(1) CRI.APP. 4577.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4577 OF 2010 Balaji S/o Vithal More, Age : 35 years, Occu.: Agriculture, R/o Sarsam Tq. Himayatnagar, District Nanded .. Applicant VERSUS 1. The State of Maharashtra, Through Police Station Officer, Police Station, Himayatnagar, Tq. Himayatnagar, Dist. Nanded 2. Superintendent of Police, S.P. Office, Nanded, District Nanded .. Respondents (Copy to be served on Public Prosecutor, High Court of Bombay, Bench at Aurangabad) ... Mr. R.B. Narwade Patil, Advocate for the Applicant Mr. B.J. Sonawane, APP for the respondent-State ... CORAM : V.R. KINGAONKAR, J. DATED : 18TH NOVEMBER, 2010 ORAL ORDER:- 1. By this Application, the applicant is seeking direction under section 438 of the Code of Criminal Procedure. The applicant apprehends arrest in connection with crime no. 79 of 2010 registered at Himayatnagar Police Station for the offence under section 452, 354, 323 of the Indian Penal Code as (2) CRI.APP. 4577.2010 well as under section 3(1)(x) of the S.C. and S.T. (Prevention of Atrocities) Act, 1989. 2. One Sau. Anita Kamble lodged FIR alleging that on 27.9.2010 while she was present in her house and was milking her infant-female child, the applicant entered the house from behind of the shed. He pushed aside the infant, pulled her sari and pushed her to the ground. He thereafter pressed her breasts. She alleges that she was alone in the house and belongs to Scheduled Caste which fact was known to the applicant. 3. The applicant alleges that the FIR is lodged on account of election dispute and because of ill- intention of the political rivalry. It is contended by the applicant that the FIR was belatedly lodged though the Police Station is at distance of hardly 6 Km. from village Sarsam. It is further alleged that the story of the prosecution is fabricated due to dirty politics. Consequently, he seeks direction under section 438 of the Code of Criminal Procedure. (3) CRI.APP. 4577.2010 4. Heard learned Advocate for the applicant and learned APP. 5. It is argued by learned Advocate for the applicant that the prosecution story does not make out any offence, whatsoever, within the purview of the penal provisions of the S.C. and S.T. (Prevention of Atrocities) Act, 1989. He would submit that the FIR is lodged by informant Sau. Anita Kamble on account of political rivalry. He submits that informant Sau. Anita Kamble has filed an affidavit which purports to show that the applicant is innocent. Consequently, he urges to grant the Application. The learned APP opposed the Application. 6. It may be stated that the learned Advocate for the applicant seeks to rely on certain observations in "Ashok Bapurao Thorat V. State of Maharashtra and anr. 2007 ALL M.R. (Cri.) 3464" and "Prashant S/o Chandra Shekhar Gundawar and anr. Vs. Municipal Council, Bhadrawati and anr. 2009 (3) Mh.L.J. 953". The case of Prashant Gundawar and anr. (supra) has no bearing on the question involved in (4) CRI.APP. 4577.2010 the present Application. It has been held by learned Single Bench, in the given case, that the affidavit can be sworn in under Order 18 Rule 4 of the Code of Civil Procedure, before Notaries for taking them on record as an examination in chief. The authority of Notary Public to administer oath for purpose of swearing of the affidavit is not a disputed question in the present case. In case of Ashok Thorat (supra), the learned Single Judge noticed that the complainant i.e. prosecutrix was in love and was having sexual intercourse with the accused for about couple of years, on multiple occasions, and had voluntarily accompanied him at the relevant time and, therefore, there was no offence committed under section 3(1)(xi) of the S.C. and S.T. (Prevention of Atrocities) Act, 1989. In the present case, there is no love affair between the applicant and informant Smt. Anita Kamble nor it is the case of mutual consent. Here affidavit shows that the applicant has no concern with her. 7. Conduct of the applicant is indicative of his manipulative tendency. The affidavit of the (5) CRI.APP. 4577.2010 informant is procured and placed on record even before the investigation is properly geared up. The affidavit of Sau. Anita Kamble purports to show that she gave the FIR due to misunderstanding and under the pressure of her family members. One does not know what kind of pressure was exerted on her by her family members. There is no tangible material to show that the applicant was having any serious enmity with the family members of the complainant-informant Sau. Anita Kamble. There are only general allegations about the political rivalry. The offence may come within the ambit of section 3(1)(xi) of the S.C. and S.C. (Prevention of Atrocities) Act, 1989. In any case, when the conduct of the applicant itself shows that the tampering of the evidence is likely to be caused and he has potential to do so, the extra- ordinary remedy of anticipatory bail is unavailable to such a person. In this view of the matter, the Application is dismissed. Sd/- [V. R. KINGAONKAR, J.] arp