Irshad Mohammed Hanif Madiwale vs State By Naragund Ps
2023 Latest Caselaw 2589 Kant

                                                 1         CRL.P NO.101310/2022



                        IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH


                              DATED THIS THE 25TH DAY OF MAY, 2023

                                              BEFORE


                                 THE HON'BLE MS.JUSTICE J.M.KHAZI


                              CRIMINAL PETITION No.101310 OF 2022


                      BETWEEN:

CHANDRASHEKAR
LAXMAN
KATTIMANI
                      IRSHAD MOHAMMED HANIF
                      MADIWALE,
Digitally signed by
CHANDRASHEKAR
LAXMAN
                      AGE: 44 YEARS,
KATTIMANI
Date: 2023.05.31      OCC: LECTURER,
11:36:56 -0700
                      R/O. VIDHYAGIRI, NEERAVARI COLONY,
                      NARAGUND, DIST: GADAG
                      PIN -581 117.
                                                                   ...PETITIONER
                      (BY SRI W.M.SHAHPURI, ADVOCATE)

                      AND:

                        1. STATE BY NARAGUND P.S.,
                           GADAG,
                           REPRESENTED BY HIGH
                           COURT GOVT. PLEADER,
                           OFFICE AT DHARWAD HIGH COURT,
                           DHARWAD - 580 011.

                        2. SANTOSH PARAMESHWAR
                           MELINAMANI,
                           AGE: 39 YEARS, OCC: TECHNICIAN,
                           R/O. VIDHYAGIRI, NEERAVARI COLONY,
                           NARAGUND, DIST: GADAG PIN - 581 117.
                                                                  ...RESPONDENTS
                                2           CRL.P NO.101310/2022



(BY SMT.GIRIJA S. HIREMATH, HCGP FOR R1;
    R-2 SERVED)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 PF
CR.P.C., PRAYING TO QUASH ALL THE CONSEQUENTIAL
PROCEEDINGS INITIATED AGAINST THE PETITIONER IN SPL.C.
(SC/ST ACT) 01 OF 2021, PENDING ON THE FILE OF HON'BLE
ADDL. DIST. & SESSIONS JUDGE AT GADAG, IMPUGNED
COMPLAINT, FIR AND CHARGE SHEET REGISTERED BY
NARAGUND POLICE STATION IN CONNECTION WITH THE CRIME
NO.125/2020 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
3(1)(r)(s), 3(2)(va) OF SCHEDULED CASTE AND SCHEDULED
TRIBE (PREVENTION OF ATROCITIES) ACT, 1989 AND SECTION
324 AND 504 OF INDIAN PENAL CODE 1860, IN THE INTEREST OF
JUSTICE.

     THIS PETITION HAVING BEEN HEARD AND RESERVED ON
10.04.2023, COMING ON FOR PRONOUNCEMENT OF ORDER THIS
DAY, THE COURT MADE THE FOLLOWING:


                           ORDER

Petitioner who is arraigned as accused has filed this

petition filed under Section 482 of Cr.P.C, with a prayer to

quash the criminal proceedings initiated against him in Spl.Case

(SC/ST Act) No.1/2021 pending on the file of Addl. District and

Sessions Judge, Gadag, impugned complaint, FIR and charge

sheet filed by the Naragund Police in Crime No.125/2020 for

the offences punishable under Sections 3(1)(r)(s), 3(2)(va) of

the Scheduled Castes and the Scheduled Tribes (Prevention of 3 CRL.P NO.101310/2022

Atrocities) Act, 1989 (hereinafter referred to as 'SC/ST (PA)

Act')and Section 324 and 504 of I.P.C.

2. It is contended by the petitioner that he is no way

concerned to the alleged incident and he has been falsely

implicated. Perusal of the entire charge sheet does not attract

the provisions of Sections 3(1)(r)(s), 3(2)(va) of the SC/ST

(PA) Act, 1989 and Sections 324 and 504 of I.P.C. The

allegations made are motivated and fabricated for the purpose

of converting a small issue of building construction into a

criminal case to quell the voice of petitioner under the guise of

criminal case. The provisions of special act are invoked

mechanically based on the caste of the complainant, which is

bad in law and blatant misuse of law, which is made otherwise

in the interest of persons belonging to scheduled castes and

scheduled tribes.

