Shri. Prafulchandra Govind Oak vs The State Of Maharashtra & Anr
2017 Latest Caselaw 1501 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CRIMINAL APPELLATE JURISDICTION
                  CRIMINAL WRIT PETITION NO. 293 OF 2003


      Shri Prafulchandra Govind Oak              )
      aged : about 62 years, Occupation: Retired )
      Principal and residing at Flat No.B-3,     )
                      rd
      Suhali Manor, 3 floor, Lady Jamshedji      )
      Cross Road No.1, Mahim, Mumbai 400 016.).. Petitioner
                         Vs.                       (Orig. Accused No.1)

      1.     The State of Maharashtra       ...           )
      2.     Shri Anant Bhagwan Kambli                  )
             Aged: Adult, residing at B-201             )
             Kamgar Nagar Camp Hsg. Soc. Four           )
             Bungalows, J.P. Road, Andheri West,        )
             Mumbai 400 053.                            )..Respondents


      Mr. N.N.Bhosle i/b. Mr. S.G.Deshmukh,Advocate for the petitioner.
      None for the respondent.
      Mr.S.R.Agarkar,APP, for the State.

                                        CORAM: SMT.SADHANA S.JADHAV, J.

DATE : 6th April, 2017.

ORAL JUDGMENT :

Heard Mr. N.N.Bhosle, Advocate holding for Mr.

S.G.Deshmukh for the petitioner. None appears for the respondent No.2.

2. Since the Writ Petition is of the year 2003, wherein by an order

dated 8.9.2003, this Court had issued Rule and granted interim relief in

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favour of the petitioner.

"6. Rule is made returnable on 6.10.2003. Interim stay in terms of prayer clause (d). Looking to the facts and circumstances of this case, I am also inclined to release the petitioner on anticipatory bail.

7. In the event of arrest, the petitioner Prafulchandra Govind Oak to be released on bail in the sum of Rs.5,000/- with one or two sureties in the like amount."

The complaint is of the year 2001. It is in these circumstances that the

Court had proceeded to hear the matter on merits. It appears from the

record that none appeared for the respondent/complainant on 27.1.2017,

3.2.2017 and 27.2.2017. The respondent No.2 herein was working as a

Junior Clerk in M.L. Dhanukar College of Commerce, whereas the

petitioner was working as the Principal of the said College.

3. It appears from the records that the respondent No.2 had

remained absent from duty without intimation and permission. Hence, the

petitioner was constrained to issue a memo to the petitioner. The said

memo was received by respondent No.2 on 27.9.2001.

4. Respondent No.2 had called upon the petitioner on the intercom and

threatened him of dire consequences if he had chosen to take any action

against him. The petitioner holding a responsible post reported the matter

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to the police and on the basis of his report, a non-cognizable case bearing

No.767 of 2001 was registered against the respondent No.1 at Vile Parle

Police Station at about 5.30 p.m.

5. The officers of Vile Parle Police Station had called upon the

respondent No.2 and had apprised him of the report lodged by the petitioner

and had further advised him to maintain peace in the office and not to

indulge into such activities. On the next day i.e. on 28.9.2001, the

petitioner had also apprised the Superintendent of Police, Protection of

Civil Rights and other authorities complaining therein about the conduct of

the respondent No.2 while discharging his duties. The authorities were also

informed that respondent No.2 had extended threats to the petitioner as

well as the other staff members of the said College on the ground that since

he belongs to Scheduled Caste, he would prosecute them under the

provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of

Atrocities) Act, 1989 as well as the Protection of Civil Rights Act, 1955.

The petitioner had also expressed his apprehension that in all probabilities

the respondent is likely to file such a report before the Superintendent of

Police.

6. It appears from the records that respondent No.2 was apprised

of the representation made by the petitioner on behalf of himself and his

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staff members and on 8.10.2001, respondent No.2 had filed a written

complaint to the Vice Chancellor of Mumbai University alleging therein

that the petitioner herein had called upon respondent No.2 on the intercom.

It was alleged that the petitioner had insulted and humiliated him by

referring to his caste and that he felt humiliated about the same. It appears

from the records that the Superintendent of Police as well as the police of

Vile Parle Police Station had enquired into the genuineness and truthfulness

of the allegations and had arrived at a conclusion that there was no element

of truth in the said complaint and therefore no action was taken against the

petitioner. Pursuant to the memo issued to the respondent No.2, a

departmental enquiry was initiated against the respondent No.2 and as a

consequence, he was suspended from service by an order dated 9.10.2001.

On 24.10.2001, the said vacancy was filled up by the College by appointing

Mr. V.N.Malya.

7. On 30.1.2003, the police from the Vile Parle Police Station

along with respondent No.1 had approached the house of the petitioner.

The petitioner was not at home and when he returned home, he was

informed by his neighbours that the petitioner is to be arrested pursuant to

the order passed by the Metropolitan Magistrate, 22 nd Court, Andhri, as

non-bailable warrant was issued against the petitioner. By an order dated

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17.10.2002, the respondent No.2 had levelled allegations against 11

accused persons. The learned Magistrate was pleased to take cognizance

of the said complaint against the petitioner, the Deputy Commissioner of

Police and Senior Inspector of Police, Vile Parle Police Station.

