1 Criminal Writ Petition No.493/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.493 OF 2010 1. Kantilal s/o Dattatraya Thorat, Age 55 years, Occ. Agri. 2. Janardhan s/o Bhikaji Thorat, Age 75 years, Occ. Agri. 3. Limbaji s/o Bhikaji Thorat, Age 73 years, Occ. Agri. 4. Appasaheb s/o Bhikaji Thorat, Age 70 years, Occ. Agri. 5. Ganpat s/o Limbaji Thorat, Age 33 years, Occ. Agri. 6. Gorakh s/o Limbaji Thorat, Age 20 years, Occ. Agri. 7. Mahendra Appasaheb Thorat, Age 32 years, Occ. Agri. 8. Ashok s/o Appasaheb Thorat, Age 27 years, Occ. Veterinary Doctor 9. Ravindra s/o Appasaheb Thorat, Age 28 years, Occ. Agri. 10. Dhananjay s/o Janardhan Thorat, Age 28 years, Occ. Agri. 11. Popat s/o Janardhan Thorat, Age 30 years, Occ. Agri. 12. Vinod s/o Raosaheb Thorat, Age 27 years, Occ. Agri. 13. Nitin s/o Raosaheb Thorat, Age 25 years, Occ. Agri. 2 Criminal Writ Petition No.493/2010 14. Manoj Himmat Thorat, Age 23 years, Occ. Agri. 15. Sow. Kusum Limbaji Thorat, Age 65 years, Occ. Household 16. Sow. Rukhmini Appasaheb Thorat Age 60 years, Occ. Household 17. Sow. Sangita Raosaheb Thorat, Age 48 years, Occ. Household 18. Mahendra Dasa Nawale, Age 30 years, Occ. Agri. All R/o Therawadi, Taluka Karjat, District Ahmednagar. ... PETITIONERS VERSUS 1. The State of Maharashtra (Copy to be served on Public Prosecutor, High Court of Judicature of Bombay, Bench at Aurangabad) 2. Bapu @ Balu s/o Rangnath Kambale Age 26 years, Occ. Agri. R/o Therawadi, Taluka Karjat, District Ahmednagar ... RESPONDENTS ..... Shri N.V. Gaware, Advocate for petitioners Shri K.S. Patil, A.P.P. for respondent No.1. Shri S.P. Deshmukh, Advocate holding for Mrs. C.S. Deshmukh, Advocate for respondent No.2. ..... CORAM : K.U. CHANDIWAL, J. DATE : 10th March, 2011. ORAL JUDGMENT : 3 Criminal Writ Petition No.493/2010 1. Heard. Rule. Rule made returnable forthwith. With the consent of learned counsel for the parties, taken up for final hearing at admission stage. 2. Prosecution vide Crime No.I-66/2010, registered with Karjat Police Station against the petitioners to the extent of offence punishable under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short SC & ST Act of 1989) is questioned and exercise of powers under Section 482 of the Criminal Procedure Code are urged, claiming that the prosecution is improbable and it is posed with malafide and maliciously instituted with ulterior motive for wrecking vengeance on the petitioners. 3. The petitioners own agricultural property and respondent No.2 Bapu and his family members also possess agricultural property. Both properties in all probabilities are abutting each other. Since a controversy of user of well and its title, the parties are litigating at several avenues, injunction is clamped against the respondent No.2 and his family members. In spite of injunction, it is alleged, the respondent No.2 and his family members did not mend their ways to allay such eventuality of any law and 4 Criminal Writ Petition No.493/2010 order, police assistance was sought, which the learned Judge dealing with civil matter, entertained. 4. On 25.4.2010, rioting between the group belonging to the petitioners and respondent No.2 over the controversy of agricultural field again erupted, in which both the groups had its ramifications. Few persons from the group of petitioners were injured, required to be hospitalised, while from the group of respondent No.2, three persons were injured and allegedly hospitalised. Prosecution was initiated by F.I.R. at the behest of petitioners and in particular Dhananjay Thorat vide Crime No. 65/2010, dated 25.4.2010 for infraction of Sections 143, 147, 148, 447, 323, 504, 506, 427 of the Indian Penal Code. In the similar manner and not as a sequel to the same F.I.R., the respondent No.2 has lodged prosecution vide Crime No.66/2010, dated 25.4.2010 with the same Police Station. In the said F.I.R. of respondent No.2, he has, while narrating the events in succession has also put a grievance to the investigator that the petitioners, in a concert and as members of unlawful assembly, in coherence, have abused him and his relations in the name of his caste, intimidated him with intent to humiliate. 5. The learned counsel for the petitioner narrated the 5 Criminal Writ Petition No.493/2010 above referred history with precision supported with record. This was to highlight that it is not the atrocity by the petitioner,but it is the atrocious act of respondent No.2 and his group, which has made life of the petitioners miserable, they are unable to cultivate their property. Learned counsel also invited earlier identical prosecution of 2009 initiated by respondent No.2, in which the petitioners were acquitted for want of evidence. 6. Learned counsel submits, by any logic, group of 18 persons would not be attributing and accusing in the name of caste of the respondent No.2 or his relations that too without any specifications and consequently, according to him, it is to wreck vengeance on the ongoing civil litigation and to spite the petitioners due to the private and personal grudge over the agricultural properties. 7. Learned counsel for the respondent No.2, while reiterating the events, submits, the proceedings are abortive in nature. He invited attention to Section 8 of the SC & ST Act, which conceive presumption as to offences, and reads as under : 8. Presumption as to offences.