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The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
The Code Of Criminal Procedure, 1973
Section 482 in The Code Of Criminal Procedure, 1973
Section 155(2) in The Code Of Criminal Procedure, 1973
Section 145 in The Code Of Criminal Procedure, 1973

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Bombay High Court
Bandu Ananda Kothale And Others vs The State Of Maharashtra And Anr on 20 April, 2017
Bench: S.S. Shinde
                                               6544.2016 Cri.Appln.odt
                                     1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                  CRIMINAL APPLICATION NO.6544 OF 2016 

          1.       Bandu Ananda Kothale,  
                   Age : 55 Yrs, Occu. Agri. 

          2.       Tahabai Bandu Kothale,  
                   Age: 50 Yrs, Occu. Agri.  

          3.       Madhavrao Bandu Kothale,  
                   Age : 45 Yrs, Occu. Agri.  

          4.       Kamal Madhavrao Kothale,  
                   Age : 30 Yrs, Occu. Agri.  

          5.       Sudhakar Bandu Kothale,  
                   Age : 35 Yrs, Occu. Agri.  

          6.       Kasabai Sudhakar Kothale,  
                   Age : 28 Yrs, Occu. Agri.  

          7.       Dattu Bandu Kothale,  
                   Age : 23 Yrs. Occu. Agri.  

          8.       Sonali Dattu Kothale,  
                   Age : 23 Yrs. Occu. Agri.  

          9.       Narayan Mahadu Kothale,  
                   Age : 22 Yrs. Occu. Agri.  

                   All R/o. Kothala Jainpur, 
                   Tq. Bhokardan, Dist. Jalna.  PETITIONERS 

                           VERSUS 

          1.       The State of Maharashtra,  
                   Through SDPO Bhokardhan
                   Tq. Bhokardhan, Dist. Jalgaon.




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                                                          6544.2016 Cri.Appln.odt
                                           2


          2.   Ganesh Sukhlal Suradkar 
               Age: 40 Yrs. Occu. Labourer 
               R/o. Kothala, Jainpur 
               Tq. Bhokardhan Dist. Jalna.  RESPONDENTS 
                                                          
                                ...
          Mr.Vinod Patil, Advocate for Applicants 
          Ms.P.V.Diggikar, APP for Respondent/State
          Mr.P.V.Balkhande,   Advocate   for   Respondent 
          no.2. 
                                ...

                          CORAM:  S.S.SHINDE & 
                                  K.K.SONAWANE,JJ.     

Reserved on : 11.04.2017 Pronounced on : 20.04.2017 JUDGMENT: (Per S.S.Shinde, J.):

1. Heard.

2. Rule. Rule made returnable forthwith, and heard finally with the consent of the parties.

3. This Application is filed with the following prayer:

(B) This Hon'ble Court may be pleased to quash and set aside the impugned order dated 15.11.2016 passed by Special Judge-1, Jalna in Cri. Misc.
::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 :::
6544.2016 Cri.Appln.odt 3 Application No.115/2016 and further be pleased to quash and set aside the First Information Report No. 3034/2016 dated 17.6.2016 for the offence punishable u/s. 3(1)(F)(G) (A) (D) (Q) (R) (S) (U) (V) (Z) of Scheduled Casts and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 registered with Bhokardhan Police Station.

4. Brief facts leading for filing present Application are as under:

The applicants are resident of village Kothala, Jainpur, Taluka Bhokardhan, District Jalna. Respondent no.2 is the original complainant, who filed application bearing Criminal Misc. Application No.115/2016 in the Court of Special Judge-1, Jalna and sought direction to the concerned Police Station to register the offences and to cause investigation of the allegations made in the complaint. The learned Special Judge-1, Jalna, by order dated 15th November, ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 ::: 6544.2016 Cri.Appln.odt 4 2016, directed the Incharge Police Station Officer, Police Station, Bhokardan to register the crime against the applicants and to hand over the investigation to Sub Divisional Police Officer, Bhokardhan. The said Officer was directed to investigate the matter under Section 156 [3] of the Criminal Procedure Code and to submit final report to the Court within two months.

5. It is further the case of the applicants that the concerned Police Station at Bhokardhan has registered the FIR vide Crime No.3034/2016 on 17th June, 2016, for the offences punishable under Sections 3(1) (F)(G) (A) (D) (Q) (R) (S) (U) (V) (Z) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 [for short 'Act of 1989'] against the applicants. Hence this Criminal Application.

