1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL WRIT PETITION NO. 52 OF 2009 Shri Audumber alias Shubham Pednekar, S/o Gopal Pednekar, R/o MF-1, Panchashil Apartments Aradi, Socorro, Porvorim, Bardez, Goa. ... Petitioner versus 1. State of Goa, through Public Prosecutor, Panaji, Goa. 2. Sub Divisional Police Officer, Mapusa-II, Porvorim. ... Respondents Shri Arun Bras De Sa, Advocate for the Petitioner. Shri C. A. Ferreira, Public Prosecutor for the Respondents. CORAM : N. A. BRITTO, J. DATE : 14TH AUGUST, 2009. ORAL ORDER Heard. 2. In this petition, the Petitioner who is an accused in Crime No.73/2009 of Porvorim Police Station has assailed the Order dated 1-8-2009 of 2 the learned Children's Court, Panaji, cancelling the conditional bail earlier granted to him by the said Court by Order dated 27-7-2009. 3. By Interim Order dated 6-8-2009, the Petitioner was required to abide by the said Order of the Children's Court dated 27-7-2009, and the Petitioner has been abiding with the same and attending the Police Station to facilitate the investigations. 4. Be that as it may, some facts are required to be stated to dispose off this petition. 5. The family of the Petitioner had engaged a maid of about 10 years of age. On account of ill treatment meted out to her, the said maid(name withheld) slipped out from their house at Porvorim and proceeded to Mapusa, and was noticed by Mapusa Police Station with extensive burn injuries as a result of which the Mapusa Police Station sought the assistance of SCAN(Stop Child Abuse Now) on whose behalf a complaint was lodged which came to be registered under the Crime No. 73/2009 under Section 324 r/w 34 I.P.C., and Sections 7(C) and 8(2) (9) of the Goa Children's Act, 2003. The victim was got examined on the same day and the certificate shows that the injuries found on her person were described as simple in nature. A panchanama of the scene, namely the house of the Petitioner was done on the same day, and the Petitioner was arrested. In the course of the said panchanama, the articles involved were seized including a steel 3 spatula/kailato, by the hitting of which, the burn injuries were inflicted on the said victim. 6. The Petitioner was arrested on the same day, and was produced before a Magistrate who was pleased to remand the Petitioner for a period of four days. The Petitioner then moved the Children's Court on 26-7-2009, and on 27-7-2009 conditional bail was granted to the Petitioner, and on the same day, the victim's statement and that of her grandfather also came to be recorded. 7. On 30-7-2009, the application came to be filed for cancellation of the said bail and according to the learned Counsel appearing on behalf of the Petitioner the said application was filed because the issue was raised in the media. 8. Meanwhile, the victim came to be re-examined by a Medical Board constituted for that purpose on 29-7-2009, and this time the injuries on the victim came to be described as grievous injuries. On the same day, the statement of the grandfather of the victim came to be recorded and Section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes(Prevention of Atrocities) Act, 1989 came to be added to the said crime. After the receipt of the medical report from the Medical Board Section 326 I.P.C. was added. 9. The application for cancellation of bail under Section 439(2) of the Code came to be filed by the Sub-Divisional Police Officer, Porvorim. As can be 4 seen from the said application dated 30-7-2009 there were new circumstances on which the bail was required to be cancelled, and the new circumstances as set out in the application were that the Court had released the accused on conditional bail on the ground that the articles were already recovered, and no further recovery was claimed by the prosecution, and, as the injuries suffered by the victim were simple in nature. The other circumstance narrated was that it was disclosed from the statement of the grandfather of the victim that they belonged to Lamani caste, a scheduled tribe, and that could be a reason why the victim was assaulted in that manner with intent to dishonour her. The third circumstance which was mentioned is that the report of the Medical Board had disclosed that there were 23 injuries, and which were described as grievous, and, therefore Section 326 I.P.C. was added. 10. Shri Arun Bras De Sa, the learned Counsel appearing on behalf of the Petitioner submits that one of the grounds urged before the learned Children's Court was that the order granting bail was wrong, and, therefore learned Counsel submits that on that ground the investigating agency could not have approached that very Court for cancellation of bail. Learned Counsel further submits that the other grounds urged for cancellation of bail were that Section 326 I.P.C., and, Section 3(1)(xi) of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act, 1989, were added and both the said grounds could not be considered as cogent and overwhelming circumstances to cancel the bail. Learned Counsel further submits that in fact nothing had changed after 25-7-2009, after 5 Crime No. 73/2009 was registered under Section 324 r/w 34 I.P.C. and Section 7(C)(2)(9) of the said Children's Act. The learned Counsel further submits that addition of Section 3 of the Scheduled Caste and Scheduled Tribes(Prevention of Atrocities) Act, 1989 was most unjustified because the victim might have belonged to a caste or tribe which was recognized in the State of Karnataka and could not have taken the benefits available to her in the State of Goa where the caste 'Banjara, Lambani' is not recognized. Learned Counsel has further submitted that the case at hand is squarely covered by the decision of this Court in the case of Satish Dhond and another v. State of Goa(2006(1) Bom.C.R.