1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR Criminal Application (ABA)No. 308/2011 Smt. Sheelabai wd/o Murlidhar Bhongade and others Versus State of Maharashtra. =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- CORAM : U.V. BAKRE, J. DATED : 29/09/2011. Heard Mr. Pradeep Marpakwar, learned counsel for the applicants and Mr. P. D. Kothari, learned APP for the respondent. 2. The applicants, who apprehend their arrest in Crime No. M-107/2011 registered at Police Station, Imamwada for offence punishable under Sections 376, 313, 120-B and 417 of the Indian Penal Code (“I.P.C.” for short) and Section 3(1) (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (“SC & ST Act” for short) have approached this Court for pre-arrest bail. 3. It is seen that the complainant Rajshree Ramteke was married to Dr. Girish Bhongade, the son of applicant no.1. Applicant no.2 is the daughter of applicant no.1, whereas applicant no.3 is the husband of another 2 daughter of applicant no.1. Dr. Girish had filed Divorce Petition in Family Court and there was decree of dissolution of marriage by divorce passed on 30.10.2009. However, thereafter the complainant Rajshree filed two applications before the Family Court: one for recalling the judgment of divorce and other for maintenance. Subsequently, the complainant Rajshree filed the complaint dated 8.10.2011 at Imamwada Police Station, but the same was treated as non-cognizable and, therefore, she approached the learned Judicial Magistrate First Class, Nagpur, vide Misc. Criminal Application No.1799/2010. The learned Judicial Magistrate First Class by order dated 9.8.2011 directed Imamwada Police Station to carry out the investigation and this was done under Section 156(3) of the Code of Criminal Procedure. Consequently, Crime No. M-107/2011 for offence punishable under Sections 376, 313, 120-B and 417 of the I. P. C. and Section 3(1)(xii) of SC & ST Act came to be registered. 4. The allegation against the applicants is that Dr. Girish entered into criminal conspiracy with them and subjected her from time to time to sexual, physical and emotional exploitation by playing fraud upon her and by deceptive means. It is alleged that even during subsistence of marriage, Dr. Girish had caused miscarriage of the complainant without her consent and even after divorce. Dr. Girish exploited her sexually under the pretext of re-marriage. There is a vague allegation made against the 3 applicant Ashok that he called the complainant “Mahar”, while talking to her on telephone. 5. The present applicants cannot be said to be involved in offence under Sections 376 and 417 of the I. P. C., as the allegations regarding these offences are only against Dr. Girish. Even Section 313 of I. P. C. is not applicable against the present applicants. As far as Section 3(1)(xii) of the SC & ST Act is concerned, there is bar for grant of anticipatory bail. The said Section provides that nothing in Section 438 of Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under this Act. 6. It is seen from the record that there is no allegation against the present applicants which could attract Section 3(1)(xii) of the SC & ST Act. The allegation of calling the complainant a “Mahar” allegedly against the applicant Ashok was on telephone and not in any place within public view. Clause (x) of subsection Section (1) of section 3 of the SC & ST Act has not been applied, in the present case. Therefore, there is no accusation against the present applicants of having committed any offence under the SC & ST Act. The bar under Section 18 of the SC & ST Act will not apply to the applicants. Learned Advocate Shri Marpakwar has relied upon “Dr. R.K. Sangwan V/s State” [2010 CRI. L. J. (NOC) 185 (DEL.)] wherein a division bench of the Delhi High Court has held that the bar under section 18 of the SC & ST Act would not apply merely 4 because an FIR has been registered under the Act and that the bar would apply only when allegations in FIR prima facie make out an offence under the Act. In the case of “Mahesh Sakharam Patole V/s State Of Maharashtra” [II (2010) CCR 285], the learned Single Judge of this Court has held that referring the complainant by caste to which he belongs, in the presence of merely the family members or resident servant, cannot be treated as constituting an offence under section 3(1)(x) of the SC & ST Act and that such incident should occur in presence of public or at least utterances should be audible to members of public. Since there was no material in this regard, it was held that no offence under section 3(1)(x) was made out and that the applicants were entitled for anticipatory bail. In the present case, the position is the same and even otherwise Section 3(1)(x) of the said Act has not been applied. 7. The main alleged accused namely Dr. Girish has already been released on bail by the learned Sessions Court. I do not see any reason as to why the applicants should be detained in custody in the event of their arrest. 8. In the result, the application is allowed. In the event of arrest of the applicants in Crime No. M-107/2011 registered for offence punishable under Sections 376, 313, 120-B and 417 of the I. P .C. and Section 3(1) (xii) of the SC & ST Act of Imamwada Police Station, each one of them shall be released on bail upon 5 execution of personal recognition bond in the sum of Rs. 25,000/- (Rs. Twenty five thousand only) with one solvent surety in the like amount under the following conditions:- (i) The applicants shall attend Imamwada Police Station as and when called upon by the Investigating Officer to do so; (ii) The applicants shall not, directly or indirectly, make 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 any police officer; and (iii) The applicants shall not leave India without previous permission of the Sessions Court . Hamdast allowed. Application stands disposed of, accordingly. JUDGE Ambulkar.