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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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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