6. The learned counsel appearing for ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 ::: 6544.2016 Cri.Appln.odt 5 the applicants submits that the civil dispute is pending between the members belong to group of respondent no.2, who are his relatives, and applicant nos.1 and 3 before the Civil Court. In the said civil suit, the application seeking injunction against defendants therein, restraining them from disturbing the peaceful possession of applicant no.3 is allowed by the Civil Court. The learned counsel for the applicants invites our attention to the order passed by the Civil Court. He submits that, respondent no.2 i.e. original complainant, and his relatives approached the Sub Divisional Officer [Revenue], Bhokardan, filing an application under Section 145 of the Criminal Procedure Code. The said Authority passed the order in favour of the group of respondent no.2, in those proceedings. The said order is challenged by applicant no.3 before the Bombay High Court, Bench at Aurangabad. The ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 ::: 6544.2016 Cri.Appln.odt 6 High Court in the said Writ Petition issued 'Rule', and stayed the order passed by the Sub Divisional Officer [Revenue], Bhokardan. It is submitted that respondent no.2 and his relatives belong to 'Scheduled Caste', and therefore, taking undue advantage of their caste; they are threatening applicants with dire consequences, and accordingly, by invoking the provisions of the Scheduled Castes and Scheduled Tribes [Prevention of Atrocities] Act, 1989, filed complaint with false averments / allegations before the Special Court. He further submits that some of the applicants were constrained to file application before the various Police Authorities against respondent no.2 and his relatives for causing unnecessary harassment to the applicants. It is submitted that in spite of the order passed by the Competent Court restraining respondent no.2 from interfering in the peaceful possession of the ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 ::: 6544.2016 Cri.Appln.odt 7 land, which is subject matter of the civil suit, respondent no.2 and his relatives in breach of the said order are causing interference in the peaceful possession of the applicant nos.1 and 3. The applicants sought police protection due to interference by respondent no.2 and his relatives, and in spite of such police protection provided, respondent no.2 and his relatives even assaulted the concerned Police Constable. Hence, the First Information Report, in that respect, came to be registered by the Police Station against respondent no.2 bearing FIR vide Crime No.135/2016 on 18th August, 2016. The learned counsel invites our attention to the contents of the copy of the said FIR, which is placed on record. He also invites our attention to the contents of another FIR vide Crime No.244/2016 registered on 7th November, 2016 for the offences punishable under Section 379 r/w. 34 of the IPC, wherein ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 ::: 6544.2016 Cri.Appln.odt 8 respondent no.2 and his relatives have stolen away the agricultural produce/crops from the land which is in possession of the applicants.

7. It is submitted that the Special Court without assigning even brief reasons on merits, proceeded to direct the concerned Police Station to register offence against the applicants, and further directed to cause investigation. Therefore, such direction to register the FIR is illegal, perverse and registration of the FIR was also unwarranted inasmuch as an allegations in the said FIR is an outcome of rivalry arising out of civil proceedings and tainted with mala fide and exaggeration. Respondent no.2 and his relatives are restrained from interfering in the peaceful possession of the applicants by the Civil Court. It is submitted that, the civil dispute is pending between the parties and the parties have to abide by the orders ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 ::: 6544.2016 Cri.Appln.odt 9 passed by the Civil Court, and therefore, there was no reason for the respondent no.2 and his relatives to come to the house of the applicants and create nuisance and then file the FIR making false allegations only with a view to harass the applicants.