2.1 The alleged incident took place on the terrace while

complainant and his wife were present. Hence, it does not fall

within the purview of public view as enumerated in the Act. The

injury certificate states that petitioner has suffered simple 4 CRL.P NO.101310/2022

injury besides allegations that 5 kg stone was thrown from the

first floor on the complainant. There is inordinate delay of three

days in filing the complaint. Even if the entire material is

accepted on its face value, then also no prima facie case is

made out. There are no eye witnesses or any kind of

circumstantial evidence against the petitioner and prays to

allow the petition.

2.2 In support of his arguments, learned counsel for the

petitioner has relied upon following decisions.

(i) Asmathunnisa Vs. State of Andhra Pradesh1 (Asmathunnisa)

(ii) Khuman Singh Vs. State of Madhya Pradesh2 (Khuman Singh)

(iii) Ramawatar Vs. State of Madhya Pradesh3 (Ramawatar)

(iv) Baby Kumar @ Janardhana Vs. State of Karnataka4 (Baby Kumar)

(v) Mathai Vs. State of Kerala5 (Mathai)

Crl.A.No.766/2011 (Arising out of SLP(Crl)No.4531/2006)

Crl.A.No.1283/2019 (Arising out of SLP(Crl)No.6647/2018)

Crl.A.No.1393/2011

Indian Kanoon Judgment dated 17.12.2002

Appeal (Crl)No.89/2005 5 CRL.P NO.101310/2022

(vi) Anand Kumar Mohatta & Anr. Vs. State (Govt. of NCT of Delhi) 6 (Anand Kumar Mohatta)

3. Despite due service of notice, respondent No.2 who

is the complainant has remained absent.

4. Respondent No.1/State is represented by learned

High Court Government Pleader.

5. During the course of her arguments, learned HCGP

submitted that the house of complainant and the tenanted

premises belonging to accused are situated adjacent to each

other. Complainant had undertaken construction of first floor.

On account of construction material and debris scattered

around the construction place and into the compound of

accused was the root cause for repeated quarrel between

complainant and accused. Even though complainant has

promised the owner of the house where accused was tenant, to

clear the debris at the end of the day, accused used to pick up

Crl.A.No.1395/2018 (Arising out of SLP(Crl)No.3730/2016) 6 CRL.P NO.101310/2022

quarrel with him stating that the construction material is falling

inside his compound causing nuisance.

5.1 On the date of incident also due to plastering of the

wall situated towards the tenanted premises of accused,

construction material had scattered into the premises of

accused. Though complainant and his workers promised to

clear the debris after lunch, accused picked up quarrel with the

complainant stating that they have not cleared the debris and

abused him referring to his caste. While complainant was

getting down from the first floor, accused threw a stone on his

head as a result of which he suffered bleeding injury.

Immediately he was shifted to the hospital and after treatment,

he lodged a complaint alleging that during the course of

quarrel, accused referred complainant with regard to his caste

and abused him and also assaulted with the stone. Based on

the complaint, case was registered and investigation was taken

up. After completing the investigation, charge sheet is filed

against the petitioner, which makes out a strong prima facie

case. At this stage of presenting a petition under Section 482 7 CRL.P NO.101310/2022

Cr.P.C. disputed facts cannot be decided and prays to dismiss

the petition.

5.2 She would further submit that the decisions relied

upon by the accused are not applicable to the case on hand.

6. Heard arguments and perused the records.

7. Complainant belongs to Hindu Chalavadi caste

which comes under SC/ST category. In the complaint, he has

stated that he is putting up construction of second floor. While

undertaking the construction, the sand and other debris used to

be collected in front of their house. However, accused who is a

tenant of the neighbouring tenement used to quarrel with him.

While plastering the outer wall, cement and sand was falling

inside the compound of accused premises. In this regard,

complainant contacted the owner of the said tenement Sri

Nagappa and promised him that it will be cleared everyday.

This fact was also conveyed to the accused.