-- In a prosecution for an offence under this Chapter, if it is proved that --- 6 Criminal Writ Petition No.493/2010 (a) the accused rendered any financial assistance to a person accused of, or reasonably suspected of, committing, an offence under this Chapter, the Special Court shall presume, unless the contrary is proved, that such person had abetted the offence; (b) a group of persons committed an offence under this Chapter and if it is proved that the offence committed was a sequel to any existing dispute regarding land or any other matter, it shall be presumed that the offence was committed in furtherance of the common intention or in prosecution of the common object. 8. Counsel submits, it is not requirement of the Statute that every member of such unlawful assembly should be specifically named with utterance in the filthy language or in the language intimidating caste of respondent No.2. Law provides, according to counsel, a group of persons committed an offence under the chapter requires its proof and followed by presumption of committing the act in furtherance of common intention or in prosecution of the common object. Learned counsel submits, unless such proof at a proper stage is given, the proceedings by exercise of powers under Section 482 of the Criminal Procedure Code need not be quashed. 9. Learned A.P.P. submits that the respondent No.2 has suffered at least six injuries, may be simple in its nature, but magnifies the situation and brunt faced by the respondent No.2. 7 Criminal Writ Petition No.493/2010 According to him, even the provisions of Section 3(1)(ii) of the SC & ST Act applies to the events. 10. Provisions of Section 3(1)(ii) referred by learned A.P.P. would not be applicable as it relates to dumping excreta, waste natter, carcasses or any other obnoxious substance in the premises and/or neighbourhood of the person belonging to Scheduled Caste or Scheduled Tribe community to cause insult or annoyance to him. 11. The learned counsel for the petitioner has placed reliance to the judgment of Hon’ble Apex Court in the matter of State of Haryana and others Vs. Bhajan Lal and others (1992 Supp. (1) Supreme Court Cases 335) : 1992 scc (Cri) 426) to address the 7 categories indicated by the Lordships and to highlight that the illustration at clauses 5 and 7 makes out a case for exercise of discretion by this Court in terms of Section 482 of the Criminal Procedure Code. 12. In the said judgment, apart from highlighting the 7 categories, the Hon’ble Lordships have also inpara No.103 observed: 8 Criminal Writ Petition No.493/2010 “We also give a note of caution to the efect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer any arbitrary jurisdiction on the court to act according to its whim or caprice.” 13. In the latter judgment, the Hon’ble Apex Court, in the matter of Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others (2008) 1 SCC (Cri) 259), the three Hon’ble Judges have observed : “The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurise the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 Cr.P.C. though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the Statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained.” 14. The Apex Court, in Preeti Gupta and another Vs. State of Jharkhand and another (2010 ALL MR (Cri) 2947) have again informed of a cautious approach expected from the High Court while 9 Criminal Writ Petition No.493/2010 exercising powers under Section 482 of the Criminal Procedure Code. The observations in para 17 are as under : “The powers possessed by the High Court under section 482 of the Code are very wide and the very plentitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution but court’s failing to use the power for advancement of justice can also lead to grave injustice. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extra-ordinary jurisdiction of quashing the proceedings at any stage. 15. In the light of the settled position of law, to revert to some extent the facts in the present case, I find that the respondent No.2 is known to be belonging to SC community to the group of petitioners. The long drawn feud between the parties is writ large. The incident has taken place on 25.4.2010 is primarily indicative by virtue of F.I.R. No.65/2010 and also 66/2010. Thus, in the commotion and altercation, the petitioners have in all probabilities uttered in the language and caste of respondent No.2, which in terms of Section 3(x) of the SC & ST Act attracts penal 10 Criminal Writ Petition No.493/2010 consequence. 16. The reference that all the persons from group of petitioners have abused in the name of caste has prelude to events followed by a threat to remove and segregate the electric motor in the field. These aspects are indicative that events in the manner highlighted in F.I.R. No.66/2010, may have primarily taken place. In the situation, it cannot be said that the F.I.R. is an abuse of process of law or initiated to wreck other vengeance against the petitioners. Writ Petition lacks merits, dismissed. Rule discharged. Observations are prima facie in nature. Learned Judge seized with the matter shall not be swayed with it, shall independently decide the factum of accusations. 17. Heard Mr. Gaware and Mr. Deshmukh. The further prosecution in terms of Section 3(1)(x) of the SC & ST Act, 1989 is stayed till 13th April 2011. K.U. CHANDIWAL JUDGE