Bandu Ananda Kothale And Others vs The State Of Maharashtra And Anr
2017 Latest Caselaw 1864 Bom

                                               6544.2016 Cri.Appln.odt
                                     1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                  CRIMINAL APPLICATION NO.6544 OF 2016 

          1.       Bandu Ananda Kothale,  
                   Age : 55 Yrs, Occu. Agri. 

          2.       Tahabai Bandu Kothale,  
                   Age: 50 Yrs, Occu. Agri.  

          3.       Madhavrao Bandu Kothale,  
                   Age : 45 Yrs, Occu. Agri.  

          4.       Kamal Madhavrao Kothale,  
                   Age : 30 Yrs, Occu. Agri.  

          5.       Sudhakar Bandu Kothale,  
                   Age : 35 Yrs, Occu. Agri.  

          6.       Kasabai Sudhakar Kothale,  
                   Age : 28 Yrs, Occu. Agri.  

          7.       Dattu Bandu Kothale,  
                   Age : 23 Yrs. Occu. Agri.  

          8.       Sonali Dattu Kothale,  
                   Age : 23 Yrs. Occu. Agri.  

          9.       Narayan Mahadu Kothale,  
                   Age : 22 Yrs. Occu. Agri.  

                   All R/o. Kothala Jainpur, 
                   Tq. Bhokardan, Dist. Jalna.  PETITIONERS 

                           VERSUS 

          1.       The State of Maharashtra,  
                   Through SDPO Bhokardhan
                   Tq. Bhokardhan, Dist. Jalgaon.




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                                                          6544.2016 Cri.Appln.odt
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          2.   Ganesh Sukhlal Suradkar 
               Age: 40 Yrs. Occu. Labourer 
               R/o. Kothala, Jainpur 
               Tq. Bhokardhan Dist. Jalna.  RESPONDENTS 
                                                          
                                ...
          Mr.Vinod Patil, Advocate for Applicants 
          Ms.P.V.Diggikar, APP for Respondent/State
          Mr.P.V.Balkhande,   Advocate   for   Respondent 
          no.2. 
                                ...

                          CORAM:  S.S.SHINDE & 
                                  K.K.SONAWANE,JJ.     

Reserved on : 11.04.2017 Pronounced on : 20.04.2017

JUDGMENT: (Per S.S.Shinde, J.):

1. Heard.

2. Rule. Rule made returnable

forthwith, and heard finally with the consent

of the parties.

3. This Application is filed with the

following prayer:

(B) This Hon'ble Court may be pleased to quash and set aside the impugned order dated 15.11.2016 passed by Special Judge-1, Jalna in Cri. Misc.

6544.2016 Cri.Appln.odt

Application No.115/2016 and further be pleased to quash and set aside the First Information Report No. 3034/2016 dated 17.6.2016 for the offence punishable u/s. 3(1)(F)(G) (A) (D) (Q) (R) (S) (U) (V) (Z) of Scheduled Casts and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 registered with Bhokardhan Police Station.

4. Brief facts leading for filing

present Application are as under:

The applicants are resident of

village Kothala, Jainpur, Taluka Bhokardhan,

District Jalna. Respondent no.2 is the

original complainant, who filed application

bearing Criminal Misc. Application

No.115/2016 in the Court of Special Judge-1,

Jalna and sought direction to the concerned

Police Station to register the offences and

to cause investigation of the allegations

made in the complaint. The learned Special

Judge-1, Jalna, by order dated 15th November,

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2016, directed the Incharge Police Station

Officer, Police Station, Bhokardan to

register the crime against the applicants and

to hand over the investigation to Sub

Divisional Police Officer, Bhokardhan. The

said Officer was directed to investigate the

matter under Section 156 [3] of the Criminal

Procedure Code and to submit final report to

the Court within two months.

5. It is further the case of the

applicants that the concerned Police Station

at Bhokardhan has registered the FIR vide

Crime No.3034/2016 on 17th June, 2016, for

the offences punishable under Sections 3(1)

(F)(G) (A) (D) (Q) (R) (S) (U) (V) (Z) of the

Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 [for

short 'Act of 1989'] against the applicants.

Hence this Criminal Application.

