Bombay High Court
Shankar Namdeo Gaikwad vs The State Of Maharashtra And Anr on 6 September, 2021
Bench: S.S. Shinde, N. J. Jamadar
APL 491-20.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Amk
CRIMINAL APPLICATION NO. 491 OF 2020
Shankar Namdeo Gaikwad ]
Age-51 years, Occ.- Business, ]
R/at Tisgaon, Gaonthan, ]
VISHAL Kalyan (E), Thane ] .. Applicant
SUBHASH
PAREKAR
Versus
Digitally signed
by VISHAL
SUBHASH 1. The State of Maharashtra ]
PAREKAR
Date: 2021.09.07 At the instance of Mahatma Phule ]
14:22:40 +0530
Chowk Police Station ]
2. Ramesh Waghmare ]
Age-57 yrs, Occ.- Medical Professional ]
R/at 406, Gokuldham, Sindhigate, ]
Murbad Road, Kalyan, Thane. ] .. Respondents
Mr. Abhishek Yende for the Applicant.
Mrs. S. D. Shinde, APP for the Respondent No.1-State.
Mr. A. M. Dube for Respondent No.2.
CORAM : S. S. SHINDE AND N. J. JAMADAR, JJ.
Judgment reserved on : 12.08.2021
Judgment pronounced on : 06.09.2021
JUDGMENT (Per N. J. Jamadar, J.)
1. Rule. Rule made returnable forthwith and, with the consent of the
Counsels, heard fnally.
2. This application, under Section 482 of the Code of Criminal
Procedure, 1973 (the Code), is preferred to quash and set aside the FIR
bearing No. 101/2020 dated 22.02.2020 registered with the Mahatma
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Phule Chowk Police Station for the offences punishable under Sections
504, 506(2) r/w Section 34 of the Indian Penal Code, 1860 (Penal Code)
and Sections 3(1)(r) and 3(2)(va) of the Scheduled Caste and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC & ST Act), at
the instance of the respondent No.2-frst informant. The background
facts leading to this application can be stated in brief as under:
(a) The frst informant is a medical professional. He resides in a fat
on the 2nd foor of Mira Apartment, Teesgaon Naka, Kalyan (E). The
petitioner-accused owned a commercial premises on the 1 st foor of Mira
Apartment. The said premises was let out to the frst informant by the
accused in the year 1996. The frst informant alleged that in March,
2011, he purchased the said premises from the accused. However, the
accused did not execute the conveyance in favour of the frst informant.
Dispute arose between the frst informant and accused resulting in
multiple proceedings including lodging of FIRs by the frst informant
against the accused for the offence punishable under sections of the
Penal Code and SC & ST Act and a Civil Suit bearing No. 381/2012, which
was subjudice before the Civil Court at Kalyan.
(b) The frst informant alleged that on 18.02.2020 the said suit was
posted for hearing before the learned Civil Judge, Senior Division,
Kalyan. He and his witness Mr. Pankaj Hanumant Babar appeared
before the Court. Evidence of his witness Pankaj Babar was recorded.
At about 2.00 p.m., when the frst informant and the said witness left
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the court room and came in the precinct of the Court premises,
defendant No.1-accused came from behind along with his brother
Sitaram. The accused abused and intimidated the frst informant by
uttering the words, "take the case back (xxxx) else you will be killed".
The accused knew that the frst informant is a member of Scheduled
Caste and in order to intentionally humiliate the frst informant, he
abused and intimidated the frst informant in the aforesaid fashion.
Hence, the frst informant approached the Mahatma Phule Police
Station, Kalyan and lodged a report leading to registration of C. R. No.
101/2020 for the aforesaid offences.
3. The applicant has invoked the inherent jurisdiction of this Court to
quash and set aside the subject FIR and the consequent proceedings on
the ground that in the wake of dispute over the premises which was let
out to the frst informant, the accused had lodged a private complaint
bearing No. 485 of 2012 against the frst informant for the offences
punishable under Sections 463, 464, 468, 471 r/w 34 of the Penal Code.
