Avakash S/O Sudhakarrao Ingole vs State Of Mah. Thr. Pso Ps Morshi ...
2021 Latest Caselaw 11084 Bom

        J-apl484.21.odt                                                           1/21


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


                     CRIMINAL APPLICATION (APL) No.484 OF 2021



        Avakash s/o. Sudhakarrao Ingole,
        Aged about 37 years,
        Occu. : Private Service,
        At present - Mhalunge Baner, Pune,
        Taluka & District Pune.                         :     APPLICANT

                          ...VERSUS...

        1.    State of Maharashtra,
              Through Police Station Officer,
              Morshi Police Station, Morshi,
              Tq. Morshi, Distt. Amravati.

        2.    Shivkali Shyamrao Dhurve,
              Aged about 32 years,
              Occu. : Household,
              R/o. Dhanora, Tq. Morshi
              & Distt. Amravati.                        :     NON-APPLICANTS


        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri P.R. Agrawal, Advocate for Applicant.
        Shri D.P. Thakare, Additional Public Prosecutor for Non-applicant No.1.
        Shri D.I. Jain, Advocate for Non-applicant No.2.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                         CORAM : A.S.CHANDURKAR AND
                                                 G.A. SANAP, JJ.

RESERVED ON : 17/08/2021.

PRONOUNCED ON : 26/08/2021.

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ORAL JUDGMENT : (Per : G.A. Sanap, J.)

In this application filed under Section 482 of the Code of

Criminal Procedure (for short, "Cr.P.C.) the applicant has prayed

that the First Information Report bearing No.109/2021 dated

15th March, 2021 registered against him with the Morshi Police

Station, Morshi on the report of the non-applicant No.2 for the

offences punishable under Section 506 of the Indian Penal Code

and under Section 3(1)(r) and 3(1)(s) of the Scheduled Castes and

the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for

short, "S.C.& S.T. Act) be quashed and set aside. The facts leading

to this application are as follows :

1. On the oral report of the non-applicant No.2 lodged on

15th March, 2021 the crime as stated above has been registered

against the applicant. The non-applicant No.2 alleged in the report

that the applicant has let out one shop situated at Shri Chakradhar

Complex, Morshi to her at monthly rent of Rs.500/-. She has paid

Rs.2,50,000/- as security deposit in the presence of one Hemant

Lakde. The transaction was oral. It is alleged that on 8th March,

2021 at about 3.45 p.m. when she was proceeding to her village

Dhanora after closing her shop by auto-rickshaw at that time near

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Jaistambh Chowk, Morshi applicant came there in his red colour

car and stopped auto-rickshaw. The applicant asked the

auto-rickshaw driver to get down from the same as he wanted to

talk with the non-applicant No.2. The driver got out from the

auto-rickshaw. It is further case of the non-applicant No.2 that,

thereafter the applicant requested her to give statement against

Hemant Lakde in their dispute. The non-applicant No.2 refused to

do the same. It is stated that, therefore, the applicant abused the

non-applicant No.2, that, "Tula Pai Nahi Mi Tuze Hath wa Jibh Pan

Kapun takin, Tu Godin Ahe Godinach Rahashil" (" rqyk ik; ukgh eh

rq>s gkFk ok ftHk iu dkiwu Vkdhu] rq xksMhu vkgs xksMhup

jkg'khy"). The non-applicant No.2 got frightened and, therefore,

she called the driver of the auto-rickshaw. The applicant left the

said place and non-applicant No.2 went to her village. It is stated

that the non-applicant No.2 had confusion in respect of name of the

accused and after confirming his name she lodged the report with

the Police on 15th March, 2021. On the basis of this report the First

Information Report was registered and the crime has been

investigated.

2. In this application it is the case of the applicant that the

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report lodged against him is false and frivolous. It cannot stand

the scrutiny of law inasmuch as no offence could be said to be

made out, if the allegations made in the F.I.R. are taken at their

face value. It is stated that there is a dispute between the applicant

and Hemant Lakde. The applicant has been doing service at Pune.