6. The learned counsel appearing for

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the applicants submits that the civil dispute

is pending between the members belong to

group of respondent no.2, who are his

relatives, and applicant nos.1 and 3 before

the Civil Court. In the said civil suit, the

application seeking injunction against

defendants therein, restraining them from

disturbing the peaceful possession of

applicant no.3 is allowed by the Civil Court.

The learned counsel for the applicants

invites our attention to the order passed by

the Civil Court. He submits that, respondent

no.2 i.e. original complainant, and his

relatives approached the Sub Divisional

Officer [Revenue], Bhokardan, filing an

application under Section 145 of the Criminal

Procedure Code. The said Authority passed the

order in favour of the group of respondent

no.2, in those proceedings. The said order is

challenged by applicant no.3 before the

Bombay High Court, Bench at Aurangabad. The

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High Court in the said Writ Petition issued

'Rule', and stayed the order passed by the

Sub Divisional Officer [Revenue], Bhokardan.

It is submitted that respondent no.2 and his

relatives belong to 'Scheduled Caste', and

therefore, taking undue advantage of their

caste; they are threatening applicants with

dire consequences, and accordingly, by

invoking the provisions of the Scheduled

Castes and Scheduled Tribes [Prevention of

Atrocities] Act, 1989, filed complaint with

false averments / allegations before the

Special Court. He further submits that some

of the applicants were constrained to file

application before the various Police

Authorities against respondent no.2 and his

relatives for causing unnecessary harassment

to the applicants. It is submitted that in

spite of the order passed by the Competent

Court restraining respondent no.2 from

interfering in the peaceful possession of the

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land, which is subject matter of the civil

suit, respondent no.2 and his relatives in

breach of the said order are causing

interference in the peaceful possession of

the applicant nos.1 and 3. The applicants

sought police protection due to interference

by respondent no.2 and his relatives, and in

spite of such police protection provided,

respondent no.2 and his relatives even

assaulted the concerned Police Constable.

Hence, the First Information Report, in that

respect, came to be registered by the Police

Station against respondent no.2 bearing FIR

vide Crime No.135/2016 on 18th August, 2016.

The learned counsel invites our attention to

the contents of the copy of the said FIR,

which is placed on record. He also invites

our attention to the contents of another FIR

vide Crime No.244/2016 registered on 7th

November, 2016 for the offences punishable

under Section 379 r/w. 34 of the IPC, wherein

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respondent no.2 and his relatives have stolen

away the agricultural produce/crops from the

land which is in possession of the

applicants.

7. It is submitted that the Special

Court without assigning even brief reasons on

merits, proceeded to direct the concerned

Police Station to register offence against

the applicants, and further directed to cause

investigation. Therefore, such direction to

register the FIR is illegal, perverse and

registration of the FIR was also unwarranted

inasmuch as an allegations in the said FIR is

an outcome of rivalry arising out of civil

proceedings and tainted with mala fide and

exaggeration. Respondent no.2 and his

relatives are restrained from interfering in

the peaceful possession of the applicants by

the Civil Court. It is submitted that, the

civil dispute is pending between the parties

and the parties have to abide by the orders

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passed by the Civil Court, and therefore,

there was no reason for the respondent no.2

and his relatives to come to the house of the

applicants and create nuisance and then file

the FIR making false allegations only with a

view to harass the applicants.

8. It is submitted that, in the first

place an incident had not taken place, and

secondly, without admitting but assuming

that, an incident has taken place, if an

allegations in the FIR are read in its

entirety and are taken at its face value, an

alleged offences are not disclosed. There are

no specific allegations or overt acts

attributed qua each of the applicants. An

allegations are general in nature. It is

submitted that, an alleged incident has not

happened. Assuming but without admitting

that, an alleged incident has taken place,

even as per the allegations in the FIR,

admittedly, respondent no.2 and his relatives

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came to the house of the applicants, and they

were aggressor; they were not supposed to

come to the house of the applicants when the

civil dispute is pending before the Civil

Court about the land which is subject matter

of the suit. It is submitted that an

allegations made against the applicants are

inherently improbable and no prudent person

can be persuaded to believe such allegations,

since those are also made against innocent

female members and young members of the

family of the applicants, who have no concern

with the dispute about land, which is subject

matter of pending civil suit. In said

proceedings only, applicant nos.1 and 3 are

concerned and party to Civil Suit. It is

submitted that applicant nos.2, 4, 6 and 8

are the female members of the family; they

are nothing to do with the allegations in the

FIR. It is submitted that, respondent no.2 is

taking undue advantage of his caste, misusing

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the provisions of the Act of 1989, and filing

false complaint against the applicants. The

learned counsel invites our attention to the

grounds taken in the application, annexures

thereto and submits that, further

investigation of the FIR vide Crime No.