The frst informant with a view to give counterblast to the said
complaint started lodging false and frivolous FIRs against the accused
by taking undue advantage of the fact that, the frst informant is a
member of scheduled caste. The allegations in the instant FIR, even if
taken at par, do not make out offences for which the accused had been
arraigned. The allegations are patently false and malafde. In fact, the
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frst informant was not present in Court, on the alleged date of
occurrence as is evident from the copy of roznama in Special Civil Suit
No. 381/2012 dated 18.02.2020. In any event, the allegations in the FIR
do not disclose that the accused had abused the frst informant with
reference to his caste. The invocation of the provisions contained in SC
& ST Act have been actuated by malice. The applicant asserts that
continuation of the proceedings arising out of FIR 101/2020, thus,
constitutes a gross abuse of the process of the Court and, therefore, the
FIR and consequent proceedings deserve to be quashed and set aside.
4. An affdavit-in-reply is fled on behalf of respondent No.2-frst
informant. Respondent No.2 has referred to the dispute between the
parties and the various proceedings pending adjudication including
Special Civil Suit No. 381/2012. The accused had been exerting
pressure upon the frst informant to withdraw the said suit. The frst
informant reiterates that on the date of occurrence, the accused abused
and intimidated the frst informant, with a view to intentionally
humiliate the frst informant knowing fully well that, the frst informant
is a member of Scheduled Caste. It was denied that the allegations in the
FIR do not make out any offence prima facie. On the contrary,
statements of the witnesses have been recorded under Section 164 of
the Code which substantiate the allegations in the FIR. Eventually post
completion of the investigation, charge-sheet has been lodged. The frst
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informant further contends that despite registration of multiple FIRs
resulting in the prosecution of the accused for the offences punishable
under the SC & ST Act, the accused has been persistently harassing the
frst informant for being a member of the scheduled caste and, thus, the
application for quashing of the FIR does not deserve countenance. In
any event, the question as to whether the accused insulted, intimidated
and intentionally humiliated the frst informant is rooted in facts and
such questions cannot be legitimately decided in exercise of the
extraordinary power under Section 482 of the Code. On these amongst
other grounds, the respondent No.2 prayed for dismissal of the
application.
5. We have heard Mr. Yende, learned Counsel for the applicant, Mr.
Dube, learned Counsel for respondent No.2 and Mrs. S. D. Shinde,
learned APP for the State at length. With the assistance of the learned
Counsel for the parties, we have carefully perused the material on
record including the report under Section 173 of the Code and its
accompaniments. We have also perused the notes of arguments
submitted by the learned Counsel for the applicant and for the
respondent No.2 in elaboration of the submissions canvassed across the
bar.
6. It may be apposite to note the facts which are by and large
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uncontroverted. Firstly, the premises from which the frst informant
carries on his profession was indisputably let out by the accused.
Secondly, the disputes arose between the parties over the alleged non-
delivery of the possession of the said premises. Thirdly, the institution
of various proceedings including FIRs fled by the frst informant and
the consequent proceedings is rather incontestable. Nor is it in dispute
that the accused lodged private complaint in the Court of learned JMFC,
Kalyan bearing Regular Criminal Case No. 485/2012. Institution of
Special Civil Suit No. 381/2012 by the frst informant against the
accused is also undisputable. Lastly, though the parties are not in
unison over the status of various FIRs lodged by the frst informant
against the accused, for the purpose of this application, we deem it
appropriate to note the status of those FIRs as furnished by the frst
informant-respondent No.2.
