Kanhaiyalal Devichand Jain @ Chhoriya v. The State of Maharashtra and Another

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3077 OF 2021 Kanhaiyalal Devichand Jain @ Chhoriya .. Applicant Versus

¶1The State of Maharashtra

¶2Ishwar Malhari Kshirsagar .. Respondents ... Mr. Joydeep Chatterji, Advocate for applicant. Mr. R. D. Sanap, APP for respondent No.1 - State. Mr. D. B. Bhange, Advocate for respondent No.2. ... CORAM : SMT. VIBHA KANKANWADI AND

ABHAY S. WAGHWASE, JJ. RESERVED ON : NOVEMBER 28, 2022. PRONOUNCED ON : JANUARY 18, 2023. ORDER :- [Per Smt. Vibha Kankanwadi, J.] . Present application has been fled for quashing the FIR vide Crime No.317 of 2021 dated 23.09.2021 registered with Tuljapur Police Station, Dist. Osmanabad for the ofences punishable under Sections 504, 506 of Indian Penal Code and under Sections 3(1)(r), 3(1)(s) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short "Atrocities Act") as well as the charge-sheet (Special Case No.44 of 2022) pending before the learned Special Judge, under Atrocities Act/Additional Sessions Judge,

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Osmanabad.

¶2Heard learned Advocate Mr. Joydeep Chatterji for the applicant, learned APP Mr. R. D. Sanap for respondent No.1 - State and learned Advocate Mr. D. B. Bhange for respondent No.2. With the able assistance of both the parties, we have gone through the FIR, documents and the evidence collected in the form of charge-sheet.

¶3It has been vehemently submitted on behalf of the applicants that as per the FIR, the incident is alleged to have taken place on

01.00 p.m. on 15.09.2020, yet the FIR has been lodged on 23.09.2021. There is no explanation given by the informant for such belated lodging of the FIR. The informant is not a layman. He is serving as Headmaster. If we consider the contents of the FIR, it can be seen that he has booked a house with the company of the applicants on

12.08.2011 and he states that he gave the substantial amount till

20.10.2015. He also states that the sale-deed was executed in his favour on 21.10.2015, but then he states that still at that time the construction of the house was incomplete, which he has got it completed later. He then states that he received the possession of the house on 02.03.2017. In fact, the sale-deed contains the statements about handing over of possession. If everything was over in the year 2017, there was no occasion for him to meet the applicant on

15.09.2020. He says that the company of the applicant is at Pune, however, he says that the applicant had come to Tuljapur on

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15.09.2020. Informant was along with his nephew at that time and then he says that at that time, the applicant had abused him in the name of caste. He has not stated that the said words were heard by any other person other than his nephew. Further, the FIR is silent about the exact place and it cannot be then said that the said place i.e. place of ofence was within public view, which is one of the essential ingredient of the ofence punishable under Sections 3(1)(r) and 3(1)(s) of the Atrocities Act.

¶4Learned Advocate for the applicant has pointed out that on

16.09.2020, a complaint was fled on behalf of the company of the applicant against the informant, as he used to give threats to the site engineers and employees of the company of the informant. Even on

22.09.2020 once again similar kind of complaint was given against the informant. Complaints were again given by the company of the applicant against the informant to the Collector, Osmanabad, Sub Divisional Oficer, Tuljapur, District Superintendent of Police, Osmanabad on 20.09.2021. Therefore, the FIR that was fled by respondent No.2 is nothing but to take revenge or with mala fid intention.

¶5Learned Advocate appearing for the applicant has also taken us through the charge-sheet wherein the statement of one Abhijit Vishnu Dede, who is the nephew of the applicant, has been recorded on

01.10.2021 and he says that in tune with the FIR, but for the frst time

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in his statement, he says that the incident has taken place near the gate of Dhariwal Society. The supplementary statement of the informant is taken on 30.10.2021 i.e. subsequent to the statement of the witness Abhijit. There is also statement of one Shubham Kisan Jadhav, whose presence was not at all stated by either the informant or witness Abhijit. Witness Shubham Jadhav says about his conversation with the informant on phone to the prior date, which is not stated by the informant himself in his FIR. Therefore, there is no evidence, which would attract the ofence under the Atrocities Act.