8. It is submitted that, in the first place an incident had not taken place, and secondly, without admitting but assuming that, an incident has taken place, if an allegations in the FIR are read in its entirety and are taken at its face value, an alleged offences are not disclosed. There are no specific allegations or overt acts attributed qua each of the applicants. An allegations are general in nature. It is submitted that, an alleged incident has not happened. Assuming but without admitting that, an alleged incident has taken place, even as per the allegations in the FIR, admittedly, respondent no.2 and his relatives ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 ::: 6544.2016 Cri.Appln.odt 10 came to the house of the applicants, and they were aggressor; they were not supposed to come to the house of the applicants when the civil dispute is pending before the Civil Court about the land which is subject matter of the suit. It is submitted that an allegations made against the applicants are inherently improbable and no prudent person can be persuaded to believe such allegations, since those are also made against innocent female members and young members of the family of the applicants, who have no concern with the dispute about land, which is subject matter of pending civil suit. In said proceedings only, applicant nos.1 and 3 are concerned and party to Civil Suit. It is submitted that applicant nos.2, 4, 6 and 8 are the female members of the family; they are nothing to do with the allegations in the FIR. It is submitted that, respondent no.2 is taking undue advantage of his caste, misusing ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 ::: 6544.2016 Cri.Appln.odt 11 the provisions of the Act of 1989, and filing false complaint against the applicants. The learned counsel invites our attention to the grounds taken in the application, annexures thereto and submits that, further investigation of the FIR vide Crime No. 3034/2016 dated 17.6.2016 for the offence punishable u/s. 3 (1) (F) (G) (A) (D) (Q) (R) (S) (U) (V) (Z) of Scheduled Casts and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, registered with Bhokardhan Police Station would only lead to mental agony and harassment of the applicants and would result into an abuse of process of law. Even if the allegations in the FIR are taken as it is, an alleged offences has not taken place in the public view. Therefore, he submits that, the applicants, who are innocent, may not be asked to face the investigation. The learned counsel, therefore, submits that, this is a fit case in which this Court by invoking ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 ::: 6544.2016 Cri.Appln.odt 12 jurisdiction under Section 482 of the Criminal Procedure Code may quash the FIR and further proceedings based upon the said FIR.

9. The learned APP appearing for the respondent - State invites our attention to the investigation papers and submits that, it is transpired during the investigation that, the informant and his witnesses have supported the allegations in the FIR. However, on an enquiry / investigation with the neighbourers of the accused and also with the Sarpanch and the President of Tanta Mukti, they stated that, there was no any incident taken place as alleged by the complainant on 25th September, 2016, at about 9.00 a.m. It is also transpired during the investigation that, the land in dispute is in physical possession of applicant nos.1 and 3 since 1981. The dispute is pending between the parties before the Civil Court, and there is order of injunction passed by the Civil ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 ::: 6544.2016 Cri.Appln.odt 13 Court restraining the relatives of respondent no.2 from interfering in the peaceful possession of the land of the applicants.

10. The learned counsel appearing for respondent no.2 invites our attention to the allegations in the FIR and submits that, an alleged offences have been disclosed and those needs investigation. He further submits that, during the course of investigation, the Investigating Officer has collected the sufficient material and on the basis of the said material, the trial can proceed. The learned counsel invites our attention to the judgment of the Supreme Court in the case of HDFC Securities Ltd. and others Vs. State of Maharashtra and another1 and submits that, in the facts of that case the view is taken by the Supreme Court that, stage of cognizance would arise only after investigation report is filed before the Magistrate. An order 1 AIR 2017 SC 61 ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 ::: 6544.2016 Cri.Appln.odt 14 directing investigation not causing an injury of irreparable nature, cannot be quashed at premature stage. He invites our attention to the affidavit-in-reply filed on behalf of respondent no.2 and submits that, the incident had occurred on 25th September, 2016, during morning hours at 9.00 a.m. The applicants abused informant on caste in filthy language. On refusal of the registration of the FIR by the concerned Police Station, the complainant filed Criminal Misc. Application before the Sessions Court at Jalna, seeking directions to the Sub Divisional Police Officer at Bhokardan, to register the crime against applicant nos.1 to 10. In view of amendment dated 1st January, 2016, to the Scheduled Castes and Scheduled Tribes [Prevention of Atrocities] Act, 2016, the powers are conferred on the Special Judge for taking cognizance of the offence, and accordingly, ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 ::: 6544.2016 Cri.Appln.odt 15 in the present case cognizance was taken by the Special Judge at Jalna.

11. It is further submitted that, the land in question was 'Mahar Inam Hodola', that was allotted to the informant - respondent no.2 and others in the year 1962. The applicants have created fabricated documents, and the mutation entries were taken in their name during the period 2001-2004, without prior permission from the Collector. Therefore, the Sub Divisional Magistrate has rightly set aside the said mutation entries by directing to forfeit the land in question to the Government till the decision of the Civil Court in Civil Suit Nos.11/2013, 12/2013 and 148/2010. It is submitted that, an offence came to be registered against respondent no.2 on 7th November, 2016, alleging therein that, he has stolen the agricultural crops like Soyabean. However, it reveals from the revenue record ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 ::: 6544.2016 Cri.Appln.odt 16 that, the entries taken in crop cultivation column there was no mention of crop of soyabean. Therefore, relying upon the allegations in the FIR, the affidavit-in- reply filed by respondent no.2 and the provisions of the said Act, the learned counsel appearing for respondent no.2 submits that, the application may be rejected.

