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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO. 522 OF 2017
APPLICANT :- Ramkisan @ Vijay S/o Atmaram Wakudkar,
Aged about 54 years, Occ. Agriculturist/
Member of Gat Gram Panchayat Wagholi
(Bk.), R/o Vilegaon, Tah. and District
Washim.
...VERSUS...
RESPONDENT :- The State of Maharashtra, Through Police
Station Officer, Police Station Washim
(Rural), District - Washim.
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Mr.V.B.Gawali, counsel for the applicant.
Mr.K.R.Lule, Addl.Public Prosecutor for the respondent/non-applicant.
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CORAM : SMT. VASANTI A NAIK &
M. G. GIRATKAR
, JJ.
DATED : 04.09.2017 O R A L J U D G M E N T (Per : Smt.Vasanti A Naik, J.) The criminal application is admitted and heard finally with the consent of the learned counsel for the parties. ::: Uploaded on - 06/09/2017 ::: Downloaded on - 07/09/2017 02:03:27 :::
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2. By this criminal application, the applicant seeks the quashing and setting aside of the first information report registered against him for the offence punishable under section 295 of the Penal Code.
3. The applicant, who is the ex-sarpanch of village Wagholi and is a member of the gram panchayat had lodged a report in the police station on 28/05/2017 that certain unknown persons had removed the idols of Gods and Goddesses from the temple of the Bhawani Mata Sansthan and had thrown them outside the temple. On the basis of the report lodged by the applicant against the unknown persons, an inquiry was made and it was found by the non-applicant that Suresh Khandare was involved in the crime. It was subsequently noticed that Suresh Khandare was helped by Pintu Hivrale in the commission of the alleged offence punishable under section 295 of the Penal Code. Both the accused were arrested and since a statement was made by Suresh Khandare that the applicant had instructed him to dislocate the idols of the Gods and Goddesses and throw them with a view to falsely implicate the members of the Bouddha community, he had committed the said act. On the statement of Sureskh Khandare the first information report is registered against the applicant for the offence punishable under section 295 of the Penal Code. ::: Uploaded on - 06/09/2017 ::: Downloaded on - 07/09/2017 02:03:27 :::
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4. Shri Gawali, the learned counsel for the applicant, submitted that this is a novel case where the first information report is registered by the non-applicant against a person who had lodged the report against unknown persons for the offence punishable under section 295 of the Penal Code. It is stated that a report was lodged by the applicant against unknown persons as the idols of Gods and Goddesses from the temple were thrown outside the temple. It is submitted that on 02/06/2017 a resolution was passed by the gram panchayat of which the applicant is a member that on the land used as a cremation ground, certain persons belonging to the Bouddha community had made an encroachment and the said encroachment including the blue flag that was inserted in the said land was liable to be removed. It is stated that after the resolution was passed by the gram panchayat on 02/06/2017, of which the applicant is a member, one of the persons namely, Suresh Khandare had falsely made a statement before the investigating officer that the applicant had asked him to remove the idols from the temple and throw them. It is stated that since the applicant is a member of the gram panchayat and is also the president of the Bhawani Mata Sansthan, which possesses the temple, there is no possibility, whatsoever, of the applicant indulging in the act of throwing the idols from the temple. It is submitted that the statement made by Sureskh Khandare is actuated by malice and the ::: Uploaded on - 06/09/2017 ::: Downloaded on - 07/09/2017 02:03:27 ::: 0409apl522.17-Judgment 4/8 statement is also improbable. It is further stated that the other accused namely Pintu Hivrale does not allege that the applicant had asked them to throw the idols out of the temple with a view to implicate the members of the scheduled castes.
5. Shri Lule, the learned Additional Public Prosecutor appearing for the non-applicant, fairly states that apart from the statement of Suresh Khandare, there is no other material available with the non-applicant to register the first information report against the applicant for the offence punishable under section 295 of the Penal Code. It is stated that the first information report is registered against the applicant under the said provision solely on the basis of the statement made by Suresh Khandare.
