Vilas S/O Babarao Solanke vs State Of Mah. Thr. Sub Divisional ...
2017 Latest Caselaw 8043 Bom

APL  377/11                                           1                         Judgment

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

              CRIMINAL APPLICATION (APL) NO. 377/2011

Vilas s/o Babarao Solanke,
Aged about 46 years, Occu. Agriculturist,
R/o Palashi, Tq. Umarkhed, District : Yavatmal.                               APPLICANT
                                     .....VERSUS.....

1.    State of Maharashtra,
      Through Sub-Divisional Police Officer,
      Pusad, Tq. Pusad, District : Yavatmal.
2.    Anandrao Laxman Wahule,
      Aged about 39 years, Occu. Agriculturist,
      R/o Palashi, Tq. Umarkhed, District : Yavatmal.                   NON-APPLICA
                                                                                    NTS


       Shri K.J. Tople, Advocate h/f Shri S.D. Chopde, counsel for the applicant.
        Shri M.J. Khan, Additional Public Prosecutor for the non-applicant no.1.
                  Mrs.M.M. Shesh, counsel for the non-applicant no.2.


                                             CORAM : A.S. CHANDURKAR,  J.

DATE : 11 TH OCTOBER, 2017.

ORAL JUDGMENT

The criminal application is ADMITTED and heard finally at

the stage of admission with the consent of the learned counsel for the

parties.

2. The applicant is aggrieved by the order dated 14.01.2011

passed by the learned Judicial Magistrate First Class, Umarkhed by which

process was directed to be issued against the applicant herein at the

instance of the non-applicant no.2, who had filed a private complaint.

APL 377/11 2 Judgment

3. The facts relevant for adjudicating the challenge to the aforesaid

order are that according to the non-applicant no.2, in the gram-sabha

held on 15.08.2006, the present applicant along with eight others, had

abused the non-applicant no.2 in the name of his caste. On that basis, the

non-applicant no.2 initially made a report to the Sub-Divisional Police

Officer. The said officer conducted an enquiry and submitted report. As per

said report, no offence as alleged was made out. The non-applicant no.2,

therefore, on 12.02.2007 filed a complaint before the learned Magistrate

alleging offences to have been committed under Sections 147, 149, 323,

294 and 506 of the Indian Penal Code read with offence under Section

3(1) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act, 1989 (for short, the Act of 1989). The learned Magistrate called for

the report of the police authorities. However, as per the said report no

offence was made out and a 'B' summary was sought to be filed. The

learned Magistrate not being satisfied, posted the proceedings for

examining the non-applicant no.2 under Section 200 of the Code of

Criminal Procedure, 1973 (for short, the Code). After recording evidence,

the learned Magistrate on 14.01.2011, directed issuance of process

against the present applicant for the offences punishable under Sections

3(1)(x) of the Act of 1989 and Section 7(1)(d) of the Protection of Civil

Rights Act. The complaint as against other accused was dismissed. Being

aggrieved, the said order has been put to challenge by the applicant.

APL 377/11 3 Judgment

4. Shri K.J. Tople, learned counsel for the applicant, submitted

that the learned Magistrate committee an error by taking cognizance and

issuing process against the applicant for the offence punishable under

Section 3(1)(x) of the Act of 1989 as well as Section 7(1)(d) of the

Protection of Civil Rights Act. According to him, the evidence recorded by

the learned Magistrate was not of such nature that could give rise to a

prima-facie case for taking cognizance. He relied upon the final report

submitted by the police authorities in which it was stated that no offence

had been made out. He then referred to the legal notice issued on behalf

of the complainant in which a demand of Rs.50,000/- (Rupees Fifty

Thousand) was made and on this basis, it was submitted that the present

complaint had been filed merely to pressurize the applicant. He,

therefore, submitted that the order passed by the learned Magistrate was

liable to be set aside. Without prejudice to the aforesaid submissions, the

learned counsel submitted that the offence in question could be tried only

by the Special Court constituted under Section 14 of the Act of 1989 and

the Magistrate had no jurisdiction to pass the impugned order. In that

regard, the learned counsel placed reliance on the decisions reported in

AIR 2005 SC 9 (M/s Zandu Pharmaceutical Works & Others Md.Sharaful

Haque & Others), AIR 2013 SC 3018 (Dharam Pal & Others Versus State

of Haryana & Another), 2015 All M R (Cri) 3490 (Ramlal Natthu Patle &

Others Versus The State of Maharashtra & Another), 2015 All M R (Cri)

APL 377/11 4 Judgment

2768 (Vijaykumar Shamkant Shinde Versus State of Maharashtra &

Another) and 2005 All M R (Cri) 2489 (Ashok Lakhaji Halmare Versus

State of Maharashtra & Another). It was thus submitted that the

impugned order was liable to be set aside.

