagar, for the offence punishable under Section 354, 354-B, 324, 323,
504, 506, 143, 147 of the Indian Penal Code, 1860, under Section 3(1)(r),
3(1)(s), 3(2)(V-a), 3(1)(w)(i) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 and under Section 7, 8 of the Protection
of Children from Sexual Offences Act, 2012, they be released on P.R. Bond of
Rs.20,000/- (Rupees Twenty Thousand only) each with one or more sureties
in the like amount.
3 The applicants shall not indulge in any criminal activity nor they
should tamper with the prosecution evidence, in any manner.
4 They should cooperate with the investigation.
( Smt. Vibha Kankanwadi, J. )
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