Bombay High Court
Somnath S/O Mansaram Bobade And 5 ... vs State Of Mah. Thr. Pso Ps Patur ... on 6 October, 2021
Bench: V. G. Joshi
Judgment 1 25apeal 170.21.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 170/2021
1. Somnath S/o Mansaram Bobade,
Aged about 35 yrs., Occ. Agriculturist,
2. Arjun @ Avinash @ Mansaram Bobade,
Aged about 31 yrs, Occ. Agriculturist,
3. Navnath S/o Mansaram Bobade,
Aged 27 yrs., Occ. Agriculturist,
4. Pramod S/o Mansaram Bobade,
aged 25 yrs, Occ. Agriculturist,
5. Mangala w/o Mansara Bobade,
Aged about 55 yrs., Occ. Household,
6. Archana S/o Somnath Bobade,
Aged 30 yrs, Occ. Household,
All R/o Karla, Tah. Patur,
Dist. Akola.
.... APPELLANTS
// VERSUS //
1. State of Maharashtra,
through Police Station Officer,
Police Station, Patur, Tah. Patur,
Dist. Akola
2. Ganesh S/o Uttam Kolhe,
Aged 47 yrs, Occ. Agriculturist,
R/o. Karla, Tah. Patur,
Dist. Akola.
.... RESPONDENTS
___________________________________________________________________
Shri A. M. Tirukh, Advocate for appellants.
Shri Anand M. Deshpande, APP for respondent No.1/State.
Shri S. B. Gandhi, Advocate for respondent No. 2.
___________________________________________________________________
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Judgment 2 25apeal 170.21.odt
CORAM : VINAY JOSHI, J.
DATED : 06.10.2021
JUDGMENT
Heard.
2. Admit. By consent of learned counsel present for the
parties, appeal is taken up for final disposal.
3. The challenge in this appeal is to the impugned order
dated 24.03.2021 passed by learned Additional Sessions Judge, Akola
in Criminal Misc. Application No. 210/2021, under which the Special
Court has refused to grant pre-arrest protection to the appellant Nos. 1
to 6 in connection with Crime No. 51/2021 for offence punishable
under Sections 354, 323, 324, 294 read with Section 34 of the Indian
Penal Code, Sections 3(1)(b), 3(1)(r), 3(1)(s), 3(1)(w)(i) of the
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)
Act, 1989 (short 'SC and ST Act').
4. It is informant's case that he is running grocery shop in the
village. The appellants are neighbouring residents. There was a
dispute in between them on account of encroachment of land for which
civil litigation is going on. On 18.12.2020 around 08.30 a.m., the
informant along with his wife were at their grocery shop. At that time,
Judgment 3 25apeal 170.21.odt
appellant No. 1. Somnath and appellant No. 2 Arjun arrived at grocery
shop and argued for no reason. Appellant Nos.1 and 2 abused
informant in the name of caste and threw some waste material in the
shop and on the person of informant. The appellant No. 1 also
outraged modesty of informant's wife. Rest of the appellants also
arrived and manhandled both of them.
5. Soon after the occurrence, informant went to the
concerned Police Station to lodge report. However, the Police have
registered N.C. report for offence punishable under Sections 323, 504
and 506 of the Indian Penal Code. Being dissatisfied, on 22.12.2020,
the informant filed an application to the Superintendent of Police
stating the incident. However, as cognizance was not taken, the
informant has filed an application under Section 156(3) of the Code of
Criminal Procedure with the Special Court. On that basis, the Police
registered existing Crime No. 51/2021 for aforesaid offences.
6. The appellants have prayed for pre-arrest protection by
claiming innocence and false implication. Learned counsel for the
appellants vehemently submits that the appellants have not committed
any crime, however they have been falsely implicated as a counterblast
to the earlier report lodged by the appellants. According to the learned
Judgment 4 25apeal 170.21.odt
counsel for the applicants, the allegations made in the First Information
Report (FIR) are not sufficient to constitute offence under the
provisions of SC and ST Act. It is submitted that the present report is
lodged with an ulterior motive to harass and pressurize the appellants.