Late father of the applicant had purchased field Survey No.1/2,

admeasuring 81 R at mouza Rasalpur (Yerla), Taluka-Morshi,

District Amravati. In the year 2004, the sanction was obtained for

construction of 32 shops from the competent authority. The

construction of 16 shops was completed on the lower ground-floor

and 16 shops were to be constructed on the upper floor. The

construction of the lower ground floor was completed in the year

2009. Out of 16 shops of lower ground floor Shop No.16 was sold

to one Murad Ali Mohd. Ali on 11th October, 2010. Thereafter the

applicant got a job at Pune and got married in the year 2012. The

mother of the applicant started residing with him at Pune. The

sister of the applicant is residing at Nagpur. She married with one

Nilesh Deshmukh, resident of Ramdaspeth, Nagpur. The sister

would frequently go to Amravati to look after the property.

3. It is stated that in the passage of time it became difficult

for them to look after the property and, therefore, the applicant

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appointed Hemant Lakde as caretaker-cum-watchman of the said

commercial complex. The applicant had transferred Rs.1,50,200/-

through bank transaction to Hemant Lakde between 8 th February,

2019 to 13th April, 2019, for the purpose of maintenance, painting

and renovation of the commercial complex. It is stated that said

Hemant Lakde misappropriated the said amount. Hemant Lakde

illegally started tactics to grab the property particularly Shop Nos.4

and 5. The applicant came to know about the activities of Hemant

Lakde. He questioned Hemant Lakde about it. Hemant Lakde

instead of paying heed to the request of applicant threatened the

applicant that he would file a false case of atrocity and extended

the threat of dire consequences. The applicant lodged reports with

the Police on 25th January, 2020, 2nd February, 2020, 4th February,

2020 and 15th October, 2020. It is stated that as the dispute

between them got escalated the applicant filed civil suit against

Hemant Lakde and others being Special Civil Suit No.62/2021. In

the said suit, vide order dated 5th March, 2021, the Civil Judge,

Senior Division, Amravati granted ad-interim ex-parte temporary

injunction in favour of the applicant.

4. It is submitted that the applicant has been staying at

Pune. He had came to Amravati for filing the suit. On 8 th March,

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2021, he deposited charges for special Bailiff. He accompanied the

Bailiff for the purpose of service on 8th March, 2021. It is submitted

that in view of the dispute between the applicant and Hemant

Lakde the false report has been lodged against him. It is stated that

the applicant has no concern with the shops situated at Shri

Chakradhar Complex, Morshi. He had no transaction with the

non-applicant No.2. It is submitted that by taking advantage of the

presence of the applicant at Amravati on 8 th March, 2021 the

belated report has been lodged against him at the instance of

Hemant Lakde. It is submitted that he has not committed any

crime. The report is false and frivolous.

5. The Investigating Officer filed reply and opposed the

application. The Investigating Officer has denied the material facts

pleaded in the application. The Investigating Officer has stated that

investigation has been conducted on the basis of the report of the

non-applicant No.2. There is sufficient evidence to establish the

complicity of the applicant in the commission of crime.

6. The non-applicant No.2 has filed reply and opposed the

application. She has denied the material facts pleaded in the

application. In the reply she has reiterated the facts recorded in the

F.I.R. on the basis of the report. It is contended that the applicant

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has taken disadvantage of her disability and pressurized her. The

applicant has abused her by caste in the presence of the

auto-rickshaw driver.

7. We have heard learned Advocate for the applicant,

learned Additional Public Prosecutor for the State and learned

Advocate for the non-applicant No.2. Perused the record and

proceedings.

8. Learned Advocate for the applicant submitted that there

is no iota of evidence to constitute the basic ingredients of Section

3(1)(r) and 3(1)(s) of the S.C. & S.T. Act. Learned Advocate

submitted that the allegations made in the F.I.R. taken at their face

value do not make out any offence against the applicant. Learned

Advocate submitted that the delay in lodging the report clearly

indicate that it was after thought and in connivance with Hemant

Lakde. Learned Advocate submitted that the applicant has not

committed any offence. Learned Advocate submitted that there is

no evidence to make out the alleged offence against the applicant.

