In The High Court of Judicature at Bombay
In The High Court of Judicature at Bombay
In The High Court of Judicature at Bombay
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.14 OF 2019
Mr.Amit Sadanand Shelar ] ..Appellant.
vs.
State of Maharashtra ] ..Respondent.
Mr.Tanveer Nizam and Mariam Nizam and Shruti Kelji for the
Appellant.
Mrs.Megha Bajoria, appointed Advocate for Respondent No.2
Mrs.M.M. Deshmukh, APP for the State.
CORAM : INDRAJIT MAHANTY &
A.M. BADAR, JJ.
DATE : 25th July, 2019.
ORAL JUDGMENT : (PER : A.M.BADAR, J.)
1] Heard. Admit. Heard finally by consent of parties.
This appeal under Section 14A of the Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short “SCST
Act”) is filed by the appellant (original accused) challenging the order
dated 31st December, 2018 passed by the learned Sessions Court,
Thane, in Anticipatory Bail Application No.3199 of 2018, thereby,
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rejecting his claim for anticipatory bail in Crime No. I222/2018 for
offences under Section 376(2)(c)(J)(n), 328, 323, 504, 506 of the
Indian Penal Code and amended Rule 3(12) of the SCST Act (sic)
registered with Police Station CBD, Navi Mumbai.
3] Heard the learned counsel for the appellant. He submits that the
FIR unerringly points out that whatever was happening between the
appellant and the first informant was with consent and this fact is
reflected from the text messages exchanged between the parties. He
placed on record transcripts of the recorded conversation between the
appellant and the first informant. It is argued that the FIR was lodged
belatedly after about 18 months and that too when the husband of the
first informant suspected something foul.
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by the prosecution and therefore, bar of either Section 18 or Section
18A of the SCST Act, 1989 is not attracted to the case in hand.
5] Learned APP opposed the appeal by contending that screen shots
obtained from the cellphone of the victim of the crime in question
incriminates the appellant and the FIR as well as the screen shots from
the cellphone of the victim indicates commission of offence under
Section 376 of the Indian Penal Code as well as the SCST Act by a public
servant. Therefore, considering the fact that the first informant
belongs to Scheduled Caste , he is not entitled for bail in view of the
bar under Section 18 and 18A of the SCST Act.
6] We have also heard learned appointed advocate for respondent
No.2/first informant on the case of the State. She relied on the
contention of the Learned APP and supported the impugned order dated
31st December, 2018 rejecting the claim for anticipatory bail of the
appellant.
7] We have also perused the case diary.
8] At the outset, it needs to be point out that respondent No.2/first
informant is a married lady aged about 31 years. Her husband is
working in a nationalised bank. She is working as a Police Constable
in the police department from the year 2009. The FIR which came to be
lodged by her setting the criminal law in motion on 16.11.2018 reveals
that she became acquainted with the appellant who happens to be
Police Sub Inspector attached to the Vashi Police Station.
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9] It is revealed from the FIR that the appellant who was promoted
as the Police Sub Inspector was helping the First Informant in her
studies for getting promotion. It is averred in the FIR by the Respondent
No.2/First Informant that the appellant had committed rape on her from
March 2017 to October 2018, on various occasions in his vehicle, at
Bhushan Lodge, in a room at Satyam Heights, Kharghar, at his own
house a well as at hotel Sitrank Orange etc.
10] The First informant averred that the first such incident happened
in the car of the appellant after the appellant drugged her drink in the
car. Thereafter she was molested under the threats that the appellant
had recorded the act in his cellphone and he will make it viral. Lastly,
the First Informant/Respondent No.2 alleged that on 13 th November,
2018, the appellant demanded sex from her in his car. When she
refused, the appellant had beaten her black and blue. She suffered
bleeding nose, apart from bleeding injuries to all her extremities. Her
husband questioned her about those injuries and then she disclosed
everything to him. Thereafter, she lodged report.
11] Though the first informant has alleged that she suffered bleeding
injuries, in her medical examination conducted on 18 th November,
2018, the Medical Officer has not noticed any external injury on the
body of the first informant/Respondent No.2.
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stated in he FIR are considered in the light of several text messages
exchanged between the parties, primafacie, we are of the opinion that
the case in hand is a case of consent. Consent as understood in law is
as an act of reason accompanied with deliberations, mind weighing, as
in balance, the good and evil on both sides. It means an active will in
the mind of a person to permit doing of the act complained of. Will as
understood is one's own voluntary act. This is a case of a married
women of 31 years of age, indulging in sexual relations with her
colleague on several occasions at lodge, hotels, rooms and house of the
appellant, without disclosing the said fact either to her husband or to
the police, though she was having tons of opportunities to do so. On
the contrary, the messages exchanged between the parties indicate that
lastly the First Informant / respondent No.2 suspected that her husband
is monitoring her mobile and ultimately, on 16th November, 2018 the
FIR came to be lodged. Subsequently, the medical examination was
conducted, but report of medical examination on this aspect is negative.
Explanation to Section 3(1)(w) makes it clear that unequivocal
voluntary agreement either by words, gesture or in the form of non
verbal communication communicating willingness to participate in a
specific act amounts to consent.
13] Learned APP has placed on record report of forensic examination
of cell phone of the appellant. This report does not show that the said
cell phone was containing any obscene clip involving the appellant or
the respondent No.2. The case diary reveals that initially the First
Informant was not ready to handover her cellphone to the Investigator.
She informed that she will collect the incriminating material in the pen
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drive and handover the same to the investigating agency. However, she
did not comply. The Investigator then wrote a letter to her to deposit
her cell phone and then she sent a letter intimating the fact that her
mobile phone was lost during train journey. The APP has reported that
the First Informant had lodged report in respect of theft of mobile with
police station to that effect.
14] On the background of facts of the case which we have reproduced
earlier, the explanation to Section 3(1)(w) of the SCST Act will have to
be kept in mind in order to ascertain as to whether the penal provisions
of SCST Act invoked by the prosecution are applicable to the case in
hand. Primafacie we are of the opinion that the act was consensual in
nature and therefore is not attracting the bar of Section 18 or 18A of
the SCST Act. So far as the other provisions of the SCST Act invoked by
the prosecution are concerned, those deal with punishment and not
offences.
15] Though the prosecution alleges about printouts of the screenshot
from cell phone of the First Informant incriminates the appellant, that
cell phone was not produced before the Investigator. The appellant is
contending that with some Application in cell phone, such screenshots
can be created.
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ORDER
1] Criminal Appeal No.14 of 2019 is allowed.
2] The impugned order dated 31st December, 2018 passed by
the learned Special Judge, Thane, in Anticipatory Bail Application
No.3199 of 2018 is quashed and set aside.
4] In the event of arrest of the appellant, in the subject crime,
he be released on bail on executing PR Bond of Rs.15,000/ and on
furnishing a surety in the like amount.
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6] The appellant shall attend the Investigating Officer as and
when called for the purpose of investigation.
8] Needless to mention here that the observations are prima
facie in nature and shall not have any bearing on the trial of this case.
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