12. We have given careful consideration to the submissions of the learned counsel appearing for the applicants, learned APP appearing for respondent-State, and the learned counsel appearing for respondent no.2. With their able assistance, perused the grounds taken in the application, annexures thereto, the affidavit-in-reply filed by respondent no.2, and the investigation papers made available by the learned APP. It appears that, the complainant - respondent no.2 approached the Special Judge-1, Jalna, by way of filing Criminal Misc. Application, seeking ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 ::: 6544.2016 Cri.Appln.odt 17 direction to Sub Divisional Police Officer to register crime against applicant nos. 1 to 10 therein. The Special Judge-1, Jalna passed order on 15th November, 2016 and directed the Sub Divisional Police Officer to register crime against applicant nos.1 to 10. The learned Magistrate considered the allegations in the complaint and observed thus:

2 Applicant has made serious allegations against non applicants. Allegations made against non applicants comes within purview of provisions of SC and ST Prevention of Atrocities Act. Considering nature of charges leveled against accused detailed investigation by police is necessary. In such circumstances I feel it necessary to sent matter to SDPO Bhokardan, for investigation u/sec. 156 (3) of Cr.P.C. Hence, I proceed to pass following order.

We may note that except mentioning that the allegations are serious in nature ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 ::: 6544.2016 Cri.Appln.odt 18 and comes within purview of the SC and ST Prevention of Atrocities Act, there are no any reasons, muchless brief reason for passing such order. Be that as it may, it appears from careful reading of the FIR that, respondent no.2 i.e. informant, and other persons from his community gathered in front of the house of the applicants on 25th September, 2016, at 9.00 a.m. so as to request applicants to return their land. Admittedly, Civil Suit No.148/2010 [Onkar Haroba Suradkar & others Vs. Bandu Ananda Kothale and others] is pending before the Civil Judge Junior Division, Bhokardan. There is another Civil Suit No.12/2013 [Bandu Ananda Kothale Vs. Onkar Hariba Suradkar & others] filed by applicant no.1 herein against respondent no.2 and others and same is pending before the Civil Judge Junior Division at Bhokardan, District Jalna. There is also reference of Civil Suit No.11/2013 ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 ::: 6544.2016 Cri.Appln.odt 19 [Madhavrao Bandu Kothale Vs. Onkar Hariba Suradkar] pending between the parties.

13. Upon careful perusal of the title cause of the Civil Suit No.148/2010 pending before the Civil Judge Junior Division, Bhokardan, the informant i.e. respondent no.2 is not party to the said proceedings. However, as many as 10 persons belonging to the community of the present informant are the plaintiffs, and the present applicant no. 1 - Bandu Ananda Kothale i.e. accused no.1 and applicant no.3 - Madhavrao Bandu Kothale i.e. accused no.3 are made party defendants in that suit. There are other 5 defendants namely; Rustum Kothale, Barku Suradkar, Kalawatibai Barku Suradkar, Rukhminibai Kisan Kothale and Kisan Rustum Kothale, however, they are not made accused in the present FIR. It appears that, in the said suit the Joint Civil Judge Junior Division Bhokardan on 16th September, 2016, has passed the order below ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 ::: 6544.2016 Cri.Appln.odt 20 Exh.1, thereby dismissing the suit for default vide order 9 rule 8 r/w order 17 Rule 2 and 3 of Civil Procedure Code, 1908. The copy of the said order is placed on record by the applicants [at page 38 of the compilation of the Application]. In the said suit, the plaintiffs therein prayed for taking possession of the land from Survey No.99, as described in the suit. But, by virtue of dismissal of the said suit neither possession of applicant nos.1 and 3 is withdrawn nor the prayer of the plaintiffs to restore them in possession of the suit land from Survey No.99 has been favourably considered. As already observed, the suit itself came to be dismissed for want of prosecution.