Learned Advocate submitted that the prosecution on the basis of

the false report if allowed to continue would be abuse of process of

law. In order to substantiate the submission learned Advocate has

relied upon following four decisions :

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(i) Pradnya Pradeep Kenkare vs. State of Maharashtra, reported in 2005(3) Mh.L.J. 368.

(ii) V.P. Shetty vs. Sr. Inspector of Police, Colaba, Mumbai and another, reported in 2005ALL MR (Cri) 2384.

(iii) Dr. Manali and others vs. State of Maharashtra, through Police Station incharge, M.I.D.C., Police Station, Nagpur and others, reported in 2020 ALL MR (Cri) 945.

(iv) Gorige Pentaiah vs. State of A.P. & others, reported in 2008(4) R.C.R. (Criminal) 171.

9. Learned Additional Public Prosecutor has produced on

record the investigation papers and submitted that the facts stated

in the F.I.R. at the face value would constitute the offence against

the applicant.

10. Learned Advocate for the non-applicant No.2 submitted

that at this stage the exercise of appreciation of evidence cannot be

undertaken. Learned Advocate submitted that the facts recorded in

the F.I.R. need to be considered to find out whether the offence

alleged has been made out or not. Learned Advocate further

submitted that the defence of the accused of a false implication as

stated in this application cannot be appreciated at this stage.

11. In order to appreciate the rival submissions we have

perused the F.I.R., statements of witnesses and the other material

collected during the course of investigation by the Investigating

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Officer. In this case it is necessary to see whether on prima facie

analysis of the material on record the offence under Section 3(1)(r)

and 3(1)(s) of the S.C. & S.T. Act is made out or not. In order to

appreciate the rival submissions it would be necessary to

re-produce the relevant part of Section 3, sub-Section (1)(r)&(s).

It reads thus :

Section 3(1)(r) "intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view."

Section 3(1)(s) "abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view."

12. The learned Advocate submitted that the fundamental

ingredient of the offence that the insult, intimidation or abuse by

the appellant by the caste of the applicant No.2 in a place within

public view has not been made out in this case. In the decision

relied upon by the learned Advocate for the applicant in support of

the submission, the similar question fell for consideration, in the

case of Pradnya Pradeep Kenkare vs. State of Maharashtra . The

provisions of Section 3(1)(x) which were in pari materia with

Section 3(1)(r) and (s) have been considered. The relevant

observations have been made in para No.8. It would be

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advantageous to re-produce the said paragraph. It reads thus :

"(8) However, the learned Advocate is justified in contending that the complaint nowhere discloses that the said expression was used in public view. In fact, the contents of the FIR nowhere disclose that the said expression was communicated to the complainant either in the place accessible to the public or in the presence of the public. It is nowhere stated by the complainant that at the time when the said statement was made by the petitioner No.2, i.e. on 15th August, 2004 at 9.30 a.m., there was any stranger to witness the said incident. The provisions of Section 3(1)(x) of the said Act would be attracted only in case of insulting or intimidating a member of the scheduled caste in any place within a public view. The expression "in any place within public view" has specific meaning. It does not mean that every allegation made in a public place that itself would amount to an offence under the said Act. The expression "public view" has been prefixed by the preposition "within" which in fact follows the expression "in any place". In other words, the expression relating to the location of the alleged offence is qualified by the requirement of being "within public view".

