Bombay High Court
Sharifkhan Shabbirkhan Pathan And ... vs The State Of Maharashtra And Another on 12 September, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:23534-DB
1 cran 932.2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.932 OF 2023
1. Sharifkhan Shabbirkhan Pathan,
age 45 years, Occ. Labourer.
2. Sardar Khan Babu Khan,
age 31 years, Occ. Mechanic,
Both R/o N-13, Hudco,
Mujafarnagar, Aurangabad Applicants.
Versus
1. The State of Maharashtra,
through its police inspector,
Jalna Police Station,
Tq. & Dist. Jalna.
2. Shobha Sudam Salve,
age 60 yrs, Occ. Household,
R/o Kadwanchi, Tq & Dist. Jalna. Respondents.
...
Advocate for Applicants : Mr. V P Patil
APP for Respondents : Mr. B B Bhise
Advocate for Respondent no.2 : Ms. Preeti R. Wankhede
...
CORAM : SMT. VIBHA KANKANWADI &
S. G. CHAPALGAONKAR, JJ.
Dated : September 12, 2024.
JUDGMENT :
- (Per S.G. Chapalgaonkar, J.)
1. The applicants have approached this Court under section
482 of the Criminal Procedure Code, thereby praying to quash
and set aside the charge-sheet no.203 of 2022 in Special Case
No.204 of 2022 arising out of FIR in crime no.352 of 2022
dated 11.6.2022, registered with police station, Jalna for the
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offences punishable under section 354, 324, 323, 504, 143,
147, 148, 149 and section 3(1)(w)(i)(ii) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989 (for short SC & ST Act).
2. Respondent no.2 lodged a report dated 11.6.2022 with
police station, Jalna alleging that her family is engaged in
agriculture labour. Land bearing gat no.193 admeasuring 36
acres is in possession of her family within vicinity of
Kadvanchi. All brothers of respondent no.2 are residing in
separate houses constructed in the land. One Aminabi has
raised claim over the said land. Litigation is pending before
the Civil Court.
3. On 11.6.2022 at about 1.30 p.m. while informant with
other ladies was in her dwelling house, accused persons
arrived with motorcycles and auto-rickshaw and asked her and
others to hand over vacant possession of the land to them.
Since male members were not present in the house, she asked
accused to wait for some time. However, accused persons
manhandled her and other ladies. One of the accused
threatened them with knife held in his hand. Daughter-in-law
of informant namely Rama Ishwar Salve suffered bleeding
injury of knife. Some of the accused persons entered in the
house and assaulted her. It is further alleged that although
accused persons were knowing that informant belongs to
scheduled caste, they raised dispute over the land and
assaulted ladies present in house and outraged their modesty.
On the basis of aforesaid information, crime no.352 of 2022
came to be registered against accused Sharif Khan, Sardar
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Khan and other 4 to 5 unknown persons for the offences
punishable under sections 354, 324, 323, 504, 143, 147, 148,
149 and section 3(1)(w)(i)(ii) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989.
4. Investigation progressed. Finally, charge-sheet no.203 of
2022 in Special Case No.204 of 2022 came to be filed which is
pending for trial.
5. Mr. Patil, learned advocate appearing for the applicants
submits that the applicants have been falsely implicated in the
aforesaid crime. Although, informant and her family members
have lost civil litigation up to High court in respect of land
survey no.76 (block No.193) situated at village Kadvanchi,
still they are raising claim over the property. The false and
frivolous complaint has been filed only with intention to deter
the applicants from cultivating the land. He would submit that
from contents of FIR, offence under section 3 (1)(w)(i)(ii) of
the SC and ST Act can not be made out against the applicants.
He would therefore urge to quash and set aside the FIR and
consequential criminal proceeding pending before the Sessions
Judge, at Jalna.
