Sunil [email protected] Chavhan And ... vs State Of Maharashtra Thr. P.S.O., ...
2023 Latest Caselaw 4069 Bom

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

                 CRIMINAL APPLICATION (APL) NO. 217 OF 2019

       1.       Sunil Rajesh @ Raju Chavhan age : 19
                years, Occupation : Student.

       2.       Shobha Raju Chavhan age : 34 years,
                Occupation : Labourer

       3.       Raju Nathu Chavhan, age : 40 year,
                Occupation : Labourer

       4.       Lalitha Vijay Chavhan, age : 32 years,
                Occupation : Labourer.

       5.       Vikas Pratap Rathod, age : 28 years,
                Occupation : Labourer.

                All r/o Village : Nampur Tanda, Taluka :
                Ghatanji, District : Yavatmal.
                                                             ... APPLICANTS

                                      VERSUS

       1.       State of Maharashtra, through Police
                Station Officer of Police Station
                Ghatanji , Taluka : Ghatanji, District
                Yavatmal.

       2.       Sheetal Amol Deotale, Age : 27
                years, Occupation : Labour, r/o
                Village - Nampur Tanda, Taluka :
                Ghatanji District : Yavatmal.

                                                         ... NON-APPLICANTS



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  _____________________________________________________________
         Shri P.W. Mirza, Advocate for the applicants.
         Shri N.R. Rode, A.P.P. for the non-applicant/State.
         Non-applicant no.2 served.
  ______________________________________________________________


                  CORAM : VINAY JOSHI AND BHARAT P. DESHPANDE, JJ.

DATED : 24/04/2023.

ORAL JUDGMENT : (Per : Vinay Joshi, J.)

Heard. ADMIT.

2. The matter is taken up for final hearing by consent of

learned Counsel appearing for the respective parties. Non-applicant

no.2 though served, chooses to remain absent.

3. By this application, the applicants are seeking to quash the

First Information Report (FIR) in Crime No.535 of 2018 registered with

the Ghatanji Police Station District Yavatmal for the offence punishable

under Sections 143, 147, 323, 354 of the Indian Penal Code, Sections

3(1)(2)(i)(ii) and 3(2)(va) of the Scheduled Caste and Scheduled Tribe

(Prevention of Atrocities) Act, 1989 ('the SC and ST Act) along with the

related Final Report filed by the non-applicant no.1.

4. It is the applicants' contention that registration of FIR for

the offences under the SC and ST Act itself is untenable since the

informant has not stated in the FIR that she belongs to the member of

scheduled caste or scheduled tribe nor filed caste certificate at the time

of registration of crime. Moreover, it is contended that the entire

allegations are against co-accused Vijay Chavhan, who is not before the

Court.

5. The informant-lady has stated that on the date of

occurrence in the afternoon, co-accused Vijay Chavhan caught hold her,

outraged her modesty and thus, committed the offence. On the same

day, in the evening, there was meeting for settlement in which the

applicants allegedly abused in the name of caste and manhandled the

informant party, therefore the report.

6. We have gone through the police report and the statement

of witnesses. The entire focus of the informant is about the incident of

sexual advances made by co-accused Vijay Chavhan on the date of

occurrence, around 11.30 am. The FIR speaks about two instances. It is

stated that in the evening around 6.30 pm, there was a meeting about

the incident occurred in the afternoon. In said meeting, the applicants

were present. It is alleged that particularly, applicant nos.3 and 5 have

manhandled the informant's husband and father-in-law whilst

remaining applicants abused them in the name of caste, and therefore,

the report. There is no manner of doubt that the principal allegations

are against co-accused Vijay Chavhan. The applicants came in picture in

the second part i.e. in the evening, where they allegedly abused and

manhandled the others. The Police have registered the offence under

the provisions of the SC and ST Act. It is vehemently argued that in

absence of disclosure of caste by the informant at the time of report,

registration of offence itself is illegal. In this regard, the applicants have

relied on the decision of this Court in cases of Sheikh Shama Sheikh

Iqbal and anr. vs. State of Maharashtra and anr. 2019 LawSuit(Bom)

384, Bai @ Laxmibai w/o Nivratti Poul and ors. vs. State of

Maharashtra [2001 (1) B.Cr.C.321] and Prakash Gopalrao Pohare vs.

State of Maharashtra and anr. 2008 (1) AIR Bom R 390. Contextually,

we have gone through the FIR wherein the informant has merely stated

that she belongs to the 'Buddha' community. According to the

applicants, the informant never stated her caste since Buddha is a

religion. To substantiate said contention, reliance is placed on the

decision of the Supreme Court in cases of M. Chandra vs. M.

Thangamuthu and anr. (2010) 9 SCC 712 and State of Maharashtra vs.

Parbatrao alias Prabhakar Govindrao Bhote and ors. [1992 (2) Mah.LR

596]. In above referred decisions, it has been expressed that in absence

of positive statement made in the complaint itself or non-production of

caste certificate at the time of registration of crime, the law would not

permit the Investigating Officer to register the crime and start the

investigation. In view of the law laid down in that regard, registration

of crime as regards to the provisions of the SC and ST Act against the

applicants is untenable.

7. Moreover, reliance is placed on the decision of the Supreme

Court in case of Hitesh Verma vs. State of Uttarakhand and anr. (2020)

10 SCC 710, wherein it is ruled that the offence under the SC and ST

Act is not tenable unless there is an intention to humiliate the member

of the scheduled caste or scheduled tribe. In other words, it is

expressed that the provisions of the SC and ST Act can only be made

applicable if the act was committed only because of the caste/tribe of

the victim.

8. Reading of FIR and the police paper discloses that the

principal allegations are about the incident occurred in the afternoon

alleging physical advances at the hands of the co-accused Vijay

Chavhan. The statements show that the allegations against rest of the

accused i.e. the applicants are not consistent. Mere general allegations

are levelled that, Vijay Chavhan and Raju Chavhan gave slaps whilst

the lady members gave abuses. No specific abuses have not been stated

to believe the statement to that effect. Second incident involving all

other family members of co-accused Vijay Chavhan appears to be

exaggeration. The provisions of Section 3(1)(w)(i)(ii) of the SC and ST

Act would not attract against the females. No prima facie case is made

out to show that the applicants have committed the offences as alleged.

The tendency of involving all family members are at rise. Continuation

of such prosecution amounts to abuse of the process of Court. Chances

of conviction of the applicants are remote and bleak.

9. In the circumstance a case for invoking inherent jurisdiction

is made out. In view of that, following order is passed :

            (a)    The application is allowed.

            (b)    We hereby quashed and set aside the First Information

Report (FIR) in Crime No.535 of 2018 registered with the Ghatanji Police Station District Yavatmal for the offence punishable under Sections 143, 147, 323, 354 of the Indian Penal Code and Section 3(1)(2)(i)(ii) and 3(2)(va) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 ('the SC and ST Act) along with the related Final Report filed by the non-applicant no.1, as regards to the applicants only.

10. The application stands disposed of in above terms.

             (BHARAT P. DESHPANDE, J.)                   (VINAY JOSHI, J.)

  Trupti