Vivek Narendrakumar Choure And ... vs State Of Maharashtra Through Pso ...
2015 Latest Caselaw 17 Bom

                                                        1                  apl446.642.12.odt

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH AT NAGPUR




                                                                                        
                  CRIMINAL APPLICATION (APL) NO.446/2012




                                                                
     1. Vivek Narendrakumar Choure,
        aged 51 years, Occ. Business, 
        R/o Choure Line, Karanja Lad,
        Dist. Washim.




                                                               
     2. Uday shishupal Choure,
        aged 48 years, Occ. Business, 
        r/o Bhagwan Mahavir Chouk, 




                                                
        Mahavir Marg, Karanja lad,
        Dist. Washim.         ig                                 .....APPLICANTS
                          ...V E R S U S...

     1. State of Maharashtra, through
                            
        Police Station Officer, Karanja, 
        Dist. Washim.

     2. Vilas Sudhakar Raut,
      

          aged about 37 years, occ. Nil,
          r/o Goutam Nagar, Ramai Colony,
   



          Karanja (Lad), Dist. Washim.                            ...NON APPLICANTS
     -------------------------------------------------------------------------------------------
     Mr. S. G. Joshi, Advocate for applicant.
     Mr. H. D. Dubey, A.P.P. for non applicant no.1.





     Dr. Anjan De, Advocate for non applicant no.2.
     -------------------------------------------------------------------------------------------
                                                AND
                  CRIMINAL APPLICATION (APL) NO.642/2012

          Avinash Indarjit Mudhodkar, 





          aged 56 years, Occ. Service,  
          R/o Karanja, Tq. Karanja,
          Dist. Washim.                                          .....APPLICANT
                            ...V E R S U S...

     1. State of Maharashtra, through
        Police Station Officer, Karanja, 
        Dist. Washim.




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     2. Vilas Sudhakar Raut,
          aged about 37 years, occ. Nil,




                                                                                        
          r/o Goutam Nagar, Ramai Colony,
          Karanja (Lad), Dist. Washim.                            ...NON APPLICANTS




                                                                
     -------------------------------------------------------------------------------------------
     Mr. Amit Band, Advocate for applicant.
     Mr. H. D. Dubey, A.P.P. for non applicant no.1.
     Dr. Anjan De, Advocate for non applicant no.2.
     -------------------------------------------------------------------------------------------




                                                               
                    CORAM:- A. B. CHAUDHARI & P. N. DESHMUKH, JJ.
                    DATED :- 07.08.2015

     J U D G M E N T

1. Both these applications have been filed by the

respective applicants with the following prayers:

Criminal Application No.446/2012

(i) To quash and set aside the F.I.R. No.2/2012 dated 27.06.2012 registered by the non applicant Police

Station, Karanja, Dist. Washim for offence under Sections

389, 420, 504, 506, 341 read with Section 34 of the I.P.C. and Section 3 (8) (x) and 3 (2) (v) under the Prevention of Atrocities act and the complaint/application under

Section 156 (3) of Cr.P.C. filed by the non applicant no.2 and the order dated 25.06.2012 passed by the learned J.M.F.C. in CC No.56/2012 in the interest of justice.

Criminal Application No.642/2012

(i) Quash the impugned First Information Report No.2/2012 dated 27.06.2012 registered with Police Station, Karanja (non-applicant no.1) for the offence punishable u/s 389, 420, 504, 506 r/w 34 of Indian Penal

3 apl446.642.12.odt

Code and 3(8)(x), 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act and the

complaint under section 156 (3) of Cr.P.C. filed by non-

applicant no.2 and order dated 25.06.2012."

2. The applicants in both these applications have invoked

powers of this Court under Section 482 of the Cr. P. C. particularly

in the light of decision in the case of State of Haryana and others

..vs.. Bhajanlal and others, 1992 AIR 604 as argued before us.

FACTS:

3. The applicants are the members of the Choure family of

Karanja Lad and as contended by non applicant no.2-complainant

they are very rich landlords of that area. The applicants are

running J. D. Choure High School and the applicant-Avinash

Mudhodkar is working as Head Master in that school run by the

applicant as trustees. A Gruha Niraman society namely; J. D.

Choure Vidyamandir Gruha Nirman Sanstha was floated and in

that society, the applicant Avinash owns a plot. The applicant

Avinash is an "Adarsha Shikshak" awardee of the year 2011 and is

known as social and religious figure in the area. Non applicant

no.2-complainant is a private contractor having no concern

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whatsoever with the applicant or Gruha Nirman Sanstha or the

School or the trust. He is not concerned with any plot in the

society or with the School and is a rank stranger insofar as the

housing society or the school is concerned. He, however, started

filing complaints after complaints to the revenue department so

also the police department, stating therein that the applicants have

indulged in irregularities in sale and distribution of the plots in the

housing society. He also complained that son of the applicant no.2

has also taken a plot though he is not a member of the housing

society. Non applicant no.2, therefore, filed a complaint with the

Police Station concerned and the PSO, on 02.02.2012 intimated

him that his complaint was non cognizable. Having realized that

he had made a complaint of non cognizable offence, he filed a

private complaint case before the Magistrate under Section 156

(3) of the Cr. P. C. and the learned Magistrate passed the

impugned order by ordering investigation. According to the

applicant, non applicant no.2 having no concern with the

applicants, has only intention to trouble the applicants and not

only that, the alleged commission of offence under the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act on the

ground that he belongs to the Scheduled Caste.