As already observed, applicant no.1 herein did file Civil Suit No.12/2013, before the Civil Judge Junior Division, Bhokardan. The said suit was filed for permanent injunction against the respondents therein. ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 :::

6544.2016 Cri.Appln.odt 21 It appears that, in the said suit also, Ganesh Sukhlal Suradkar is not made party, however, as many as 10 persons belonging to his caste having similar interest like informant were made party. In the said suit, plaintiff i.e. applicant no.1 herein [accused no.1 herein], Bandu Ananda Kothale filed application for temporary injunction. The said application was heard, and thereafter, by a reasoned order, the said application was allowed, and the defendants therein were restrained from interfering in the peaceful possession of applicant no.1 herein. Therefore, it follows from the aforesaid two Civil Suits i.e. Civil Suit Nos.148/2010 and 12/2013 that, the dispute between the parties about their rival claim in respect of possession of the land is pending before the Civil Court. Therefore, for both the parties it is appropriate to wait for final outcome of Civil Suit No.12/2013, wherein the ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 ::: 6544.2016 Cri.Appln.odt 22 defendants therein have been restrained by the Civil Court from interfering in the peaceful possession of accused no.1 Bandu Kothale.

14. It further appears that, one Kundlik Kaduba Suradkar and others, initiated proceedings under Section 145 of the Criminal Procedure Code before the Sub Divisional Magistrate, Bhokardan and order was passed by the said authority. However, the High Court by its order dated 9th March, 2015 in Criminal Writ Petition No.1145/2014 [Madhavrao Bandu Kothale Vs.Kundlik Kaduba Suradkar and others] has issued 'Rule' in the said Petition and granted stay to the order passed by the Sub Divisional Magistrate, Bhokardan. It further appears that, the parties are litigating even before the revenue authorities.However, the fact remains that the Civil Court has restrained the defendants in Civil Suit No.12/2013 filed by ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 ::: 6544.2016 Cri.Appln.odt 23 applicant no.1 herein from interfering in his peaceful possession. It further appears that, applicant no.3 herein Madhavrao Kothale filed M.A.No.319/2016, before the Judicial Magistrate First Class, Bhokardan wherein 12 persons have been added as accused, and direction under Section 156 [3] of the Criminal Procedure Code for investigation of an allegation in the said complaint by registering the FIR is sought. It appears that, in the said proceedings, the learned Judicial Magistrate First Class, Bhokardan, has passed the order for verification of the complaint. It further appears from the letter written by applicant nos.1 and 2 to the Tahsildar, tahsil office, Bhokardan that, non applicants therein i.e. defendants in the suit, filed by applicant no.1, are interfering in the peaceful possession of applicant no.1, and apprehension is expressed that, the non applicants therein i.e., the ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 ::: 6544.2016 Cri.Appln.odt 24 defendants, in the suit may take forceful possession of the suit land from the applicant no.1, and therefore, the concerned Police Station and the Revenue Authorities shall take appropriate steps against the defendants and prevent them from interfering in the peaceful possession of the applicant no.1. There are number of applications written by applicant nos.1 and 3 to the various authorities expressing serious concerned about the frequent interference by the defendants in their peaceful possession in spite of the order passed by the Judicial Magistrate First Class, Bhokardan, restraining the defendants not to interfere in the peaceful possession of applicant no.1 in the land, which is subject matter of the suit. The authorities have also time to time issued directions to the defendants in the suit not to cause interference in the peaceful possession of applicant no.1. It ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 ::: 6544.2016 Cri.Appln.odt 25 further appears that, even the police protection was given to applicant no.1 and there was an attempt by the accused to assault those Police Officers and to that effect offences also came to be registered.

15. Upon careful perusal of the allegations in the FIR, it appears that, the complainant i.e. respondent no.2, and some persons from his community gathered in front of the house of the applicants on 25th September, 2016 at 9.00 a.m. Therefore, it clearly appears that, the complainant and the persons from his community were aggressor inasmuch as they went in front of the house of the applicants at 9.00 a.m. on 25th September, 2016, so as to ask applicant nos.1 and 3 to return possession of land in their favour. In our opinion, when the Civil suit, which was filed by the persons from complainant's community, was dismissed for want of prosecution, and the suit filed by ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 ::: 6544.2016 Cri.Appln.odt 26 applicant no.1 Bandu Ananda Kothale, is pending and in the said suit the defendants therein are restrained from interfering in the peaceful possession of applicant no.1, the complainant or the persons belonging to his community had no business to go to the house of the accused and to ask them to return possession of land, which is subject matter of the afore-mentioned civil suits.