¶6Learned Advocate for the applicant relied on the Single Bench decision of this Court in Balu s/o Bajirao Galande Vs. State of Maharashtra and another, [2006 ALL MR (Cri.) 3197], wherein this Court after relying upon the decision of Delhi High Court in Daya Bhatnagar and others Vs. State, (2004) Delhi Law Crimes 915, held that :- "15. The Delhi High Court has, therefore, interpreted the expression "within public view" to mean that the utterances should be heard and viewed at least by one independent person. It has excluded the relatives, friends, persons having blood relationship or persons having close business or other fduciary relationship with the victim from the purview of word public" Similar view was taken by the Single Bench of this Court, Bench at Nagpur in Shri. Prakashs/o Gopalrao Pohare Vs. State of Maharashtra and Another, [2008 ALL MR (Cri) 180]. He,

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therefore, prayed for quashment of the FIR and the charge-sheet.

¶7Per contra, the learned APP as well as learned Advocate for respondent No.2 have strongly opposed the application. It has been submitted that there is suficient material on record to show that the ofence had taken place. The incident had taken place at the gate of Dhariwal Society and it can be viewed from the spot panchanama. If the place is gate, then it would be in public view and in order to support this statement, learned Advocate for respondent No.2 has relied on the decision in Swaran Singh and Ors. Vs. State through Standing Counsel and another, [(2008) 8 SCC 435], wherein it has been observed by the Hon'ble Supreme Court that :- " Our Constitution provides for equality which includes special help and care for the oppressed and weaker sections of society who have been historically down trodden. The SC/ST communities in our opinion are also equal citizens of the country, and are entitled to a life of dignity in view of Article 21 of the Constitution as interpreted by this Court. In the age of democracy no people and no community should be treated as being inferior. However, the truth is that in many parts of our country persons belonging to SC/ST are oppressed, humiliated and insulted. This is a disgrace to our country."

¶8In this case, the ofence is stated to have taken place near the car, which was parked at the gate of the premises and, therefore, it was held that it is a place within the public view.

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¶9It has been pointed out on behalf of the respondents that not only Abhijit Dede has heard the abuses, but witness Shubham Jadhav has also heard the abuses. He was present at the spot. It was tried to be submitted on behalf of respondent No.2 that respondent No.2 was making an attempt to lodge the report immediately after the incident, however, it was not taken. He cannot be made responsible for the delay. Further, the delay can be explained at the time of evidence. In the FIR also, it was stated that since his amount was outstanding to the accused, he waited that the amount would be given and, therefore, he had not lodged the report. This cannot be taken as a ft case, where the inherent powers should be exercised.

¶10There are umpteen judgments on the scope, object and powers of exercise of provision of Section 482 of Cr.P.C. It would be proftable to refer to few landmark judgments, wherein the Hon'ble Apex Court has time and again reiterated that inherent powers under section 482 of Cr.P.C. can be exercised by the High Court; frstly, to give efect to an order under Cr.P.C., sdconily, to prevent abuse of process of court and thirily, to secure ends of justice. In the landmark case of Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors., reported in (2007) 12 SCC 1, it was observed as under: "23. This Court in a numbdr of casds has laii iown thd scopd ani ambit of courts' powdrs unidr sdction 482 of Cr.P.C. Evdry High Court has inhdrdnt powdrs to act dx

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idbito justitiad to io rdal ani substantial justicd, for thd aiministration of which alond it dxists, or to prdvdnt abusd of thd procdss of thd Court."

