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Jyoti Deepak Samindar vs The State Of Maharashtra And … on 5 February, 2020

1 Appeal Nos.315 316 of 2019

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

Criminal Appeal No. 315 of 2019

Jyoti Deepak Samindar. .. Appellant.

Versus

The State of Maharashtra
And Others. .. Respondents.

—-

Shri. S.S. Gangakhedkar, Advocate, for appellant.

Shri. K.S. Patil, Additional Public Prosecutor, for
respondent Nos.1 and 2.

Shri. S.S. Kazi, Advocate, for respondent No.3.

—-

With

Criminal Appeal No. 316 of 2019

Jyoti Deepak Samindar. .. Appellant.

Versus

The State of Maharashtra
And Others. .. Respondents.

—-
Shri. S.S. Gangakhedkar, Advocate, for appellant.

Shri. K.S. Patil, Additional Public Prosecutor, for
respondent Nos.1 and 2.

Shri. V.S. Undre, Advocate, for respondent Nos.3 4.
—-

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2 Appeal Nos.315 316 of 2019

Coram: T.V. NALAWADE
M.G. SEWLIKAR, JJ.

Date: 05 FEBRUARY 2020
ORDER:

1) Both these appeals are fled for cancellation of

the relief of anticipatory bail granted in favour of the

respondents-accused by the learned Additional Sessions

Judge Ahmednagar. Relief of anticipatory bail is granted to

the respondents in Crime No.I-552/2018 registered with

Jamkhed Police Station, District Ahmednagar for ofences

punishable under sections 376,307,452,420,354, 323, 504,

506 of the Indian Penal Code and sections 3(1)(x),3(1)

(ii),3(ii)(v) etc. of the Scheduled Castes and the Scheduled

Tribes (Prevention of Atrocities) Act, 1989. Both the sides

are heard.

2) The crime is registered on the basis of report

given by the prosecutrix who was of 38 years of age on the

date of the F.I.R. The F.I.R. was given on 24-9-2018. It is

her contention that her husband had died in a motor

vehicle accident on 22-9-2012 and she was living with her

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3 Appeal Nos.315 316 of 2019

two issues at a Vasti from Jamkhed, Tahsil Jamkhed,

District Ahmednagar. It is her contention that respondent

Mustafa Sadarudin Shaikh was residing in that locality

with his family and he was working in Army. It is her

contention that Mustafa was married and he had 2 issues

also. According to her, in the year 2015 Mustafa visited

her residential place and represented that he was close

friend of her deceased husband and he could not visit her

place immediately after the death of her husband and he

had come only to console her. After the frst visit, he

started visiting the place of the prosecutrix and he started

saying that he had sympathy for her and for her family.

3) According to the prosecutrix, on one day

Mustafa, the main accused came with fruit juice when her

issues were not at home. It is her contention that as he

insisted she consumed that fruit juice. She felt that she

was becoming unconscious. It is her contention that

Mustafa then advised her to take rest on the bed and she

went to the bed. It is her contention that when she woke

up she realised that Mustafa had taken sexual intercourse

with her. It is her contention that when she questioned

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4 Appeal Nos.315 316 of 2019

Mustafa why he had done that act, he said that he had

done video shooting of the said act and in case she makes

complaint to anybody he would circulate the video clip

and he would defame her. According to her, he gave

threats that if she does not keep physical relations with

him he would fnish her issues.

4) It is the contention of the prosecutrix that from

June 2015 to May 2018 he took sexual intercourse with

her when there was no consent, many times. It is her

contention that on every occasion when he used to come

on holidays he used to keep contact with her and even

when he was on duty he used to contact her on phone. It

is her contention that when she said that she was being

harassed he said that he would give talaq to his wife and

he would marry with her and he would take care of her

issues also.

5) It is the contention of the prosecutrix that in

the year 2017 Mustafa came with blank stamp papers and

on those stamp papers he obtained her signatures by

giving threats to her. It is her contention that she was

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5 Appeal Nos.315 316 of 2019

trying to avoid to keep contact but in one way or the other

he used to contact her. It is her contention that he used to

give abuses to her by taking the name of her caste which

is a scheduled caste and he used to say that there was no

value to her character and he would circulate the video

clip which was with him. It is her contention that on 17-9-

2018 at midnight hours he entered her house when her

issues were sleeping and he questioned as to why she had

gone to police. It is her contention that on that night also

by using force he raped her and he had shown a knife to

her and he had given threats that he would fnish her if

she again dares to go to police. It is her contention that

after some time, his men, the respondents-accused from

other proceeding, entered her house and they also abused

her and they gave warning to her that she should not

harass Mustafa and she should not go to police against

Mustafa. It is her contention that these persons pointed a

weapon at her and gave threats to fnish her if she does

not withdraw the complaint given to police by her.

6) When there are allegations of aforesaid nature,

the learned Additional Sessions Judge granted relief of

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6 Appeal Nos.315 316 of 2019

anticipatory bail. The learned Additional Sessions Judge

has given some reasons which are at paragraphs 3,4 and 5

and they are as under :

“3. From the police papers, what appears is that the
prosecutrix was in intimate relationship with the
applicant since more than three years. It appears to
be consensual one. As per the documents fled on
record they also got married as per Mohammedan
rites and rituals i.e. by Nikah. Nikahnama is fled on
record. There is notary agreement between them
which speaks about divorce but it cannot be said to be
a talak as per Mohammedan Law.

4. The material placed on record by the applicant
itself shows that their relations are strained and their
marriage is in dispute. In the statement dated 16-09-
2018 given by the prosecutrix to police, it is
mentioned that she will perform marriage with the
applicant in the year 2020. As such, it seems that the
Nikahnama has not been acted upon by the parties.