5. Shri M.J. Khan, learned Additional Public Prosecutor for the

non-applicant no.1 and Mrs.M.M. Shesh, learned counsel for the non-

applicant no.2, supported the impugned order. It was submitted that as

the learned Magistrate was not satisfied with the final report submitted

by the police authorities, he had rightly proceeded under Section 200 of

the Code. After considering this evidence, a prima-facie case was found

to have been made out and therefore, the process was rightly issued.

Shri M.J. Khan, learned Additional Public Prosecutor by relying upon the

judgment of the Hon'ble Supreme Court reported in AIR 2004 SC 2825

(M.A. Kuttappan Versus E.Krishnan Nayanar & Another), submitted that

the learned Magistrate ought to have committed the case to the Special

Court under Section 14 of the said Act in view of the fact that the

Magistrate had no jurisdiction to try the complaint for the offence

punishable under the Act of 1989. He, therefore, submitted that

appropriate orders deserve to be passed for committal of the case to the

Sessions Court.

APL 377/11 5 Judgment

6. I have heard the learned counsel for the parties at length and

I have perused the material placed on record. After the final report was

submitted by the police authorities, the learned Magistrate was not

satisfied with the same and therefore, examined the complainant and his

witnesses under Section 200 of the Code. Accordingly, the complainant

examined himself along with five other witnesses. On a consideration of

this evidence, the learned Magistrate was satisfied that the prima-facie

case for proceeding against the present applicant for the offence punishable

under Section 3(1)(x) of the Act of 1989 was made out. In that

backdrop, process was issued by the learned Magistrate. On a prima-facie

perusal of this material, I find that the learned Magistrate was justified in

coming to the conclusion that a prima-facie case had been made out to

proceed with the complaint. It cannot be said that the process was issued

without there being any material whatsoever on record. Hence, that

exercise undertaken by the learned Magistrate cannot be faulted with.

The decisions relied upon by the learned counsel for the applicant turn on

the facts of the respective cases. In those cases, the material on record

was found insufficient for proceeding with the reports made therein. As

noted above, the complainant examined himself and five other witnesses.

Their depositions prima-facie did lead to the conclusion that a case has

been made out for proceeding against the applicant. Hence, that part of

the exercise undertaken by the learned Magistrate cannot be faulted with.

APL 377/11 6 Judgment

7. It is however to be seen that under Section 14 of the Act of

1989, it is for the Special Court to proceed with the complaint as such

jurisdiction is not conferred on the learned Magistrate. The legal position

in this regard is clear from the judgment of the Hon'ble Supreme Court in

the case of M.A. Kutappan (Supra). In Gangula Ashok and Another Versus

State of A.P. [(2000) 2 SCC 504], it has been held that unless the case is

committed to the Special Court by the Magistrate, cognizance cannot be

taken by the Special Court directly as a Court of original jurisdiction. This

decision relied upon by the learned Additional Public Prosecutor also

supports his submissions. I, therefore, find that it was necessary for the

learned Magistrate to have proceeded against the present applicant by

committing the case to the Special Court constituted under Section 14 of

the Act of 1989. To that extent, the impugned order is liable to be

modified.

8. In view of the aforesaid, it is held that the learned Judicial

Magistrate First Class after recording evidence of the complainant and his

witnesses, has taken cognizance of the aforesaid offence. However, as the

offence in question has to be tried by the Special Court under Section 14

of the Act of 1989, the learned Magistrate shall pass appropriate orders

for committal of the case to the Special Court. After committal of the case,

the Sessions Court shall proceed with the matter in accordance with law.

APL 377/11 7 Judgment

The observations made in this order are prima-facie in nature, made for

the purposes of deciding the present application and the trial shall be

conducted on the basis of evidence on record. The criminal application

stands disposed of accordingly.

JUDGE

APTE