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Ruturaj Rajendra Chavan vs The State Of Maharashtra And Anr on 9 April, 2019

905-APPEAL-1288-2018-J.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1288 OF 2018

RUTURAJ RAJENDRA CHAVAN )…APPELLANT

V/s.

1) THE STATE OF MAHARASHTRA )
)
2) VINAYA SHAILENDRA SHINDE )…RESPONDENTS

Mr.Uday Warunjikar a/w. Mr.Satyavrat Joshi, Advocate for the
Appellant.

Mr.Vinay Bhanushali, Appointed Advocate for Respondent No.2.

Mrs.M.M.Deshmukh, APP for the Respondent – State.

Ms.Prerna Jivan Katte, S.D.P.O., Kolhapur City, present in court.

CORAM : INDRAJIT MAHANTY
A. M. BADAR, JJ.

DATE : 9th APRIL 2019

JUDGMENT : (PER : A.M.BADAR, J.)

1 By this appeal under Section 14A of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989,

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the appellant/accused in Crime No.269 of 2017 registered at

Rajarampuri Police Station, Kolhapur, at the instance of

respondent no.2/First Informant for offences punishable under

Sections 376, 384, 379, 323 and 506 of the Indian Penal Code as

well as under Sections 3(1)(10)(11)(12) and (15) of the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act, 1989, is challenging the order dated 31st August 2017 passed

by the learned Special Judge and Additional Sessions Judge,

Kolhapur, below Exhibit 1 in Criminal Bail Application No.491 of

2017 thereby rejecting his claim for anticipatory bail in the said

crime.

2 Heard. Admit. Heard finally, by consent of parties.

3 The learned advocate appearing for the

appellant/accused argued that the learned Special Judge erred in

rejecting the application for anticipatory bail moved by the

appellant/accused, even though there is no iota of material to

infer complicity of the appellant/accused in the crime in question.

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He drew our attention to some ante litem motam events to

demonstrate that, infact, the appellant/accused is the victim of the

offence punishable under the Protection of Children from Sexual

Offences Act, 2012 (hereinafter referred to as POCSO Act for the

sake or brevity). Our attention is drawn to the First Information

Report (FIR) of Crime No.81 of 2017 registered at the instance of

mother of the appellant/accused with the very same police station

on 27th March 2017 for offences punishable under Sections 406

and 506 of the Indian Penal Code against the respondent

no.2/First Informant. He further argued that in the very same

crime, on 13th June 2017 penal provisions of the POCSO Act were

added to the case diary of the said crime and the respondent no.2/

First Informant is accused in that crime for committing penetrative

sexual assault on the appellant/accused, who, at the relevant

time, was a child. Similarly, our attention is also drawn to the

representation dated 1st May 2017 submitted by the

appellant/accused to the Director General of Police, Inspector

General of Police as well as the Superintendent of Police,

Kolhapur, alleging offences under the POCSO Act committed on

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him by the respondent no.2/First Informant. With this, our

attention is drawn to the private criminal complaint under section

200 of the Code of Criminal Procedure filed by the respondent

no.2/First Informant before the Special court at Kolhapur on 31 st

May 2017, so also to the subject FIR dated 17 th August 2017 filed

by the respondent no.2/First Informant. It is argued that the

subsequent events are counter blasts to the FIR lodged against the

respondent no.2/ First Informant by mother of the

appellant/accused. It is also pointed out that even by face book

communication, respondent no.2/First Informant was alluring and

enticing the appellant/accused for keeping relations.

4 As against this, the learned APP submitted that the

crime in question is serious and the appellant/accused had even

stolen ornaments of the respondent no.2/First Informant. For

recovery of those ornaments, custodial interrogation is warranted.

5 We have also heard the learned counsel appearing for

the respondent no.2/First Informant. He argued that the alleged

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delay in lodging the FIR is explained in paragraph 11 of the

complaint lodged by the respondent no.2/First Informant on 31 st

May 2017 before the learned Special Judge at Kolhapur. He,

further, argued that, the appellant/accused had committed rape

on the respondent no.2/First Informant by enticing her as well as

by blackmailing her to put her obscene photographs on social

media. Her ornaments such as gold rings were also stolen by the

appellant/accused, and therefore, he is not entitled for

anticipatory bail.

6 We have considered the submissions so advanced and

perused the material placed on record.

7 At the outset, it needs to be mentioned here that in the

subject FIR of Crime No.269 of 2017 lodged by the respondent

no.2/First Informant/prosecutrix she has claimed herself to be a

married woman of 33 years residing with her two sons and

husband. She further avers that the appellant/accused along with

his parents was residing in the apartment in the nearby building

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and she was well acquainted with the family of the

appellant/accused and was on visiting terms with them.

Undisputedly, she filed private criminal complaint against the

appellant/accused and his parents on 31 st May 2017 before the

learned Special Judge, Kolhapur, which was registered as

Miscellaneous Application No.89 of 2017. During pendency of

this private criminal complaint, she lodged the subject FIR bearing

Crime No.269 of 2017 on 17th August 2017 making allegations of

rape by blackmailing her by the appellant/accused so also that of

casteist abuses.