No FIR Date Police Station Offences Status
1. 47/2012 13/10/12 Kolsewadi 3(1)(i) (ii),(x) SC SC 95/2013
& ST Act
2. 14/2013 413/13 Kolsewadi 3(1)(i)(x) SC163/ 2013
3. 7/2014 17/2/14 Kolsewadi 3(1)(i)(ii) (vii)(ix) SC209/ 2015
& (x)
4. 27/2014 3/7/17 Kolsewadi 3(1)(i)(vii) (ix), 'C' Summary
3(2)(vi)(vii), 3(1)
(v) and 4
5. 101/2020 22/2/20 Mahatma 3(1)(i), 3(1)(iii) & Special Case
(Under Phule Chowk (va) SC & ST Act No.4/ 2021
considerat and 504 & 506(2)
ion) of IPC.
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7. In the backdrop of the aforesaid proceedings, the allegations in the
instant FIR bearing No. 101/2020, the quashment of which is sought,
deserve consideration. From the perusal of the FIR, it becomes evident
that the frst informant has narrated the historical backdrop of the
dispute between the parties over the occupation of the commercial
premises on the 1st foor of Mira Apartment and the alleged atrocities
perpetrated by the accused in respect of which the frst informant has
lodged various reports. The gravamen of the indictment against the
accused is that on 18.02.2020 Special Civil Suit No. 381/2012 was
posted for hearing before the Civil Court, Kalyan. The frst informant
attended the proceeding in the said suit along with Mr. Pankaj Babar, his
witness. The accused and his brother Sitaram also attended the said
proceeding. At about 2.00 p.m., recording of evidence of the informant's
witnesses was over. When they left the Court room, the accused and his
brother Sitaram accosted them in the Court precinct. The accused asked
the frst informant to withdraw the said case lest, he would be killed and
hurled abuses. The act which allegedly constitutes the offence is the
utterance of the words (take the case back (XXXX) lest you will be
killed).
8. In the backdrop of the aforesaid nature of the accusation, coupled
with inimical nature of the relationship, as is evident from multiple
proceedings between the parties, Mr. Yende, learned Counsel for the
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applicant strenuously urged that the allegations in the impugned FIR
are false and malicious. The frst informant has been resorting to the
provisions contained in SC & ST Act to wreck vengeance against the
accused. Even if the allegations in the FIR are taken at their face value,
according to Mr. Yende, no offence, much less an offence punishable
under SC & ST Act, can be said to have been, prima facie, made out. In
any event, it is not the case of the prosecution that the accused passed
any remarks with reference to the caste of the frst informant. Instant
prosecution case, thus, amounts to a gross abuse of the process of the
Court.
9. Mr. Dube, learned Counsel for respondent No.2 joined the issue by
canvassing a submission that the question as to whether the allegations
in the FIR are true or false cannot be delved into at this stage. Veracity
of the allegations is a matter for trial. Mr. Dube controverted the
submission on behalf of the applicant that no offence punishable under
the SC & ST Act is, prima facie, made out. It was further urged that the
submission on behalf of the applicant that no offence under the SC & ST
Act was made out is based on an incorrect impression of the provisions
of the SC & ST Act. Notwithstanding the fact that the frst informant
was not abused with reference to his caste, according to Mr. Dube, the
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offences punishable under Sections 3 (1) (2), 3 (1) (r) and 3 (2) (5) can
be said to have been made out. The thrust of the submission of Mr. Dube
was that to fall within the mischief of the offence punishable under
Section 3 (1) (r), it was not necessary that the offender should have
abused any member of the scheduled caste or scheduled tribe with
reference to the caste or tribe, which is the requirement of Clause (s)
of Section 1 of Section 3. Drawing the attention of the Court to the
provisions contained in Section 8 of the SC & ST Act, which incorporate
certain presumptions in prosecution for the offences punishable under
the SC & ST Act, Mr. Dubey urged that the question as to whether the
accused has committed the offence, for which he has been arraigned,
must be left to be determined at the trial.
10. As the submissions revolved around the applicability of the
provisions of the SC & ST Act, 1989, especially Clause (r) of sub-section
1 of Section 3, in the backdrop of undisputable position that the accused
had not abused the frst informant with reference to his caste, it may be
apposite to note the provisions of Clauses (r) and (s) of sub-Section 1.
