( 1 ) cria3783.11group IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3783 OF 2011 Jaykumar s/o. Jitendrasingh Rawal .. Applicant Age. 35 years, Occ. Agriculturist and Member of Legislative Assembly, R/o. Hawai Mahal, Jai Palace, Dondiacha, Tq. Sindkheda, Dist. Dhule. Versus The State of Maharashtra .. Respondent Mr. P.R. Patil, Advocate for the applicant. Mr. B.J. Sonawane, A.P.P. for respondent/State. Mr. V.D. Hon h/f. Mr. A.S. Sawant, Advocate to assist A.P.P. WITH CRIMINAL APPLICATION NO. 4325 of 2011 Rakesh Bhikan Vasave .. Applicant Age. 32 years, Occ. Business, R/o. Police Lane, Dhule, Tq. & Dist. Dhule. Versus The State of Maharashtra & Anr. .. Respondents Mr. R.R. Mantri h/f. Mr. P.D. Bachate, Advocate for the applicant. Mr. B.J. Sonawane, A.P.P. for respondent/State. ( 2 ) cria3783.11group AND CRIMINAL APPLICATION NO. 3787 OF 2011 1. Mrs. Manjula Tulshiram Gavit .. Applicants Age. 47 years, Occ. Business, R/o. Dhule, Tq. & Dist. Dhule. 2. Tulshiram Budha Gavit, Age. 52 years, Occ. Business, R/o. Dhule, Tq. & Dist. Dhule. 3. Hiraman Vitthal Gavali, Age. 54 years, Occ. Business, R/o. Lane No.6, Dhule, Tq. & Dist. Dhule. Versus The State of Maharashtra & Anr. .. Respondents Mr. R.R. Mantri h/f. Mr. P.D. Bachate and Mr. Y.B. Bolkar, Advocate for the applicants. Mr. B.J. Sonawane, A.P.P. for respondent/State. Mr. P.S. Paranjape h/f. Mr. A.S. Sawant, Advocate to assist A.P.P. CORAM : R.Y. GANOO, J. DATED : 12.12.2011 P.C. :- 1. All the applicants mentioned above apprehend arrest in connection with C.R. No. 93 of 2011 of Mohadi Police Station under sections 363, 364(A), 344, 346, 171 ( 3 ) cria3783.11group (G), 120(B), 143, 147, 148, 149, 504 and 506 of the Indian Penal Code, sections 3, 4 and 25 of the Arms Act and section 3 (1) (xv) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (herein after referred to as “said Act”). All these applications can be disposed of by a common order, as the material which was perused by this Court was common for all the applicants. 2. Criminal Application No.3783 of 2011 is filed by Mr. Jaykumar Raval. This application is opposed by learned advocate Mr. V.D. Hon. Three applicants, namely Mrs. Manjulabai Gavit and two others have filed Criminal Application No. 3787 of 2011. This application is opposed by learned advocate Mr. P.S. Paranjape. To the application filed by Mr. Rakesh Vasave bearing Criminal Application No. 4325 of 2011, nobody has come forward to oppose the same in personal capacity. Learned A.P.P. Mr. B.J. Sonawane has appeared on behalf of the State and has ( 4 ) cria3783.11group opposed the applications. 3. Aforesaid C.R. No. 93 of 2011 came to be filed by Mrs.Fulabai Ramchandra Bhil and her son Mr. Bapu Ramchandra Pingale. Mrs.Fulabai is a lady belonging to Scheduled Tribe and she belongs to N.C.P. (Congress) party. From the record it is seen that she was to act as a candidate for the election for the post of Mayor of Dhule Municipal Corporation. The post of Mayor of Dhule Municipal Corporation was reserved for a lady belonging to Scheduled Tribe. The F.I.R. came to be filed on 7th August, 2011 at Mohadi Police Station alleging therein that on 22nd June, 2011 by 2.30 p.m. to 3.00 p.m. while said Mrs. Fulabai and co-complainant Bapu Pingale (hereinafter referred as “Bapu”) were walking on the street of Mohadi, applicant, namely Mrs. Manjulabai Gavit and others as stated in the F.I.R. compelled said Mrs. Fulabai and Bapu to sit in a jeep and thereafter she was taken to Mumbai, made to stay at Arnala resort and ( 5 ) cria3783.11group thereafter she was taken to Delhi. It is alleged that from Delhi she was taken to Dharuhera, Rewadi within the State Haryana and was made to stay at Jungle Tourism Resort. Thereafter she was taken to Kuchera, near Mahiyar, Mandhya Pradesh. At Maheyar an affidavit was secured so as to indicate that she was not inclined to contest the election for the post of Mayor. The affidavit is dated 22nd June, 2011. She was made to give a video clip so as to indicate that she was supporting Mrs. Manjulabai. She was taken to Nagpur, where one more affidavit was obtained from her dated 24th June, 2011. Thereafter she was detained at Kuchera up to 1st August, 2011. Thereafter, she was taken to Mumbai on 2nd August, 2011. She was detained at Arnala Resort and then brought to Dhule on 6th August, 2011 and she was allowed to move freely, i.e. the persons who had detained her, permitted her to go away. Based on the aforesaid F.I.R. investigation was carried out in regard to various points. ( 6 ) cria3783.11group 4. It is case of the applicants that said Mrs. Fulabai and Bapu had left Mohadi, on 18.06.2011 and they had gone to Mumbai and from Mumbai they went to Delhi by air and from Delhi they came to Jabalpur by air on 22.06.2011. The case diary, so far as this aspect is concerned, indicates that the journeys were in-fact conducted by Mrs. Fulabai and Bapu as regards the destinations mentioned above. 