Bombay High Court
Gopal Shankarlal Agrawal And Another vs The State Of Maharashtra And Another on 22 January, 2025
2025:BHC-AUG:1828
Cri-Apeal**-726 & 533-2024.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 726 OF 2024
Sarla W/o Natha Khandare
Age: 52 years, Occu:- Service,
R/o. Shahu Nagar, Hingoli,
Tq. & Dist. Hingoli ... APPELLANT
(Original Informant)
VERSUS
1] State of Maharashtra
Through Police Station Officer,
City Police Station, Hingoli
2] Nupur W/o Abhijeet Khandare
Age 28 yrs., Occu. H.H
3] Meenadevi W/o Gopal Agrawal
Age- 55 yrs, occ. H.H.,
Both R/o. Marwadi Galli, Hingoli
... RESPONDENTS
(Res.Nos. 2 & 3 original accused)
....
Mr. U. L. Talegaonkar, Advocate for the Appellant
Ms Chaitali Chaudhari - Kutti, APP for Respondent No.1 - State
Mr. S. S. Bora a/w Mr. Vishal A. Bagadiya, Advocates for
Respondent Nos. 2 and 3
....
WITH
CRIMINAL APPEAL NO. 533 OF 2024
1] Gopal s/o Shankarlal Agrawal
Age:- 60, Occ.: Business,
R/o. Marwadi Galli, Hingoli,
Tq. & Dist. Hingoli
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(( 2 )) Cri-Apeal**-726 & 533-2024
2] Vikram s/o Gopal Agrawal,
Age: 36, Occ.: Business,
R/o. Marwadi Galli, Hingoli,
Tq. & Dist. Hingoli ... APPELLANTS
(Orig. Accused)
VERSUS
1] State of Maharashtra
Through Superintendent of Police,
Hingoli, Dist. Hingoli
2] State of Maharashtra
Through Police Station Officer,
Hingoli City Police Station,
Dist. Hingoli
3] Sarla Natha Khandare
Age: 52, Occ.: Household,
R/o. Shahu Nagar, Hingoli,
Tq. & Dist. Hingoli ... RESPONDENTS
(Res.No.3 Orig. informant)
....
Mr. S. S. Bora a/w Mr. Vishal A. Bagadiya, Advocates for Appellants
Ms Chaitali Chaudhari - Kutti, APP for Respondent Nos.1 & 2 - State
Mr. U. L. Talegaonkar, Advocate Respondent No.3
....
CORAM : Y. G. KHOBRAGADE, J.
RESERVED ON : 08.01.2025
PRONOUNCED ON : 22.01.2025
JUDGMENT :
–
1. In Criminal Appeal No.726 of 2024, the Appellant/
informant invoked the jurisdiction of this Court under Section 14-A of
the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989 and challenged judgment and order dated 15.06.2024,
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passed by the learned Special Judge, Hingoli, in Criminal Misc.
Application No.247 of 2024, thereby released the Respondent Nos. 2
and 3 accused on anticipatory bail in Crime No.0356 of 2024,
registered with Hingoli City Police Station for the offences punishable
under Sections 306, 507 read with Section 34 of the Indian Penal
Code and Sections 3(2)(v), 3(2) (va) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989.
2. Whereas, in Criminal Appeal No.533 of 2024, the
Appellants/Accused have invoked jurisdiction of this Court under
Section 14-A of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 and challenged the judgment and
order dated 15.06.2024, passed by the learned Special Judge, Hingoli
in Criminal Bail Application No.247 of 2024 in respect of rejection of
their anticipatory bail in Crime No.0356 of 2024 registered with
Hingoli City Police Station.
3. Having regard to the rival submissions of both the side, I
have gone through the record. On face of record, it appears that the
informant Smt. Sarla W/o Natha Khandare, lodged a F.I.R. with
Hingoli City Police Station and alleging that her son Abhijeet
Khandare was married with the Accused no. 1 Mrs. Nupur, the
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daughter of Gopal Shankarlal Agrawal and Sister of Vikram s/o Gopal
Agrawal, who are Appellant no. 1 & 2 in Criminal Appeal No.533 of
2024) on 18.03.2016.