They read as under:
3. Punishments for offences of atrocities.- (1) Whoever, not being a
member of a Scheduled Caste or a Scheduled Tribe,-
.........................
(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;
(s) abuses any member of a Scheduled Caste or a Scheduled
Tribe by caste name in any place within public view;
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11. From the phraseology of the aforesaid clauses, it becomes evident
that Clauses (r) and (s) address different mischief, though in a given
case where a member of scheduled caste and scheduled tribe is abused
with reference to his caste/tribe, the case may be covered by Clause (r)
as well. In the absence of the casteist abuses where the applicability of
Clause (s) is frmly ruled out, to sustain a charge under Clause (r), the
prosecution has to establish that:
(1) The accused intentionally insulted or intimidated a member
of a scheduled caste or a scheduled tribe;
(2) With intent to humiliate him;
(3) In any place within public view.
12. Mr. Yende, learned Counsel for the applicant urged with a degree
of vehemence that, even a case under Clause (r) is not, prima facie,
made out. The submission was premised on the fact that there is
material to indicate that the accused and the frst informant have been
at loggerheads over the property disputes. The alleged act of insult and
intimidation arising out of such disputes between two persons, one of
whom is a member of scheduled caste or tribe and the other does not
belong to such caste or tribe, cannot be attributed to have been made
with an intent to humiliate the member of the scheduled caste or
scheduled tribes in the absence of any material, for the only reason that
the victim is a member of scheduled caste or scheduled tribes. To
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bolster up this submission, Mr. Yende placed a very strong reliance on a
three Judge Bench judgment of Supreme Court in the case of Hitesh
Verma Vs. The State of Uttarakhand & Anr., (2020) 10 SCC 710.
13. In the case of Hitesh Verma (supra) the Supreme Court expounded
the import of the penal provision contained in Section 3 (1) (r), the
object which the legislature intended to achieve and the circumstances
under which the ingredients of the said clause can be said to have been
satisfed. Paragraphs 11 to 13 read as under:
"11. It may be stated that the charge-sheet fled is for an offence under
Section 3(1)(x) of the Act. The said section stands substituted by Act No.
1 of 2016 w.e.f. 26.1.2016. The substituted corresponding provision is
Section 3(1)(r) which reads as under: "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;"
12. The basic ingredients of the offence under Section 3(1)(r) of the
Act can be classifed as "1) intentionally insults or intimidates with intent
to humiliate a member of a Scheduled Caste or a Scheduled Tribe and 2)
in any place within public view".
13. The offence under Section 3(1)(r) of the Act would indicate the
ingredient of intentional insult and intimidation with an intent to
humiliate a member of a Scheduled Caste or a Scheduled Tribe. All
insults or intimidations to a person will not be an offence under the Act
unless such insult or intimidation is on account of victim belonging to
Scheduled Caste or Scheduled Tribe. The object of the Act is to improve
the socio-economic conditions of the Scheduled Castes and the Scheduled
Tribes as they are denied number of civil rights. Thus, an offence under
the Act would be made out when a member of the vulnerable section of
the Society is subjected to indignities, humiliations and harassment. The
assertion of title over the land by either of the parties is not due to either
the indignities, humiliations or harassment. Every citizen has a right to
avail their remedies in accordance with law. Therefore, if the appellant or
his family members have invoked jurisdiction of the civil court, or that
respondent No.2 has invoked the jurisdiction of the civil court, then the
parties are availing their remedies in accordance with the procedure
established by law. Such action is not for the reason that respondent No.2
is member of Scheduled Caste."
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14. In the said case also, the dispute between the accused and the
informant party therein had its genesis in the dispute over possession of
an immovable property. After adverting to the facts in the said case, the
Supreme Court, in terms observed that in the facts of the said case, the
allegations of hurling of abuses was against a person who claimed title
over the property. If such person happens to be a scheduled caste, the
offence under Section 3 (1) (r) of the Act is not made out. The
observations of the Supreme Court in paragraphs 16, 18 and 22 are
material and hence extracted below:
"16. There is a dispute about the possession of the land which is the subject
matter of civil dispute between the parties as per respondent No.2 herself.