5. Bapu has rendered his first statement and in that first statement he has stated that the time when he was taken away on 22.06.2011, he did not carry his identity card. It is pertinent to note that Mr. Harvindrasingh Shri Rampat Yadav, Manager of Jungle Tourism Resort in the state of Haryana has stated that identity of Bapu was proved by way of identity card. 6. The F.I.R. is jointly signed by Mrs. Fulabai and ( 7 ) cria3783.11group Bapu. Bapu in his further statement has stated that he was taken to Dondiacha on or about 2nd/3rd July, 2011. He participated in the felicitation ceremony and he was brought back to the place where his mother was detained. It is pertinent to note that this information has not been stated by Bapu in the F.I.R. So far as presence of Bapu at Dondiacha is concerned, there is adequate material and it cannot be disputed that Bapu and his wife were at Dondiacha and they attended the felicitation ceremony. Tumdusing Jadhav, who was supposed to be felicitated has rendered statement to say that he was told that Bapu has managed to get support from Mrs. Fulabai to see that Mrs. Manjulabai Gavit gets elected and that he should be felicitated and accordingly Bapu was felicitated. Bapu accepted said felicitation. Rajesh Choudhari attended said felicitation function and photographed said function. Mrs. Hema Pingale, wife of Bapu claims that she was brought to Dondiacha and she had attended the felicitation function. In this connection ( 8 ) cria3783.11group statement of father-in-law of Bapu, by name, Govind Pawar is relevant. He stated that Bapu came to Amalner on 02.07.2011. He went to Dondiacha on 03.07.2011, with his wife and he came back to Amalner on 04.07.2011 and went along with his wife. It is pertinent to note that this Govind Pawar is completely silent about bringing Bapu under compulsion. This is so because Bapu has stated in his further statement that he was brought to Dondiacha under compulsion by certain persons. 7. Harvindrasingh Suri is the Manager of Jungle Tourism Resort, situated at Dharuhera, Dist. Rewadi, State of Haryana. He has stated that he perused the identity card produced by Bapu. He also perused photograph which was shown to him in the course of investigation. He stated that Bapu and Mrs. Fulabai stayed at Jungle Tourism Resort from 19.06.2011 to 22.06.2011. He has categorically stated that he did not observe any kind of coercion or force. One Mr. Sukhendra ( 9 ) cria3783.11group Patel has rendered statement that he was concerned with the management of Hotel Jai Jagdish situated at Maiher in the state of Madhya Pradesh. He stated that Bapu and Mrs. Fulabai had stayed from 22.06.2011 to 23.06.2011. He did not find that they were staying under compulsion. Names of Mrs. Fulabai and Bapu are found to be entered in the hotel register. One Mr. Pandey is an advocate who is practicing at Maiher, Dist. Satna. He has stated about Mrs. Fulabai and Mr. Gavit attending to him and requesting him to notarize affidavit, which he did on 22.06.2011. It is seen that photograph of Mrs. Fulabai is affixed to said affidavit. Mr. Pandey also claims that he did not observe Mrs. Fulabai under any constrain. Mr. Omprakash and Mr. Sharma, who are concerned with Aai Ekvira Vision T.V. channel, have said that they have published text of interview given by Mrs. Fulabai on their T.V. channel at Dhulia from 24.06.2011 to 26.06.2011, wherein Mrs. Fulabai had indicated that she was not interested in contesting election for post of ( 10 ) cria3783.11group Mayor. Mrs.Deepali Purandare, who was working as a Receptionist at Margin Inn Beach Hotel at Vasai, stated that Bapu, his wife, Vishal and his wife were staying in the resort from 13.07.2011 to 16.07.2011 and she had an occasion to make this statement after she saw the photograph of the concerned persons. 