Ramkisan @ Vijay S/O. Armaram ... vs The State Of Maharashtra Thr. ...
2017 Latest Caselaw 6733 Bom

 0409apl522.17-Judgment                                                                         1/8


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



            CRIMINAL APPLICATION (APL) NO.   522  OF   2017


 APPLICANT :-                         Ramkisan @ Vijay S/o Atmaram Wakudkar,
                                      Aged   about   54   years,   Occ.   Agriculturist/
                                      Member   of   Gat   Gram   Panchayat   Wagholi
                                      (Bk.),   R/o   Vilegaon,   Tah.   and   District
                                      Washim.                


                                         ...VERSUS... 


 RESPONDENT :-                        The   State   of   Maharashtra,   Through   Police
                                      Station   Officer,   Police   Station   Washim
                                      (Rural), District - Washim. 


 ---------------------------------------------------------------------------------------------------
                      Mr.V.B.Gawali, counsel for the applicant.
  Mr.K.R.Lule, Addl.Public Prosecutor for the respondent/non-applicant.
 ---------------------------------------------------------------------------------------------------



                                        CORAM : SMT. VASANTI    A    NAIK & 
                                                    M. G. GIRATKAR
                                                                   ,   JJ.

DATED : 04.09.2017

O R A L J U D G M E N T (Per : Smt.Vasanti A Naik, J.)

The criminal application is admitted and heard finally

with the consent of the learned counsel for the parties.

0409apl522.17-Judgment 2/8

2. By this criminal application, the applicant seeks the

quashing and setting aside of the first information report registered

against him for the offence punishable under section 295 of the Penal

Code.

3. The applicant, who is the ex-sarpanch of village Wagholi

and is a member of the gram panchayat had lodged a report in the

police station on 28/05/2017 that certain unknown persons had

removed the idols of Gods and Goddesses from the temple of the

Bhawani Mata Sansthan and had thrown them outside the temple. On

the basis of the report lodged by the applicant against the unknown

persons, an inquiry was made and it was found by the non-applicant

that Suresh Khandare was involved in the crime. It was subsequently

noticed that Suresh Khandare was helped by Pintu Hivrale in the

commission of the alleged offence punishable under section 295 of the

Penal Code. Both the accused were arrested and since a statement was

made by Suresh Khandare that the applicant had instructed him to

dislocate the idols of the Gods and Goddesses and throw them with a

view to falsely implicate the members of the Bouddha community, he

had committed the said act. On the statement of Sureskh Khandare the

first information report is registered against the applicant for the

offence punishable under section 295 of the Penal Code.

0409apl522.17-Judgment 3/8

4. Shri Gawali, the learned counsel for the applicant,

submitted that this is a novel case where the first information report is

registered by the non-applicant against a person who had lodged the

report against unknown persons for the offence punishable under

section 295 of the Penal Code. It is stated that a report was lodged by

the applicant against unknown persons as the idols of Gods and

Goddesses from the temple were thrown outside the temple. It is

submitted that on 02/06/2017 a resolution was passed by the gram

panchayat of which the applicant is a member that on the land used as

a cremation ground, certain persons belonging to the Bouddha

community had made an encroachment and the said encroachment

including the blue flag that was inserted in the said land was liable to

be removed. It is stated that after the resolution was passed by the

gram panchayat on 02/06/2017, of which the applicant is a member,

one of the persons namely, Suresh Khandare had falsely made a

statement before the investigating officer that the applicant had asked

him to remove the idols from the temple and throw them. It is stated

that since the applicant is a member of the gram panchayat and is also

the president of the Bhawani Mata Sansthan, which possesses the

temple, there is no possibility, whatsoever, of the applicant indulging in

the act of throwing the idols from the temple. It is submitted that the

statement made by Sureskh Khandare is actuated by malice and the

0409apl522.17-Judgment 4/8

statement is also improbable. It is further stated that the other accused

namely Pintu Hivrale does not allege that the applicant had asked them

to throw the idols out of the temple with a view to implicate the

members of the scheduled castes.

5. Shri Lule, the learned Additional Public Prosecutor

appearing for the non-applicant, fairly states that apart from the

statement of Suresh Khandare, there is no other material available with

the non-applicant to register the first information report against the

applicant for the offence punishable under section 295 of the Penal

Code. It is stated that the first information report is registered against

the applicant under the said provision solely on the basis of the

statement made by Suresh Khandare.