The act of insult or intimidation must be visible and audible to the public in order to constitute such act to be an offence under Section 3(1)(x) of the said Act. In the provision of law comprised under Section 3(1)(x) of the said Act, the word "view" refers to that of 'public' but prefixed by the expression "in any place within". Being so, the word "public" not only relates to the location defined by the word "place" but also to the subjects witnessing the incidence of insult or intimidation to the member of scheduled caste or tribe. Therefore, the incidence of insult or intimidation has to occur in a place accessible to and in the presence of the public. The presence of

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both these ingredients would be absolutely necessary to constitute an offence under the said provision of law. The complaint disclosing absence of both or even any one of those ingredients would not be sufficient to accuse the person of having committed an offence under Section 3(1)(x) of the said Act."

13. In the case of Dr. Manali and others vs. State of

Maharashtra, the decision in the case of Pradnya vs. State of

Maharashtra was considered. It is held in the decision of the

Division Bench of this Court that the incident of insult or

intimidation has to occur in a place accessible and in the presence

of public. It is further held that the presence of both these

ingredients would be absolutely necessary to constitute an offence

under the said provision of law. It is held that if the complaint

discloses absence of both or any one of those ingredients would not

be sufficient to accuse a person of having committed an offence

under this Section. The same proposition of law has been laid

down in the case of V.P. Shetty vs. Sr. Inspector of Police.

14. The learned Advocate relying upon the decision in the

case of Gorige Pentaiah vs. State of A.P. and others submitted that

there is no mention in the report that the applicant/accused was

not the member of scheduled caste or scheduled tribe and he

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intentionally insulted or intimidated with an intent to humiliate the

complainant in a place within public view. The judgment has been

further relied upon to demonstrate the basic requirements to quash

and set aside the F.I.R. by exercising the inherent powers under

Section 482 of the Criminal Procedure Code. In this case the

Hon'ble Supreme Court of India has held that in order to attract the

offence the act must be done in a place within public view. In this

case the Hon'ble Supreme Court of India has observed that in the

following seven contingencies the inherent powers can be exercised

to quash the criminal proceeding. The same are as follows :

"(1) Where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;

(2) Where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;

(3) Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

(4) Wholesome power under Section 482 Criminal Procedure Code entitles the High Court to quash the proceedings when 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 proceeding ought to be quashed- The inherent power should not be exercised to stifle a legitimate prosecution.

(5) When a prosecution at the initial stage is asked to be quashed, the test to be applied by the

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court is as to whether the uncontroverted allegations as made prima facie establish the offence. 1988(1) RCR (Criminal) 565 relied.

(6) Power under Section 482 Criminal Procedure Code has to be exercised by the High Court, inter alia, to prevent abuse of the process of any court or otherwise to secure the ends or justice. 2000(4) RCR (Criminal) 762 relied.

(7) Inherent powers under Section 482 should be exercised for the advancement of justice - If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be fully justified in preventing injustice by invoking inherent powers of the court."

15. The learned Advocate for the non-applicant No.2 relying

on the decision of the Swaran Singh and others vs. State through

Standing Counsel and another, reported in (2008) 8 SCC 435

submitted that in the case at hand perusal of the F.I.R. in entirety,

would show that the basic requirements constituting the offence

under Section 3(1)(r)and (s) of the S.C. & S.T. Act have been made

out. In this case it is held that calling a member of the scheduled

caste "Chamar" with intent to insult or humiliate him in a place

within public view is certainly an offence under Section 3(1)(s) of

the S.C. & ST. Act. In para No.28 of this decision the Hon'ble

Supreme Court of India has held that the offence must be

committed in a place within public view. It is further held that if

the remark is made inside a building, but some members of the

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public are there (not mearly relatives or friends) then also it would

be an offence since it is in the public view.

16. In order to consider the applicability of the law laid

down in the judgments (cited supra) it would be necessary to

prima facie analyse the facts stated in the reply and the available

evidence to find out whether the basic ingredients constituting the

offence have been made out or not. In our opinion in order to

appreciate the same, the facts brought on record during the

investigation as well as by the applicant in this proceeding need to

be stated at the outset. A serious dispute is going on between the

applicant and Hemant Lakde. The perusal of the investigation

papers would show that there is no iota of evidence to substantiate

the contention of the non-applicant No.2 that the applicant has

rented out a shop to her. The applicant has produced on record

four complaints made against Hemant Lakde dated 25 th January,

2020, 2nd February 2020, 4th February 2020 and 15th October 2020.

