Sudhir S/O. Narayanrao Shende And ... vs State Of Maharashtra Thr. P.S.O. ...
2021 Latest Caselaw 10268 Bom

 Judgment                                                       apeal483.19


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



                      CRIMINAL APPEAL NO. 483/2019.


1.Sudhir s/o Narayanrao Shende,
Aged about 62 years, Occupation Service,
resident of Kaloti Nagar, Amravati.
Tq. and District Amravati.

2.Jayant s/o Deorao Karmore,
Aged about 52 years, Occupation Service,
resident of Subhash Colony, Farshi Stop,
Amravati, District Amravati.             ...            APPELLANTS.


                                VERSUS

1.The State of Maharashtra,
through Police Station Officer,
Police Station, Chandur Railway,
Tahsil Chandur Railway,
District Amravati.

2.Tapovin s/o Namdeorao Patil,
Aged Adult, Occupation - Service,
resident of Sukhai Part, Plot No.19-A
Neard Konark Colony, Shegaon Naka,
Amravati, District Amravati.                ...    RESPONDENTS.


                        ---------------------------------
                 Mr.A.A. Naik, Advocate for Appellants.
           Mr. H.D. Dubey, A.P.P. for Respondent No.1 State.
           Shri Y.B. Mandpe, Advocate for Respondent No.2.
                       ----------------------------------




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  Judgment                                                         apeal483.19


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                                   CORAM : VINAY JOSHI, J.

DATE : AUGUST 04. 2021.

ORAL JUDGMENT :

Heard learned Counsel present for the parties.

Admit. By consent of learned Counsel present for the

parties, the appeal is taken up for final hearing.

2. Appellants are apprehending their arrest in Crime

No.128/2019 registered with respondent no.1 Chandur Railway

Police Station, Amravati Rural for the offence punishable under

Sections Sections 3[1][r] and 3[1][s] of the Scheduled Caste and

Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter

referred to as "the Atrocities Act" for short). Their application for

grant of pre-arrest bail came to be rejected by the Additional

Sessions Judge, Amravati by order dated 29.06.2019 in Misc.

Criminal Application No.677/2019, and therefore, this Appeal.

3. Initially on preliminary submission, this Court vide order

dated 09.07.2019 has granted interim protection to appellants,

Judgment apeal483.19

which is prevailing till date.

4. Appellant no.1 is the President of the Educational Society,

whilst appellant no.2 is the Secretary. Respondent no.2/informant

was serving as a Teacher in the school run by the Education Society.

On 13.05.2019, the informant had lodged a report regarding the

incident. It is the informants' case that he was appointed in the

School in the year 2008. Appellants used to harass him only for the

reason that he belongs to backward class. Informant stated that,

time and again, appellants have harassed him by every possible

mode. Appellants were preventing him from signing the muster

roll, he was falsely marked absent and several notices were issued to

him. By and large, appellants use to harass him by humiliating and

preparing false record against him.

5. Particularly it is alleged that on 13.05.2019 around 3

p.m., infront of College Library, appellants insulted and abused the

informant in the name of caste, as specified in the report.

According to the informant, two persons have witnessed the incident

of abuses and insult.

Judgment apeal483.19

6. Respondent no.1 State has resisted the appeal by filing

reply-affidavits. The learned Counsel for respondent no.2/

informant also put strong resistance by filing short reply and

making oral submissions. Some antecedents of both appellants are

placed on record to support the resistance.

7. The learned Counsel for appellants made two fold

submissions. Initially it is argued that the contents of first

information report, even if taken on its face value, it does not make

out essential ingredients to constitute an offence punishable under

the Atrocities Act. It is argued that the informant was a disgruntled

employee who was served with several show cause notices about his

dereliction in duty. He was twice reprimanded, hence out of

vengeance a false report has been lodged. It is argued that as per

first information report, the alleged occurrence took place infront of

the college library. According to the learned counsel, the said place

cannot be construed as an occurrence within the "public view" as

required under Section 3[1][r] and [s] of the Atrocities Act.

Moreover, there were no independent witnesses, hence, both

essentials have not been complied. In order to constitute an offence,

Judgment apeal483.19

adequate mensria is required, which is totally missing. Lastly, it is

submitted that the entire first information report no where discloses

that the informant was particularly abused in the name of his caste.

8. At the inception, I may refer to the decision of the

Supreme Court in case of Prathvi Raj Chauhan .vrs. Union of India

and others (2020) 4 SCC 727, wherein it is reiterated that the bar

created under Section 18 and 18-A[i] of the Atrocities Act, shall not

apply, if the complainant fails to make out a prima facie case to

constitute an offence under the Atrocities Act. Naturally, the

question falls for consideration is - Whether the allegations leveled

against appellants prima facie constitute an offence punishable

under Sections 3[1][r] and 3[1][s] of the Atrocities Act ?