Due to dispute, appellant and others were not permitting respondent No.2
to cultivate the land for the last six months. Since the matter is regarding
possession of property pending before the Civil Court, any dispute arising
on account of possession of the said property would not disclose an offence
under the Act unless the victim is abused, intimated or harassed only for
the reason that she belongs to Scheduled Caste or Scheduled Tribe.
18. Therefore, offence under the Act is not established merely on the fact
that the informant is a member of Scheduled Caste unless there is an
intention to humiliate a member of Scheduled Caste or Scheduled Tribe for
the reason that the victim belongs to such caste. In the present case, the
parties are litigating over possession of the land. The allegation of hurling
of abuses is against a person who claims title over the property. If such
person happens to be a Scheduled Caste, the offence under Section 3(1)(r)
of the Act is not made out.
22. The appellant had sought quashing of the charge-sheet on the ground
that the allegation does not make out an offence under the Act against the
appellant merely because respondent No. 2 was a Scheduled Caste since
the property dispute was not on account of the fact that respondent No. 2
was a Scheduled Caste. The property disputes between a vulnerable section
of the society and a person of upper caste will not disclose any offence
under the Act unless, the allegations are on account of the victim being a
Scheduled Caste. Still further, the fnding that the appellant was aware of
the caste of the informant is wholly inconsequential as the knowledge does
not bar, any person to protect his rights by way of a procedure established
by law."
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15. In the light of the exposition of the aforesaid legal position
reverting to the facts of the case, the following factors assume critical
signifcance:
First and foremost, there is no allegation of hurling of abuses with
reference to the caste of the frst informant.
Second, the accused allegedly used cuss word and threatened the
frst informant out of his life, in the event the frst informant did not
withdraw the case.
Third, the statement of the witness Prakash is in consonance with
the allegations of the informant in the FIR and does not add anything
more to those allegations.
Fourth, the genesis of the alleged offences is the dispute between
the parties over the immovable property.
16. If viewed through the aforesaid prism, coupled with the absence of
any material to, prima facie, indicate that the alleged hurling of abuses
and intimidation was with an intent to humiliate the frst informant, for
the reason that, he is a member of the scheduled caste, the offence
punishable under Section 3 (1) (r) cannot be said to have been, prima
facie, made out. Indisputably, the question as to whether the accused
did hurl the abuses and intimidate the frst informant is rooted in facts
and a matter for trial. At this juncture, in exercise of extraordinary
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inherent jurisdiction, this Court would not be justifed in delving into
those aspects of the matter. The accused can, therefore, be legitimately
prosecuted for the offences punishable under the Penal Code. However,
we are of the considered view that, there are no, prima facie, allegations
in the FIR, even if construed as they stand, to make out any offence
punishable under the SC & ST Act, 1989.
17. In the light of the aforesaid fact situation, the crucial question
which wrenches to the fore is whether the resort to the extraordinary
power under section 482 of the Code would be justifablee Indubitably,
the inherent powers of the Court are preserved with the avowed object
of preventing the abuse of the judicial process and securing ends of
justice. In a given case, the continuation of the prosecution, which is, ex-
facie, actuated by a design to harass the accused and bring them to
terms, would amount to abuse of the judicial process and, in that
eventuality, the ends of justice would be secured by quashing such
prosecution. Undoubtedly, inherent power is of wide amplitude. But, the
plenary nature of the power warrants its resort sparingly and in
deserving cases only.