8. Perused the complaint and the order passed by the learned

Magistrate under Section 204 of Cr.P.C. According to the learned

magistrate, the petitioner had deliberately filed the report to the Vile Parle

Police Station and to the Deputy Commissioner of Police. The learned

Magistrate was pleased to issue process against the petitioner under

Sections 3 and 4 of the said Act and had also issued arrest warrant against

the accused by an order dated 24.12.2002.

9. The complainant had stated in the complaint that he was being

harassed and humiliated on the ground that he belonged to the Scheduled

Caste. No specific instances have been stated in the complaint. The

allegations in the complaint clearly indicate that the complainant was

aggrieved by the departmental enquiry and the suspension order. The

Metropolitan Magistrate has issued process under Sections 3 and 4 of the

said Act. Section 3 of the said Act reads as follows :-

"3. Punishments for offences of atrocities-

(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, -

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(i) forces a member of a Scheduled Caste or a Scheduled Tribe to drink or eat any inedible or obnoxious substance;

(ii) acts with intent to cause injury, insult or annoyance to any member of a Scheduled Caste or a Scheduled Tribe by dumping excreta, waste matter, carcasses or any other obnoxious substance in his premises or neighborhood;

(iii) forcibly removes clothes from the person of a member of a Scheduled Caste or a Scheduled Tribe or parades him naked or with painted face or body or commits any similar act which is derogatory to human dignity;

(iv) wrongfully occupies or cultivates any land owned by, or allotted to, or notified by any competent authority to be allotted to, a member of a Scheduled Caste or a Scheduled Tribe or gets the land allotted to him transferred;

(v) wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights over any land, premises or water;

(vi) compels or entices a member of a Scheduled Caste or a Scheduled Tribe to do 'begar' or other similar forms of forced or bonded labor other than any compulsory service for public purposes imposed by Government;

(vii) forces or intimidates a member of a Scheduled Caste or a Scheduled Tribe not to vote or to vote to a particular candidate or to vote in a manner other than that provided by law;

(viii) institutes false, malicious or vexatious suit or criminal or other legal proceedings against a member of a Scheduled Caste or a Scheduled Tribe;

(ix) gives any false or frivolous information to any public servant and thereby causes such public servant to use his lawful power to the injury or annoyance of 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;

(xi) assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonor or outrage her modesty;

(xii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed;

(xiii) corrupts or fouls the water of any spring, reservoir or any other source ordinarily used by members of the Scheduled Caste or the Scheduled Tribes so as to render it less fit for the purpose for which it is ordinarily used;

(xiv) denies a member of a Scheduled Caste or a Scheduled Tribe any customary right of passage to a place of public resort or obstructs such member so as to prevent him from using or having access to a place of public resort to which other members of public or any section thereof have a right to use or access to;

(xv) forces or causes a member of a Scheduled Caste or a Scheduled Tribe to leave his house, village or other place of residence, shall be punishable with

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imprisonment for a term which shall not be less than six months but which may extend to five years and with fine."

10. There are 15 instances in which the person not belonging to a

Scheduled Caste or Scheduled Tribe can be punishable with imprisonment

for a term which would not be less than six months but which may extend

to five years and with fine. The learned Magistrate has not applied mind

and has lost sight of the classification below Section 3(i). "intentionally

insults or intimidates with intent to humiliate a member of a Scheduled

Caste or a Scheduled Tribe in any place within public view;

As far as the present case is concerned, the allegation is that the petitioner

had insulted him on the intercom on 27.9,.2001. By no stretch of

imagination it can be said that the said humiliation was done within public

view. According to the complainant, a false report was lodged on the basis

of which the non-cognizable Case No.767 of 2001 was registered. It is

alleged in the complaint that the complaints filed by the administration

were false and that the petitioner had obtained false complaints from the

students. Hence, the offence would not fall under any of the category of

Section 3. Section 3(1)(viii) reads as follows :-

"institutes false, malicious or vexatious suit or criminal or other legal proceedings against a member of a Scheduled

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Caste or a Scheduled Tribe;"

In fact, in the present case, there was no foundation to hold that the

proceedings initiated against the respondent No.2 were false or vexatious

and were initiated only because he belonged to the said caste. Hence, no

case under Section 3(1)(viii) can be made out. It is pertinent to note that the

said complaint was filed only after the respondent No.2 was suspended

from service. Moreover, the learned Magistrate can only issue process

against the accused and not a non-bailable warrant at the threshold. No

notice was issued to the petitioner and the police had directly approached

his house to arrest him pursuant to the non-bailable warrant. No

opportunity was given to the petitioner to challenge the order of issuance of

process.

11. At the time of admission of this matter, the Hon'ble Single

Bench had observed that prima facie on perusal of the entire material, it

cannot be said that the said complaint filed by the petitioner on 27.9.2001

registered as N.C. No.767 of 2001 had been falsely, maliciously or

vexatiously filed against the complainant.

12. In view of the above observations made hereinabove, the

Petition deserves to be allowed. The Petition is allowed in terms of prayer

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clause The order dated 24.12.2002 is hereby quashed and set aside. Rule

is made absolute in the above terms.

(SMT. SADHANA S.JADHAV, J.)