Dagadu Gorakh Patil vs Shivaji Jethya Walvi
2013 Latest Caselaw 398 Bom

          aaa/-                     1                                     WP 275.13

              IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                            BENCH AT AURANGABAD




                                                                          
                  CRIMINAL WRIT PETITION NO. 275 OF 2013




                                                  
     1.       DAGADU GORAKH PATIL 
              age 59 years, Occ. Service.




                                                 
     2.       ATUL JAYPRAKASH SURYAWANSHI,
              age 33 yrs, Occ. Service,
              Both r/o Khaper Tq. Akkalkuwa,




                                       
              Dist. Nandurbar.                       Petitioners
                      ig                           (orig. accused )
              VERSUS

              SHIVAJI JETHYA WALVI
                    
              age 66 yrs, Occ. Agri,
              R/o both Rajmohi, Tq. Akkalkuwa,
              Dist. Nandurbar.                                 Respondent.
      


                                     ...
     Mr. S.U. Choudhary h/f Smt. V.S. Chaudhari  
   



     Mr. A.R.Kale h/f Mr.S.V. Natu advocate for respondent.
                                     ...
                                    CORAM : ABHAY M. THIPSAY, J.

Dated: December 20, 2013 ...

ORAL JUDGMENT :-

1. Rule. By consent, Rule made returnable forthwith.

Learned counsel waives service. By consent, heard finally.

2. The petitioners are the accused in RCC No.7/2012

aaa/- 2 WP 275.13

filed by the respondent herein (for the sake of convenience and

clarity the respondent hereinafter be referred to as 'the

complainant') alleging commission of various offences such as

forgery, cheating, including the offence punishable under section

3 (1) (x) of Scheduled Caste and Scheduled Tribe (Prevention of

Atrocities) Act, 1989 (hereinafter referred to as 'the SC and ST

Act'). The learned Magistrate, after examining the complainant

and his witnesses on oath, issued process requiring the

petitioners to appear and to answer to the charge of an offence

punishable u/s 3 (1) (x) of the Scheduled Caste and Scheduled

Tribe (Prevention of Atrocities) Act, 1989. Being aggrieved by the

said order, the petitioners approached the Court of Sessions by

filing an application for revision. The learned Additional Sessions

Judge, who heard the revision, came to the conclusion that the

order passed by the Magistrate was proper and legal. Holding so,

he dismissed the Revision Application. It is under these

circumstances that the petitioners have approached this Court by

invoking its Constitutional jurisdiction, and praying that the order

issuing process and prosecution of the petitioners vide the said

aaa/- 3 WP 275.13

case, be quashed.

3. Three contentions are raised by the learned counsel

for the petitioners in support of the petition. The first contention

advanced by him is that, as the complaint does not mention either

the caste of the accused persons, or that of the complainant,

process could not have been issued. He sought to place reliance

on some authoritative pronouncements wherein such a view was

taken. However, the learned counsel for the complainant has

drawn my attention to the Full Bench decision rendered by this

Court in Pushpa Vijay Bonde Vs. State of Maharashtra

reported in 2009 (2) Bom.C.R.(Cri). 32. He has also drawn my

attention to a decision delivered by the Supreme Court of India in

Ashabai Machindra Adhagale Vs. State of Maharashtra

reported in 2009 (1) Bom.C.R.(Cri) 779 (S.C.). A reading of

these two pronouncements leaves no manner doubt that, it would

not be essential for a complainant to mention, either his own caste

or that of the accused, in the complaint or in the First Information

Report and that; on the ground that caste is not so mentioned, the

aaa/- 4 WP 275.13

proceedings cannot be quashed.

4. The second contention advanced by the learned

counsel for the petitioners is that, the alleged incident has not

taken place in 'public view' and therefore, the ingredients of the

offence punishable u/s 3 (1) (x) of the SC and ST Act are not

attracted. I have examined this aspect of the matter. In the

complaint, there is a specific averment that the incident has taken

place in presence of all the employees and students who were

present at the place where the offences allegedly took place. The

basis for claiming that the incident has not taken place in 'public

view' is that, one of the witnesses of the complainant who was

examined before Magistrate before issuance of process has given a

version which is conflicting with the version given in the

complaint. It is also submitted that there is some vagueness in

the statement of the complainant and witnesses recorded by the

Magistrate before issuing process on this aspect viz : whether the

incident has taken place in public view. I do not think that there is

a case for quashing the complaint on the ground that it does not

disclose an essential ingredient of the alleged offence. Even

aaa/- 5 WP 275.13

assuming for the sake of arguments that there is some ambiguity

on this aspect, when the complainant categorically states that the

incident took place in presence of the members of the staff and

students, it would not be possible to discard such specific

averment in the complaint on the basis that, the statements

recorded by the Magistrate before issuance of the process do not

support this aspect. This would necessarily be a matter to be

decided on the basis of evidence as may be adduced before the

Magistrate during the inquiry and the subsequent trial, if any.

5. The third contention advanced by the learned counsel

for the petitioner is that, the complainant cannot be believed

because of the delay in lodging the same. It is submitted that the

alleged incident has taken place on 25.11.2011, but the complaint

before the Magistrate came to be lodged on 11.1.2012. It is

submitted that therefore, the version in the complaint cannot be

believed.

6. Undoubtedly, delay in lodging the complaint would be

a relevant aspect of the matter in judging the truth of the

allegations. However, I am unable to hold that this would be

aaa/- 6 WP 275.13

conclusive. This again would be a matter to be decided in the

course of the inquiry and trial.

7. It is true that there are some features of the matter

which would create a doubt about the truth of the version in the

complaint. It is also significant that the complaint was for other

offences such as forgery, cheating, conspiracy etc., with respect to

which offences no process has been issued. However, this does

not seem to be a case where the proceedings can be quashed on

the ground that no case for proceeding against the accused is

made out. Since the case would be dealt with as per the

procedure prescribed for trial of warrant cases, the petitioners are

bound to get proper and sufficient opportunity to cross examine

the complainant and his witnesses, even before a charge is

framed. This is a matter which needs to be decided on the basis

of evidence as may be adduced.

8. The learned counsel for the petitioners referred to a

decision rendered by a learned Single Judge of this Court in case

of Suryakanta Ramesh Ajmera (Dr.) Vs. State of Maharashtra

and others reported in 2011 (1) Bom.C.R. (Cri.) 625. Though in

aaa/- 7 WP 275.13

the said decision, prosecution of the petitioner before the High

Court was quashed on the ground that incident alleged therein

could not be said to have taken place in 'public view', it is clear

that the decision is given on the basis of the facts of that case,

and does not lay down any legal principle. My attention was also

drawn by the learned counsel for the petitioners to a decision

rendered by a learned Single Judge of this Court in case of

Sitaram Mahadu Dhadve Vs. State of Maharashtra and others

reported in 2012 (2) Bom.C.R. (Cri.) 785, to show that delay in

lodging the complaint can be fatal. In that case, the Trial court

had acquitted the accused by doubting the version of the first

informant, and one of the grounds for doubting the same was the

delay in lodging a report. When the matter was brought to the

High Court by way of revision, the High Court found nothing

wrong in the view taken by the Trial Court. This judgment cannot

be cited as an authority for the proposition that when there is a

delayed filing of a complaint or FIR, prosecution cannot be

initiated.

aaa/- 8 WP 275.13

9. No case for quashing the prosecution of the

petitioners in exercise of the Writ Jurisdiction is made out.

10. Petition is dismissed. Rule is discharged.

( ABHAY M. THIPSAY ) JUDGE

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