1 CR.WP NO.428/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRI.WRIT PETITION NO. 428 of 2010 Date of decision:12/1/2011 For approval and signature HON'BLE MR.JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? Private Secretary AGP/office/428-10crwp 2 CR.WP NO.428/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.428 OF 2010 Dr. Sau. Suryakanta Ramesh Ajmera, Age: 59 years, Occ: Principal of Arts and Commerce Women College, Vocational Course, Deopur, Dhule and President of West Khandesh Bhagini Seva Mandal, Dhule. ...PETITIONER VERSUS 1. The State of Maharashtra. 2. The Police Sub Inspector, Police Station, Deopur, Dist. Dhule. 3. Sahebrao Vitthal More, Age: 46 years, Occ: Service, r/o. 2, Nandanvan Bank Colony, Deopur, Dhule. ...RESPONDENTS ... Mr. R.N.Dhorde, Adv., h/f Mr. Sunil B.Jadhav, Adv., for the petitioner. Mr.N.B.Patil, APP for respondent State. Mr. P.S.Paranjape, Adv., for respondent no.3. ... CORAM: K.U.CHANDIWAL, J. DATE : 12/1/2011 *** 3 CR.WP NO.428/2010 ORAL JUDGMENT: 1. Heard. Rule, made returnable forthwith. By consent of the parties, heard finally. 2. FIR, being Crime No.06/2010, registered with Deopur Police Station, dist. Dhule, dt. 12.4.2010, under Section 3(1)(x) of Scheduled Castes and Scheduled Tribes ( Prevention of Atrocities) Act, 1989 ( hereinafter referred to as SC and ST Act ) and under Section 7 of the Protection of Civil Rights Act, under Sections 504, 506 of IPC, is sought to be quashed and set aside. 3. The petitioner is Principal of the college where respondent no.3 is working as a Full Time Teacher by virtue of regular appointment. 4. There were alleged illegalities committed by respondent no.3 as a teacher, including misbehaving with girl students and even female colleague for which he was reprimanded, consequently, he has tendered his unconditional apologies. His services were sought to be terminated, in the year 2004, he was reinstated by virtue of an undertaking dt.29.9.2004. 5. On 23.2.2010, respondent no.3 was served with notice, his earlier explanations were also 4 CR.WP NO.428/2010 informed to him to be insufficient. He was informed, considering his past service and his family condition, though his acts of dereliction in duty are of grave and serious nature, however, instead of terminating, his one increment was stopped. 6. A letter was served upon the petitioner dt.12.3.2010 by CASTRIBE Teachers Organization under signature of its District President, seeking information about employees belonging to Backward community. By another letter dt. 1.4.2010, addressed to the petitioner, by the said organization, it was alleged respondent no.3 was harassed and he has been persecuted by the management of the petitioner. In the said communication, at the last, the Association desired and, rather, warned that petitioner should withdraw the notices and contemplated action against respondent no.3 within two to four days, failure thereof, action as envisaged under Articles 14, 15(1)(2)(b)(k) and sub clause (16)(1)(2)(4)(c) and 365 will be put in acceleration, including taking action for infraction of provisions of SC & ST Act. A separate petition was threatened to be filed before this Court for committing breach of the undertaking rendered to the Government. 7. The management of the petitioner, under 5 CR.WP NO.428/2010 the signature of the petitioner, issued a notice dt.12.4.2010 by Outward No.8/2010-2011, to the respondent no.3, informing him of earlier two communications and, particularly, dt.27.3.2010. He was informed that reasons of seeking explanation are annexed. These events and communication is not in controversy. 8. The matter revolves to an incident dt. 12.4.2010, allegedly occurred while the petitioner was in her chamber, respondent no.3 purportedly approached her with his two colleagues Pritam Shaligram Chaudhari and Nitin Supdu Sonawane, at around 4.30 p.m. According to respondent no.3, the petitioner abused him in the name of his caste, and thereby committed infraction of the provisions of SC and SC Act. 9. Learned Counsel for the petitioner submits, the above events of past record of respondent no.3 is demonstrative of his attitude and callousness in attending his duties. The prosecution is demonstrating his perversity, no offense in the manner it has been accounted has taken place. The second submission from the learned Counsel is, the so called events have taken place in the chamber/cabin of the petitioner, it could not have been attributed to have taken place in a public view. In order to stress his point, 6 CR.WP NO.428/2010 learned Counsel has relied to the judgments of this Court ( Division Bench) reported in 2005(3) Mh.L.J.368 ( Pradnya Pradeep Kenkare and another Vs. State of Maharashtra) and 2008(1) Bom.C.R. (Cri.) 417 ( Sarita Shyam Dake V. Sr.Police Inspector and anr). Learned Counsel also placed reliance to the judgment of this Court reported in 2010 ALL MR (Cri) 821) (Ranjit Rajaram Hande v. State of Maharashtra), dt.27th January, 2010. 10. In the matter of Pradnya, the Division Bench found that the events having taken place in the premises of Honourary Secretary, could not be said to be used in a public view. The Division Bench also observed, the communication was not accessible to the public or in the presence of the public. In the matter of Sarita, the Division Bench was dealing identical situation and took recourse to the earlier view in the matter of Pradnya. The Division Bench also referred to a judgment in the matter of V.P.Shetty, Chairman of Industrial Development Bank of India Ltd. Vs. Sr.Inspector of Police ( 2005(2) Bom.C.R.