8 Some events in the nature of ante litem motam which

are not disputed either by the learned APP or the learned counsel

appearing for the respondent no.2/First Informant need to be put

on record, at this juncture. In her private criminal complaint

registered as Miscellaneous Application No.89 of 2017 filed on

31st May 2017, respondent no.2/First Informant averred that the

appellant/accused used to visit her house for playing with her

sons who were born on 21st March 2007 and 4th June 2012 out of

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her wedlock with her husband. It is, thus, clear that, elder son of

the respondent no.2/First Informant was aged about 10 years and

her younger son was aged about 5 years, at that time. FIR of

Crime No.81 of 2017 registered at Rajarampuri Police Station,

Kolhapur, at the instance of mother of the appellant/accused

shows that in the year 2017, her son i.e. the appellant/accused

was 20 years old. The subject FIR lodged on 17 th August 2017 by

the respondent no.2/First Informant avers that she was subjected

to rape by the appellant/accused from February 2015 to March

2017. On this factual backdrop, it is averred by mother of the

appellant/accused much earlier i.e. on 27 th March 2017 in her FIR

dated 23rd July 2017, that when she was out of her apartment, her

son i.e. the appellant/accused telephonically contacted her and

told her that husband of the respondent no.2/First Informant is

threatening and harassing him, and therefore, he has consumed

poison. Mother of the appellant/accused, in the said FIR, further

averred that, she, then, rushed to the house and found her son i.e.

the appellant/accused vomiting profusely, and therefore, she

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admitted him to the Government Hospital of Kolhapur. With this,

mother of the appellant/accused, in her FIR lodged on 27 th March

2017, further averred that, atleast from the year 2016 the

respondent no.2/First Informant herein, used to repeatedly come

to her flat in her absence and when her son i.e. the

appellant/accused used to be alone in the flat. Mother of the

appellant/accused in her FIR of Crime No.81 of 2017 further

averred that on 18th March 2016 when the respondent no.2/First

Informant herein visited her apartment when her son i.e. the

appellant/accused was all alone, other residents of the apartment

locked her apartment and called her. On opening the door of her

apartment, she found the respondent no.2/First Informant herein

hiding herself in the bathroom of the flat, and therefore, she

scolded her not to keep relations with her son i.e. the appellant/

accused. Then, on 18th March 2016 itself, husband of the

respondent no.2/First Informant was called and then her husband

assured that the respondent no.2/First Informant henceforth will

not meet the appellant/accused. Mother of the appellant/accused

further averred that despite this, the respondent no.2/First

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Informant continued to meet her son i.e. the appellant/accused

herein. It is averred by her in her FIR lodged on 23 rd July 2017

against the respondent no.2/First Informant herein that on 25 th

March 2017, gold ornaments weighing 23 tolas were found

missing from her house and then immediately husband of the

respondent no.2/First Informant came to her house with a request

not to lodge complaint about this fact. She, further, alleged in her

FIR dated 27th March 2017 that on 10th January 2017 husband of

the respondent no.2/First Informant threatened to file case of

atrocity through his wife i.e. the respondent no.2/First Informant

herein when she requested him to prevent his wife (respondent

no.2/First Informant) from meeting the appellant/accused.

It is worthwhile to note here that on 13 th June 2017,

penal provisions of the POCSO Act came to be added to the case

diary of Crime No.87 of 2017 registered at the instance of mother

of the appellant/accused against the respondent no.2/First

Informant, apparently because at the time of the alleged act, the

appellant/accused herein, was a child, as defined by Section 2(d)

of the said Act.

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9 It is further seen that even prior to lodging the subject

FIR by the respondent no.2/First Informant on 17 th August 2017,

on 1st May 2017 itself, the appellant/accused had lodged

complaints to the Director General of Police, Inspector General of

Police and Superintendent of Police, Kolhapur, alleging that when

he was in 11th Standard and aged about 16 to 17 years, the

respondent no.2./prosecutrix started showing him blue films and

compelled him to have sex with her. The appellant/accused in his

complaint stated that because of frequent visits of the respondent

no.2/prosecutrix to his apartment, his neighbours were irritated.

When the respondent no.2/prosecutrix visited his apartment on

one occasion in absence of his parents, the residents locked him as

well as her in his apartment and called his parents. The

respondent no.2/prosecutrix then hid herself in the bathroom of

the apartment and then his parents warned her. The

appellant/accused further complained that subsequently, the

respondent no.2/prosecutrix demanded Rs.1.80 lakh and he paid

that amount to her. Thereafter, her husband started demanding

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an amount of Rs.5 lakh from him with a threat to file a case

alleging rape.

