1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. CRIMINAL APPLICATION NO.: 2414 OF 2009 Ambadas S/o Ganjidhar Gulave and another Versus The State of Maharashtra and another *** Mr. V. D. Sapkal, Advocate for the Applicants. Mr. K. M. Suryawanshi, A.P.P. for the Respondent / State. Mr. N. J. Pahune Patil for Respondent No.2. *** CORAM: K. U. CHANDIWAL, J. DATED: 1st OCTOBER, 2009. 1. Heard. Rule. By consent matter is finally heard. 2. The applicants Ambadas and his brother Sundar are Sarpanch and Police Patil of the village Sarati, Taluka Sillod, district Aurangabad. The complainant Manik resides at Pimpaldari. He has agricultural fields at Sarati. His brother is at Mumbai and another brother is at Aurangabad. 3. The complainant canvassed that on 28th May, 2009, when he with his wife Indubai, were returning from their agricultural field, to proceed ahead, and 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. when they were near field of Ambadas Gulve, the Applicant No.2 Sundar appeared, abused the complainant in the name of his caste and threatened that he should not live in the village otherwise he will be thrashed to pieces. Entire family will be eliminated. At such time, brother Ambadas also came. He too abused and threatened to eliminate. The complainant, thereafter, went to the village at the house of Bhaurao, however, he did not meet Bhaurao and returned Pimpaldari. 4. It is also alleged that in the past in 2004 also, there were such eventualities at the hands and behalf of present Petitioners. The incident dated 28th May, 2009 is reported to the police on 14th June, 2009. 5. During the course of submissions, Mr. Sapkal for the accused/ applicants informed that the root cause behind the prosecution is not the incident in itself, but appointment of Sundar as Police Patil of the village. It is pointed that there was an application 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. dated 26th March, 2003 made by the complainant to the concerned authorities and there was also subsequent application of present applicant Sundar dated 31st March, 2003 and considering the merits Sundar was appointed as Police Patil for the period of five years from 14th January, 2004 to 13th January, 2009. The Respondent No.2 (original complainant) was not satisfied with such appointment and no sooner the period of five years was to expire he again applied to the Sub Divisional Magistrate, Sillod by application dated 12th January, 2009 informing that term of Sundar Gulave expires and since the complainant belongs to backward community he should be appointed as Police Patil. He was unfortunate as the competent authority considered the eligibility and/ or performance of said Sundar, extended the term of Police Patil from 14th January, 2009 to 13th January, 2019. This was by order dated 3rd February, 2009. 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. 6. There is no explanation from the complainant Manik as to what made him to remain with folded hands from 28th May, 2009 till 14th June, 2009 to lodge the report. There is no whisper nor any affidavit in reply to explain the situation. This is one of the straw in the matter. 6. Then comes the alleged incident. Taking scenario of the situation, it is practically impossible that nearby the field of Ambadas, Gangadhar, the brother would come forward, abuse complainant without any cause, provocation and reasons, in the name of caste and threatened to thrash to pieces. It is not that applicants are larrikin and dangerous. Then the story projected by Ambadas coming forward and abusing in the same feather is primarily difficult to digest. Had there been indeed such event, the complainant, who was under nerves with his senses due to the feeling of elimination, should have 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. approached police but he approached house of Bhaurao, did not indicate incident to anybody, to keep mum till 14th June, 2009. The basic reason for prosecution is, nothing but appointment of Sundar as a Police Patil. 7. Whether the accusations in itself formulate the offence showing infraction of section 3 (1)(x) of the S.C. & S.T. (Prevention of Atrocities) Act. 8. My attention is drawn to a judgment in the matter of "Shri Mahesh Sakharam Patole and others V/s State of Maharashtra" [2009 ALL MR (Cri) 1601" dated 21st April, 2009. Para 7 and 8 read as under: "7. A mere presence of the family members, including resident servant, in my opinion, is not sufficient to constitute an offence under section 3 (1) (x) of the Act. Family members or resident-servant cannot be treated as members of public. Members of the public should either be present when the offence is committed and even if the incident was not visible, atleast the utterances or remarks should be audible to the members of public to constitute an offence under the Act. 6 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. For instance, if the complainant was insulted/ intimidated in a closed cabin, that would also constitute and offence under section 3 (1) (x) of the Act. Similarly, if no member of public was present when the accused uttered the abuses at a public place, it would not constitute an offence. Therefore, to constitute an offence under section 3 (1) (x) of the Act, the incident should occur in the presence of the public or atleast the utterances should be audible to the member/s of public." 8. In the context of the facts of the present case, the word "public" would include members of the public, already in the locality as residents as well as visitors from outside. The members of family or he resident-servant, as observed earlier cannot be treated as members of public. The complainant in the FIR does not make any reference to either residents in the locality or to any visitors. The incident occurred at 3.30 am, when the entire locality was fact asleep, and perhaps that seems to be the reason why no person from or outside the locality was present. The learned APP has not placed any material on record to show that the alleged abuses were heard by the neighbours or any other members of the public, nor has the complainant so stated in the FIR." 9. The averments or the abuse in the name of caste apparently was not intended to humiliate or intimidate or cause annoyance to the complainant. He was indeed if proceeding to his relations, there could 7 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. not be such eventuality. The prosecution is naturally a spirited one with basic concept of cornering the applicants herein as they hold responsible position as Sarpanch and Police Patil. The present prosecution will naturally culminating into a persecution and the gravity in the allegations invited its long drawn ramifications. The cumulative effect of above aspects is, the prosecution in terms of FIR II-9 of 2009 dated 14th June, 2009, is palpably false and meant and coined to set right other scores and naturally amounts to abuse of process. Hence, proceedings quashed. Rule made absolute. [K. U. CHANDIWAL, J.] Dated:01/10/2009. ans/2414