3034/2016 dated 17.6.2016 for the offence

punishable u/s. 3 (1) (F) (G) (A) (D) (Q) (R)

(S) (U) (V) (Z) of Scheduled Casts and the

Scheduled Tribes (Prevention of Atrocities)

Act, 1989, registered with Bhokardhan Police

Station would only lead to mental agony and

harassment of the applicants and would result

into an abuse of process of law. Even if the

allegations in the FIR are taken as it is, an

alleged offences has not taken place in the

public view. Therefore, he submits that, the

applicants, who are innocent, may not be

asked to face the investigation. The learned

counsel, therefore, submits that, this is a

fit case in which this Court by invoking

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jurisdiction under Section 482 of the

Criminal Procedure Code may quash the FIR and

further proceedings based upon the said FIR.

9. The learned APP appearing for the

respondent - State invites our attention to

the investigation papers and submits that, it

is transpired during the investigation that,

the informant and his witnesses have

supported the allegations in the FIR.

However, on an enquiry / investigation with

the neighbourers of the accused and also with

the Sarpanch and the President of Tanta

Mukti, they stated that, there was no any

incident taken place as alleged by the

complainant on 25th September, 2016, at about

9.00 a.m. It is also transpired during the

investigation that, the land in dispute is in

physical possession of applicant nos.1 and 3

since 1981. The dispute is pending between

the parties before the Civil Court, and there

is order of injunction passed by the Civil

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Court restraining the relatives of respondent

no.2 from interfering in the peaceful

possession of the land of the applicants.

10. The learned counsel appearing for

respondent no.2 invites our attention to the

allegations in the FIR and submits that, an

alleged offences have been disclosed and

those needs investigation. He further submits

that, during the course of investigation, the

Investigating Officer has collected the

sufficient material and on the basis of the

said material, the trial can proceed. The

learned counsel invites our attention to the

judgment of the Supreme Court in the case of

HDFC Securities Ltd. and others Vs. State of

Maharashtra and another1 and submits that, in

the facts of that case the view is taken by

the Supreme Court that, stage of cognizance

would arise only after investigation report

is filed before the Magistrate. An order

1 AIR 2017 SC 61

6544.2016 Cri.Appln.odt

directing investigation not causing an injury

of irreparable nature, cannot be quashed at

premature stage. He invites our attention to

the affidavit-in-reply filed on behalf of

respondent no.2 and submits that, the

incident had occurred on 25th September, 2016,

during morning hours at 9.00 a.m. The

applicants abused informant on caste in

filthy language. On refusal of the

registration of the FIR by the concerned

Police Station, the complainant filed

Criminal Misc. Application before the

Sessions Court at Jalna, seeking directions

to the Sub Divisional Police Officer at

Bhokardan, to register the crime against

applicant nos.1 to 10. In view of amendment

dated 1st January, 2016, to the Scheduled

Castes and Scheduled Tribes [Prevention of

Atrocities] Act, 2016, the powers are

conferred on the Special Judge for taking

cognizance of the offence, and accordingly,

6544.2016 Cri.Appln.odt

in the present case cognizance was taken by

the Special Judge at Jalna.

11. It is further submitted that, the

land in question was 'Mahar Inam Hodola',

that was allotted to the informant -

respondent no.2 and others in the year 1962.

The applicants have created fabricated

documents, and the mutation entries were

taken in their name during the period

2001-2004, without prior permission from the

Collector. Therefore, the Sub Divisional

Magistrate has rightly set aside the said

mutation entries by directing to forfeit the

land in question to the Government till the

decision of the Civil Court in Civil Suit

Nos.11/2013, 12/2013 and 148/2010. It is

submitted that, an offence came to be

registered against respondent no.2 on 7th

November, 2016, alleging therein that, he has

stolen the agricultural crops like Soyabean.