6. On a reading of the statements recorded by the non- applicant during the course of investigation, it appears that except the statement of Suresh Khandare, no other person has made a statement that the applicant was even remotely involved with the act of dislocating the idols of the Gods and Goddesses from the temple and throwing them outside the temple. It is necessary to note that for a long time, the matter pertaining to the encroachment by the members belonging to the scheduled castes on the land meant for the cremation ::: Uploaded on - 06/09/2017 ::: Downloaded on - 07/09/2017 02:03:27 ::: 0409apl522.17-Judgment 5/8 ground was pending before the village panchayat and since the applicant is the ex-sarpanch of the gram panchayat and is also presently the member of the gram panchayat, the applicant was involved in the process of removal of the encroachment. Just a few days after the lodging of the report by the applicant in the police station against the unknown persons for throwing the idols of Gods and Goddesses, a resolution was passed by the gram panchayat that the encroachment made by the backward caste people on the land meant for the cremation ground should be removed by taking proper steps to ensure that law and order situation should not arise. Within a few days from passing of the resolution of the gram panchayat, the first information report was registered by the non-applicant against two accused namely Suresh Khandare and Pintu @ Dipak Hivrale for throwing the idols of the Gods and Goddesses from the temple. Suresh Khandare has falsely made a statement that the applicant had asked him to throw the idols from the temple so as to falsely implicate the members belonging to the Bouddha community. The statement of Suresh Khandare appears to be improbable. The applicant appears to be a respectable person, who is an ex-sarpanch and the present member of the gat gram panchayat and is also the president of the Bhavani Mata Sansthan. It is improbable that the president of the Bhavani Mata Sansthan would take the help of the member of the Bouddha community like Suresh Khandare to throw ::: Uploaded on - 06/09/2017 ::: Downloaded on - 07/09/2017 02:03:27 ::: 0409apl522.17-Judgment 6/8 the idols from the temple with a view to falsely implicate the other members of the Bouddha community. The non-applicant should not have registered the first information report against the applicant solely on the basis of the statement of Suresh Khandare. It is conspicuous to note that the other accused namely Pintu @ Dipak Hivrale has not alleged that the applicant was involved in the said offence and he had also not made any statement that could result in registering the first information report against the applicant for the offence punishable under section 295 of the Penal Code. This is a case where the principles, laid down by the Hon'ble Supreme Court in the case of State of Haryana v Bhajan Lal, reported in 1992 Supp (1) SCC 335 would be applicable for quashing the first information report. The Hon'ble Supreme Court has specified the circumstances where power under section 482 of the Code of Criminal Procedure could be exercised with a view to prevent the abuse of process of court and to secure the ends of justice. Where the allegations are inherently improbable, the first information report could be quashed and set aside. So also, 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, the proceedings could be quashed and set aside. In the instant case, it is not believable that the applicant, who is ::: Uploaded on - 06/09/2017 ::: Downloaded on - 07/09/2017 02:03:27 ::: 0409apl522.17-Judgment 7/8 a member of the gat gram panchayat of the village and is the president of the Bhawani Mata Sansthan could take the help of Suresh Khandare who is a member of the Bouddha community to ensure that the members of the Bouddha community should be falsely implicated in an offence. It is conspicuous to note that in the instant case, report was lodged by the applicant himself against unknown persons for throwing the idols and without considering these aspects of the matter, as also the resolution of the gram panchayat by which it was decided to remove the encroachment made by the members of the Bouddha community on the land meant for the cremation ground, the non-applicant wrongly registered the first information report against the applicant solely on the basis of the statement made by Suresh Khandare during the course of investigation. We have already noted that the other accused has not made any allegation whatsoever against the applicant. We find that in the instant case, Suresh Khandare has maliciously made the statement against the applicant with a view to falsely implicate him in an offence. Hence, by applying the tests laid down by the Hon'ble Supreme Court in the aforesaid case and also in the judgments reported in (2004) 6 SCC 522 (State of A.P. v. Golconda Linga Swamy) and (2005) 1 SCC 122 (Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque), the first information report registered against the applicant is liable to be quashed and set aside.
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7. Hence, for the reasons aforesaid, the criminal application is allowed. The first information report bearing No.169 of 2017 as also the proceedings arising there from are hereby quashed and set aside. Order accordingly.
JUDGE JUDGE
KHUNTE
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