Anil S/O. Kanhaiyalal Ahir And ... vs State Of Maharashtra Thr. Police ...
2017 Latest Caselaw 6470 Bom

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

                 Criminal Application (APL) No. 165 of 2017

(1) Anil s/o. Kanhaiyalal Ahir
      aged about 45 years, Occ : Agriculturist, 

(2) Raju s/o. Kanhaiyalal Ahir
      aged about 50 years, Occ : Agriculturist, 

(3) Nitin s/o. Kanhaiyalal Ahir
      aged about 35 years, Occ : Agriculturist, 

(4) Gokul s/o. Chotelal Ahir
      aged about 50 years, Occ : Agriculturist, 

(5) Satish s/o. Gokul Ahir
      aged about 32 years, Occ : Agriculturist, 
       All resident of Bye-pass Road, Akola, 
      Tah and District : Akola.                                            .... Applicants

      //  Versus //

(1) State of Maharashtra,
      through Police Station Officer,
      Old City, Akola. 

(2) Sau. Suwarna Goutam Gavai,
      aged about 45 years, Occ :
      Household, R/o Yashwant Nagar, 
      Bye-pass Road, Akola, 
      Tah and District : Akola.                                     .... Non-applicants

Shri Anil Mardikar, Senior Advocate with Shri S. G. Joshi, Advocate for 
the applicants 
Shri S. S. Doifode, Additional Public Prosecutor for the non-applicant 
no. 1
Shri Rahul Dhande, Advocate for the non-applicant no. 2
                                                             
                                          CORAM      : SMT. VASANTI  A  NAIK AND
                                                   M. G. GIRATKAR, JJ.

DATE : 23-08-2017.

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ORAL JUDGMENT (Per : SMT. VASANTI A NAIK, J.)

Admit. Heard finally at the stage of admission with the

consent of the learned counsel for the parties.

By this criminal application, the applicants seek the quashing

and setting aside of FIR No. M-19/2017 registered against the applicants

for the offences punishable under Section 147, 148, 294, 427, 452, 506

and 307 of the Penal Code, Section 4 read with Section 25 of the Arms

Act and Section 3(1) and 3(2) of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Amendment Act, 2015.

The applicants are agriculturists and the non-applicant no. 2

is the possessor of the adjoining agriculture field. It is the case of the

applicants that a false complaint was lodged by the non-applicant no. 2

with the non-applicant no. 1 that the applicants had entered into her

agriculture field and house and had threatened to kill her and had

abused her in the name of her caste. Since the non-applicant no. 1 did

not take cognizance of the matter after recording the statements of the

adjoining neighbours, the non-applicant no. 2 filed an application before

the learned Magistrate for a direction to the non-applicant no. 1 under

Section 156(3) of the Code of Criminal Procedure. By an order dated

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19-1-2017, the Additional Sessions Judge, Akola directed the non-

applicant no. 1 to register the offences against the applicants under the

aforesaid provisions. According to the applicants, the said order of the

learned Additional Sessions Judge was illegal as a direction could not

have been issued for the registration of the FIR. The said order was

challenged by the applicants in a criminal revision application before this

Court. However, in the meanwhile, since the charge-sheet was filed,

this Court permitted the applicants to withdraw the criminal revision

application. However, this Court noted while issuing notice to the

respondents that the order passed by the Additional Sessions Judge,

Akola was without jurisdiction. After the criminal revision application

was withdrawn, this criminal application is filed by the applicants for

quashing and setting aside the FIR and the proceedings arising

therefrom.