6. On a reading of the statements recorded by the non-

applicant during the course of investigation, it appears that except the

statement of Suresh Khandare, no other person has made a statement

that the applicant was even remotely involved with the act of

dislocating the idols of the Gods and Goddesses from the temple and

throwing them outside the temple. It is necessary to note that for a

long time, the matter pertaining to the encroachment by the members

belonging to the scheduled castes on the land meant for the cremation

0409apl522.17-Judgment 5/8

ground was pending before the village panchayat and since the

applicant is the ex-sarpanch of the gram panchayat and is also presently

the member of the gram panchayat, the applicant was involved in the

process of removal of the encroachment. Just a few days after the

lodging of the report by the applicant in the police station against the

unknown persons for throwing the idols of Gods and Goddesses, a

resolution was passed by the gram panchayat that the encroachment

made by the backward caste people on the land meant for the

cremation ground should be removed by taking proper steps to ensure

that law and order situation should not arise. Within a few days from

passing of the resolution of the gram panchayat, the first information

report was registered by the non-applicant against two accused namely

Suresh Khandare and Pintu @ Dipak Hivrale for throwing the idols of

the Gods and Goddesses from the temple. Suresh Khandare has falsely

made a statement that the applicant had asked him to throw the idols

from the temple so as to falsely implicate the members belonging to the

Bouddha community. The statement of Suresh Khandare appears to be

improbable. The applicant appears to be a respectable person, who is

an ex-sarpanch and the present member of the gat gram panchayat and

is also the president of the Bhavani Mata Sansthan. It is improbable

that the president of the Bhavani Mata Sansthan would take the help of

the member of the Bouddha community like Suresh Khandare to throw

0409apl522.17-Judgment 6/8

the idols from the temple with a view to falsely implicate the other

members of the Bouddha community. The non-applicant should not

have registered the first information report against the applicant solely

on the basis of the statement of Suresh Khandare. It is conspicuous to

note that the other accused namely Pintu @ Dipak Hivrale has not

alleged that the applicant was involved in the said offence and he had

also not made any statement that could result in registering the first

information report against the applicant for the offence punishable

under section 295 of the Penal Code. This is a case where the principles,

laid down by the Hon'ble Supreme Court in the case of State of

Haryana v Bhajan Lal, reported in 1992 Supp (1) SCC 335 would be

applicable for quashing the first information report. The Hon'ble

Supreme Court has specified the circumstances where power under

section 482 of the Code of Criminal Procedure could be exercised with a

view to prevent the abuse of process of court and to secure the ends of

justice. Where the allegations are inherently improbable, the first

information report could be quashed and set aside. So also, 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, the proceedings could be quashed and set

aside. In the instant case, it is not believable that the applicant, who is

0409apl522.17-Judgment 7/8

a member of the gat gram panchayat of the village and is the president

of the Bhawani Mata Sansthan could take the help of Suresh Khandare

who is a member of the Bouddha community to ensure that the

members of the Bouddha community should be falsely implicated in an

offence. It is conspicuous to note that in the instant case, report was

lodged by the applicant himself against unknown persons for throwing

the idols and without considering these aspects of the matter, as also

the resolution of the gram panchayat by which it was decided to remove

the encroachment made by the members of the Bouddha community on

the land meant for the cremation ground, the non-applicant wrongly

registered the first information report against the applicant solely on the

basis of the statement made by Suresh Khandare during the course of

investigation. We have already noted that the other accused has not

made any allegation whatsoever against the applicant. We find that in

the instant case, Suresh Khandare has maliciously made the statement

against the applicant with a view to falsely implicate him in an offence.

Hence, by applying the tests laid down by the Hon'ble Supreme Court in

the aforesaid case and also in the judgments reported in (2004) 6 SCC

522 (State of A.P. v. Golconda Linga Swamy) and (2005) 1 SCC 122

(Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque), the

first information report registered against the applicant is liable to be

quashed and set aside.

0409apl522.17-Judgment 8/8

7. Hence, for the reasons aforesaid, the criminal application

is allowed. The first information report bearing No.169 of 2017 as also

the proceedings arising there from are hereby quashed and set aside.

Order accordingly.

                        JUDGE                                         JUDGE 


 KHUNTE