However, it reveals from the revenue record

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that, the entries taken in crop cultivation

column there was no mention of crop of

soyabean. Therefore, relying upon the

allegations in the FIR, the affidavit-in-

reply filed by respondent no.2 and the

provisions of the said Act, the learned

counsel appearing for respondent no.2 submits

that, the application may be rejected.

12. We have given careful consideration

to the submissions of the learned counsel

appearing for the applicants, learned APP

appearing for respondent-State, and the

learned counsel appearing for respondent

no.2. With their able assistance, perused the

grounds taken in the application, annexures

thereto, the affidavit-in-reply filed by

respondent no.2, and the investigation papers

made available by the learned APP. It appears

that, the complainant - respondent no.2

approached the Special Judge-1, Jalna, by way

of filing Criminal Misc. Application, seeking

6544.2016 Cri.Appln.odt

direction to Sub Divisional Police Officer to

register crime against applicant nos. 1 to 10

therein. The Special Judge-1, Jalna passed

order on 15th November, 2016 and directed the

Sub Divisional Police Officer to register

crime against applicant nos.1 to 10. The

learned Magistrate considered the allegations

in the complaint and observed thus:

2 Applicant has made serious allegations against non applicants. Allegations made against non applicants comes within purview of provisions of SC and ST Prevention of Atrocities Act. Considering nature of charges leveled against accused detailed investigation by police is necessary. In such circumstances I feel it necessary to sent matter to SDPO Bhokardan, for investigation u/sec. 156 (3) of Cr.P.C. Hence, I proceed to pass following order.

We may note that except mentioning

that the allegations are serious in nature

6544.2016 Cri.Appln.odt

and comes within purview of the SC and ST

Prevention of Atrocities Act, there are no

any reasons, muchless brief reason for

passing such order. Be that as it may, it

appears from careful reading of the FIR that,

respondent no.2 i.e. informant, and other

persons from his community gathered in front

of the house of the applicants on 25th

September, 2016, at 9.00 a.m. so as to

request applicants to return their land.

Admittedly, Civil Suit No.148/2010 [Onkar

Haroba Suradkar & others Vs. Bandu Ananda

Kothale and others] is pending before the

Civil Judge Junior Division, Bhokardan.

There is another Civil Suit No.12/2013 [Bandu

Ananda Kothale Vs. Onkar Hariba Suradkar &

others] filed by applicant no.1 herein

against respondent no.2 and others and same

is pending before the Civil Judge Junior

Division at Bhokardan, District Jalna. There

is also reference of Civil Suit No.11/2013

6544.2016 Cri.Appln.odt

[Madhavrao Bandu Kothale Vs. Onkar Hariba

Suradkar] pending between the parties.

13. Upon careful perusal of the title

cause of the Civil Suit No.148/2010 pending

before the Civil Judge Junior Division,

Bhokardan, the informant i.e. respondent no.2

is not party to the said proceedings.

However, as many as 10 persons belonging to

the community of the present informant are

the plaintiffs, and the present applicant no.

1 - Bandu Ananda Kothale i.e. accused no.1

and applicant no.3 - Madhavrao Bandu Kothale

i.e. accused no.3 are made party defendants

in that suit. There are other 5 defendants

namely; Rustum Kothale, Barku Suradkar,

Kalawatibai Barku Suradkar, Rukhminibai Kisan

Kothale and Kisan Rustum Kothale, however,

they are not made accused in the present FIR.

It appears that, in the said suit the Joint

Civil Judge Junior Division Bhokardan on 16th

September, 2016, has passed the order below

6544.2016 Cri.Appln.odt

Exh.1, thereby dismissing the suit for

default vide order 9 rule 8 r/w order 17 Rule

2 and 3 of Civil Procedure Code, 1908. The

copy of the said order is placed on record by

the applicants [at page 38 of the compilation

of the Application]. In the said suit, the

plaintiffs therein prayed for taking

possession of the land from Survey No.99, as

described in the suit. But, by virtue of

dismissal of the said suit neither possession

of applicant nos.1 and 3 is withdrawn nor

the prayer of the plaintiffs to restore them

in possession of the suit land from Survey

No.99 has been favourably considered. As

already observed, the suit itself came to be

dismissed for want of prosecution.

