1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION NO.3734/2009 Applicant :- Gautam Kisanrao Gaikwad, Age about 30 years, Occupation : - Service, R/o Rahul Nagar, Bicchutekali, Chaparashipura Camp, Amravati, Tq. Dist. Amravati. ...Versus... Non-applicant :- The State of Maharashtra, Through Police Station Officer, Police Station, Frezurpura, Amravti, Tq. & Dist. Amravati. --------------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders --------------------------------------------------------------------------------------------------------------------------------------------- [None for the applicant] [Shri A.D. Sonak, APP for non-applicant] CORAM:- A.B. CHAUDHARI, J. DATED :- 04.03.2010 1. By the present application, the applicant has put to challenge the F.I.R. No.225/2006 and chargesheet No.110/2009 filed in the Court of Judicial Magistrate First Class, Court No.3, Amravati vide Criminal Case No.4579/2009. 2. None for the applicant. 3. I have gone through the criminal application, grounds raised therein and the documents filed along with application. The applicant has raised a ground in the application stating therein that F.I.R. as well as chargesheet deserve to be quashed because there is no evidence against him nor even indirect evidence is shown in the chargesheet. According to him, the 2 statement of about four police personnel recorded by the police under Section 161 of the Code of Criminal Procedure will have to be rejected because the police personnel are interested witnesses and therefore, prima facie their statements cannot be taken into consideration to prosecute the applicant. It is then stated that Home Department of the Government of Maharashtra had issued circular dated 18.10.2007, asking police agency to withdraw all prosecutions, which were launched due to riots etc., which took place during protest of Khairlanji and Kanpur incidents, where the loss of private or public property is less than Rs.5,00,000/-. 4. Learned A.P.P. for non-applicant opposed the application and argued that there is enough material on record against the applicant, showing his role in the offences, which were committed. He, therefore, prayed for dismissal of the application. 5. I have gone through the F.I.R. as well as statements of police personnel, which were recorded under Section 161 of the Code of Criminal Procedure and which have been filed along with chargesheet. It is seen that the applicant has been named by at least three to four police constables, who were posted for controlling the mob of about ten thousand people, which had indulged in destroying the public and private properties. Thus, those statements clearly show that the applicant and other persons were distributing xerox copies of pamphlets, containing highly explosive writing, which would cause immense hatred between the Sawarns and Dalits. It is further seen that the applicant had also pasted objectionable posters in Dalit residents' area, which also showed explosive pictures, which in fact finally resulted into a mob of ten thousand pelting stones and damaging the public and private properties and injuring hundreds of police 3 personnel. 6. Thus, this evidence clearly is against the applicant and therefore, neither the F.I.R. nor the chargesheet can be quashed. 7. To say that statements of police witnesses should not be believed by this Court at such premature stage merely because they are police personnel or interested witnesses would be ridiculous. The circular referred to in the application, issued by the Home Department of the Government of Maharashtra will have no application since there is no assessment of damage to the public properties etc. as mentioned in the said circular and at any rate, the said circular is contrary to the decision of the Supreme Court in the case of Destruction of public and private properties, In Re...Versus...State of Andhra Pradesh and others, reported in 2009 (5) Supreme Court Cases 212 and in particular paragraph No.15 thereof mentioning the guidelines. I quote guidelines from paragraph No.15 of the said Supreme Court judgment as under : “15. In the absence of legislation the following guidelines are to be adopted to assess damages : (I) Wherever a mass destruction to property takes place due to protests or thereof, the High Court may issue suo motu action and set up a machinery to investigate the damage caused and to award compensation related thereto. (II) Where there is more than one State involved, such action may be taken by the Supreme Court. (III) In each case, the High Court or the Supreme Court, as the case may be, appoint a sitting 4 or retired High Court Judge or a sitting or retired District Judge as a Claims Commissioner to estimate the damages and investigate liability. (IV) An assessor may be appointed to assist the Claims Commissioner. (V) The Claims Commissioner and the assessor may seek instructions from the High Court or the Supreme Court as the case may be, to summon the existing video or other recordings from private and public sources to pinpoint the damage and establish nexus with the perpetrators of the damage. (VI) The principles of absolute liability shall apply once the nexus with the event that precipitated the damage is established. (VII) The liability will be borne by the actual perpetrators of the crime as well as the organisers of the event giving rise to the liability to be shared, as finally determined by the High Court or the Supreme Court as the case may be. (VIII) Exemplary damages may be awarded to an extent not greater than twice the amount of damages liable to be paid. (IX) Damages shall be assessed for : (a) damages to public property; (b) damages to private property; (c) damages causing injury or death to a person or persons; and (d) cost of the actions by the authorities and police to take preventive and other actions. 5 (X) The Claims Commissioner will make a report to the High Court or the Supreme Court which will determine the liability after hearing the parties.” 8. It is not known whether State Government has actually implemented the above guidelines given by the Apex Court to assess the damage to public/private properties throughout the State of Maharashtra for the destruction which took place due to the above incidents. Secretary, Home Department, Government of Maharashtra shall submit the report on these aspects to this Court within a period of six weeks from today. 9. For all these reasons, therefore, I find no merit in the present criminal application. The same is, therefore, dismissed. JUDGE SSW