Mittal D/O Lalit Soni vs State Of Mah. Thr. Pso Ps Nagpur ...
2022 Latest Caselaw 2347 Bom

                                               1                               24-apl-738-20.odt



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

              CRIMINAL APPLICATION (APL) NO. 738 OF 2020

1. Ku. Mittal D/o. Lalit Soni,
   Aged about 28 years, Occ. Student,

2. Yash S/o. Lalit Soni,
   Aged about 25 years, Occ. Student

     Both R/o. Santi Road, Near Itwari School,
     Itwari, Nagpur.                                                     . . . APPLICANTS

                      ...V E R S U S..

1. State of Maharashtra through
   Police Station Officer,
   Police Station Nagpur Tahsil,
   Nagpur.

2. Smt. Nandini W/o. Paresh Soni,
   Age 41 years, Occ. Household,
   R/o. C/o. Ramabai Udyan,
   Plot No. 26, Godbole Niwas,
   P. S. Imamwada, Nagpur.                                       . . . NON-APPLICANTS

------------------------------------------------------------------------------------------------
Shri N. V. Fulzele, Advocate for applicants.
Mrs. M. A. Barabde, APP for non-applicant no. 1/State.
-----------------------------------------------------------------------------------------------
                 CORAM :- V. M. DESHPANDE AND
                          AMIT B. BORKAR, JJ.

DATED :- 09.03.2022

JUDGMENT (PER : AMIT B. BORKAR, J.) :-

1. Heard.

2. Rule. Rule made returnable forthwith.

2 24-apl-738-20.odt

3. By way of the present application under Section 482 of the

Code of Criminal Procedure (Cr.P.C.) the applicants are challenging

registration of the First Information Report (FIR) No. 145/2016, dated

28.07.2016, charge-sheet bearing no.10/2018 for the offence

punishable under Sections 294, 506B and 323 read with Section 34 of

the Indian Penal Code and Section 3(1)(10) of the Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Atrocity

Special Case No. 2/2018.

4. The FIR came to be registered against the applicants and

others with accusations that the non-applicant no. 2 got married with

one Paresh Arvind Soni in the year 2011. The dispute between her

husband and his brother started after a period of 8 months. It is

alleged that dispute was for the reason that the non-applicant no. 2

belongs to backward class community. The husband of the non-

applicant no. 2 and the non-applicant no. 2 started residing separately.

It is alleged that on 16.07.2016, when the non-applicant no. 2 was in

her house, she was abused by her in-laws and assaulted by fists and

kick blows. Thereafter on 28.07.2016, her sister-in-law, elder brother-

in-law and brother-in-law abused her in the name of caste and

assaulted in presence of her friends. She therefore filed the FIR

against the applicants and others. The Investigating agency carried out

the investigation and filed charge-sheet against the applicants and 3 24-apl-738-20.odt

others. The applicants have therefore challenged registration of the

FIR and charge-sheet by way of filing the present application.

5. This Court on 07.01.2021 issued notice to the non-

applicants for final disposal. The office report dated 20.01.2021 shows

that notice for final disposal has been served on the non-applicant no.

2. Inspite of service, the non-applicant no. 2 has not appeared in the

present matter either personally or through Advocate.

6. The non-applicant no. 1 has filed reply stating that the

Investigating Officer has carried out investigation and recorded

statement of eye-witnesses. It is stated that eye-witness Madhuri @

Dolly Bhardwaj has changed her version from the earlier statement

given under Section 161 of the Cr.P.C.. It is stated that the charge-

sheet is already filed and there are sufficient material against the

applicants.

7. We have carefully scrutinized the allegations made in the

FIR. From the allegations in the FIR, we are satisfied that dispute

between the applicants and the non-applicant no. 2 is essentially a

property dispute. In the context of property dispute, the Hon'ble Apex

Court, in the case of Hitesh Verma Vs. The State of Uttarakhand

[(2020) 10 SCC 710] in paragraph no. 13 and 18 has held as under :-

4 24-apl-738-20.odt

"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.

...... ..

..... ...

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."

8. In the backdrop of the facts of the present case, in our

considered view, the observations of the Hon'ble Apex Court in the

case of Hitesh Verma (supra) in paragraph nos. 13 and 18 are squarely

attracted. Insofar as other offences alleged against the applicants are

concerned, on consideration of the allegations in the FIR and material

in the charge-sheet in the form of statement of witnesses, we are

satisfied that the ingredients of offence under Sections 294, 506B and 5 24-apl-738-20.odt

323 read with Section 34 of the IPC are not fulfilled even if the

material is taken at its face value. The allegations against the present

applicants are vague in nature. There is no criminal antecedent to

discredit of the applicants. We are therefore satisfied that continuance

of present proceedings against the applicants would amount to abuse

of process of Court.

9. We, therefore pass the following order:-

i) The First Information Report (FIR) No. 145/2016, dated

28.07.2016 and charge-sheet bearing no. 10/2018 for the offence

punishable under Sections 294, 506B and 323 read with Section 34 of

the Indian Penal Code and Section 3(1)(10) of the Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Atrocity

Special Case No. 2/2018 pending in the Court of Special Judge,

Scheduled Caste and Schedule Tribe (Prevention of Atrocities) Act,

Nagpur are hereby quashed and set aside against the applicants only.

                             ii)          Rule made absolute in the above term.




                                   (AMIT B. BORKAR, J.)                 (V. M. DESHPANDE, J.)
          Digitally signed
          by JAISWAL
JAISWAL   RAJNESH
RAJNESH   RAMESH
          Date:
RAMESH    2022.03.11
          18:49:10 +0530



     RR Jaiswal