4. Needless to say that, on 29.05.2024, the informant Smt.
Sarla, (the Appellant in Cri. Appeal No.726 of 2024) lodged a report
with Hingoli City Police Station, alleging that, on 18.03.2016, her
deceased son Abhijeet and the accused No.1 Nupur, the daughter of
accused No.2 Gopal Agrawal and accused No.4 Meenadevi Agrawal
and sister of accused No.3 Vikram Agrawal, was solemnized inter-
caste marriage. Therefore, the accused Nos. 2, 3 and 4 were not
happy with said marriage. Therefore, her son Abhijeet with the
accused No.1 Nupur started residing at Chhatrapati Sambhajinagar. In
the month of May 2024, the accused No.1 Nupur visited at her
parental house and stayed there for one week. On 21.05.2024, she
(informant) and the accused Nos. 2, 3 and 4 were visited at
Chhatrapati Sambhajinagar for attending the marriage of their
relative. On 22.05.2024, at about 10.00 a.m., accused Nos. 2, 3 and
4 took her grand son (Samyak) and her daughter-in-law Smt. Nupur
(Accused No. 1) in their vehicle and switched off Mobile of Accused
no. 1 Nupur. The informant further alleged that, the accused persons
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mentally tortured her son Abhijeet, due to which her son was
mentally disturbed.
5. On 28.05.2024, at about 4.00 p.m., she visited Siddharth
Colony and returned at her house at about 6.30 p.m. and found that
door of her house closed from inside and her son Abhijeet was inside
of the house. When She knocked the door but there was no response
from her son Abhijeet. Therefore, with the help of the neighbours,
door of her house was broken and found that her son Abhijeet
committed suicide by hanging.
6. According to the informant, on 28.05.2024, her son
Abhijeet committed suicide because since last 2 to 2 ½ years, all the
accused persons were abusing her son Abhijeet on his caste by saying
that, “he is from lower caste and due to solemnization of marriage by
the deceased Abhijeet with the accused No.1 Nupur, they defamed in
the society”. Therefore, her son committed suicide.
7. On the basis of said report, a F.I.R. No.0356 of 2024
registered against the accused persons with Hingoli City Police
Station, for the offences punishable under Sections 306, 507, read
with Section 34 of the Indian Penal Code and Sections 3(2)(v), 3(2)
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(va) of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989.
8. The Special Divisional Police Officer (S.D.P.O.)/
Investigating Officer, visited at the spot of incident and drawn spot
panchanama. The dead body of deceased Abhijeet was referred to
the autopsy under the request letter. The Investigating Officer
conducted the investigation and recorded statements of the witnesses
under Section 161 of Cr.P.C.
9. The accused persons preferred Criminal Bail Application
No. 247 of 2024 under Section 438 of Cr.P.C. in Crime No.0356 of
2024. On 15.06.2024, the learned Special Judge, Hingoli, passed the
impugned order and granted pre-arrest bail to the accused No.1
Nupur (daughter-in-law of informant) and accused No. 4 Meenadevi
Agrawal, the mother of Smt. Nupur. However, anticipatory bail
rejected in respect of accused No.2 Gopal Agrawal and accused No.3
Vikram Agrawal (Appellant Nos. 1 and 2 in Criminal Appeal No.533
of 2024).
10. On 21.06.2024, this Court (Coram: Shivkumar Dige, J.)
passed an order and granted ad-interim anticipatory bail to accused
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No.2 Gopal Agrawal and accused No.3 Vikram Agrawal (Appellants
in Criminal Appeal No.533 of 2024) on certain terms and conditions.