8. Shailendrasingh Patil has rendered statement that on 22.06.2011, he travelled from Jabalpur to Maiher, from Maiher to Nagpur and from Nagpur to Mumbai with Mrs. Fulabai and Bapu. Hitendra also rendered statement similar to that of Shailendrasingh. One witness, by name, Nana More has come forward to state (after lodgment of the F.I.R. that on 22.06.2011) he had seen Mrs. Fulabai and Mrs. Manjulabai sitting in a car at Mohadi. Mr. Vinayak Shinde and Mr. Yogesh Shinde, who are affiliated to N.C.P (Congress), have expressed that according to them Bapu was responsible in keeping Mrs. Fulabai away, during the time of election. ( 11 ) cria3783.11group 9. It is pertinent to note that nominations were to be filed up to 24.06.2011 and the election for the post of Mayor was to be conducted on 27.06.2011. The applicants have annexed copy of the proceedings which took place in the House on 27.06.2011 and it is apparent that Municipal Councilors belonging to N.C.P (Congress) were present in the House. It is noted that Mrs. Fulabai was intending candidate for post of Mayor and even nomination papers were purchased in her name and she had signed those nomination papers and sent them to the Office of N.C.P. (Congress) at Dhule. It is also seen that effort was made to lodge nomination papers with the concerned officer. However, he did not accept the same as Mrs. Fulabai was not present before him. It is pertinent to note that Missing Report No. 5 of 2011 was filed on 22.06.2011 itself and one will have to treat that the news of Mrs. Fulabai’s missing as per the missing report must have been known to the Councilors ( 12 ) cria3783.11group belonging to N.C.P. (Congress). It is pertinent to note that in the House when the election was conducted, not a single member belonging to N.C.P. (Congress) made grievance that Mrs. Fulabai has been kept away under compulsion and that the election is not being conducted in a fair and proper manner. Reading of the proceedings of the House conducted on 27.06.2011 would go to show that Mrs. Manjulabai Gavit was elected as Mayor of Dhule Municipal Corporation without any opposition. 10. With the aforesaid material which is placed before the Court, I have extensively heard learned advocates appearing on both sides. In the case diary which was produced before the Court, the investigating agency could get report from the concerned airlines that Mrs. Fulabai and Bapu and others had undertaken journey from Bombay to Delhi, Delhi to Jabalpur as mentioned by the applicants in their applications. This would mean that Mrs. Fulabai was in Jabalpur on 22.06.2011. The ( 13 ) cria3783.11group statement of Harvindrasingh, Manager of Jungle Tourism Resort falsifies the case of the applicants that Mrs. Fulabai travelled on 18th from Bombay to Delhi and ultimately came to Jabalpur on 22.06.2011. It is noticed that Harvindrasingh had seen the photograph of Bapu and Mrs. Fulabai and he has said that they stayed at Jungle Tourism Resort from 19.06.2011 to 22.06.2011. From the statement of Adv. Pandey, it is seen that Mrs. Fulabai was at Maihar, Dist. Satna and she executed an affidavit, where she was identified by Mr. Tulshiram Gavit, one of the applicants. No doubt, the applicant Mr. Tulshiram Gavit has accepted responsibility of this affidavit and according to him this affidavit was prepared to deliver to concerned election officer so that he would be satisfied that there is no illegality in the election to be conducted, for the post of Mayor of Dhule Municipal Corporation. This will clearly show that Mr. Tulshiram Gavit was in the company of Mrs. Fulabai and Bapu on 22.06.2011 at Maihar. The statement of Sukhendra Patel ( 14 ) cria3783.11group shows that Mrs. Fulabai was at Maihar from 22.06..2011 to 23.06.2011. It is difficult to reconcile the statement of Harvindrasingh who claims that in the State of Haryana, Mrs. Fulabai was up to 22.06.2011. However, fact remains that these two statements have come on record and they will have to be given appropriate weightage. It is claimed that in the interview Mrs. Fulabai has stated that she is not interested in contesting the election for the post of Mayor. Said interview was released on Aai Ekvira Vision T.V. channel at Dhulia. I am sure the members of N.C.P. (Congress) must have come to know about this release and despite this release from 24.06.2011 to 26.06.2011, no complaint is lodged with the police that such an interview of Mrs. Phulabai was obtained under pressure. Mr. Vinayak Shinde and Mr. Yogesh Shinde belonging to N.C.P. (Congress) have expressed role of Bapu in whole episode and accordingly they have stated that Bapu had managed to see that Mrs. Fulabai is kept away so that she does not come forward to ( 15 ) cria3783.11group file nomination and ultimately Mrs. Manjulabai Gavit is elected. So far as the journey of Bapu from several places up to Dondiacha is also a matter of mistry. Bapu claims that he was brought to Dondiacha under force. However, this fact is required to be seen with doubt because Bapu gave public appearance and received felicitation. The felicitation function at Dondiacha was for felicitation of Mr. Jadhav. In the said function Bapu came to be felicitated. Reason for felicitation was