(Cri.) 392). The learned Counsel further submits that the Petitioner was already in custody initially, and thereafter has been complying with the Order of conditional bail granted by the Children's Court, and, therefore the learned Children's Court was not at all justified in cancelling bail earlier granted. Learned Counsel further submits that according to the investigating agency itself the learned Children's Court had earlier granted bail to the Petitioner after perusing the medical certificate as well as the photographs of the victim girl, produced by the investigating agency, and only because two more Sections were added was not sufficient to cancel the bail already granted. 11. On the other hand, Shri C. A. Ferreira, the learned Public Prosecutor has submitted that the fact that two more offences were added, namely Sections 326 I.P.C.and 3 of the said Act were reasons good enough for cancellation of bail. The learned Public Prosecutor submits that the gravity of the offence from Section 6 324 to Section 326 I.P.C. was increased, and for that reason the investigating agency sought cancellation of bail. Learned Public Prosecutor has placed reliance on the case of Gurcharan Singh and others v. State(Delhi Administration) ((1978) 1 SCC 118) and Puran v. Rambilas and another((2001) 6 SCC 338). Learned Public Prosecutor was requested by the Court to point out to any decision of the Apex Court which ran contrary to the principle set out in the case of Satish Dhond and another v. State of Goa(supra) but he has not been able to point out to any. 12. For the present, we could proceed to the assumption that the victim girl belongs to Banjara, Lambani caste which caste is recognized as one of the scheduled castes in the State of Karnataka, since a statement to that effect has been made by the victim's grandfather, which statement is otherwise in the process of being verified by the investigating agency as can be seen from a letter addressed to the concerned Talshidar in the State of Karnataka. 13. The Scheduled Castes and Schedules Tribes(Prevention of Atrocities) Act, 1989 as can be seen from its objects and reasons was enacted by Parliament, and is in force in the entire country. It was enacted because it was found that inspite of various measures taken the socio-economic conditions of the Scheduled Castes and Scheduled Tribes, had remained vulnerable. It was enacted to check and deter crimes against them by non Scheduled Castes and Non Scheduled Tribes, and, therefore the contention that because the victim is 7 recognized as a Scheduled Caste or Tribe in another State, an offence in relation to him or her can be committed in another State, is a submission which immediately needs to be rejected. However, whether the investigating agency was justified in invoking Section 3(1)(xi) is a matter which can be conveniently dealt with in Criminal Application(Bail) No. 245 of 2009 filed by the Petitioner's wife, for anticipatory bail, after the same was rejected by the learned Children's Court. In fact it has been dealt with the following observations:- “It appears that the aforesaid section was invoked with a view to deny bail to the applicant. Rule 5 of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Rules, 1995 provides that every information relating to the commission of an offence under the Act, if given orally to an officer in charge of a police station shall be reduced to writing by him or under his direction, and be read over to the informant, and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the persons giving it, and the substance thereof shall be entered in a book to be maintained by that police station. Sub- rule 2 further provides that a copy of the information as so recorded under sub- rule 1 above shall be given forthwith, free of cost, to the informant. It is not the case of the prosecution that either the grandfather, the mother or the victim herself had given any information of commission of an offence under the Act. Whether the victim who might have been belonging to Bhanjara, Lamani caste, a Scheduled Caste recognised in the State of Karnataka as stated by her grandfather, 8 is a fact which is otherwise in the process of being verified by the investigating agencies. We could proceed for the moment that the victim belongs to Lamani Caste. However, the question is whether she was assaulted with intent to dishonour or intent to outrage her modesty. Section 3(1)(xi) is akin to section 354 IPC which deals with assault or criminal force to a woman with intent to outrage her modesty? The dominant intention of use of criminal force is with intent to dishonour or outrage her modesty. In other words, the intention of an accused, who is not a member of the Scheduled Caste or Scheduled Tribe is the crux of the matter. As already stated, there was no complaint lodged by any of the family members of the victim that she was assaulted or criminal force was used upon her by the applicant or any of the members of the family with intent to dishonour or outrage her modesty. The victim's grandfather is himself not sure as to why his granddaughter was assaulted by the applicant and her family in that brutal manner. In fact the facts show that the victim was inhumanly tortured and the reasons are not very far to find from the very statement of the victim herself. Apart from the other illtreatment meted out to the victim, it can bee seen from her statement that for the first time the heated stapula was used on her by the applicant's sister because the utensils washed by her were not properly cleaned. Then she was assaulted by the applicant's husband for not washing his clothes properly and lastly the heated stapula was used by the applicant because the victim who was unwell drank the applicant's children's medicine andaccording to the victim the applicant stated for what she had done, she was 9 required to be branded in that manner. Suffice it to observe that no offence u/s. 3(1)(xi) of the Act was complained of nor disclosed to invoke the said section to the facts of the case particularly in the light of the statements of the victim and or her grandfather. The learned Children's Court ought to have read in between the lines and found out as to why belatedly the said section was added to the crime earlier registered u/s. 324 IPC, etc. without any complaint from the victim or her family members. If section 3(1)(xi) was not prima facie attracted no bail could have been denied to the applicant under section 18 of the said Act”. 