Bombay High Court
Dr. Gulab S/O Ganpat Kapgate vs The State Of Maharashtra, Through ... on 17 December, 2015
Bench: A.B. Chaudhari
abal.524.15
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPLICATION (ABA) NO. 524/2015
Dr. Gulab s/o Ganpat Kapgate
Aged 55 years, occu: Service (Medical Officer)
R/o Barwah, Tahsil : Lakhandur
District : Bhandara. ...APPLICANT
v e r s u s
The State of Maharashtra
Through PSO Dighori,
Tahsil: Lakhandur, Dist.Bhandara. ...RESPONDENT
...........................................................................................................................
Mr.A.s.mardikar, Senior Advocate for the applicant
Mr. S.S.Doiphode, Addl. Public Prosecutor for respondent-State
(Mr. N.B. Bargat Adv. for intervenor)
............................................................................................................................
CORAM: A.B.CHAUDHARI, J
.
DATED : 17th December, 2015.
ORAL JUDGMENT:
Rule. Rule heard forthwith, with the consent of the
learned counsel for the rival parties.
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2. This is an application for grant of anticipatory bail in respect
of Crime No.3012/2015 for offence punishable under section 294,
507 of the Indian Penal Code and Section 3 (1)(x) of the SC & ST
(Prevention of Atrocities) Act,1989 registered at Police Station:
Dighori, Dist. Bhandara.
3.
Perused the F.I.R. dated 11.9.2015 lodged by
complainant-Dr.Savita Bhaurao Maldongre, caste "Gond"
Scheduled Tribe. The course of the alleged incriminating material
in the FIR, is roughly translated as under :
" On the second day, dated 10.09.2015, in the
morning at about 8.45, I had been on my duty,
at Primary Health Centre, Barvha. At about 4.30
p.m., Smt. Sonwane, Health Assistant (Arogya
Sevika), Barvha, had played the recording of the
abuses given by Dr. Kapgate, the present applicant
through Mobile Phone No 9764476745, which
was given on 9.9.2015 at about 7.54 p.m. In the
recording played, I heard thus: "Where she ran
away? the rascal Gondin might have ran away to
somebody's house? No sooner, I heard the vulgar
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expletives, I asked Dr. Kapgate, the applicant,
about it and he told me that the first part to give
the tablets to the patients was his; whereas the
second part about the abuses in the name of caste,
was not of his conversation."
4. On the basis of the above allegations, the complainant
lodged the F.I.R. and the police registered the offence punishable
under section 3 (1) (x) of the Act of 1989 and Sections 294, 507
of the IPC.
5. Learned counsel for the applicant submitted that the
FIR, prima facie, does not constitute an offence under sec. 3 (1) (x)
of the Act, of 1989, on the basis of the above statements in the
FIR. He relied on the decision of the learned Single Judge of the
Andhra Pradesh High Court in the case of Potluri Poorna
Chandra Prabhakar Rao vs. State of UP (2002) CCR 59, in
which it was held that a telephonic conversation would not amount
to offence punishable u/s 3 (1)(x) of the Act of 1989. He relied
on the some other judgments which, in my opinion, are not directly
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on the point.
6. Per contra, the learned A.P.P. opposed the Application
and prayed for dismissal of the same, on the ground that
investigation being underway, there is no need to grant
anticipatory bail.
7. Heard learned counsel for the rival parties. Considered
the submissions advanced. Section 3 (1)(x) of the Act of 1989
reads thus:
" 3(1) (x) : Whoever, not being a member of a
Scheduled Caste or a Scheduled Tribe -
....
(x) intentionally insults or intimidates with intent to
humiliate a member of a Scheduled Caste or a Scheduled
Tribe in any place within public view;" (emphasis
supplied).
8. From the above facts it is clear that the applicant is
alleged to have given abuses on the mobile phone of Smt.
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Sonawane, Health Assistant, who is said to have recorded the
same in her mobile. On the next day, at 4.30p.m. Smt. Sonawane
played the recording for hearing by the complainant. Perusal of
the above proviso shows that hearing of the voice/abuses in a
recorded mobile phone from the Arogya Sevika, allegedly given
by Dr. Kapgate, the applicant, would not fall in the ingredients of
Section 3(1)(x) and would not fall within "within public view".
At any rate, the insult or intimidation seems to have not been
hurled directly to the complainant; but is said to have been
recorded by the Arogya Sevika in her mobile phone. Thus, the
above provision being penal provision, its interpretation admits of
no dilution and has to be strictly interpreted. It is not possible
for this court to put something in the provision which is not there.
In the result, I find that prima facie, no offence u/s 3(1)(x) of the
Act of 1989 is disclosed. Hence, the following order:
ORDER
i) Criminal Application No.524/2015 is allowed.
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ii) Rule is made absolute in terms of the ad-interim order dated
12th October, 2015 made by this Court.
JUDGE
sahare