viz. he had managed to see that Mrs. Fulabai does not file nomination for the post of Mayor. At this juncture itself it is pertinent to note that mobile phone of Bapu bearing No. 9923800474 was working between 12.45 p.m. of 02.07.2011 to 04.07.2011. This will mean that Bapu had enough opportunity to make grievance to proper persons from N.C.P. (Congress) or to the Police that he and Mrs. Fulabai have been abducted and made to be away from Dhule. Bapu has not made grievance in that behalf. Father-in-law of Bapu, by name, Govind Pawar speaks of ( 16 ) cria3783.11group Bapu coming to Amalner after function of Dondiacha is over. 11. Learned advocates appearing on behalf of the applicants had submitted that serious doubt is required to be raised about veracity of the text of F.I.R. and if that is done, the applicants are entitled to anticipatory bail, as according to them no prima facie case is made out so far as charges levelled against the applicants. 12. It was submitted by Mr. Patil, who appeared on behalf of Mr. Raval that Mrs. Fulabai wanted to falsely implicate all the applicants on account of political rivalry and there is no element of truth in the F.I.R. and that a totally false case came to be filed against his client as well as other applicants. Learned Advocate Mr. Patil has relied upon judgment of Siddharam Satlingappa Mhetre Vs. State of Maharashtra & Ors., (2011) 1 S.C.C.694. Learned Advocate Mr. Patil relied ( 17 ) cria3783.11group upon entire judgment and read to the Court the passages by which he wanted to contend that the Court should consider the entire material before arriving at conclusion. He submitted that on the basis of guidelines set out in para 112 of said judgment, present applicants should be released on anticipatory bail, as according to him a totally false case is filed against present applicant. He had also submitted that there was no element of force in the journey which was conducted by Mrs. Fulabai from places to places and Mrs. Fulabai had travelled on her own and had done everything voluntarily. Mr. Patil has submitted that the Court should hold against prosecution on various points which were raised before the Court by the prosecution and should release applicants on anticipatory bail particularly when all the applicants have been attending police station from time to time as per order dated 05.09.2011. 13. Learned Advocate Mr. Mantri appearing on behalf ( 18 ) cria3783.11group of Mrs. Manjulabai Gavit and two others had relied upon judgment of Gurbaksh Singh Sibbia etc. Vs. The State of Punjab and Sarbajit Singh and Anr. V/s. The State of Punjab, reported in AIR 1980 S.C.1632 and had taken me through said judgment and had submitted that this judgment has been used by the Supreme Court while deciding the case of Sidharam Mhetre (supra) and this judgment indicates as to how the Court should attend to anticipatory bail applications. Learned Advocate Mr. Mantri had submitted that on two occasions Mrs. Fulabai had executed affidavit thereby indicating that she had no interest in contesting the election and in the normal course these affidavit ought to be given proper weightage. Learned Advocate Mr. Mantri had also drawn my attention to the statement of Dr. Amit Salve, who had stated that Hitendrasingh Rajput, Shailendra Singh Patil, Bapu and Mrs. Fulabai had stayed with him from 25.06.2011 to 28.06.2011. According to him, this stay was totally voluntary and Mrs. Fulabai had executed affidavit at ( 19 ) cria3783.11group Nagpur before Government Officer, namely, Executive Magistrate. Learned Advocate Mr. Mantri had submitted that a case is made out for grant of anticipatory bail on the ground that serious doubt is required to be raised about the contents of the F.I.R. and case of prosecution as a whole. Learned Advocate Mr. Bachate had submitted that he is adopting the arguments of Adv. Mr. Patil and Adv. Mr. Mantri and had submitted that the role alleged against his client is viz. on 22.06.2011 he made Bapu and Mrs. Fulabai to board Scorpio van under compulsion. He submitted that the arguments advanced by Adv. Mr. Patil and Adv. Mr. Mantri be taken into consideration and his client be granted anticipatory bail. 14. Learned A.P.P. Mr. Sonawane appearing on behalf of the State had taken me through the entire record and had submitted that the various statements recorded by the various persons coupled with statement of Mrs. Fulabai as well as Bapu clearly indicate that Bapu and Mrs. Fulabai ( 20 ) cria3783.11group were taken from place to place and this happened during the time when the election for the post of Mayor was to go on. According to him the Court will have to