(i) to givd dfdct to an oridr unidr thd Coid+

(ii) to prdvdnt abusd of thd procdss of thd court, ani (iii) to othdrwisd sdcurd thd dnis of justicd.

¶24Inhdrdnt powdrs unidr sdction 482 of Cr.P.C. though wiid havd to bd dxdrcisdi sparingly, cardfully ani with grdat caution ani only whdn such dxdrcisd is justifdi by thd tdsts spdcifcally laii iown in this sdction itsdlf. Authority of thd Court dxists for thd aivancdmdnt of justicd. If any abusd of thd procdss ldaiing to injusticd is brought to thd noticd of thd court, thdn thd court wouli bd justifdi in prdvdnting injusticd by invoking inhdrdnt powdrs in absdncd of spdcifc provisions in thd statutd."

Similarly, the Hon'ble Apex Court in the case of State of Orissa v. Saroj Kumar Sahoo + (2005) 13 SCC 540, the Hon'ble Apex Court, in para 8, made the following observations : "8. … Whild dxdrcising thd powdrs unidr thd sdction, thd court iods not function as a court of appdal or rdvision. Inhdrdnt jurisiiction unidr thd sdction though wiid has to bd dxdrcisdi sparingly, cardfully ani with caution ani only whdn such dxdrcisd is justifdi by thd tdsts spdcifcally laii iown in thd sdction itsdlf. It is to bd dxdrcisdi dx idbito justitiad to io rdal ani substantial justicd for thd aiministration of which alond thd courts dxist. Authority of thd court dxists for aivancdmdnt of justicd ani if any attdmpt is maid to abusd that authority so as to proiucd injusticd, thd court has powdr to prdvdnt abusd. It wouli bd an abusd of procdss of thd court to allow any action which wouli rdsult in injusticd ani prdvdnt promotion of justicd. In dxdrcisd of thd powdrs thd court wouli bd justifdi to quash any procddiing if it fnis that initiation/continuancd of it amounts to abusd of thd procdss of

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court or quashing of thdsd procddiings wouli othdrwisd sdrvd thd dnis of justicd. Whdn no ofdncd is iisclosdi by thd rdport, thd court may dxamind thd qudstion of fact. Whdn a rdport is sought to bd quashdi, it is pdrmissibld to look into thd matdrials to assdss what thd rdport has alldgdi ani whdthdr any ofdncd is maid out dvdn if thd alldgations ard accdptdi in toto." Similarly, in Vineet Kumar v. State of U.P. ; (2017) 13 SCC 369, after referring to several other cases, including State of Haryana and others v. Ch. Bhajan Lal ; AIR 1992 SC 604, the Hon'ble Apex Court concluded and made following observations in Paragraph No. 41 : "41. Inhdrdnt powdr givdn to thd High Court unidr Sdction 482 Cr.P.C is with thd purposd ani objdct of aivancdmdnt of justicd. In casd soldmn procdss of court is sought to bd abusdi by a pdrson with somd obliqud motivd, thd court has to thwart thd attdmpt at thd vdry thrdsholi. Thd court cannot pdrmit a prosdcution to go on if thd casd falls in ond of thd catdgorids as illustrativdly dnumdratdi by this Court in State of Haryana v. Bhajan Lal + 1992 Supp (1) SCC

¶335Juiicial procdss is a soldmn procddiing which cannot bd allowdi to bd convdrtdi into an instrumdnt of opdration or harassmdnt. Whdn thdrd ard matdrials to iniicatd that a criminal procddiing is manifdstly attdnidi with mala fid ani procddiing is maliciously institutdi with an ultdrior motivd, thd High Court will not hdsitatd in dxdrcisd of its jurisiiction unidr Sdction 482 Cr PC to quash thd procddiing unidr Catdgory (7) as dnumdratdi in Statd of Haryana v. Bhajan Lal (supra), which is to thd following dfdct: "102. … (7) Whdrd a criminal procddiing is manifdstly attdnidi with mala fid ani/or whdrd thd procddiing is maliciously institutdi with an ultdrior motivd for wrdaking vdngdancd on thd accusdi ani with a vidw to spitd him iud to privatd ani pdrsonal gruigd." Abovd Catdgory 7 is cldarly attractdi in thd facts of thd prdsdnt casd. Although, thd High Court has notdi thd juigmdnt of Statd of Haryana v. Bhajan Lal, but iii not