10 It was, atleast, after these two incidents, which took

place on 23rd July 2017 and 1st May 2017 regarding lodging of the

FIR by mother of the appellant/accused and filing of the

complaint by the appellant/accused against the respondent no.2/

First Informant, that she had chosen to file the private criminal

complaint under Section 200 of the Code of Criminal Procedure

against the appellant/accused and his parents on 31 st May 2017

before the learned Special court, Kolhapur, with allegations that

the appellant/accused committed rape on her by enticing her as

well as blackmailing her with a threat to expose her pictures. It is

interesting to note that in this private criminal complaint, the

respondent no.2/First Informant herein has accepted the fact that

she and the appellant/accused were locked inside the apartment

of the appellant/accused by neighbours and subsequently, parents

of the appellant/accused arrived and found her present in the

bathroom of their apartment. However, in her private criminal

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complaint, the respondent no.2/First Informant herein averred

that she was called to his apartment by the appellant/accused for

securing admission of her son in the school. This aspect of

accepting the fact of visit of the respondent no.2/First Informant

to the apartment of the appellant/accused and subsequently

locking them inside that apartment by the neighbours, by the

respondent no.2/First Informant in her private criminal complaint

is very material for deciding the instant application.

11 Our attention is drawn to the face book

communication by the respondent no.2/First Informant revealing

her love and affection to the appellant/accused, in the light of the

fact that the respondent no.2/First Informant is a married lady

aged about 33 years having two children whereas the

appellant/accused is apparently a child, as defined by Section 2(d)

of the POCSO Act.

12 On this factual backdrop, in the subject FIR lodged by

the respondent no.2/First Informant against the appellant/

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accused, allegations are to the effect that she was called at his flat

and workshop by the appellant/accused from July 2015 to

October 2016 by threatening her to publish her obscene

photographs and she was made to succumb to his lust. It is further

averred in the FIR that the appellant/accused had extorted gold

ornaments from the respondent no.2/First Informant. She was

abused in the name of her caste by the appellant/accused as well

as his parents, who are co-accused. In the light of events which

took place prior to lodging of the FIR, which are reflected from the

record and not disputed either by the prosecution or by the

learned counsel for the respondent no.2/First Informant, we are of

the considered view that custodial interrogation of the appellant/

accused, who prima facie, at the relevant time was a child, as

defined by Section 2(d) of the POCSO Act, is not warranted. At

this juncture, provisions of Section 12 of the Juvenile Justice (Care

and Protection of Children) Act, 2000, becomes relevant. The

juvenile in conflict with law cannot be directed to undergo

custodial detention as well as interrogation unless and until

reasonable grounds are made out to show that he will be exposed

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to moral, physical or psychological danger by coming into

association with known criminals or his release would defeat the

ends of justice. Needless to mention here that plea of juvenility

can be taken at any stage of the proceeding and even in the

appeal.

13 So far as offences of atrocities alleged against the

appellant/accused, nothing is pointed out to show that the alleged

incident of intentional insult or intimidation with intent to

humiliate, so also that of casteist abuses, took place in any place

within public view and such incident was witnessed by

independent public witness. So far as alleged sexual relations are

concerned, it is not seen from the record that the appellant/

accused, being in a position to dominate the will of the respondent

no.2/prosecutrix, used that position to exploit her sexually, to

which she would not have otherwise agreed. On the contrary,

material on record indicates that the respondent no.2/First

Informant is facing the charge for commission of offences

punishable under the POCSO Act with an accusation that she

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sexually exploited the appellant/accused, who was a child.

Careful perusal of the material available does not indicate that an

offence of atrocity is prima facie made out. Prima facie, it cannot

be said that, whatever was happening, was without any consent

and against the will of the respondent no.2/First Informant, who

is a married woman, aged about 33 years.

14 The learned Special Judge, while dealing with the

application for anticipatory bail moved by the appellant/accused,

has failed to consider material placed on record, in proper

perspective and erroneously came to the conclusion that there is

substance in the complaint, and therefore, anticipatory bail cannot

be granted. The learned Special Judge has not even considered

whether bar of Section 18 of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act, 1989, is attracted to the case

in hand, considering the material collected by the prosecution.

The impugned order, as such, cannot be sustained and therefore

the order :

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ORDER

i) The appeal is allowed.

ii) The impugned order dated 31st August 2017 passed by the

learned Special Judge and Additional Sessions Judge,

Kolhapur, below Exhibit 1 in Criminal Bail Application

No.491 of 2017 is quashed and set aside.

iii) The application for anticipatory bail moved by the

appellant/accused is allowed.

iv) In the event of arrest of the appellant/accused in Crime

No.269 of 2017 registered at Rajarampuri Police Station,

Kolhapur, at the instance of respondent no.2/First

Informant, the appellant/accused be released on bail on his

executing P.R.Bond in the sum of Rs.15,000/- and on

furnishing surety in like amount.

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v) The appellant/accused shall not make any inducement,

threat or promise to any person acquainted with the facts of

the accusation against him so as to dissuade him from

disclosing such facts to the court or to any Police officer.

vi) The appellant/accused shall co-operate the Investigating

Officer and he shall surrender all his cell phones to the

Investigating Officer for the purpose of investigation.

vii) The appellant/accused should not contact the respondent

no.2/First Informant or her relatives in any manner,

whatsoever.

viii) The appeal is disposed off.

          (A. M. BADAR, J.)             (INDRAJIT MAHANTY, J.)

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