consider the F.I.R. which was filed by Mrs. Fulabai and it will not be open for this Court to arrive at conclusion that said F.I.R. is false. Learned A.P.P. Mr. Sonawane had submitted that in the normal course there was no place for the two affidavits to be executed as no candidate in the normal course would execute such affidavits. He also submitted that the interview given on the T.V. was also unnatural and all these things have been done by Mrs. Fulabai while she was put under compulsion. According to him the statement given by various persons clearly goes to show that somebody from the camp of Mrs. Manjulabai Gavit was in the company of Mrs.Fulabai and that shows that the case of Mrs. Fulabai that she was detained by the person who wanted to protect interest of Mrs. Manjulabai Gavit who was contesting the election for the post of Mayor. Learned A.P.P. Mr. Sonawane prayed for ( 21 ) cria3783.11group rejection of the applications. 15. Learned Advocate Mr. Paranjape appearing on behalf of Mrs. Fulabai opposing the application filed by Mr. Raval submitted that Mrs. Fulabai was an illiterate lady and advantage was taken of said fact and she was abducted from village Mohadi. He had supported the arguments advanced by learned A.P.P. Mr. Sonawane. Learned Advocate Mr. Hon opposing bail application filed by Mrs. Manjulabai Gavit and two others had submitted that since Mrs. Fulabai was a person belonging to Scheduled Tribe, anticipatory bail should not be granted to Mr. Raval and Mr. Hiraman Gavali as Mr. Raval and Mr. Gavali do not belong to Scheduled Tribe or Scheduled Caste in view of bar under section 18 of the said Act. He had relied upon judgment of the Supreme Court in the case of State of State of Madhya Pradesh & Anr. Vs. Ram Krishna Balothia & Anr., 1995 (1) Mh.L.J.523, whereby the Supreme Court had upheld validity of section 18 of the ( 22 ) cria3783.11group Act. It was held that provisions of section 438 of Cr.P.C. are not attracted in in cases where allegations are set out that offences are committed under said Act. He had also relied upon judgment of the Supreme Court in the case of State of Gujarat Vs. Narendra K. Amin, 2007 All MR (Cri) 2936 (S.C.) to contend that the Supreme Court’s view clearly indicates that the Court should be slow in granting anticipatory bail in matters similar to the present case. Learned Advocate Mr. Patil in reply to this argument relied upon judgment in the case of Pravin s/o. Shrimant Bhutekar Vs. State of Maharashtra & Anr., 2010 (6) LJSOFT 133. Learned Advocate Mr. Patil had of- course relied upon observations of the judgment in the case of Sidharam Mhetre (Supra) and in particular paragraph 112, clause (X) and had submitted that if Court comes to the conclusion that the allegations in the F.I.R. are frivolous and not genuine, then the Court has power to grant anticipatory bail. ( 23 ) cria3783.11group 16. I have heard learned advocates on both sides and considered various judgments which were cited across the Bar. Mrs. Fulabai had filed F.I.R. on 07.08.2011. This date, according to her, is very material because she was freed from the clutches of the applicants on 06.08.2011. Mr. More has rendered a statement on 27.06.2011 that he had seen Mrs. Fulabai sitting in the car along with Mrs. Manjulabai Gavit. Police have not recorded statement of any other person. It is pertinent to note that the statements of Harvindrasingh, Shailendrasingh, Hitendrasingh Patil as well as Sukhendra Patel and Brijkumar Pandey would go to show that Mrs Fulabai was not at Mohadi on 22.06.2011. It is pertinent to note that all these persons have categorically stated as to how they came in contact with Mrs. Fulabai during the relevant period which I have discussed earlier and in any case on or about 22.06.2011. It is pertinent to note that Harvindrasingh, Manager of Jungle Tourism Resort, Sukhendra Patel and Brijkumar Pandey are not at all ( 24 ) cria3783.11group concerned with any of the applicants and I take it that they have no reason to state falsehood. It is also not the case of the prosecution that the applicants have compelled these persons to give these statements. Additional material is produced before the Court along with the statements of these persons, such as copies of identification for entering the hotel and booking hotel, copies of hotel register where names of Mrs. Fulabai and Bapu are appearing. If the statements of these persons are perused, it is clear that Mrs. Fulabai was not at Mohadi on 22.06.2011 and that is the very important factor to see the complaint of Mrs. Fulabai with a serious doubt. 17. The fact of Bapu’s visit to Dondiacha is a factor which goes against