11. Mr. Talegaonkar, the learned counsel for the
Appellant/informant canvassed in vehemence that, Section 18 of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act
create a bar for grant of anticipatory bail under Section 438 of the
Code of Criminal Procedure. However, the learned Special Judge
failed to consider aim and object of Section 18 and granted
anticipatory bail to accused Nos. 1 and 4, Nupur and Meenadevi,
though substantial material produced on record, which shows that,
the accused persons have humiliated and tortured the son of the
informant, hence, the deceased Abhijeet committed suicide.
Therefore, considering gravity of offence based on abusement on
caste and issuance of threat to kill the deceased, the accused persons
have committed the offence, hence, the Accused are not entitled to
release on anticipatory bail.
12. The learned counsel for the informant/appellant further
canvassed that, the informant specifically stated in F.I.R. that, the
accused Nos. 2 and 4 i.e. Gopal and Meenadevi, were on visiting
terms at her house and they always told her daughter-in-law Smt.
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(( 8 )) Cri-Apeal**-726 & 533-2024
Nupur not to keep relations with the informant and her son belongs
to lower caste, therefore, due mental tourture on account of
abusement on cast, the informant’s son Abhijeet committed suicide.
13. The learned counsel for the informant/ appellant relied
on Prithvi Raj Chauhan V. Union of India, AIR 2020 SC 1036,
wherein, it has been held that the bar created under Section 18 and
18A against the grant of anticipatory bail in cases of atrocities against
the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, shall not apply unless prima-facie case is made out.
14. Per contra, Mr. Bora, the learned counsel for the accused
canvass that, marriage of accused No.1 Nupur and deceased Abhijeet
was inter-caste marriage solemnized in the year 2016 and out of
matrimonial relations, the accused No.1 and deceased blessed with
male child Samyak. Due to inter-caste marriage, there were some
resistance from the family of accused No.1 Nupur, but subsequently
relations between the accused and deceased Abhijeet were cordial. So
also, the accused persons were frequently visiting the accused No.1
Nupur and deceased Abhijeet who were residing at Chhatrapati
Sambhajinagar. Similarly, deceased Abhijeet and the accused No.1
were also on visiting term at house of the accused persons. The
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accused persons never abused their son-in-law Abhijeet on his caste
any time before. However, Abhijeet (deceased) was working in
private sector and he may be in financial crises. So also, there are no
allegations that, the accused persons abused or insulted the deceased
on his caste in past eight years of their marriage till the incident of
suicide. However, on 28.05.2014 i.e. after a lapse of more than eight
years from the date of marriage, the deceased committed suicide
without any reasons. Therefore, the bar under Section 18 of the
Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act,
does not create.
15. In support of these submissions, Mr. Bora relied on
Shajan Skaria Vs. The State of Kerala and Ors, AIR 2024 SC 4557 =
2024 Cri.L.J. 4357, wherein the Hon’ble Supreme Court considered
the expression “arrest of any person” appearing in Section 18 of the
Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act
and observed in paragraph Nos. 41, 42, 43 and 44, as under:-
“41. It is clear from the aforesaid discussion that Section 18 of
the Act, 1989 does not impose an absolute fetter on the power
of the courts to examine whether a prima facie case attracting
the provisions of the Act, 1989 is made out or not. As discussed,
Section 18 stipulates that in any case which involves the arrest
of any person on the accusation of having committed an
offence under the Act, 1989, the benefit of anticipatory bail9 of 18
(( 10 )) Cri-Apeal**-726 & 533-2024under Section 438 of CrPC would not be available to the
accused. We have deliberated on the significance of the
expression “arrest of any person” appearing in the text of
Section 18 of the Act, 1989 and are of the view that Section 18
bars the remedy of anticipatory bail only in those cases where a
valid arrest of the accused person can be made as per Section
41read with Section 60A of CrPC.