As already observed, applicant no.1

herein did file Civil Suit No.12/2013, before

the Civil Judge Junior Division, Bhokardan.

The said suit was filed for permanent

injunction against the respondents therein.

6544.2016 Cri.Appln.odt

It appears that, in the said suit also,

Ganesh Sukhlal Suradkar is not made party,

however, as many as 10 persons belonging to

his caste having similar interest like

informant were made party. In the said suit,

plaintiff i.e. applicant no.1 herein [accused

no.1 herein], Bandu Ananda Kothale filed

application for temporary injunction. The

said application was heard, and thereafter,

by a reasoned order, the said application was

allowed, and the defendants therein were

restrained from interfering in the peaceful

possession of applicant no.1 herein.

Therefore, it follows from the aforesaid two

Civil Suits i.e. Civil Suit Nos.148/2010 and

12/2013 that, the dispute between the parties

about their rival claim in respect of

possession of the land is pending before the

Civil Court. Therefore, for both the parties

it is appropriate to wait for final outcome

of Civil Suit No.12/2013, wherein the

6544.2016 Cri.Appln.odt

defendants therein have been restrained by

the Civil Court from interfering in the

peaceful possession of accused no.1 Bandu

Kothale.

14. It further appears that, one Kundlik

Kaduba Suradkar and others, initiated

proceedings under Section 145 of the Criminal

Procedure Code before the Sub Divisional

Magistrate, Bhokardan and order was passed by

the said authority. However, the High Court

by its order dated 9th March, 2015 in

Criminal Writ Petition No.1145/2014

[Madhavrao Bandu Kothale Vs.Kundlik Kaduba

Suradkar and others] has issued 'Rule' in the

said Petition and granted stay to the order

passed by the Sub Divisional Magistrate,

Bhokardan. It further appears that, the

parties are litigating even before the

revenue authorities.However, the fact remains

that the Civil Court has restrained the

defendants in Civil Suit No.12/2013 filed by

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applicant no.1 herein from interfering in his

peaceful possession. It further appears that,

applicant no.3 herein Madhavrao Kothale filed

M.A.No.319/2016, before the Judicial

Magistrate First Class, Bhokardan wherein 12

persons have been added as accused, and

direction under Section 156 [3] of the

Criminal Procedure Code for investigation of

an allegation in the said complaint by

registering the FIR is sought. It appears

that, in the said proceedings, the learned

Judicial Magistrate First Class, Bhokardan,

has passed the order for verification of the

complaint. It further appears from the letter

written by applicant nos.1 and 2 to the

Tahsildar, tahsil office, Bhokardan that, non

applicants therein i.e. defendants in the

suit, filed by applicant no.1, are

interfering in the peaceful possession of

applicant no.1, and apprehension is expressed

that, the non applicants therein i.e., the

6544.2016 Cri.Appln.odt

defendants, in the suit may take forceful

possession of the suit land from the

applicant no.1, and therefore, the concerned

Police Station and the Revenue Authorities

shall take appropriate steps against the

defendants and prevent them from interfering

in the peaceful possession of the applicant

no.1. There are number of applications

written by applicant nos.1 and 3 to the

various authorities expressing serious

concerned about the frequent interference by

the defendants in their peaceful possession

in spite of the order passed by the Judicial

Magistrate First Class, Bhokardan,

restraining the defendants not to interfere

in the peaceful possession of applicant no.1

in the land, which is subject matter of the

suit. The authorities have also time to time

issued directions to the defendants in the

suit not to cause interference in the

peaceful possession of applicant no.1. It

6544.2016 Cri.Appln.odt

further appears that, even the police

protection was given to applicant no.1 and

there was an attempt by the accused to

assault those Police Officers and to that

effect offences also came to be registered.