                                  8           CRL.P NO.101310/2022



     8.    Such    being   the   case   on   14.11.2020,   mason

Dawalsab along with his other workers started the plastering

work. At around 2.00 p.m., he along with his workers went to

take lunch promising to clear the debris after returning from

lunch. While complainant and his wife were on the terrace,

accused came there and started quarreling with him as to why

the debris is not cleared. When he replied that it will be cleared

as soon as the mason and workers return from lunch. However,

accused picked up quarrel with him referring to his caste. He

abused the complainant in filthy language. Complainant's wife

brought him downstairs. While he was getting down, accused

threw a stone on his head as a result of which he suffered

bleeding injury and lost consciousness. He was shifted to the

hospital by his wife and mason Dawalsab. After first aid, he was

advised to be taken to KIMS, Hubballi. However his relative

Vijay and neighbour Bashir Ahamad took him to Tatwadarsha

Hospital at Hubballi. After getting discharge from the hospital,

he lodged the complaint.

                                    9              CRL.P NO.101310/2022



     8.1     Based on the complaint, the concerned police have

registered   the   case   and   taken       up    investigation.   After

completing the investigation, charge sheet is filed against

accused for the offences punishable under Sections 3(1)(r)(s),

3(2)(va) of the SC/ST (PA) Act and Sections 324 and 504 of

I.P.C. During crime stage, accused has secured bail.

9. Now through the present petition, accused is

seeking quashing of the criminal proceedings contending that

when the alleged incident took place, only the complainant and

his wife were present and the incident has taken place on the

terrace of their houses and as such, it is not a public place.

There are no other eye witnesses to the alleged incident and as

such offences under the provisions of SC/ST Act are not

committed.

9.1 Indisputably the houses of complainant as well as

accused are situated abutting the main road. Therefore, the

incident has taken place in any place within the public view.

Complainant's wife is an eyewitness to the incident. The mason

and his assistants speak about the dispute between the 10 CRL.P NO.101310/2022

complainant and accused and the fact that when they return

from the lunch, they found complainant in an injured condition

and came to know about the incident. The mason and others

have shifted the injured to the hospital. Charge sheet makes

out a strong prima facie case against the accused for the

offences punishable under Sections 3(1)(r)(s), 3(2)(va) of the

SC/ST (PA) Act and Sections 324 and 504 of I.P.C. At the stage

of considering the petition under Section 482 Cr.P.C., this Court

cannot indulge in appreciation of the evidence, which is going

to be given by the witnesses before the Court.

10. So far as decisions relied upon by the accused are

concerned, in Asmathunnisa's case, the victim was not

present when the alleged incident took place wherein the victim

was abused by the accused. However in the present case, the

complainant was very much present when accused allegedly

abused him referring to his caste. Therefore, this decision is not

applicable to the case on hand. In Khuman Singh's case, after

trial, the Hon'ble Supreme Court held that the assault on the

deceased did not take place on the ground that deceased

belong to scheduled caste and scheduled tribe and on 11 CRL.P NO.101310/2022

appreciation of the evidence, the Hon'ble Supreme Court held

that the offence under Section 3(2)(r)(s) has not taken place.

10.1 In Ramawatar's case, based on the compromise

between the parties and the fact that the dispute between

parties is civil in nature, the Hon'ble Supreme Court accepted

the compromise and acquitted the accused. In Baby Kumar @

Janardhan's case, the co-ordinate bench of this Court

confirmed the conviction, but reduced the sentence.

10.2 In Mathai's case, the Hon'ble Supreme Court held

that since the stone used cannot be termed as a dangerous

weapon, the conviction was altered from Section 326 to 325

I.P.C.

10.3 In Anand Kumar Mohatta's case, the Hon'ble

Supreme Court held that the dispute between parties is civil in

nature.

11. All these decisions are rendered after trial. They are

not applicable to the facts and circumstances of the present

case.

12 CRL.P NO.101310/2022

12. Thus from the above discussion, I hold that no

grounds have been made out to quash the criminal proceedings

initiated against the accused and accordingly, I proceed to pass

the following:

ORDER

The petition filed under Section 482 Cr.P.C. by

the petitioner/accused is dismissed.

Sd/-

JUDGE

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