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     ARGUMENTS:




                                                          

4. In support of the applications, learned counsel for the

applicants in both these applications have invited our attention to

the FIR or the complaint that was filed before the Magistrate

under Section 156 (3) Cr. P. C. so also order made by the learned

Magistrate for police investigation. The learned counsel for the

applicants in both these applications have contended that the

learned Magistrate, at least ought to have made an enquiry as to

even remote connection of non applicant no.2 with the housing

society or the School of the applicants. The learned Magistrate

could have definitely found that he is a busybody in Karanja town

indulging in troubling the applicants and the non applicant no.2

know that the Choureys are landlords of Karanja Lad, obviously,

for extraneous consideration. Learned counsel for the applicants

invited our attention to the FIR, registered with Police Station

pursuant to the order made by the Magistrate, to contend that

reading of the entire complaint nowhere shows that a Single

offence is made out against the applicants and on the contrary, the

tenor of the complaint shows that motive of the filing of the

complaint is something different. The allegation about caste is

6 apl446.642.12.odt

made in the letter dated 20.10.2011, allegedly issued by the

applicants in both these applications to the Education Officer

(Secondary), Zilla Parishad, Akola, saying that non applicant no.2

was political worker and Engineer-Contractor belonging to the

backward class and, therefore, saying so would amount to an

offence under Section 3(8)(X) and 2(2)(v) of the SC & ST

(Prevention of Atrocities) Act. Insofar as the allegations about

other offences are concerned, there is absolutely no material

whatsoever in the complaint itself to suggest that any offence is

made out. The learned counsel for the applicants, therefore,

prayed for quashing of the FIR.

5. Learned A.P.P. for non applicant no.1 filed reply and

the same is in general terms except for one fact that though 17

plots were available as per the sanctioned plan, the society marked

20 plots and sold the same, which is not permissible. As regards

commission of the offence, there is no specific reply given by the

non applicant-State.

6. Non applicant no.2 has filed reply opposing the

applications and also refuting the allegation made. The learned

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counsel for non applicant no.2 prayed for dismissal of the

application.

CONSIDERATION:

7. We have perused the entire FIR carefully. We have

perused the complaint under Section 156 (3) of the Cr. P. C. filed

by non applicant no.2 before the Magistrate so also the order

impugned on the basis of which the FIR came to be registered for

offences under Section 3 (1) (viii), 3 (1) (x), 3 (2) (v) of The SC

and ST (Prevention of Atrocities) Act and Sections 389, 504, 506,

420 and 341 of the Indian Penal Code. Perusal of the complaint

nowhere shows that non applicant no.2-complainant is a member

of any backward class or caste or that there was any intention on

the part of the applicants to practice untouchability or commit any

offence under the SC & ST (Prevention of Atrocities) Act. The

only allegation in the entire complaint, so far as provisions of the

SC & ST (Prevention of Atrocities) Act are concerned, is that vide

letter dated 20.10.2011 non applicant no.2-complainant was

described as an Engineer/Contractor belonging to the backward

class (Magasvargiya) and nothing more. The term 'Magasvargiya'

is used in en number of correspondences, Government Circulars

8 apl446.642.12.odt

and Resolutions and so on and so forth. There is no averment

anywhere in the complaint that the applicants had addressed the

said letter to non applicant no.2 with a view to insult him. In fact,

it is his case that the letter was not addressed to him but it was

addressed to the Education Officer. It is also not clear whether he

is a member of Scheduled Caste or Scheduled Tribe and the word

'Magasvargiya' is used in what context in the letter allegedly sent

to the Education Officer. Secondly, taking into account, contents

of the said letter, merely saying that non applicant no.2 is an

Engineer/Contractor belonging to the Backward Class, does not

attract any offence under any of the provisions of the SC & ST

(Prevention of Atrocities) Act. There are en number Backward

Classes notified so also Other Backward Classes. It is not the case

of non applicant no.2 in the complaint or anywhere that he was

referred as the person belonging to the Scheduled Caste,

Scheduled Tribe and Other Backward Classes or any other

particular backward class or that he was referred as the person

belonging to the Scheduled Caste. It, therefore, clearly appears

that non applicant no.2 realized that the police understood his

intention to trouble the applicants for extraneous consideration

particularly since for offence under Section 506 Part-I of the IPC,

9 apl446.642.12.odt

he was given NC receipt. He, with his indefatigable spirit to abuse

the process of Court, chose the way of filing of private complaint

under section 156 (3) Cr.P.C. by filing complaint to the

Magistrate. It is not his case that in a particular place, within

public view or on a particular date and time, the applicants in both

these applications have met non applicant no.2, conversed with

him or addressed to him as a person belonging to backward class.