16. Coming to the gist of an allegation alleged in the FIR, it would necessary to reproduce the utterances, which are derogatory in nature, as below:

gs dh] loZ vkjksihauk leLr egkj yksdkaps tehu dl.;kps vf/kdkj fgjkowu ?ksrys o fid ?ks.;kiklwu oaphr dsys- rlsp lnj tehu gLrxr dj.;kps mnns'kkus [kksVs o cukoVh jsdkWMZ vkjksih dz- 1 rs 5 ;kauh dsys 7@12 e/;s Lork%gkps uko ykoys vkf.k leLr egkj yksdk fo:/n [kksVs dsl Hkksdjnu U;k;ky;kr nk[ky dsY;k o cukoVh jsdkWMZ rykB;kl nsowu csdk;ns'khj lnj tehuhps vkilke/;s Qsj dsys vlwu vkEgkyk loZ vkjksih yksdkauh vkeP;k bPNs fo:/n xkokrhy loZ egkj yksdkauk xko ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 ::: 6544.2016 Cri.Appln.odt 27 lksMwu tk.;kl ncko vk.khr vkgsr- fQ;kZnh o R;kaps lektkrhy egkj yksd 25-9-2016 jksth ldkGh 09%00 ok- tehu ijr ekx.;klkBh vkjksihP;k ?kjk leksj fouarh dsyh vlrk loZ vkjksihauh fQ;kZnhyk o fQ;kZnhP;k lektkrhy brj egkj yksdkauk tkrhokpd f'kohxkG d:u gh ejkB;kaph fe'kh vkgs okd.kkj ukgh ekÖ;k 'ksVkps cky vkgkr egkjkauks] /ksM;kauks rqEgh y; ektykr rqEgkyk tehu ijr feG.kkj ukgh- rqeP;k tehuhpk 7@12 e/;s vkrk egkj gk 'kCn jkfgyssyk ulwu rqeps egkj orukps uko lq/nk 7@12 e/;s jkfgysys ukgh o vkeps uko 7@12 e/;s vkysys vkgs R;keqGs vkEgh lnjP;k tehuhps ekyd >kysyks vkgksr- rqEgkyk dk; djk;ps rs djk iwUgk tehuhph ekx.kh dsY;kl ,d ,d egkj os'khr usÅu dkiw o rqEgkyk xkao lksMqu tkos ykxsy v'kk /keD;k loZ vkjksih yksdkauh fnY;k-

17. Upon careful perusal of the afore- stated allegations in the complaint / FIR, those are inherently improbable so far as accused no.2 Tahabai Bandu Kothale, accused no.4 Kamal Madhavrao Kothale, accused no.6 Kasabai Sudhakar Kothale and accused no.8 Sonali Dattu Kothale, because they are female, and naturally without mustaches. The Civil Suit is pending between applicant no.1 ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 ::: 6544.2016 Cri.Appln.odt 28 Bandu Kothale and applicant no.3 Madhavrao Kothale and the persons from the community of complainant. So far other accused namely Sudhakar Bandu Kothale, Dattu Bandu Kothale, Narayan Mahadu Kothale and Ramdas Mahadu Kothale are concerned, there are no specific allegations against them, which would disclose alleged offences against them. As already observed, respondent no.2 and other members from his community were aggressor, inasmuch as, as per allegations in the FIR, all of them went in front of the house of applicants on 25th September, 2016, at about 9.00 a.m. It is true that, the Investigation Officer has stated in his investigation report that, the witnesses residing nearby the house of the accused have stated in their statements that, an alleged incident had not taken place. The Investigating Officer has recorded the statement of Sarpanch of the village wherein he has also stated that, an ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 ::: 6544.2016 Cri.Appln.odt 29 alleged incident had not taken place. However, since the investigation is in progress and Bandu Ananda Kothale and Madhavrao Bandu Kothale i.e. applicant nos.1 and 3 herein are party to the civil dispute. At present, we are not inclined to consider their application for quashing the First Information Report.

