Dismissed

Taukal @ Salim Mehmud Pathan v. the Sr. Police Inspector and Anr.

Bombay HC17 Oct 2018APEAL/65/2018

Case brief

AI extract

What is this about?

The High Court dismissed bail appeals of two appellants convicted of serious atrocities against Scheduled Caste children, including tonsuring and naked parading. The court held the nature of crime prevented tampering with evidence and upheld the lower court's rejection of bail.

What did the court decide?

Both criminal appeals dismissed. Trial directed to be taken up immediately and concluded within six months.

Taukal @ Salim Mehmud Pathan Vs the Sr. Police… — Child Sexual Offences (POCSO) | Bombay HC (2018)

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8.Apeal.64.18.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.64 OF 2018

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Irfan Mehmud Pathad Age-26 Year Occ-Business, R/a, Nagar Water Tank Prem Nagar, Beside Masjid Ulhasnagar (At Present lodged at Aadharwadi Kalyan Jail) … Appellant

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V/s.

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The Sr.Police Inspector Hill Line Police Station, Ulhasnagar Dist.Thane.

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The State of Maharashtra, Through Chief Public Prosecutor, High Court Bombay A.S.

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Smt. Ashwini Sunder Janrao, Age-25 Yrs., Occ-Labour, Resident of Mahatma Phule Nagar, Behind Hill Line Police Station, Ulhasnagar. ... Respondents

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WITH

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CRIMINAL APPEAL NO.65 OF 2018

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Taukal @ Salim Mehmud Pathan, Age-22 Year Occ-Business, R/a, Nagar Water Tank Prem Nagar, Beside Masjid Ulhasnagar (At Present lodged at Aadharwadi Jail Kalyan) … Appellant V/s. 1. The Sr. Police Inspector

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Hill Line Police Station, Ulhasnagar Dist.Thane.

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The State of Maharashtra, Through Chief Public Prosecutor, High Court Bombay A.S.

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Smt. Ashwini Sunder Janrao, Age-25 Yrs., Occ-Labour, Resident of Mahatma Phule Nagar, Behind Hill Line Police Station, Ulhasnagar. ...Respondents

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Mr. Mateen Shaikh Shahid Nadeem Sajid Qureshi, Advocate for the Appellant.

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Mr. Shantanu R. Phanse, Advocate for respondent No.3.

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Mr. S.V. Gavand, APP for respondent No.2/State.

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CORAM : A.M.BADAR, J.

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DATED : 17^th OCTOBER 2018.

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ORAL JUDGMENT:

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Heard.

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Admit.

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Heard finally considering the fact that these appeals are directed against rejection of application for bail moved by these appellants/accused by the learned Sessions Court at Kalyan.

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Both these appeals are under Section 14A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the 'Atrocities Act' for the sake of

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brevity). Criminal Appeal No.64/2018 is filed by accused No.2 Irfan Mehmud Pathan challenging rejection of his bail application Exh.19 moved in Sessions Case No.184/2017 on 22.11.2017 by the learned Sessions Judge, Kalyan. Criminal Appeal No.65/2018 is filed by accuse No.3 Taukal @ Salim Mehmud Pathan challenging rejection of his bail application Exh.23 in Sessions Case No.184/2017 by the learned Sessions Judge, Kalyan on 09.01.2018. Both those applications were for releasing appellants/accused No.2 and accused No.3 on bail in Crime No.I124/2017 registered at the instance of respondent No.3 Ashvini Sundar Janrao with Hill Line Police Station, Ambernath for the offence punishable under Sections 355, 500, 323, 504 read with Section 34 of the Indian Penal Code, under Section 3(1)(d)(e)(r) of the Atrocities Act under Section 11(2) read with 12 of the Protection of Children from Sexual Offences Act (hereinafter referred to as “POCSO Act” for the sake of brevity), under Section 67(A) and (B) of the Informant Technology Act and under Section 75 of the Juvenile Justice Act.

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Heard the learned counsel appearing for the appellants/accused Nos.2 and 3. He argued that accused No.1 Mohammad Pathan is already released on bail by the learned trial Court. It is further argued that the incident in question took place on 20.05.2017. Both appellants are arrested on that day itself. They have undergone pretrial detention for about 17 months and trial of the alleged offences has not commenced. The learned

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counsel further argued that there is no material in the chargesheet to show that the first informant and the alleged victim of the crime in question is a member of the Scheduled Caste. The learned counsel further argued that maximum punishment prescribed for the offence under the Atrocities Act is five years. For other offences, it is less than five years. Therefore, as the appellants have undergone pretrial detention of 17 months, they both are entitled for bail. It is further argued that the chargesheet does not reflect fact that the offence was committed knowing that the alleged victim belongs to the Scheduled Caste and therefore provisions of the Atrocities Act is not applicable to the case in hand.