6. Per contra, Mr. Bhise, learned APP for State and Ms. Priti
Wankhede learned advocate appearing for respondent no.2
vehemently opposed application contending that FIR is lodged
in the year 2022. Present proceeding is filed in 2023. Special
Judge took cognizance against accused persons vide order
dated 11.8.2022. Contents of the FIR and statements of
witnesses depicts complicity of applicants in commission of
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offence. There is triable material against the applicants,
therefore, at this belated stage, exercise of inherent powers
under section 482 of the Cr.P.C. would not be necessary.
7. We have considered the submissions advanced by
learned advocates appearing for the respective parties. We
have perused the FIR and statements of the witnesses recorded
during course of investigation as well as medical evidence
which is made part of the charge-sheet.
8. Apparently, there is civil dispute between family of the
informant and accused persons over land gat no.193 situated
at Kadvanchi. The Judgment of Appellate Court upholds claim
of the applicants for possession of the property. Second appeal
filed before this Court against said order is dismissed long back
for want of prosecution. In execution of the decree as passed
by the District Court, measurement of the land was directed. In
this factual background, we considered contents of the FIR and
material in the charge-sheet. The FIR states that accused
persons arrived in land gat no.193 while the informant and
other ladies were present in the dwelling house. Accused
persons asked them to vacate the premises. One of the accused
threatened them using knife. One Rama Salve suffered
bleeding injury due to assault of knife. Accused persons
forcibly entered in the home, assaulted informant and dragged
her out of the home. The 161 statement of injured Rama
Ishwar Salve also give similar version of the incident. In last
part of the FIR, stipulation is made that accused persons were
knowing that informant belongs to schedule caste; inspite of
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that they raised dispute over land, entered into the house and
beaten informant.
9. Plain reading of FIR would depict that inception of the
incident is on account of civil dispute between the parties.
Even assuming contents of the FIR are true and correct, there
is nothing to infer that accused persons raised dispute or
committed offence against informant and others because they
were belonging to scheduled caste. There is nothing to depict
that action of the accused persons was designed or motivated
against informant or others because they belong to schedule
caste. Apparently, quarrel was on account of rival claims as to
possession of the suit land.
10. So as to find out veracity of contents in the FIR, we have
perused medical evidence and noticed that Rama Salve, who
allegedly suffered bleeding injury due to assault on knife, on
examination found to have suffered simple injury, probable
weapon used is blunt and hard object. Therefore, narration in
the FIR is apparently inconsistent to the medical record. Injury
certificate issued by Medical Officer nowhere depicts bleeding
injury caused by sharp edged weapon like knife. Prima facie, it
appears that contents of the FIR do not narrate true and
correct version of the incident.
11. We are conscious that veracity of contents of the FIR will
have to be tested during course of the trial, hence, we are not
inclined to entertain the application in respect of charged
offences under Indian Penal Code. However, we deem
appropriate to examine if offences under Atrocities Act would
6 cran 932.2023.odt
attract on the basis of alleged offences in the FIR and charge-
sheet. Section 3(1)(w)(i)(ii) reads as under.
Section 3(1) in The Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act,
1989 :-
(1) Whoever, not being a member of a Scheduled
Caste or a Scheduled Tribe,--
w(i) intentionally touches a woman belonging to a
Scheduled Caste or a Scheduled Tribe, knowing
that she belongs to a Scheduled Caste or a
Scheduled Tribe, when such act of touching is of a
sexual nature and is without the recipient's
consent;
(ii) uses words, acts or gestures of a sexual nature
towards a woman belonging to a Scheduled Caste
or a Scheduled Tribe, knowing that she belongs to
a Scheduled Caste or a Scheduled Tribe.