Shri Anil Mardikar, the learned Senior Counsel appearing for

the applicants submitted that the non-applicant no. 1 could not have

registered the FIR against the applicants on the report lodged by the non-

applicant no. 2 before the non-applicant no. 1 on 20-10-2016, as an

enquiry was made by the non-applicant no. 1 on the complaint of the

non-applicant no. 2 and from the statements of the neighbours, it was

noticed that no offence could be registered against the applicants. It is

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stated that the adjoining neighbours who had witnessed the incident

dated 20-10-2016 clearly mentioned in their statements that were

recorded by the non-applicant no. 1 that there was merely some dispute

between the applicants and the non-applicant no. 2 pertaining to the

land but the applicants had not abused the non-applicant no. 2 on the

basis of her caste and they had not come to the field of the non-applicant

no. 2 with weapons. It is stated that it is apparent from the statements

recorded by the non-applicant no. 1 that the complaint lodged by the

non-applicant no. 2 was false and the non-applicant no. 1 had, therefore,

rightly not taken any action against the applicants on the basis of the

same. It is submitted that on the basis of the order passed by the

Additional Sessions Judge, Akola dated 19-1-2017 directing the non-

applicant no. 1 to register the FIR against the applicants, the FIR is

mechanically registered. It is stated that in the original report filed by

the non-applicant no. 2, it is not alleged that the applicants had abused

the non-applicant no. 2 on the basis of her caste, in a particular manner.

It is stated that there is a vast difference between the original report

dated 20-10-2016 and the second report, which is the application filed by

the non-applicant no. 2 for a direction under Section 156(3) of the Code

of Criminal Procedure. It is stated that the allegations made in the

application under Section 156(3) were not made in the original report

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dated 20-10-2016. It is stated that earlier also, a similar report was

lodged by the non-applicant no. 2 against the applicants in respect of the

offence under the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act and the said matter was compromised between the

applicants and the non-applicant no. 2. It is stated that according to the

statements of the neighbours, that were recorded in November, 2016 it is

clear that the dispute between the parties is pertaining to the land and is

of a civil nature. It is stated that since on the basis of the first report

lodged by the non-applicant no. 2, dated 20-10-2016 and the statements

recorded by the non-applicant no. 1, prima facie, no offence could be

made out against the applicants under the provisions of Sections 147,

148, 294, 427, 452, 506 and 307 of the Penal Code and Section 3(1) and

3(2) of the Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Amendment Act, 2015, the FIR is liable to be quashed and set

aside.

Shri Doifode, the learned Additional Public Prosecutor

appearing for the non-applicant no. 1 fairly admitted that in the first

report lodged by the non-applicant no. 2 with the non-applicant no. 1

on 20-10-2016, the allegations that are found in the second report lodged

by the non-applicant no. 2, are not present. It is stated that on the basis

of the first report lodged by the non-applicant no. 2 dated 20-10-2016,

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the statements of the adjoining neighbours were recorded and all the

neighbours except one stated that the incident, as alleged by the non-

applicant did not occur on 20-10-2016. The learned Additional Public

Prosecutor produced the record for the perusal of the Court. We have

perused the statements of the neighbours. Almost all the neighbours

have stated that on 20-10-2016, there was some verbal dual between

the applicants and the non-applicant no. 2 and the dispute between

the applicants and the non-applicant no. 2 pertains to the landed

property. It is stated that it was stated by the neighbours in their

statements that the applicants did not abuse the non-applicant no. 2 on

the basis of her caste and also did not bring weapons along with them

to the field or the house of the non-applicant no. 2. It is stated that on

a consideration of the statements and the other enquiry made by the

non-applicant no. 1, no offence was registered against the applicants. It

is stated that the learned Additional Sessions Judge, Akola, however,

directed the non-applicant no. 1 to register the offence against the

applicants under the provision of the Sections 147, 148, 294, 427, 452,

506 and 307 of the Penal Code and Section 3(1) and 3(2) of the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Amendment Act, 2015. It is stated that by following the order of the

learned Additional Sessions Judge, Akola, the FIR was registered against

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the applicants. It is fairly admitted that in the first report lodged by the

non-applicant no. 2, the allegations that are made in the second report

lodged by the non-applicant no. 2 are not present.