42. Section 60A of CrPC provides that no arrest shall be made
except in accordance with the provisions of CrPC or any other
law for the time being in force and providing for arrest. Section
41 of CrPC confers upon the police the power to arrest without
warrant in certain situations as specified therein. Sections
41(1)(b) and 41(1)(ba) respectively of CrPC read as follows:
“41. When police may arrest without warrant.–(1) Any
police officer may without an order from a Magistrate
and without a warrant, arrest any person– xxx xxx xxx
(b) against whom a reasonable complaint has been made,
or credible information has been received, or a
reasonable suspicion exists that he has committed a
cognizable offence punishable with imprisonment for a
term which may be less than seven years or which may
extend to seven years whether with or without fine, if the
following conditions are satisfied, namely:–
(i) the police officer has reason to believe on the basis of
such complaint, information, or suspicion that such
person has committed the said offence;
(ii) the police officer is satisfied that such arrest is
necessary–
(a) to prevent such person from committing any further
offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of
the offence to disappear or tampering with such evidence
in any manner; or
(d) to prevent such person from making any inducement,
threat or promise to any person acquainted with the facts
of the case so as to dissuade him from disclosing such
facts to the Court or to the police officer; or10 of 18
(( 11 )) Cri-Apeal**-726 & 533-2024
(e) as unless such person is arrested, his presence in the
Court whenever required cannot be ensured, and the
police officer shall record while making such arrest, his
reasons in writing.
Provided that a police officer shall, in all cases where the
arrest of a person is not required under the provisions of
this sub-section, record the reasons in writing for not
making the arrest.
(ba) against whom credible information has been
received that he has committed a cognizable offence
punishable with imprisonment for a term which may
extend to more than seven years whether with or without
fine or with death sentence and the police officer has
reason to believe on the basis of that information that
such person has committed the said offence.”
43. A plain reading of the above provision shows that an arrest
can be effected if there is a reasonable complaint, credible
information or reasonable suspicion and the police officer has a
reason to believe that such offence has been committed by the
accused person and the arrest is necessary. It is worth noting
that the words ‘complaint’, ‘information’ and ‘suspicion’ are
qualified by the adjectives ‘reasonable’, ‘credible’ and
‘reasonable’ respectively. Similarly, the police officer is required
to have a ‘reason to believe’ based on the information he has
received that the accused person has committed the alleged
offence.
44. It is settled law that arrest cannot be made merely because
it is lawful to do so. The exercise of the power to arrest has
been qualified by a twofold requirement – first, of having a
reasonable belief that the accused person has committed the
offence and secondly, that there is a need to arrest the accused
person. This Court in Satender Kumar Antil v. CBI reported in
(2022) 10 SCC 51 held that non-observance of the
requirements stipulated under Section 41 and 41A of CrPC
respectively before effecting arrest would entitle the accused to
be enlarged on bail. The relevant paragraphs are reproduced
hereinbelow:
“25. The consequence of non-compliance with Section 41
shall certainly inure to the benefit of the person11 of 18
(( 12 )) Cri-Apeal**-726 & 533-2024suspected of the offence. Resultantly, while considering
the application for enlargement on bail, courts will have
to satisfy themselves on the due compliance of this
provision. Any non-compliance would entitle the accused
to a grant of bail.”
16. In the case in hand it is not in dispute that, on
18.03.2016, the deceased Abhijeet and the accused No.1 Nupur,
solemnized inter-caste marriage. The deceased was a member of the
Scheduled Caste and the accused No.1 is from Marwadi/Agrawal
community, which is upper caste of the deceased.
17. No doubt, the informant alleged that due to inter-caste
marriage, the accused Nos. 2, 3 and 4 were always torturing her son
deceased Abhijeet. However, the informant has not given any specific
incidence which might have occurred prior to date of committing
suicide by her son.
18. On perusal of Case Diary it appears that, deceased
Abhijeet, Smt. Nupur, the accused No.1 and their son Samyak were
residing at Chhatrapati Sambhajinagar but, they were on visiting term
at house of Informant as well as at house of the accused persons. The
statements of witnesses does not suggest that, in past eight years from
the date of their marriage till the date of incident, the accused
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(( 13 )) Cri-Apeal**-726 & 533-2024
persons restrained the deceased Abhijeet from entering their house.