Explanation. For the purposes of sub-clause (i), the
expression "consent" means an unequivocal
voluntary agreement when the person by words,
gestures, or any form of non-verbal
communication, communicates willingness to
participate in the specific act:Provided that a
woman belonging to a Scheduled Caste or a
Scheduled Tribe who does not offer physical
resistance to any act of a sexual nature is not by
reason only of that fact, is to be regarded as
consenting to the sexual activity:Provided further
that a woman's sexual history, including with the
offender shall not imply consent or mitigate the
offence;
12. The plain reading of sub-section w(i)(ii) would depict
the intentional touching of sexual nature by accused is
required to make out offence, but from contents of the FIR or
charge-sheet, such intentional touch of sexual nature by any of
accused against victim cannot be gathered. Therefore, we are
of the considered opinion that ingredients of offence
punishable u/s 3(1)(w)(i)(ii) are not fulfilled. Further, even
7 cran 932.2023.odt
informant belongs to Schedule Caste; unless material in the
charge-sheet indicates that she was victimized owing to her
caste or inception of the dispute was motivated to insult or
oppress the victim belonging to schedule caste or schedule
tribe, the offences under atrocities Act may not attract. As
discussed above, in the present case, inception of the quarrel is
in chequered civil dispute which has nothing to do with caste
of respondent no.2. Even, FIR do not allege that respondent
no.2 or others were victimized because of their caste.
13. The Supreme Court of India in case of Hitesh Verma Vs.
The State of Uttarakhand and another reported in (2020) 10
SCC 710 has recently considered the aforesaid legal position
and observed as under :-
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.
14. Keeping in mind the proposition of law espoused by the
Supreme Court of India in the aforesaid judgment, we are of
the considered view that offences of Prevention of Atrocities
Act does not attract in the facts of the present case particularly,
keeping in mind long standing civil dispute between the
parties, possibility of false implication of the applicants in
8 cran 932.2023.odt
serious offences under Atrocities Act cannot be ruled out.
Further, in view of inconsistency of medical evidence and
contents of the FIR, the incident as stated appears to be
inherently improbable.
15. At this stage, reference can be made to guidelines by the
Supreme Court of India. The Supreme Court of India in case of
State of Haryana and Ors. Vs. Ch. Bhajan Lal and Ors reported
in AIR 1992 SC 604 has laid down guidelines for exercise of
powers under section 482 of the Cr.P.C., which reads thus :-
"108 .In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and
of the principles law enunciated by this Court in a series
of decisions relating to the exercise of the extra-ordinary
power under Article 226 or the inherent powers under
Section 482 of the Code which we have extracted and
reproduced above, we give the following categories of
cases by way of illustration wherein such power could
be exercised either to prevent abuse of the process of
any Court or otherwise to secure the ends of justice,
though it may not be possible to lay down any precise,
clearly defined and sufficiently channelized and
inflexible guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein such
power should be exercised.
1. Where the allegations made in the First Information
Report or the complaint, even if they are taken at their
face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against
the accused.
2. Where the allegations in the First Information Report
and other materials, if any, accompanying the F.I.R. do
not disclose a cognizable offence, justifying an
investigation by police officers under Section 156 (1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR
or complaint and the evidence collected in support of
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the same do not disclose the commission of any offence
and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are
so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just
conclusion that there is sufficient ground for proceeding
against the accused.
6. Where there is an express legal bar engrafted in any of
the provisions of the Code or the concerned Act (under
which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking
vengeance on the accused and with a view to spite him
due to private and personal grudge."
16. We find that clause nos.3 and 7 of the aforesaid
guidelines squarely covers the present case. Hence, this is a fit
case to exercise jurisdiction under section 482 of the Criminal
Procedure Code to the extent of offences under the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989. Hence, we pass the following order. :-
ORDER
i. Criminal application is partly allowed.
ii. The impugned FIR in crime no.352 of 2022
dated 11.6.2022, registered with police station,
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Jalna and consequential proceeding Special Case
No.204 of 2022 pending before the Special Court
at Jalna, to the extent of offence punishable
under section 3(1)(w)(i)(ii) of the Scheduled
Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 is hereby quashed and set
aside as against the applicants/accused herein.
iii. Criminal application stands disposed of.
( S. G. CHAPALGAONKAR ) ( SMT. VIBHA KANKANWADI )
Judge Judge
...
aaa/-