All these complaints were made to the Police against Hemant

Lakde. Perusal of the complaints would show that the applicant has

categorically stated that Hemant Lakde threatened him to involve

in the atrocity crime and to face the dire consequences. It is the

case of the applicant that Hemant Lakde instigated non-applicant

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No.2 to lodge false case against him. The order passed by the Civil

Judge, Senior Division, Amravati against Hemant Lakde and others

is on record at Annexure-C dated 5 th March, 2021. This order was

served upon Hemant Lakde and others on 8 th March, 2021.

Annexure-D is the receipt of deposit of Special Bailiff charges by the

applicant. It is apparent on the face of record that on 8 th March,

2021 Hemant Lakde and others came to know about filing of the

suit and ex-parte ad-interim injunction granted against them. The

applicant was admittedly present at Amravati. He had

accompanied the Bailiff for the purpose of service. According to the

non-applicant No.2 the incident occurred on 8 th March, 2021 at

about 3.45 p.m. It is pertinent to note that the period from the

date of order passed by the Civil Court from 5 th March, 2021 to

8th March, 2021 would be very relevant. It is pertinent to note that

the report of this incident occurred on 8th March, 2021 was lodged

on 15th March, 2021. It is, therefore, apparent that there was seven

days delay in lodging the report. The reason for delay in lodging

the report as can be seen from the F.I.R. is that there was doubt

about the name of the accused and, therefore, to ascertain the

name the report could not be lodged immediately. It is pertinent to

mention that the non-applicant No.2 on her own has stated that the

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applicant has let out a shop to her for doing a business at the

monthly rent of Rs.500/- in the month of December 2018. While

prima facie analyzing the facts stated in the F.I.R. this fact would

also an assume importance. The non-applicant No.2 wants this

Court to believe that though she has started dealing with applicant

in 2018 she had no knowledge of his correct name till the date of

the incident. All the above stated facts cannot be brushed aside

while deciding the application made by the applicant.

17. It would be necessary to prima facie consider the

relevant facts stated in the F.I.R. to see whether the offence under

Section 3(1)(r) and (s) of the S.C. & S.T. Act is made out or not. It

is stated that the non-applicant No.2 was travelling in the auto-

rickshaw to her village. It is further stated that the applicant came

there in his car and stopped the auto-rickshaw. The accused asked

auto-rickshaw driver to get down from the auto-rickshaw. It is

stated that after the driver got down from the auto-rickshaw the

applicant sat in the auto-rickshaw and requested her to give a

statement against Hemant Lakde, but she refused to do it. It is

stated that, therefore, the accused intimidated and insulted her and

abused her by her caste. So, according to the non-applicant No.2,

at the relevant time, the auto-rickshaw was in Jaistambh Chowk,

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Morshi and when the accused insulted or abused her by her caste,

the auto-rickshaw driver was present on the spot. On the basis of

this statement it is sought to be established that the offence under

Section 3(1)(r) and (s) of the S.C. & S.T. Act occurred in a place

within public view.

18. In the background of the above stated facts and the

contents of the F.I.R. it would be necessary to prima facie analyze

the material produced by the Investigating Officer along with reply.

It is pertinent to note that in the F.I.R. the name of the auto-

rickshaw driver has not been mentioned. The Investigating Officer

has recorded the statement of the auto-rickshaw driver, namely,

Surendra Shankarrao Ingale on 19th March, 2021. His second

statement was recorded before the learned Judicial Magistrate,

First Class, Morshi under Section 164 of the Criminal Procedure

Code on 6th April, 2021. Perusal of both the statements would

show that he has not whispered about the presence of applicant on

the spot. He has stated that after parking the auto-rickshaw in the

chowk he had gone to the market to buy some goods. He has

further stated that after he came back the applicant told him that

Aakash Ingole had come there and abused her by her caste. In his

first statement he has mentioned the name of the applicant as

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Avakash Ingole and in the statement before the Magistrate he has

mentioned the name of the applicant as Aakash Ingole. This

statement, if considered prima facie, would show that on the date

of the incident the applicant No.2 knew the name of the applicant.