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aivdrt to thd rdldvant facts of thd prdsdnt casd, matdrials on which fnal rdport was submittdi by thd IO. Wd, thus, ard fully satisfdi that thd prdsdnt is a ft casd whdrd thd High Court ought to havd dxdrcisdi its jurisiiction unidr Sdction 482 Cr PC ani quashdi thd criminal procddiings." Based on above precedent, the Hon'ble Apex Court very recently in the case of Mahendra K.C. v. State of Karnataka and another + (2022) 2 SCC 129 observed that "while exercising powers under Section 482 Cr.P.C., for quashing proceedings, following tests are required to be applied, frstly, whether the allegations made in the complaint, prima facie constitute an ofence; and secondly, whether the allegations are so improbable that a prudent man would not arrive at the conclusion that there is suficient ground to proceed with the complaint." This is the settled legal position on scope and object of Cr.P.C. that can be culled out from various rulings discussed above.

¶11Taking note of the legal position as to when the powers under Section 482 should be exercised, we would proceed to consider the facts of the case. Admittedly, there is delay in lodging the FIR. The alleged incident is stated to have taken place on 15.09.2020 at about

1.00 p.m., however, the FIR has been lodged on 23.09.2021 at about

16.33 hours. In the FIR, it has been stated that since the informant's amount was outstanding with the accused, he was having hope and, therefore, he waited, but as he could not get his amount till today i.e.

23.09.2021, he is lodging the report. No doubt, deep scrutiny of the

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reason explaining the delay cannot be gone into at this stage, yet apparently also the reason that has been stated in the FIR for lodging it belatedly is not convincing at all. Registration of ofence is nothing to do with the outstanding amount. The outstanding amount could have been recovered by the informant by fling a civil suit i.e. by taking legal recourse. For that purpose, lodging of the FIR could not have been kept on hold. The law requires promptness in lodging the FIR, as it rules out the possibility of implication and concoction.

¶12As per the informant, as stated in the FIR, the applicant had come to Tuljapur on 15.09.2020 and, therefore, he met him along with his nephew Abhijit around 01.00 p.m. His FIR is silent about the place of incident. The spot panchanama has been drawn on 24.09.2021 i.e. next day of the FIR, yet it appears that it was not noted that in the FIR there is no mention about the spot. If we consider the spot panchanama, it is to be noted that there is no gate shown. The spot is shown much inside from Tuljapur-Latur road and the strip is mentioned as "/kkjhoky oLrhdMs tk.kkjk flesaV jksM". Therefore, it is doubtful as to whether the place which has been shown in the spot panchama is a public road because towards the west and east of the said spot, it appears to be the open space of Dhariwal Complex, that means it is a private space that too belonging to the applicant.

¶13The supplementary statement of the informant is recorded on

30.10.2021. Even in his supplementary statement, as regards the

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incident dated 15.09.2020 is concerned, he has stated that the applicant had come on that day to the society and by calling him, he asked as to in respect of what his amount is outstanding and why he want to agitate against the company. After the alleged abuses, it is stated that the applicant sat in his car and went. Thus, it can be seen that in his supplementary statement also he was not clear as to exactly where the incident had taken place and specifcally he has not stated that incident had taken place near the gate of the society. In his supplementary statement also, his statement does not disclose presence of Shubham Jadhav.