14. The learned Children's Court conceded that the Petitioner had not violated any conditions of the bail order granted to him earlier, and further observed that in the case of Aslam Babalal Desai v. State of Maharashtra(1992 Cri. L. J. 3712) the instances given were illustrative and not exhaustive. The learned Children's Court found that in this case there were cogent and overwhelming circumstances, and those two circumstances are none other than the fact that the crime was also brought under the provisions of Section 3(1)(xi) of the Act as the victim girl was humiliated on the basis of her caste although no certificate was brought on record which circumstance, according to the learned Children's Court was overwhelming and cogent for the purpose of custodial interrogation. The learned Children's Court also found that the injuries were serious, and, therefore proceeded to cancel the bail earlier granted by it. 10 15. In the said case of Aslam Babalal Dessai v. State of Maharashtra(supra), referring to Raghubir Singh and others v. State of Bihar (1987 Cri. L. J. 157), the Apex Court noted that the grounds for cancellation of bail under Sections 437(5) and 439(2) are identical, and that bail earlier granted could be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence of witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc, and further observed that the grounds were only illustrative and not exhaustive and that it had to be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to(emphasis supplied). 16. This Court in the case of Satish Dhond and another v. State of Goa(supra) after referring to a catena of Judgments delivered by the Apex Court came to the conclusion that cancellation of bail could be done in three situations. Firstly,when the grant of bail is unjustified, arbitrary, or granted in exercise of wrong discretion. Secondly, the post bail conduct of the accused being not conducive for further investigations, and/or a fair trial. Thirdly, change of 11 circumstances which would require the accused to be in custody, and in support of the said three propositions reference was made in detail to various Judgments of the Apex Court. This Court also observed that the bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during trial. 17. Admittedly, in the case at hand, there was no change in fact situation. Only opinions had changed. Medical opinion that the injuries were grievous and not simple as earlier opined, and the opinion of the Investigating Officer, for whatever reasons, that Section 3 of the said Act ought to be added, and that too without there being any complaint in that regard either from the grandfather, the mother of the victim or for that matter the victim herself. In the case of Satish Dhond v. State of Goa(supra) it was observed that when we are too familiar with some words, we tend to lose their real meaning. “Cogent” means convincing, compelling, and the word “overwhelming” means irresistible etc. It was ultimately observed that:- “The fact that the State chose to add Sections 193, 196, 199 and 200 I.P.C. on 21-10-2005 is not a ground urged in the applications for cancellation of bail. The said addition cannot be termed to be a new cogent and overwhelming circumstance. For example, it is understandable that in a case when initially an offence of attempt to murder is registered under Section 307 I.P.C. 12 and an accused is released on bail and subsequently the victim dies necessitating the registration of an offence of murder under Section 302 then in such a situation the addition of new Section as supervening circumstance may justify cancellation of bail but certainly additions of offence to the same set of facts cannot justify cancelling of bail unless it is shown that omission to add the Sections was done with a view to help the accused. The learned ASJ was wrong in considering the vague allegations of the State in coming to the conclusion that there were cogent, overwhelming and supervening circumstances which necessitated the cancellation of an anticipatory bail granted to the accused. In fact that the State chose to add Sections 193, 196, 199 and 200, I.P.C. on 21-10-2005 is not a ground urged in the applications for cancellation of bail. The said addition cannot be termed to be a new cogent and overwhelming circumstance. For example, it is understandable that in a case when initially an offence of attempt to murder is registered under Section 307 I.P.C., and an accused is released on bail, and subsequently the victim dies necessitating the registration of an offence of murder under Section 302 then in such a situation the addition of new Section as supervening circumstance may justify cancellation of bail but certainly additions of offence/s to the same set of facts cannot justify cancelling of bail unless it is shown that omission to add the Sections was done with a view to help the accused. The learned ASJ(Assistant Sessions Judge) or Additional Sessions Judge was wrong in considering the vague allegations of the State in coming to the conclusion that there 13 were cogent, overwhelming and supervening circumstances which necessitated the cancellation of an anticipatory bail granted to the accused”. 18. Learned Counsel on behalf of the Petitioner is right in contending that the facts of the present case are squarely covered by the ratio laid down by this Court in the case of Satish Dhond v. State of Goa(supra). Learned Public Prosecutor has not been able to point out any decision of the Apex Court contrary to the said decision of this Court in the case of Satish Dhond v. State of Goa (supra). 19. In view of the above, the impugned Order of the learned Children's Court in cancelling the bail earlier granted cannot be justified. Consequently, the petition deserves to succeed and the impugned Order of the learned Children's Court dated 1-8-2009 is hereby set aside. 20. Observations made herein will not come in the way of the trial Court in dealing with the matter on merits. N. A. BRITTO, J. RD