As per the prosecution case, on 22.05.2024, there were talk between
the witness Milind Wankhede and Accused No.2 Gopal Agrawal. The
conversation collected by the Investigating Officer in electronic
document i.e. Pen-drive.
19. The statements of witnesses shows that, on 18.03.2016,
the marriage between the deceased Abhijeet and accused No.1 Smt.
Nupur solemnized at Pune as per the customs and rites prevailing in
the Buddhist society. After the marriage, accused No.1 and the
deceased Abhijeet cohabited in house of matrimonial uncle of the
deceased for a period of one year at Hingoli. On 16.12.2016, both of
them blessed male child Samyak. The deceased was employeed in a
private company being an Engineer and the accused No.1 was
working as coordinator with the Education Department. As per
statement of accused No.1, her husband deceased Abhijeet was facing
financial crises.
20. In the case of Vilas Pandurang Pawar V/s State of
Maharashtra and Others, 2012 (8) SCC 795 it is held that, Section 18
of the SC/ST Act creates a bar for invoking Section 438 of the Code.
However, a duty is cast upon the Court to verify the averments in the
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(( 14 )) Cri-Apeal**-726 & 533-2024
complaint and to find out whether an offence under Section 3(i) of
the SC/ST Act has been prima facie made out.
21. In the case of Sumitha Pradeep V/s Arun Kumar C.K. and
Another, 2022 SCC Online 1529, the Apex Court was dealing with
cancellation of anticipatory bail granted by High Court in a case
involving offence under POCSO Act. In that circumstance, the Apex
Court held that in many anticipatory bail matters, it is noticed that
one common argument being canvassed that, no custodial
interrogation is required and therefore, anticipatory bail may be
granted. There appears to be a serious misconception of law that, if
no case for custodial interrogation is made out by the prosecution,
then that alone would be a good ground to grant anticipatory bail.
Custodial interrogation can be one of the relevant aspects to be
considered along with other grounds while deciding an application
seeking anticipatory bail. There may be many cases in which the
custodial interrogation of the accused may not be required, but that
does not mean that, the prima faice case against the accused should
be ignored or over looked and he should be granted anticipatory bail.
22. In the case of Dr. Subhash Kashinath Mahajan V/s State
of Maharashtra and Another, (2018) 6 SCC 454 the Hon’ble Supreme
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(( 15 )) Cri-Apeal**-726 & 533-2024
Court considered the question whether there is an absolute bar to the
grant of anticipatory bail under SC/ST Act and referred to several
decisions including the decisions in the case of Vilas Pandurang Pawar
(Supra) and Shakuntala Devi V/s Baljinder Singh (2014) 15 SCC 521
and observed in Para 56 as under:
“There can be no dispute with the proposition that mere
unilateral allegation by any individual belonging to any caste,
when such allegation is clearly motivated and false, cannot be
treated as enough to deprive a person of his liberty without
an independent scrutiny. Thus exclusion of provision for
anticipatory bail cannot possibly, by any reasonable
interpretation, be treated as applicable when no case is made
out or allegations are patently false or motivated. If this
interpretation is not taken, it may be difficult for public
servants to discharge their bona-fide functions and in given
cases, they can be blackmailed with the threat of a false case
being registered under Atrocities Act, without any protection
of law. Even a non public servant can be blackmailed to
surrender his civil rights. This is not the intention of law. Such
law cannot stand judicial scrutiny. It will fall foul of guaranteed
fundamental rights of fair and reasonable procedure being
followed if a person is deprived of life and liberty. In
paragraphs 57 it was observed that exclusion of 438 Cr.P.C.
applies when a prima facie case of commission of offence under
the Atrocities Act is made out. On the other hand, if it can be
shown that, the allegations are prima facie motivated and false,
such exclusion will not apply.”