Shri Rahul Dhande, the learned counsel for the non-applicant

no. 2 submitted that the FIR was rightly registered by the non-applicant

no. 1 on the basis of the order of the learned Additional Sessions Judge,

Akola dated 19-1-2017. It is stated that since the non-applicant no. 1

was not registering the crime against the applicants, the non-applicant

no. 2 was required to file an application under Section 156(3) of the

Code of Criminal Procedure. It is submitted that the non-applicant no. 2

was residing in the house in the field with her children and since the

applicants had abused her in the name of her caste and had also caused

grievous hurt to her by weapons, the non-applicant had rightly registered

the offences against the applicants.

We have perused the papers pertaining to the investigation

of the complaint. It is conspicuous to note that in the first report lodged

by the non-applicant no. 2 with the non-applicant no. 1, there was no

specific allegation in regard to the abuse of the non-applicant no. 2 in the

name of her caste. It is only stated in the first report lodged by the non-

applicant no. 2 on 20-10-2016 that without any rhyme or reason, the

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applicants used to abuse the non-applicant no. 2 and harass her. It is

stated in the first report that while leaving the field and her house on

20-10-2016, the applicants had threatened her that they would set her

house on fire and demolish the house within two months. The non-

applicant no. 2 had sought action against the applicants on the basis of

said complaint. We have perused the statements of adjoining

neighbours. All the adjoining neighbours except one, had stated that the

applicants had not threatened the non-applicant no. 2 or brought the

weapons to the field of the non-applicant no. 2 and that they had not

abused her in the name of her caste. It is only mentioned in the

statements that there was a dispute between the applicants and the

non-applicant no. 2 in respect of the field and the non-applicant

no. 2 was in the habit of making complaints against the applicants.

It appears that on the basis of the enquiry in the matter of the complaint

lodged by the non-applicant no. 2 on 20-10-2016, no action was taken

by the non-applicant no. 1 after finding that there was no truth in the

report lodged by the non-applicant no. 2. However, on the basis of the

directions issued by the learned Additional Sessions Judge, Akola in the

order dated 19-1-2017, the non-applicant no. 1 registered the offences

against the applicants under the various provisions of the Penal Code and

the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

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Amendment Act by once again recording the statements of the

neighbours. In our view, the Additional Sessions Judge could not have

directed the non-applicant no. 1 to register the FIR against the applicants

without investigating the complaint made by the non-applicant no. 2.

The Additional Sessions Judge, Akola ought to have directed the non-

applicant no. 1 to investigate in the complaint lodged by the non-

applicant no. 2 if he was of the view that a case was made out by the

non-applicant no. 2 for further investigation in the matter. We find that

in view of the specific direction of the learned Additional Sessions

Judge, Akola to register the FIR, the non-applicant no. 1 has

mechanically registered the FIR against the applicants though from

the statements that were initially recorded by the non-applicant no. 1 in

the month of November, 2016, the FIR could not have been registered

against the applicants. We find that on an earlier occasion also, the non-

applicant no. 2 had filed a complaint against the applicants and the FIR

was registered against them but the matter was compromised between

the applicants and the non-applicant no. 2. On the basis of the first

report filed by the non-applicant no. 2 dated 20-10-2016 and the

statements of the adjoining neighbours that had witnessed the incident

dated 20-10-2016, prima facie, the offences cannot be made out against

the applicants under the provisions of Sections 147, 148, 294, 427, 452,

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506 and 307 of the Penal Code, Section 4 read with Section 25 of the

Arms Act and Section 3(1) and 3(2) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015. A

clear case for quashing of the FIR has been made out by the applicants.

Hence, by applying the principles as laid down by the Hon'ble Supreme

Court in the case of State of Haryana Vs. Bhajan Lal reported in 1992

Supp.(1) SCC 335, the FIR is liable to be quashed and set aside.

Hence, for the reasons aforesaid, the criminal application

is allowed. The FIR registered against the applicants, bearing

No. M-19/2017 for the offences punishable under Section 147, 148,

294, 427, 452, 506 and 307 of the Penal Code, Section 4 read with

Section 25 of the Arms Act and Section 3(1) and 3(2) of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Amendment

Act, 2015 and the proceedings arising therefrom are hereby quashed

and set aside. Order accordingly.

                     JUDGE                                                 JUDGE


wasnik




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