Smt. Minaxi A. Pednekar vs State of Goa

N.A. Britto, J.—The applicant herein is an accused in crime no.73/09 which was initially registered on 25.7.09 u/s 324 read with 34 IPC and section 7 (c) and 8 (2) and (9) of the Children''s Act, 2003. On the same day her husband was arrested and was initially remanded to custody and subsequently was granted bail by the Learned Children''s Court on 26.7.09 but that bail came to be cancelled subsequently by the same Court on 1.8.09 and the said order has now been set aside by this Court in Criminal Writ Petition No.52 of 2009. The said crime 73/09 came to be registered on 25.7.09 after a complaint was filed by SCAN (Stop Child Abuse Now) on 25.7.09. The said complaint was initially registered on the said day u/s. 324 read with 34 IPC and section 7(c) and 8 (2) and 9 of the Goa Children''s Act 2003. The said complaint was registered after the victim, aged about 10 years slipped away from the applicant''s house after the torture she was being met with, became unbearable and the said victim was found at Mapusa.

The said victim at the instance of Mapusa Police Station with the assistance of the said SCAN was got examined at Goa Medical College and the first medical report shows that the injuries were simple. The victim''s statement was recorded on 27.7.09 and that of her grandfather on the same day. It appears that after grandfather''s statement was recorded, section 3 (1) (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act) 1989, came to be added to the said crime. Thereafter the victim was referred to the Medical Board and the Medical Board''s opinion was that the victim was found with twenty-three injuries and they were of grievous nature and therefore section 326 was added to it on 30.7.09 or thereabout.

After complaint was filed by the said SCAN the scene of offence panchnama was drawn and certain articles were seized including the steel stapula (kailato) by the heating of which, the burn injuries are alleged to have been caused to the victim.

The applicant''s husband was arrested on 25.7.09. The applicant was not arrested. It is not the case of the prosecution that applicant was not available in the house on that day. The applicant filed an application u/s 438 of the Code of Criminal Procedure, 1973 to the Children''s Court on 27.7.09. Reply to it was filed on 29.7.09 and the same came to be rejected by the Learned Children''s Court on 1.8.09.

The Learned Children''s Court rejected the application because the applicant was involved in a grievous offence and otherwise also the application was barred u/s. 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

By interim order dated 6.8.2009 the applicant had joined investigations by attending the police station and it is not in dispute that the said order of this Court dated 6.8.09 is being complied with by the applicant.

The applicant was not arrested on 25.7.09 though her husband was arrested. The case diary does not show that she was not present in the house when her husband was arrested on that day, though an allegation is made that subsequently she was found absconding.

Section 3 (1) (xi) provides that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonor or outrage her modesty shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine. Section 324 IPC deals with voluntary causing hurt by dangerous weapons or means and provides a punishment which may extend to three years or with fine or with both. Section 326 IPC deals with voluntary causing of grievous hurt by dangerous weapons or means and provides for punishment with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Although the investigating agency added section 8(2) of the Children''s Act, 2003, no effort had been made even to remotely show how the said section was attracted to the facts of the case.

The Learned Children''s Court was right in coming to the conclusion that the Act was meant to protect the persons belonging to Scheduled Castes and Scheduled Tribes from atrocities sought to be imposed on them not only in the State where they were otherwise recognized as Scheduled Castes or Scheduled Tribes but anywhere in the country where there was no such recognition, as far as the penal provisions are concerned. That the members of Scheduled Castes and Scheduled Tribes recognized in one State of the Union would not be entitled to the facilities or benefits as such Scheduled Castes or Tribes when they migrate to another State is entirely another matter. The Act (The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1985, is a Central Act, in force in the entire country, except in the State of Jammu and Kashmir and was meant to take care, check and deter various offences, indignities, humiliations, harassment meted out to them either on account of various social or economic reasons. There is nothing in the Act to suggest that the offences in relation to the Act can be committed only in the State where their particular caste or tribe is recognized. The offences can be committed anywhere, even in a State where a particular caste or tribe is otherwise not recognized, by the Presidential Order. However, the question is whether the investigating agency was at all justified in invoking section 3 (1) (xi) of the said Act?

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 recognized in the State of Karnataka as stated by her grandfather, 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 dishonor or intent 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 dishonor 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 dishonor 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 ill-treatment meted out to the victim, it can be 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 and according to the victim the applicant stated for what she had done, she was 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 u/s 18 of the said Act.

Shri Arun Bras De Sa, Learned Counsel on behalf of the applicant has submitted that the applicant has twins to look after and has already joined investigation and has attended the police station for last more than seven days and therefore for further detention in custody is not required. Shri Arun Bras De Sa has further submitted that during the last seven days the applicant has co-operated with the police and therefore her further detention is uncalled for.

Learned Public Prosecutor has placed reliance on the case of State rep. by C.B.I. V/s. Anil Sharma {(1997) 7 SCC 187} and submitted that the applicant is required for custodial interrogation as custodial interrogation is more result oriented. Learned Public Prosecutor has further submitted that the applicant was subsequently absconding as can be seen from the affidavit filed in support of her application, having gone to Kolhapur. Learned Counsel on behalf of the applicant submits that after the applicant''s application was rejected the applicant did go to Kolhapur since otherwise applicant''s right in approaching this Court would have been frustrated in case the applicant was taken in custody after her application was rejected by the Children''s Court.

It is not necessary for me to go into the aforesaid submissions. The offence in this case have taken place within the confines of the house of the applicant. The articles required to be attached have been attached. On 25.7.09 the applicant was available in the house but was not arrested. In any event, nothing is shown by the Investigating Agency to say that she was not available on that date to be arrested. The applicant has thereafter joined investigations from 6.8.09. No reason is disclosed as to what will be sought to be achieved by custodial interrogation. Only because it is stated that the presence of the applicant is required for custodial interrogation, without showing the need for it, application for anticipatory bail cannot be rejected. Consequently, the application is granted. In the event of the arrest of the applicant, the applicant shall be released on bail upon execution of bond of Rs.15,000/-with one surety in the like amount to the satisfaction of the Investigating Officer. The applicant to seek fresh bail thereafter, after filing of the charge sheet.