23. In State of M.P. V/s. Ram Krishna Balothia (1995) 3 SCC
221, it is held that exclusion of provision for anticipatory bail will not
apply when no prima facie case is made out or the case is patently
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(( 16 )) Cri-Apeal**-726 & 533-2024
false or mala-fide. This may have to be determined by the Court
concerned in facts and circumstances of each case in exercise of its
judicial discretion. In cases under the Atrocities Act, exclusion of right
of anticipatory bail is applicable only if the case is shown to bonafide
and that prima facie it falls under Atrocities Act and not otherwise.
Section 18 does not apply where there is no prima facie case or to
cases of patent false implication or when the allegation is motivated
for extraneous reasons by following judgment reported in AIR 2018
SC 1498) as follows:
“79.1. Proceedings in the present case are clear abuse of process
of Court and are quashed.
79.2. There is no absolute bar against grant of anticipatory bail
in the cases under Atrocities Act, if no prima facie case is made
out or where on judicial scrutiny the complaint is found to be
prima facie mala fide. We approve the view taken and approach
of Gujarat High Court in Pankaj D. Suthar and N.T. Desai and
clarify the Judgments of this Court in Balothia and Manju Devi.
79.3. In view of acknowledged abuse of law of arrest in the
cases under Atrocities Act, arrest of a public servant can only be
after approval by the SSP appointing authority and of a non-
public servant after approval of S.S.P,. which may be granted
inappropriate cases, if considered necessary for reasons
recorded. Such reasons must be scrutinized by the Magistrate
for permitting further detention.
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(( 17 )) Cri-Apeal**-726 & 533-2024
79.4. To avoid false implication of an innocent, a preliminary
inquiry may be conducted by the DSP concerned to find out
whether the allegations make out a case under Atrocities Act
and the allegations are not frivolous or motivated.
79.5. Any violation of directions (79.3) and (79.4) will be
actionable by way of disciplinary action as well as contempt.
79.6. The above directions are prospective.”
24. No doubt, the case diary does not suggest that, the
deceased left any suicidal note. Therefore, making allegations about
raising mental torcher against the deceased Abhijeet that he is
belongs to lower Cast after laps of more than 8 years from his inter-
caste marriage does not create a bar under Section 18 and 18A of the
Atrocities Act for consideration of anticipatory bail u/s 438 of Cr.P.C.
to deprive the accused for pre-arrest bail as per law laid down by the
Hon’ble Supreme Court as discussed above. The prosecution has not
brought sufficient material to show that, custodial interrogation of the
Appellants/accused is necessary. In view of above discussion, the
Appellants / accused in Criminal Appeal No.533 of 2024 are entitled
for pre-arrest bail.
25. The learned Special Court passed the impugned order
dated 5.06.2024 and granted anticipatory bail to the accused Nos. 1
and 4, which does not require for interference at the hands of this
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(( 18 )) Cri-Apeal**-726 & 533-2024
Court. In view of above, I am inclined to grant Criminal Appeal
No.533 of 2024, however, Criminal Appeal No.726 of 2024 filed by
the informant is liable to be dismissed. Accordingly, I proceed to pass
the following order:-
ORDER
(i) Criminal Appeal No.726 of 2024 is hereby dismissed.
(ii) Criminal Appeal No.533 of 2024 is hereby allowed.
(iii) The impugned order dated 15.06.2024 passed by the
learned Special Judge, Hingoli, in Criminal Bail
Application No.247 of 2024, rejecting the application for
pre-arrest bail in Crime No.0356 of 2024 registered with
Hingoli City Police Station, in respect of accused Nos. 2
and 3 Gopal Shankarlal Agrawal and Vikram Gopal
Agrawal, is hereby quashed and set aside.
(iv) The interim order dated 21.06.2024 passed by this Court
in Criminal Appeal No.533 of 2024, is hereby confirmed.
[ Y. G. KHOBRAGADE, J. ]
SMS
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