7. The appellants have produced a copy of FIR in Crime
No.612/2020 lodged by the appellant No. 2 Arjun @ Avinash alleging
that informant and his family members have assaulted them on the day
of occurrence. He would submit that no such incident as alleged by
informant took place. In this regard, he relied on the N.C. report
lodged by informant on the day of occurrence. It is stated that in the
said N. C. Report, there are no allegations about abuses in the name of
caste which according to him latter on inserted. The appellants have
produced injury certificate of appellant No. 1 to show that on the day
of incident, appellant No. 1 was assaulted by means of sickle.
8. True, the initial reaction of informant about the incident is
mere allegation of beating as reflected in N. C. report. The Police have
registered crime on the basis of application filed by the informant at
latter stage. Learned counsel for the appellant would submit that in
order to constitute an offence punishable under Sections 3(1)(r) and
3(1)(s) of the SC and ST Act, the occurrence must be within the
Judgment 5 25apeal 170.21.odt
"public view". By placing reliance on the decision of this Court in case
of Pradnya Pradeep Kenkare & anr. Vs. the State of Maharashtra, 2005
ALL MR (Cri) 1948, it is submitted that the contents of FIR nowhere
makes out that the occurrence took place either in "public view" or in
presence of member of public. In above referred case of Pradnay
Pradeep Kenkare, this Court took view that the incident of insult or
intimidation has to occur in a place accessible to and in the presence of
the public. The presence of both these ingredients would absolutely
necessary to constitute an offence under the provisions of SC and ST
Act.
9. Reading of contents of the report, reveals that the incident
took place at the grocery shop of the informant. There is no reference
in FIR about the presence of any member of public at the relevant time.
Though learned APP submitted that during the course of investigation,
a statement was recorded of one "L" on 21.02.2021 stating that he has
witnessed the incident, however, the fact remained that FIR does not
bear reference about presence of independent witness. It is a matter of
trial to establish said fact by adducing evidence. Prima facie, contents
of FIR does not make out the essential ingredients to constitute offence
punishable under the provisions of the SC and ST Act.
Judgment 6 25apeal 170.21.odt
10. Learned counsel for the appellants would submit that
offence punishable under Section 3(1)(b) of the SC and ST Act has also
not been made out since there are no allegations about dumping,
obnoxious substance at the premise owned by the informant. In other
words, he would submit that mere throw of waste material does not
amount to dumping. The said submission certainly requires
consideration, however, it is a matter of trial.
11. As regards to the applicability of Section 3(1)(w)(i) of the
SC and ST Act is concerned, it is argued that there is no material to
indicate that one of the appellant has intentionally touched the body of
informant's wife knowingly that she belongs to the Backward Class.
Besides that, he would submit that in order to constitute offence under
the provisions of SC and ST Act, the FIR must disclose that accused
were aware about the caste of informant and there must be adequate
mens rea. To substantiate said contention, he relied on the decisions of
this Court in cases of Kedarsingh Dharma Patil & anr. Vs. the State of
Maharashtra & anr., 2019 ALL MR (Cri) 2974 and Vasantrao S/o
Madhavrao Vhadgir & ors. Vs. the State of Maharashtra & anr. 2020
ALL MR (Cri) 365.
Judgment 7 25apeal 170.21.odt
12. Prima facie, it reveals that on the day of occurrence, one of
the appellant has lodged report alleging that informant and his party
made assault by means of dangerous weapon which was registered
vide Crime No. 612/2020. Initially, N.C. report lodged by informant
does not spell out the allegations attracting the provisions of SC and ST
Act. The FIR does not disclose that the occurrence took place within
the "public view". Prima facie, essential ingredients to invoke the
provisions of SC and ST Act does match with the allegations levelled in
FIR. So far as rest of the allegations are concerned, it is not pointed
that as to why the appellants' custody is necessary. Already this Court
has granted interim protection to the appellants vide order dated
12.04.2021. There is no complaint that the appellants have misused the
liberty. Having regard to all these facts, appellants' liberty can be
protected. Hence, following order:-
(I) Appeal stands allowed and disposed of.
(II) Impugned order dated 24.03.2021 passed by learned
Additional Sessions Judge, Akola in Criminal Misc. Application No.
210/2021 is hereby quashed and set aside.
Judgment 8 25apeal 170.21.odt
(III) Ad-interim order dated 12.04.2021 is hereby made
absolute on the same terms and conditions.
(III) Appellants shall continue to attend concerned Police
Station till filing of charge-sheet or for the period of 60 days whichever
is earlier.
JUDGE
.
Gohane