(Cri.) 89). Considering that the allegations in the complaint related to the acts by the accused in the close cabin of the accused and, in the absence of any stranger, it was held that the accusation against the accused, in those circumstances, can hardly be said to be amounting to insult or humiliation to the member 7 CR.WP NO.428/2010 of Scheduled Castes or Scheduled Tribes, within the meaning of Atrocities Act. 11. The events in the present case, even if projected that two persons - friends of respondent no.3 were accompanied with him, by that itself would not amount that they were stranger to respondent no.3 or to the petitioner. Respondent no.3, meticulously, in order to ensure his prosecution, in a proper frame, propogated theory of the two friends/associates. 12. Learned Counsel for respondent no.3 submits, the offenses under SC and ST Act are extremely serious, the matter is reported no less than by a professor of the institution. Without any reason, the events 2004 are raked up which have no bearing to the events dt.12.4.2010. Counsel reiterates that the matter should go to trial. The activities have taken place in the cabin/chamber of the petitioner, it has access to the public between 11 to 4 p.m. and it will be attracting the definition of “public view”. 13. Learned A.P.P. has tendered the investigation papers, including report. I have perused the same. 14. The conduct of respondent no.3, though need not be castigated, however, gives a 8 CR.WP NO.428/2010 reasonable feeling that, being outraged by action taken against him, he desired to search for an occasion and the event dt.12.4.2010, in the afternoon in the cabin of the petitioner are put in valour and velocity. The petitioner was discharging her duties as principal of the college. In discharge thereof, on 12.4.2010 itself, the notice was slapped to respondent no. 3. There could not have been a reasonable occasion on that day for respondent no.3 to visit the office of the petitioner as the notice was sent to him by post and could not be expected to be served on the very day of 12th April, 2010. The respondent no.3 submits, he desired to ask the petitioner in response to the notice dt. 12.4.2010. Thus, the events are apparently imaginary and illusory. 15. At the behest of Respondent no.3, the Association desired withdrawal of contemplated action. Since petitioner did not succumb to the pressure, same has been coined to retaliate. 16. The events, that have been projected on 12.4.2010, could not be branded to have taken place in public view and gaze. It is a restricted area, not open to public, even if anyone desires to enter, he has to seek prior permission of the petitioner and a Peon is 9 CR.WP NO.428/2010 positioned and guarding the chamber or cabin. Though statements in the investigation papers rebel against respondent no.3, however, I do not wish to dissect them. 17. In the set of above facts, the prosecution initiated against the petitioner is covering the guidelines, as has been laid down by the Apex Court in the matter of State of Haryana Vs. Bhajanlal ( 1992(1) Suppl. SCC 335 : AIR 1992 SC 604). The Hon'ble Lordships of the Apex Court gave following categories of the cases by way of illustration wherein powers under Article 482 could be exercised either to prevent abuse of the process of any court or, to secure the ends of justice. The categories are as under: (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 investi- gation 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 the same do not disclose the commission of any offence and make out a case against the accused; (4) where the allegations in the FIR 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 10 CR.WP NO.428/2010 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 institu- tion an 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." 18. The present case falls in clause 5 and 7 of the said judgment in the matter of Bhajanlal. Taking survey of the facts, as a sequel and backlash to the notices issued against Respondent no.3, the report is filed to Police - the prosecution against the petitioner is quashed. Petition allowed. Rule made absolute. l (K.U.CHANDIWAL) JUDGE ... AGP/428-10crwp 11 CR.WP NO.428/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.428 OF 2010 Dr. Sau. Suryakanta Ramesh Ajmera, Age: 59 years, Occ: Principal of Arts and Commerce Women College, Vocational Course, Deopur, Dhule and President of West Khandesh Bhagini Seva Mandal, Dhule. ...PETITIONER VERSUS 1. The State of Maharashtra. and others. ...RESPONDENTS ... Mr. R.N.Dhorde, Adv., h/f Mr. Sunil B.Jadhav, Adv., for the petitioner. Mr.N.B.Patil, APP for respondent State. Mr. P.S.Paranjape, Adv., for respondent no.3. ... CORAM: K.U.CHANDIWAL, J. DATE : 12/1/2010 *** OPERATIVE ORDER: For the reasons stated in the accompanying judgment, the Court passes following order. " Taking survey of the facts, the prosecution against the petitioner is quashed. Petition allowed. Rule made absolute. 12 CR.WP NO.428/2010 (K.U.CHANDIWAL) JUDGE