15. Upon careful perusal of the

allegations in the FIR, it appears that, the

complainant i.e. respondent no.2, and some

persons from his community gathered in front

of the house of the applicants on 25th

September, 2016 at 9.00 a.m. Therefore, it

clearly appears that, the complainant and the

persons from his community were aggressor

inasmuch as they went in front of the house

of the applicants at 9.00 a.m. on 25th

September, 2016, so as to ask applicant nos.1

and 3 to return possession of land in their

favour. In our opinion, when the Civil suit,

which was filed by the persons from

complainant's community, was dismissed for

want of prosecution, and the suit filed by

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applicant no.1 Bandu Ananda Kothale, is

pending and in the said suit the defendants

therein are restrained from interfering in

the peaceful possession of applicant no.1,

the complainant or the persons belonging to

his community had no business to go to the

house of the accused and to ask them to

return possession of land, which is subject

matter of the afore-mentioned civil suits.

16. Coming to the gist of an allegation

alleged in the FIR, it would necessary to

reproduce the utterances, which are

derogatory in nature, as below:

gs dh] loZ vkjksihauk leLr egkj yksdkaps tehu dl.;kps vf/kdkj fgjkowu ?ksrys o fid ?ks.;kiklwu oaphr dsys- rlsp lnj tehu gLrxr dj.;kps mnns'kkus [kksVs o cukoVh jsdkWMZ vkjksih dz- 1 rs 5 ;kauh dsys [email protected] e/;s Lork%gkps uko ykoys vkf.k leLr egkj yksdk fo:/n [kksVs dsl Hkksdjnu U;k;ky;kr nk[ky dsY;k o cukoVh jsdkWMZ rykB;kl nsowu csdk;ns'khj lnj tehuhps vkilke/;s Qsj dsys vlwu vkEgkyk loZ vkjksih yksdkauh vkeP;k bPNs fo:/n xkokrhy loZ egkj yksdkauk xko

6544.2016 Cri.Appln.odt

lksMwu tk.;kl ncko vk.khr vkgsr- fQ;kZnh o R;kaps lektkrhy egkj yksd 25-9-2016 jksth ldkGh 09%00 ok- tehu ijr ekx.;klkBh vkjksihP;k ?kjk leksj fouarh dsyh vlrk loZ vkjksihauh fQ;kZnhyk o fQ;kZnhP;k lektkrhy brj egkj yksdkauk tkrhokpd f'kohxkG d:u gh ejkB;kaph fe'kh vkgs okd.kkj ukgh ekÖ;k 'ksVkps cky vkgkr egkjkauks] /ksM;kauks rqEgh y; ektykr rqEgkyk tehu ijr feG.kkj ukgh- rqeP;k tehuhpk [email protected] e/;s vkrk egkj gk 'kCn jkfgyssyk ulwu rqeps egkj orukps uko lq/nk [email protected] e/;s jkfgysys ukgh o vkeps uko [email protected] e/;s vkysys vkgs R;keqGs vkEgh lnjP;k tehuhps ekyd >kysyks vkgksr- rqEgkyk dk; djk;ps rs djk iwUgk tehuhph ekx.kh dsY;kl ,d ,d egkj os'khr usÅu dkiw o rqEgkyk xkao lksMqu tkos ykxsy v'kk /keD;k loZ vkjksih yksdkauh fnY;k-

17. Upon careful perusal of the afore-

stated allegations in the complaint / FIR,

those are inherently improbable so far as

accused no.2 Tahabai Bandu Kothale, accused

no.4 Kamal Madhavrao Kothale, accused no.6

Kasabai Sudhakar Kothale and accused no.8

Sonali Dattu Kothale, because they are

female, and naturally without mustaches. The

Civil Suit is pending between applicant no.1

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Bandu Kothale and applicant no.3 Madhavrao

Kothale and the persons from the community of

complainant. So far other accused namely

Sudhakar Bandu Kothale, Dattu Bandu Kothale,

Narayan Mahadu Kothale and Ramdas Mahadu

Kothale are concerned, there are no specific

allegations against them, which would

disclose alleged offences against them. As

already observed, respondent no.2 and other

members from his community were aggressor,

inasmuch as, as per allegations in the FIR,

all of them went in front of the house of

applicants on 25th September, 2016, at about

9.00 a.m. It is true that, the Investigation

Officer has stated in his investigation

report that, the witnesses residing nearby

the house of the accused have stated in their

statements that, an alleged incident had not

taken place. The Investigating Officer has

recorded the statement of Sarpanch of the

village wherein he has also stated that, an

6544.2016 Cri.Appln.odt

alleged incident had not taken place.