18. It is also true that, upon reading an allegations in the FIR, no any overt act is attributed to each of the applicants, and the alleged abuses on caste are also not attributed by taking specific name of the accused, and attributing specific overt act qua incident occurred, and it is also not very clear that, whether the incident has really taken place, and if so whether the same was in public view or otherwise.

19. Be that as it may, we are satisfied that, an allegations in the FIR are omnibus, ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 ::: 6544.2016 Cri.Appln.odt 30 general and without attributing any specific overt act qua each of the applicant nos.2, 4 to 9, and also those allegations appear to be inherently improbable as against applicant nos.2, 4, 6 and 8. Hence, we are inclined to consider their prayer for quashing the FIR. So far applicant no.1 Bandu Ananda Kothale and applicant no.3 Madhavrao Bandu Kothale are concerned, since they are party to the Civil Suit, and at the highest, an allegations in the FIR may be attributable to them, we are not inclined to consider their prayer at present.

20. The Supreme Court in the case of G.Sagar Suri and another Vs. State of U.P. and others2 while explaining the scope of jurisdiction under Section 482 of the Criminal Procedure Code, in para 8 and 9 held thus:

8. Jurisdiction under Section 482 2 [2000] 2 SCC 636 ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 ::: 6544.2016 Cri.Appln.odt 31 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.

9. In State of Karnataka v.

L.Muniswamy3 this Court said that in the exercise of the wholesome power under Section 482 of the Code the High Court is entitled to quash a 3 [1977] 2 SCC 699 ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:33 ::: 6544.2016 Cri.Appln.odt 32 proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings are to be quashed.

21. The Supreme Court in the case of "State of Haryana V/s Bhajan Lal4" held that, in categories mentioned in para 108 of the said judgment, the High Court would be able to quash the F.I.R. Para 108 is reproduced herein below:

108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-

ordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of 4 AIR 1992 SC 604 ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:34 ::: 6544.2016 Cri.Appln.odt 33 illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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6544.2016 Cri.Appln.odt 34

4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

22. In the light of the discussion in the foregoing paragraphs, in our opinion the ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:34 ::: 6544.2016 Cri.Appln.odt 35 case of the applicant no.2 Tahabai Bandu Kothale, applicant no.4 Kamal Madhavrao Kothale, applicant no.6 Kasabai Sudhakar Kothale and applicant no.8 Sonali Dattu Kothale, their case is squarely covered under category nos.5 and 7 in afore-mentioned categories. So far as applicant no.5 Sudhakar Bandu Kothale, applicant no.7 Dattu Bandu Kothale, and applicant no.9 Narayan Mahadu Kothale are concerned, their case is squarely covered under category no.7. Hence, we pass the following order:

ORDER i] The First Information Report bearing Crime No.3034/2016 for the offence punishable under Section 3(1)(F)(G) (A) (D) (Q) (R) (S) (U) (V) (Z) of Scheduled Casts and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, registered with Bhokardhan Police Station, to the extent of applicant no.2 Tahabai ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:34 ::: 6544.2016 Cri.Appln.odt 36 Bandu Kothale, applicant no.4 Kamal Madhavrao Kothale, applicant no.5 Sudhakar Bandu Kothale, applicant no.6 Kasabai Sudhakar Kothale, applicant no.7 Dattu Bandu Kothale, applicant no.8 Sonali Dattu Kothale and applicant no.9 Narayan Mahadu Kothale, stands quashed and set aside. The application to the extent of applicant nos.2, 4 to 9 is allowed to above extent.
ii] So far as applicant no.1 Bandu Ananda Kothale and applicant no.3 Madhavrao Bandu Kothale are concerned, their application stands rejected.
iii] The observations made herein above are prima facie in nature and confined to the adjudication of the present application only. This order will not preclude applicant no.1 Bandu Ananda Kothale and applicant no.3 Madhavrao Bandu Kothale from availing of an appropriate remedy as available in law in the event of filing of report by the Investigating Officer under Section ::: Uploaded on - 20/04/2017 ::: Downloaded on - 21/04/2017 00:54:34 ::: 6544.2016 Cri.Appln.odt 37 173 [2] of the Code of Criminal Procedure.
iv] Rule is made absolute on above terms. Criminal Application stands disposed of accordingly.
              [K.K.SONAWANE]            [S.S.SHINDE]
                  JUDGE                    JUDGE  
          DDC




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