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The learned APP opposed the contentions so advanced by stating that the offence is very serious. He argued that two children aged about 9 years were paraded naked by tonsuring their head partly by the appellants. The alleged offence does not require any knowledge about the caste.

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I have also heard Mr. Phanse, the learned appointed Advocate to represent the respondent No.3/First Informant, at the costs of the State. He argued that there is voluminous evidence against the appellants and the crime in question is serious. Young boys are subjected to the heinous offence by the appellants.

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I have considered the submissions so advanced and also perused the entire chargesheet. At the outset, it needs to mention here that Section 3(1)(d) deals that the offence of atrocity done by

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garlanding with footwear or parading naked or semi-naked any member of a Scheduled Caste or a Scheduled Tribe. Section 3(1) (e) of the Atrocities Act deals with forcibly tonsuring of head, removing cloths from the person of any member of the Scheduled Caste or Scheduled Tribe. Section 3(1)(r) thereof deals with intentional insult or intimidation with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view. Sub-section (ii) of Section 11 of the POCSO Act deals with the offence of making a child to exhibit his body or any part of his body so as it is seen by such person or any other person.

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The crime in question is registered on the basis of report lodged by respondent No.3 Ashvini Janrao. She is not an eye witness to the incident in question. She belongs to Schedule Castes “Mahar”. Bonafide certificate of her son Kunal reflects the caste. She is a maid servant working in house of several persons for earning livelihood for her family members, which included her mother, brother and child named Kunal. The victim of the offence is her 9 years old son Kunal, who at the relevant time was taking school education in 4^th Std. Another victim of this crime is Ramesh, a 8 years old child, who happends to be friend of Kunal. 10. Chargesheet contains statement of eye witnesses to the incident in question. Statement of eye witnesses shows that while playing, Kunal and Ramesh took a chakli (type of a snack) from shop of the appellants and eat it. Feeling enraged by this innocent

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act of those children aged about 8 and 9 years, the appellants and co-accused tonsured their heads partly. They denuded both the children by removing their cloths, garlanded them with footwear. Thereafter, Kunal and Ramesh were paraded naked in the locality by the appellants. During that parade, the appellants and the coaccused were hitting both these young boys with footwear and slaps. Ultimately, mother of Kunal came to know about the incident. It is also seen from the chargesheet that the entire incident of naked parading of these small kids in the locality was videographed by the appellants/accused Taukal @ Salim Mehmud Pathan. He then transmitted that video recording through WhatsApp to other persons in the locality. During course of investigation that video clips are seized by the prosecution.

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It is duty of every citizen to protect and preserve self respect and honour of members belonging to Scheduled Caste and Scheduled Tribe. However, off-late there has been constant increase in commission of atrocities against members of the Scheduled Caste and Scheduled Tribe. Such type of offence damages social fabric and harmony. Such offences develop a sense of inferiority amongst the members of the Scheduled Castes and Scheduled Tribe. By such hateful acts self image, prestige and dignity of members of the Scheduled Castes and Schedule Tribe is lost. In the instant case, the chargesheet projects the worst form of child abuse. Incident of tonsuring head of Kunal and Ramesh partially garlanding them with footwear and parading them naked

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will certainly lead to several abnormality in their future life. This incident will certainly lead to unbearable trauma, fear and behavioral problems to the victims who happen to be young kids. Apart from this, it is seen from the chargesheet that during the entire episode, none of the resident from the populous locality dared to intervene in the incident in question. This leads to the inference that if released on bail, there is every possibility of appellants tampering evidence of the prosecution. Considering the nature of evidence, the manner in which the offence is committed and the victims of the crime in question, no case for grant of bail is made out. I am unable to find out any illegality in the impugned order rejecting bail applications of both the appellants by the learned trial Court. Therefore, the order.

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- : ORDER : -

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i) Both the appeals are dismissed. ii) The learned trial Court is directed to take up the trial for hearing immediately and to conclude it within a period of six months from the date of this order.

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iii) Needless to mention that all observations in this Judgment and Order are expression of prima-facie view and they shall have no bearing on dismissal of the trial .

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(A.M.BADAR J.)

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Taukal @ Salim Mehmud Pathan v. the Sr. Police Inspector and Anr.

Case brief

What is this about?

What did the court decide?

Taukal @ Salim Mehmud Pathan v. the Sr. Police Inspector and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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