5. For long period, the prosecutrix was maintaining
love afair with the applicant. She has come with the
allegations of fraud and mis-representation, when the
relationship became strained and disrupted. Under
such circumstances, when the applicant is serving in
military, it would not be proper to allow his arrest
and detention.”

7) The submissions made and the record show

that Mustafa had approached police on 15-9-2018 and he

had raised grievance that the present appellant was

harassing him and there was possibility of giving false

report by her against him. At the cost of repetition this

Court mentions that the F.I.R was given on 24-9-2018. In

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7 Appeal Nos.315 316 of 2019

that grievance application he had contended that he had

married with the present informant as per Muslim rites

and customs on 21-1-2016 but after that the informant

had expressed that it was dificult for her to keep relations

with him and so by executing a document on 19-6-2017

before Notary the relationship was brought to an end.

When such representation was made on 15-9-2018 there

is a copy of police statement of the prosecutrix dated 16-9-

2018 showing that this statement was recorded by police

and in that statement it was recorded that they were in

relation and they had decided to get married in the year

2020. By making such contention she had expressed that

she had no complaint against Mustafa. This statement

does not show that she had married with accused prior to

that date. This statement thus shows that she had not

admitted that in the past there was marriage and then

there was an agreement under which they got separated.

8) The learned counsel for Mustafa then drew

attention of this Court to one agreement shown to be

executed on a general stamp paper of Rs.100/-

denomination dated 19-6-2017. In this document executed

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8 Appeal Nos.315 316 of 2019

before Notary it is mentioned that Mustafa had given

divorce to the prosecutrix. It is necessary to mention here

that such kind of divorce is not possible if at all there was

marriage as per Muslim religion. In any case there is no

record with Mustafa to show that prosecutrix was

converted to Muslim religion and then he had married

with her as per Muslim religion. A Muslim cannot marry

with Hindu and that marriage is void as per Muslim Law.

Learned counsel for Mustafa submitted that the marriage

took place before Kazi and he has record of Nikahnama.

In any case as per Muslim Law a Muslim cannot marry a

Hindu. It can be said that the prosecutrix was deceived.

9) The aforesaid submissions show that Mustafa

who is working in Army gave false promise to the

prosecutrix that he would marry with her after giving

talaq to his wife. There is allegation that initially relations

were developed by using threats and by deceiving the

prosecutrix. Learned counsel for Mustafa submitted that

the prosecutrix is interested only to extract money from

Mustafa and that is why she is making false allegations.

This type of defence cannot be considered at this stage.

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9 Appeal Nos.315 316 of 2019

There is record of the nature which is already quoted. In

such circumstances the contention of the prosecutrix only

needs to be considered. When there is record and

circumstances of the aforesaid nature, the learned

Additional Sessions Judge gave the relief of anticipatory

bail in favour of Mustafa. As per the provision of section

18 of the Scheduled Castes and the Scheduled Tribes

(Prevention of Atrocities) Act, 1989 there is bar to grant

relief of anticipatory bail when the ofences under this Act

are involved. It is nothing but exploitation of a lady of a

scheduled caste and such instance cannot be taken lightly.

At this stage the court is expected to believe the case of

the prosecutrix and the probable defence of the accused

cannot be considered.

10) The learned counsel for Mustafa submitted that

though the aforesaid special enactment came to be

amended in the year 2018, even after amendment the

Apex Court has granted relief of anticipatory bail in some

cases. He produced on record a copy of the order made in

Special Leave to Appeal (Criminal) No.7338/2018

(Saliquiddin v. The State of Maharashtra) and he

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10 Appeal Nos.315 316 of 2019

submitted that the relief of anticipatory bail was granted

in favour of this person. There is only operative part of

the order. From this order it cannot be said that the Apex

Court had come to the conclusion that the case under the

special enactment was made out but anticipatory bail can

be given to the accused. He then placed reliance on the

observations made by the Apex Court in a case reported

as 2020 SCC OnLine SC 98 (Sushila Aggrawal v. State) .

This judgment is of no help to the applicant Mustafa.

11) In view of the intention of the Legislature

behind making specifc provisions in the aforesaid

enactment which also include the provisions which are to

protect ladies of scheduled castes and tribes from sexual

exploitation, when the ofence of the present nature is

committed, the ofences need to be treated as the ofences

committed under the aforesaid special enactment. As soon

as the court forms opinion that ofence under the

provision of the Scheduled Castes and the Scheduled

Tribes (Prevention of Atrocities) Act, 1989 is made out,

the court is expected to see other provisions like

containing the bar under section 18 of the Act to grant

relief of anticipatory bail. This Court holds that there is

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11 Appeal Nos.315 316 of 2019

bar of the provision of section 18 to grant relief of

anticipatory bail to Mustafa. Thorough investigation to

trace the video clip is necessary. So the order of the

learned Additional Sessions Judge needs to be cancelled

and set aside. However, the relief granted to other

accused need not be disturbed as there are no such

serious allegations against them.

12) In the result, Criminal Appeal No.315/2019 is

allowed. The order made by the Additional Sessions Judge

Ahmednagar in favour of Mustafa of granting relief of

anticipatory bail is hereby quashed and set aide. His

application fled before the Sessions Court stands

rejected.

13) Criminal Appeal No.316/2019 fled against the

other accused stands dismissed.

14) Learned counsel for Mustafa submitted that he

wants to challenge the order before the Apex Court and

for that stay to the order may be given. In view of the

aforesaid record this Court holds that stay cannot be

given. The prayer is rejected.

Sd/- Sd/-
(M.G. SEWLIKAR, J.) (T.V. NALAWADE, J.)
rsl

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