¶14As aforesaid, in the statement of Abhijit Dede, which was recorded on 01.10.2022 (prior to the supplementary statement of the informant). He has stated that the incident had taken place near the gate of the society. He has not stated about the presence of Shubham Jadhav. Perusal of the statement of Shubham Jadhav would show that informant had given a phone call to him on 14.09.2020. He says that he had also booked a bunglow with applicant and had met the applicant on 15.09.2020. He has not stated the time of his meeting with the applicant, but then he says that when he was leaving the place, the informant had come along with a person. Important point to be noted is that he has also not stated the exact place where he had met with applicant and thereafter, the informant along with another person had met and the further alleged incident had taken

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place. Except the statements of Abhijit and Shubham, there is no other statement in the entire charge-sheet.

¶15Section 3(1)(r) and 3(1)(s) of the Atrocities Act when specifcally uses expression "within public view" would defnitely expect that such insult or utterances should be viewed and heard by the public. We agree with the interpretation by the Hon'ble Delhi High Court in Daya Bhatnagar and others Vs. State (Supra) and the Single Bench of this Court in Balu s/o Bajirao Galande (Supra) and Shri. Prakashs/o Gopalrao Pohare (Supra) that those utterances should be heard and viewed by the independent person/persons thereby excluding the relatives, friends, persons having blood relationship or persons having close business or having fduciary relationship with the victim. Otherwise it would be very easy to multiply the number of witnesses. We fully agree with the observations in Swaran Singh and Ors. (Supra) regarding protection that is required to be given to the members of SC/ST Communities, however, when such protection is granted, it should not be misused by anybody. The ingredients of the ofence if completed/proved in its entirety would form an ofence and it has to be strictly proved. A criminal case rests on strict proof to be adduced by the prosecution and, therefore, when ofence under Section 3(1)(r) and 3(1)(s) of the Atrocities Act uses expression within public view, then such place should not be a private place or if it is a private place, yet it should be at such a distance from a public place

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that such utterances would be heard or viewed. That is so held in Swaran Singh (Sura). That means though the place was a gate which was near to the public road, yet it was covered under the said expression. Here, the spot panchanama and the aforesaid omissions regarding mentioning of the place in the FIR, supplementary statement and the statement of witness Shubham will have to be viewed against the prosecution.

¶16The documents which have been collected in the FIR also form the applications given by the informant to the company of the applicant since 10.10.2017. Later on it is given on 20.08.2019,

02.03.2020, 31.08.2020, 12.11.2020 and 05.09.2021. All those applications may show that some amount was due or applicant was intending to get it back from the applicant's company, however, those applications, after the date of alleged incident 15.09.2020, are silent regarding the incident dated 15.09.2020. An application was given by the informant to the Superintendent of Police on 15.09.2021 i.e. after a year of the alleged incident, but still it is silent in respect of the incident dated 15.09.2020. Same is the case with the another complaint application by him to Superintendent of Police on

20.09.2021. Note of these communications will have to be taken and it can be thus inferred that the present FIR has been lodged with mala fid intention, which is one of the ground for quashing the FIR in the principles laid down in State of Haryana and others Vs. Ch.

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Bhajanlal and others, [AIR 1992 SC 604].

¶17For the aforesaid reasons, we fnd this to be a ft case where asking the applicant to face the trial would amount to injustice and, therefore, this is a ft case where we should exercise our inherent powers under Section 482 of the Code of Criminal Procedure. Hence, the following order :- ORDER I) Application stands allowed. II) The FIR vide Crime No.317 of 2021 dated

23.09.2021 registered with Tuljapur Police Station, Dist. Osmanabad for the ofences punishable under Sections 504, 506 of Indian Penal Code and under Sections 3(1)(r) and 3(1)(s) of the Atrocities Act and the charge-sheet vide Special Case No.44 of 2022 pending before the learned Special Judge, under the Atrocities Act/ Additional Sessions Judge, Osmanabad, stand quashed and set aside.

[ ABHAY S. WAGHWASE ] [ SMT. VIBHA KANKANWADI ] JUDGE JUDGE

scm

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