9. In order to impress that the report was a malafide action

on the part of the informant, the learned Counsel for appellants took

me through certain show cause notices issued to the informant -

Teacher preceding to the lodging of the report. Particularly it is

pointed out that, on the date of registration of the first information

report itself one notice was issued to the informant which bears

endorsement that he has received the same at 7.23 p.m. In that

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context, my attention has been invited to the aspect that on that

date, thereafter a report has been lodged at 9.15 p.m. The said

endeavor was to impress that in order to give counter blast to the

action taken by the Management, a false report has been lodged.

10. The police report is in two parts; in first part, some

instance are stated as to how appellants who were part of the

Management used to harass the informant - Teacher. However, on

the basis of these general allegations, no definite inference about

commission of offence can be drawn. Second part relates to the

incident dated 13.05.2019, occurred in front of the college library.

The informant has stated that at that time appellant no.1 allegedly

uttered to informant as "ukSdjh ulyh rj rq>h [kk;ph lks; ykx.kkj ukgh-

rqEgh ekxkloxhZ; yksd uksdjh ykxY;koj vkiys [kjs jax nk[kork- Fkkac rqyk

uksdjhrwu dk<rks", and appellant no.2 stated as "g;kpk ixkj can djk

ykxrs- ;kph tkrp [kjkc vkgs- lkyk T;k rkVkr [kkr vkgs frFksp Hkksd ikMr

vkgs-"

11. The learned counsel for appellants by placing reliance on

the decision of this Court in case of Pradnya Pradeep Kenkare and

another .vrs. State of Maharashtra - 2005 [3] Mh.L.J. 368,

Judgment apeal483.19

contended that in order to constitute an offence under Section 3[1]

[r] and 3[1][s] of the Atrocities Act, the incident must occur within

a "public view". He submitted that the alleged abuses or the

humiliating words must be uttered in a place of accessible to and in

the presence of public. In above referred case, this Court has

observed that the incident of insult or intimidation has to occur in

place accessible to and in presence of public and both these

ingredients would be absolutely necessary to constitute an offence.

In that context, on revisiting the first information report, undeniably

the incident had taken place infront of the college library, which

prima facie cannot be termed as a place accessible to the public. As

regards to the presence of witness is concerned, in the first

information report names of two other teachers are given, but, the

learned counsel for appellants submitted that they cannot be termed

as independent witness. In support of said contention, he relied on

the decision of this Court in case of Sudhir Narayanrao Shende .vrs.

State of Maharashtra and another - Criminal Appeal No. 211/2020

decided on 04.02.2021, wherein this Court after considering the

decision of Delhi High Court, has expressed that Section 3[1][x] of

the Atrocities Act, is to be interpreted to mean that a person present

Judgment apeal483.19

should be independent and impartial and not interested in any of

the parties or connected with the matter. In view of that, prima

facie there is substance in the contention that the mandatory

requirements to constitute the alleged offence are absent.

12. The next contention is about absence of utterance of

actual abuses in the name of caste. In this regard, the appellants

have relied on the decision in case of Narad Patel .vrs. State of

Chhattisgarh (2019) 6 SCC 268, wherein the Supreme Court has

held that there is necessity to refer to the caste or tribe to constitute

an offence. Going by the narration as stated by the informant, the

expression as reproduced above no where disclose that appellants

have particularly uttered the caste or tribe of the informant,

therefore, the submission holds substance.

13. Inasmuch as the learned Counsel for appellants submitted

that the entire occurrence was captured in CCTV. The investigating

officer has collected the CCTV footage wherein no independent

witness was seen. In this regard he has pointed paragraph no.4 of

the reply-affidavit dated 30.12.2019, wherein there is no reference

about presence of witnesses. At this stage, appellants submission

supports the contention about absence of independent witness.

Judgment apeal483.19

14. It appears that there was a dispute in respect of

employment. Already show cause notices were issued to the

informant by the management. Though certain antecedents are

brought on record, they relates to different offences, barring one. It

is to be noted that the pre-arrest protection was granted to

appellants prior to two years and in the meantime there is no

complaint about misuse of the liberty. Nothing is to be seized from

appellants, nor there is necessity to have custodial interrogation. In

view of above, personal liberty of appellants cannot be curtailed.

Appellants have made out a case to exercise judicial discretion in

granting pre-arrest protection. Hence, for the aforesaid reasons, the

appeal deserves to be allowed, therefore, following order.

                                   ORDER

        (i)        Criminal Appeal is allowed.
        (ii)       The judgment and order dated 29.06.2019 passed by

the Additional Sessions Judge, Amravati in Misc. Criminal Application No.677/2019 is hereby quashed and set aside.

(ii) The interim order dated 09.07.2019 passed by this Court is hereby made absolute on the same terms and conditions.

JUDGE Rgd.