However, since the investigation is in

progress and Bandu Ananda Kothale and

Madhavrao Bandu Kothale i.e. applicant nos.1

and 3 herein are party to the civil dispute.

At present, we are not inclined to consider

their application for quashing the First

Information Report.

18. It is also true that, upon reading

an allegations in the FIR, no any overt act

is attributed to each of the applicants, and

the alleged abuses on caste are also not

attributed by taking specific name of the

accused, and attributing specific overt act

qua incident occurred, and it is also not

very clear that, whether the incident has

really taken place, and if so whether the

same was in public view or otherwise.

19. Be that as it may, we are satisfied

that, an allegations in the FIR are omnibus,

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general and without attributing any specific

overt act qua each of the applicant nos.2, 4

to 9, and also those allegations appear to be

inherently improbable as against applicant

nos.2, 4, 6 and 8. Hence, we are inclined to

consider their prayer for quashing the FIR.

So far applicant no.1 Bandu Ananda Kothale

and applicant no.3 Madhavrao Bandu Kothale

are concerned, since they are party to the

Civil Suit, and at the highest, an

allegations in the FIR may be attributable to

them, we are not inclined to consider their

prayer at present.

20. The Supreme Court in the case of

G.Sagar Suri and another Vs. State of U.P.

and others2 while explaining the scope of

jurisdiction under Section 482 of the

Criminal Procedure Code, in para 8 and 9 held

thus:

8. Jurisdiction under Section 482

2 [2000] 2 SCC 636

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of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.

9. In State of Karnataka v.

L.Muniswamy3 this Court said that in the exercise of the wholesome power under Section 482 of the Code the High Court is entitled to quash a 3 [1977] 2 SCC 699

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proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings are to be quashed.

21. The Supreme Court in the case of

"State of Haryana V/s Bhajan Lal4" held that,

in categories mentioned in para 108 of the

said judgment, the High Court would be able

to quash the F.I.R. Para 108 is reproduced

herein below:

108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-

ordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of

4 AIR 1992 SC 604

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illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. 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.

22. In the light of the discussion in

the foregoing paragraphs, in our opinion the

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case of the applicant no.2 Tahabai Bandu

Kothale, applicant no.4 Kamal Madhavrao

Kothale, applicant no.6 Kasabai Sudhakar

Kothale and applicant no.8 Sonali Dattu

Kothale, their case is squarely covered under

category nos.5 and 7 in afore-mentioned

categories. So far as applicant no.5 Sudhakar

Bandu Kothale, applicant no.7 Dattu Bandu

Kothale, and applicant no.9 Narayan Mahadu

Kothale are concerned, their case is squarely

covered under category no.7. Hence, we pass

the following order:

ORDER

i] The First Information Report bearing Crime No.3034/2016 for the offence punishable under Section 3(1)(F)(G) (A) (D) (Q) (R) (S) (U) (V) (Z) of Scheduled Casts and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, registered with Bhokardhan Police Station, to the extent of applicant no.2 Tahabai

6544.2016 Cri.Appln.odt

Bandu Kothale, applicant no.4 Kamal Madhavrao Kothale, applicant no.5 Sudhakar Bandu Kothale, applicant no.6 Kasabai Sudhakar Kothale, applicant no.7 Dattu Bandu Kothale, applicant no.8 Sonali Dattu Kothale and applicant no.9 Narayan Mahadu Kothale, stands quashed and set aside. The application to the extent of applicant nos.2, 4 to 9 is allowed to above extent.

ii] So far as applicant no.1 Bandu Ananda Kothale and applicant no.3 Madhavrao Bandu Kothale are concerned, their application stands rejected.

iii] The observations made herein above are prima facie in nature and confined to the adjudication of the present application only. This order will not preclude applicant no.1 Bandu Ananda Kothale and applicant no.3 Madhavrao Bandu Kothale from availing of an appropriate remedy as available in law in the event of filing of report by the Investigating Officer under Section

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173 [2] of the Code of Criminal Procedure.

iv] Rule is made absolute on above terms. Criminal Application stands disposed of accordingly.

              [K.K.SONAWANE]            [S.S.SHINDE]
                  JUDGE                    JUDGE  
          DDC