1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR Criminal Revision Application No. 219 of 2009 ( Jivan Digambar Gawai and others ..vs.. State of Maharashtra ) --------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders --------------------------------------------------------------------------------------------------------------------- Mr. S.D. Chopde, Advocate for the applicants, Mr. V.A. Thakare, A.P.P. for the non-applicant/State. CORAM: S. S. SHINDE, J. DATED : 15 th DECEMBER, 2009 1. This application takes exception to the order dated 26th October, 2009 passed by the Additional Sessions Judge, Akola on Exhibit 245 (Annexure-C to the petition) in Sessions Trial Case No. 125/2001, whereby the Additional Sessions Judge, Akola rejected the application for discharge by the present applicants. 2. The learned Advocate appearing for the applicants submits that, the acts attributed to the applicants itself show that there was no mens ria or intention on the part of the applicants to commit the alleged offence against them. It is further submitted that the applicants are entitled to discharge for the offence under Section 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. It is further submitted that from the case of prosecution, it is apparent that there was pelting stones from the both sides, in which the 2 Government property was damaged. Therefore, unless the other party joined as accused in this case, no offence punishable under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act can be attributed to the applicants/accused. 3. It is further submitted that though the applicants have been charge-sheeted for the offence punishable under Sections 295 and 332 of the Indian Penal Code for damaging the photo of Dr. Babasaheb Ambedkar on the occasion of ‘Dhamma Chakra Parivartan Day’ and causing hurt to public servants while discharging their duties as public servant, when it is the case of the prosecution that accused have committed offence without mens ria, they are entitled to discharge. 4. It is further submitted that in the original F.I.R. or in the charge- sheet, there is no specific mention about the caste of the accused or the complainant, as the case may be, and also there is no case made out to frame any charge about the offence alleged under Section 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and therefore, the applicants are entitled for discharge from the said charges. 5. The learned Advocate for the applicants invited my attention to the grounds taken in the criminal revision application and submitted 3 that when there is no case made out by the prosecution even to try the applicants for the offence under Section 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, therefore, this Court may allow this application and discharge the applicants from the charges leveled against them. 6. The learned A.P.P. appearing for the State vehemently opposed the application and submitted that the F.I.R. is not encyclopedia and therefore, merely because the caste of the applicants or complainant is not mention in the F.I.R., that basis would not be sufficient to hold that the applicants are entitled to discharge. The learned A.P.P. for the State in support of his contention invited my attention to the reported judgment of the Hon’ble Supreme Court in case of Ashabai Machindra Adhagale v. State of Maharashtra and others, 2009(3) SCC 787 and judgment of this Court in case of Pushpa Vijay Bonde v. State of Maharashtra, 2009(2) Mh.L.J.(Cri.) 368. 7. The learned A.P.P. for the State further invited my attention to the impugned order passed by the Court below and submitted that no case is made out by the applicants to interfere in the impugned order and therefore, criminal revision application may be dismissed. 8. I have heard the learned Advocate appearing for the applicants 4 and learned A.P.P. for the State at length. Perused the impugned order passed by the Additional Sessions Judge, Akola. In paragraph 8 of the said judgment the Additional Sessions Judge, Akola held thus - “After going through the charge-sheet and statements of the witnesses, who are not only the members of Scheduled Caste but also the police witnesses who have sustained injuries by the act of members of unlawful assembly which was formed in prosecution of common object of resist the prosecution of “Dhamma Chakra Pravartan Din” taken by the members of Schedules Caste. So also, it is apparent that while obstructing the possession, the applicants who were members of unlawful assembly, have only pelted stones and caused injuries to the members of procession, but they damaged the public property i.e. the vehicle of public and police and destructed the photo frame of Dr. Babasaheb Ambedkar. So also, it is apparent from the statements of witnesses that members of unlawfully assembly insulted the witnesses while running helter-skelter with intent to humiliate them, being the members of Schedule Caste. Thus, there been sufficient material on record to frame charge against the applicants for the offence punishable 5 under Section 3(1)(x) of Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989, section 3 of Prevention of Damage to Public Property Act, Sections 147, 332, 427 read with Section 149 of I.P. Code, I do not find substance in the submission of the learned Counsel for the applicants.” 9. Therefore, I am of the opinion that, not only the complainant and other persons were injured in the said incident but even the police witnesses have also sustained injuries by the act of unlawful assembly which was formed in prosecution of common objects to resist the procession of ‘Dhamma Chakra Parivartan Din’, taken by the members of Scheduled Caste. 10. Though the learned Advocate for the applicants has submitted that the charges under Section 3(i)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act are not sustainable, in my considered view the same contention can be considered by the concerned Court during the course of trial. Prima-facie, it clearly appears that, the injured persons are from Scheduled Caste category and also police personnels and the prosecution has brought on record the necessary material to prosecute the applicants. 6 11. The Hon’ble Supreme Court in case of Ashabai Machindra Adhagale v. State of Maharashtra and others, 2009(3) SCC 787 referring to its earlier decision in case of Superintendent of Police, CBI and others v. Tapan Kumar Singh (2003 (6) SCC 175) observed- “It is well settled that a first information report is not an encyclopaedia, which must disclose all facts and details relating to the offence reported” 12. This Court in case of Pushpa Vijay Bonde v. State of Maharashtra, 2009(2) Mh.L.J.(Cri.) 368 cited (Supra) held that, “merely because the caste of the accused is not mentioned in the F.I.R. stating whether he belongs to scheduled caste or scheduled tribe, it cannot be a ground for quashing the complaint. After ascertaining the facts during the course of investigation it is always open to the investigating officer to record that the accused either belongs to or does not belong to scheduled caste or scheduled tribe. After final opinion is formed, it is open to the Court to either accept the same or take cognizance. Even if the 7 charge-sheet is filed at the time of consideration of the charge, it is open to the accused to bring to the notice of the Court that the materials do not show that the accused does not belong to scheduled caste or scheduled tribe. Even if charge is framed at the time of trial materials can be placed to show that the accused either belongs to or does not belong to scheduled caste or scheduled tribe” Therefore, in the light of the above observations of this Court, it will be open for the applicants herein to place the matter on record during the course of trial in support of their contention. 13. It would not be out of place to mention that, the activities and offences as in the present case to put the loss to the public property and assaulting the police personnels are increasing day by day. The present case is fit case to be tried for the offences alleged by the prosecution against the applicants. Therefore, no case is made out to interfere in the impugned order passed by the Court below. Hence, application is devoid of any merits and same is rejected. JUDGE adgokar