Reliance is placed by him only on the letter (not on record)

allegedly addressed to the Education Officer, which is not even

referred in the impugned order. This is the sum and substance of

the entire complaint which we have carefully read. We, however,

find from the impugned order that the learned trial Judge has not

given any reason whatsoever as to why he ordered enquiry under

Section 156 (3) of the Cr.P.C. The only reason recorded is in

paragraph 4 of the order, which reads as under:

"4) Considering the ratio laid down in the above

cited case law & the entire facts and circumstances it reveals that the complaint enquire detail investigation by police machinery to take cognizance of offence. Hence complaint be sent to the police authority of Karanja Police Station for investigation U/sec. 156 (3) Cr. P. C."

10 apl446.642.12.odt

It would be apt to quote hereunder the terse

observations made by the apex Court in the case of Mrs. Priyanka

Srivastava and another..vs..State of U. P. and others; 2015 (4)

SCALE 120. Paragraphs 24, 25 and 26 of the said judgment read

thus:

"24. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate

has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions

without proper application of mind. He has also to bear in

mind that sending the matter would be conducive to justice and then he may pass the requisite order...

25. Issuing a direction stating "as per the

application" to lodge an FIR creates a very unhealthy situation in the society and also reflects the erroneous

approach of the learned Magistrate. It also encourages the unscrupulous and unprincipled litigants, like the

respondent no.3, namely, Prakash Kumar Bajaj, to take adventurous steps with courts to bring the financial institutions on their knees...

.....We are only stating about the devilish

design of the respondent No.3 to harass the appellants with the sole intent to avoid the payment of loan. When a citizen avails a loan from a financial institution, it is his obligation to pay back and not play truant or for that matter play possum. As we have noticed, he has been able

11 apl446.642.12.odt

to do such adventurous acts as he has the embedded conviction that he will not be taken to task because an

application under Section 156(3) Cr.P.C. is a simple

application to the court for issue of a direction to the investigating agency....."

26. At this stage it is seemly to state that power

under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the code. A litigant at

his own whim cannot invoke the authority of the

Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power.

It protects the citizens but when pervert litigations takes this route to harass their fellows citizens, efforts are to be made to scuttle and curb the same."

8. We are surprised to see the order impugned, which

does not at all show any application of mind. The learned

Magistrate was expected to examine the complaint and documents

and to see as to which offence was really made out. The learned

Magistrate could not have passed such an absurd order in a casual

manner. At any rate, the complaint itself shows that non applicant

no.2 does not have any connection with the applicants, the

Education Trust or housing society or the School but appears to be

a busybody in the town of Karanja (Lad). He having found that

12 apl446.642.12.odt

that the applicants are landlords and rich persons, non applicant

no.2 appears to have set criminal law in motion only to trouble

them by making use of the Act of 1989. Insofar as the alleged

illegality in the allotment or sale or purchase of the plots in the

housing society is concerned, it is the Government authorities or

society or plot owners and not non applicant no.2 who could have

grievance, if any, in respect of the alleged offence of cheating or as

the case may be. Upon reading of the allegations regarding

'Magasvargiya' in the complaint, we are fully satisfied that non

applicant no.2 has given colour to the allegations which he wanted

to buttress for fulfilling his foul intentions. He, therefore, wanted

to have the applicants criminally prosecuted in such serious

offences. On reading of the entire complaint, again we find that

not a single offence is made out and, therefore, this is a case

clearly falling within the parameters of the guidelines fixed by the

apex Court in the case of Bhajanlal.

We further find from the applications that the

applicants were required to rush to the High Court for obtaining

anticipatory bail since the offence was registered under the

provisions of the SC & ST (Prevention of Atrocities) Act, 1989.

13 apl446.642.12.odt

9. We have carefully considered the entire matter to find

out whether the complaint made by non applicant no.2 was mala

fide and with an ill motive to extract something and we are

satisfied that he having no connection with the housing society,

school or trust or the applicants, the only consideration for filing

of the complaint was that the applicants are rich landlords of

Karanja (Lad) town. That is quite disturbing and alarming. We

also find that he has not even alleged in the complaint that the

allegations pertaining to the provisions of the SC & ST (Prevention

of Atrocities) Act spring from even a single meeting of non

applicant no.2 with applicants and thus even without any face to

face encounter or otherwise, non applicant no.2 made adventure

to set the criminal law in motion. In our opinion, looking to the

above factual background, non applicant no.2 has fully abused the

process of law and it is the duty of this Court to interdict and stop

such types of misuse of law by such selfish and disgruntled

elements like non applicant no.2 indulging in such nefarious

activities.

To conclude, non applicant no.2 must be saddled with

costs by way of deterrence.

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10. That being so, we make the following order.

ORDER

(i) Criminal Application Nos.446/2012 and 642/2012 are allowed in terms of prayer clauses (i) of the applications.

(ii) Non applicant no.2 shall pay costs of Rs.10,000/- (Rs. Ten Thousand Only) to each of

applicants in both these applications within a period of four weeks from today, failing which the Collector of

the District shall recover the same as arrears of land revenue and pay the same to the applicants within a

further period of six months.

                                      JUDGE                    JUDGE
   



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