1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3040 OF 2010 Sayyad Mansoor Kadri Aged 33 years, Occ : Medical Officer, R/o Shahanshah nagar, Tq. & Dist. Beed. ..APPLICANT -VERSUS- The State of Maharashtra and another ..RESPONDENTS ......... Mr. J.R. Shaikh, advocate for applicant. Mrs. S.D. Shelke, A.P.P. for respondent no.1. Mr. R.R. Mantri, advocate for the respondent no.2. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 3rd September, 2010. PER COURT : 1. This is an application for anticipatory bail under Section 438 of the Criminal Procedure Code. 2. The applicant is the Chief Medical Officer attached to Rural hospital at Raver. He apprehends his arrest in connection with Crime No.111/2010 registered at Raver Police Station for the offences under Sections 376(d), 315, 420, 506 of the Indian Penal Code along with Section 3 (10), (11) and (12) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 2 and under Section 7(1)(d) of Protection of Civil Rights Act. 3. The long and short of the prosecution story is that the informant-Archana was attached to Rural hospital at Raver as Staff Nurse between 1999 till middle of July, 2008. She was occupying the quarter situated behind the main building of Rural hospital. She is member of schedule caste. It appears that between the relevant period, after joining the Rural Hospital at Raver, she used to daily commute from Bhusawal to the place of working i.e. Raver. Somewhere in 2005, the applicant joined there as Chief Medical Officer. He informally disclosed his mind to her in or about November, 2005, while they were sitting together, and told her that he liked her and wanted to marry her. She, however, told him that he was making fun by making such a proposal because their religions are different and he shall rethink about the proposal. 4. The prosecution alleges that the applicant made representation to the prosecutrix Archana that he really desired to marry her. She was made to believe that he intended to make her life partner. Thereafter, they had sexual relationship. She became pregnant. He took her to Jahangir hospital, Pune and got the pregnancy terminated. It was again found that she became pregnant on second occasion and he did the same thing. The 3 second abortion was caused in the hospital at Dr.Mahesh Tandle at Aurangabad. She attended his marriage which was performed at Nanded. Meanwhile, the prosecutrix was transferred to another Hospital at Pal. The applicant had been deputed for training for a period of six months. Though he had promised her to marry yet he has not acted upon the promise, and therefore, subsequently the prosecutrix formed an impression that she was being deceived by him. Once she reached the conclusion that she was being duped by him, she lodged the report of being subjected to sexual exploitation and also of cheating and exploitation caused by him knowing that she is a member of scheduled caste. 5. Heard learned counsel. 6. Mr.Shaikh would submit that the offence under Section 376-D is not made out because the F.I.R. itself shows that the sexual relationship was by mutual consent and that on all the occasion the prosecutrix had gone to residential quarter of the applicant for such purpose. He would submit that since the venue of the sexual relationship is not in the hospital premises, Section 376-D is not attracted. He would submit that Section 420 of the Indian Penal Code is also not attracted, in as much as, mere promise to marry would not have been the reason for the 4 prosecutrix to allow the applicant to have sexual relationship with her. He contended that there is no element of cheating nor any other offence is prima facie made out. Hence he urged to grant anticipatory bail to the applicant. 7. It is true that so far as Section 376-D is concerned, the arrest can not be made without order of the Magistrate and the offence is bailable. The applicant can not be, therefore, arrested without following due procedure if the only charge to be levelled falls under Section 376-D of the Indian Penal Code. The avernments in the F.I.R., however indicate that from time to time the applicant assured the prosecutrix to marry her, and therefore, she allowed him to have sexual intercourse with her. It also appears that he had taken her to his residence at Beed and there were representations made to believe her that he was seriously planning to marry her. The recitals of F.I.R. purports to show that she allowed him to have intercourse with her when he made her to believe that he was infatuated towards her and was likely to perform marriage. His behaviour with her was that of a man in deep love with a young woman. The F.I.R. further purports to show that twice she allowed abortion at his instance. There may not be element of deception during initial period but the very fact that the applicant took her for abortion on the two occasions would indicate 5 that he had no intention to marry her but wanted to get rid of the problems created due to her pregnancy. He being the Chief Medical Officer, it is prima facie difficult to accept that he had no knowledge about her being member of schedule caste. Under these circumstances, whatever may be the nature of other offences yet case could be made out to the extent of Section 3(1) (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1980 may be attracted. Section 3(1)(xii) reads as follows : "3. Punishments for offences of atrocities :- (1) ........ (i) to (xi) ................... (xii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed." 8. Perusal of the above provision reveals that one who has been in dominating position and is likely to drive will of woman belonging to scheduled castes or scheduled tribes in the manner he wants and uses that position to exploit her sexually may come within the ambit of said penal provision. The purport of above penal 6 provision is to provide umbrella of protection to the weaker section i.e. women belonging to yet another weaker section i.e. members of scheduled castes and scheduled tribes from the evil of exploitation at the hands of those persons who are likely to dominate their will. It is for such a reason that the applicant may not be entitled to seek protection as contemplated under Section 438 of the Criminal Procedure Code. The provision under Section 438 of the Criminal Procedure Code is rather extra ordinary in nature and discretion has to be used with circumspection. 9. Considering the foregoing reasons, the application is dismissed. The interim protection, however, is continued for one week. (V.R.KINGAONKAR) JUDGE gas/cri3040.10