Be that as it may, the statement of this witness would show that no

incident as stated in F.I.R. occurred in his presence. Perusal of

various statements recorded by the Investigating Officer, for prima

facie analysis, would show that not a single witness has stated

about the occurrence of the incident mentioned in the F.I.R. in their

presence. Therefore, on perusal of the material and on prima facie

analyzing the same, save and except the statement of the

non-applicant No.2, there is no evidence with regard to the

occurrence of the incident. In our view, on the basis of the facts

stated in the F.I.R., in the absence of other material, the basic

ingredients of the offence would not be established in this case.

The basic requirement is that the so called acts mentioned in

clauses (r) and (s) of Section 3, sub-section (1) must take place in

any place within public view. There is no evidence to prima facie

establish that the any act was done by applicant within public view.

In view of the facts and the material considered above, we conclude

that the proposition of law laid down in the Judgment cited supra

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by the learned Advocate for the applicant squarely applies to this

case. We, therefore, conclude that the basic ingredients of Section

3 sub-Section (1)(r) and (s) have not been made out. Similarly,

the contention of the applicant of his false implication cannot be

ruled out in the backdrop of the chronology of the events and the

documentary evidence placed on record by him with regard to his

dispute with Hemant Lakde.

19. The Hon'ble Supreme Court of India in the case of M.

Srikanth vs. State of Telangana and another, reported in

(2019) 10 SCC 373 has held that where the allegations made in the

F.I.R. or complaint, even if they are taken at their face value and

accepted in their entirety do not prima facie constitute a case

against the accused, the High Court would be justified in quashing

the proceedings. In the case of Rashmi Chopra vs. State of Uttar

Pradesh and another, reported in (2019) 15 SCC 357 the Hon'ble

Supreme Court of India has considered the case of State of Haryana

vs. Bhajan Lal reported in 1992 Supp (1) SCC (Cri) 335. In this

case the Hon'ble Supreme Court of India has held that the criminal

prosecution can be allowed to proceed only when prima facie

offence is disclosed. It is held that the judicial process is a solemn

proceeding which cannot be allowed to be converted into an

J-apl484.21.odt 20/21

instrument of oppression or harassment. If the High Court finds

that the proceeding deserves to be quashed as per the parameters

as laid down in Bhajan Lal's case, the High Court shall not hesitate,

in exercise of its jurisdiction under Section 482 of the Criminal

Procedure Code to quash the proceedings.

20. In our view the prosecution in this case cannot be

allowed to continue. In the backdrop of the prima facie analysis of

the material placed on record in our view the continuation of the

prosecution would be abuse of process of law. In our opinion, the

case in hand would be squarely covered under clauses (3),(4) and

(7) of the decision in the case of Gorige Pentaiah vs. State of A.P.

and others (cited supra). In our view, the proposition of law laid

down in the judgments cited supra by the learned Advocate for the

applicant squarely applies to the facts of this case. The proposition

of law laid down in the decision relied upon by the learned

Advocate for the non-applicant No.2, is not applicable in the

backdrop of the facts of this case. In view of the facts, law and

evidence we, therefore, conclude that this is a fit case to quash the

F.I.R. Hence, following order :

ORDER

(i) The application is allowed.

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                                    (ii)    The First Information Report No.109/2021, dated

15th March, 2021 registered against the applicant at Police Station

Morshi, Taluka Morshi, District Amravati for the offences

punishable under Section 506 of the Indian Penal Code and under

Section 3(1)(r) and 3(1)(s) of the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Act, 1989 is quashed

and set aside.

(iii) The applicant stands discharged from the said

crime.

                                                JUDGE                               JUDGE
okMksns