18. The width and contours of the power of the High Court under
section 482 of the Code was expounded by a Three Judge Bench of the
Supreme Court in the case of State of Karnataka V. L. Muniswamy1 as
1 (1977) 2 SCC 699
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under :
"7.............In the, exercise of this. whole some power, the High
Court is entitled to quash a proceeding if 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 saving of
the High Court's inherent powers, both in civil and criminal
matters, is designed to achieve a salutary public purpose which
is that a court proceeding ought not to be permitted to
degenerate into weapon of harassment or persecution. In a
criminal case, the veiled object behind a lame prosecution, the
very nature of the material on which the structure of the
prosecution rests and the like would justify the High Court in
quashing the proceeding in the interest of justice. The ends of
justice are higher than the, ends of mere law though justice has
got to be administered according to laws made by the,
legislature. The compelling necessity for making these
observations is that without a proper realisation of the object
and purpose of the provision which seeks to. save the inherent
powers of the High Court to do justice between the State and its.
subjects, it would be impossible to appreciate the width and
contours of that salient jurisdiction."
19. In exercise of the powers under section 482 of the Code, the Court
would be justifed to quash any proceeding if its continuance amounts to
abuse of the process and its quashment serves the ends of justice. In the
instant case, we fnd that the prosecution of the applicant for the
offences punishable under SC and ST Act, 1989 would amount to an
abuse of the process of the court. Undoubtedly, as indicated above, the
prosecution can continue for the offences punishable under the Penal
Code. This brings to the fore the question of quashing the proceeding to
the extent of the offences punishable under the SC and ST Act, 1989.
20. There is no impediment in law for quashing the FIR/charge-sheet
in part. A useful reference can be made to the judgment of the Supreme
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Court in the case of Ishwar Pratap Singh & Ors. Vs. State of Uttar
Pradesh & Anr., (2018) 13 SCC 612, wherein the legal position was
enunciated as under :
"9. Having regard to the settled legal position on external interference in
investigation and the specifc facts of this case, we are of the view that
the High Court ought to have exercised its jurisdiction under Section
482 CrPC to secure the ends of justice. There is no prohibition under law
for quashing a charge-sheet in part. A person may be accused of several
offences under different penal statutes, as in the instant case. He could
be aggrieved of prosecution only on a particular charge or charges, on
any ground available to him in law. Under Section 482, all that the High
Court is required to examine is whether its intervention is required for
implementing orders under the Criminal Procedure Code or for
prevention of abuse of process, or otherwise to secure the ends of
justice. A charge-sheet fled at the dictate of somebody other than the
police would amount to abuse of the process of law and hence the High
Court ought to have exercised its inherent powers under Section 482 to
the extent of the abuse. There is no requirement that the charge-sheet
has to be quashed as a whole and not in part. Accordingly, this appeal is
allowed. The supplementary report fled by the police, at the direction of
the Commission, is quashed."
21. In the case of Hitesh Verma (supra), the Supreme Court after
adverting to the aforesaid pronouncement in the case of Ishwar Pratap
Singh (supra) quashed the charge-sheet to the extent of the offence
punishable under Section 3 (1) (r) of the SC & ST Act. In the facts of the
instant case, we are persuaded to follow the same course.
22. The upshot of aforesaid consideration and reasons is that the
application deserves to be partly allowed.
Hence, the following order:
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ORDER
(i) The application stands partly allowed.
(ii) FIR No. 101/2020 and the consequent proceeding, being
Special Case No. 4/2021, stand quashed and set aside to the extent
of the offences punishable under Sections 3 (1) (r) and 3 (2) (va) of
the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989.
(iii) The prosecution arising out of the said FIR in respect of
offences punishable under the Indian Penal Code, 1860 shall,
however, proceed before the Competent Court in accordance with
law.
(iv) By way of abundant caution, it is clarifed that the
consideration in this application is confned to the applicability of
the provisions contained in the SC & ST Act, 1989 and the
concerned Court shall not be infuenced by any of the observations
made hereinabove in adjudicating the guilt of the accused for the
rest of the offences.
(v) Rule made absolute to the aforesaid extent.
(N. J. Jamadar, J.) (S. S. Shinde, J.)
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