1 Cri.Appln. No.3873/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3873 OF 2010 Arun Ganpat Ghodke & ors. ... APPLICANTS VERSUS The State of Maharashtra & anr. ... RESPONDENTS ..... Shri M.A. Tandale, Advocate for applicants Shri G.R. Ingole, A.P.P. for respondent No.1. Shri R.S. Shinde, Advocate for respondent No.2. ..... CORAM : U.D. SALVI, J. DATED : 18th & 21st November, 2011. PER COURT : 1. Heard. Perused Criminal Application, replies thereto and the record. 2. The petitioners, the accused in C.R. No.115/2009, registered with Pimpalner Police Station, District Beed, are seeking quashing of the charge sheet in R.C.C. No.76/2010, lodged in the Court of the Judicial Magistrate, First Class, Beed. 3. On 19.9.2009, the respondent No.2 Kalyan Bhanudas Pawar, Resident of Ghodka Rajuri, Taluka and District Beed, 2 Cri.Appln. No.3873/2010 lodged a complaint with Duty Officer at Government Hospital, Beed. The complaint reveals the allegations of physical violence at the hands of petitioner Nos.1 to 4. The respondent No.2, the victim was medically examined and was found to have sustained simple injuries. On 28.10.2009, Crime was registered against the said petitioner at C.R. No.115/2009, under Sections 324, 323, 504, 506 read with Section 34 of the Indian Penal Code, 1860 at Pimpalner Police Station, Taluka and District Beed. After the investigation, it appears, the police lodged charge sheet against the said petitioners in the Court of the learned Judicial Magistrate, First Class, Beed, which came to be registered as R.C.C. No.76/2010 on 11.1.2010. These facts are not disputed by the rival parties. 4. It is the case of the petitioners that the police have moved an application before the learned Judicial Magistrate First Class, Beed on 7.6.2010, contending the making of allegations by the complainant before the Superintendent of Police Beed that on 18.9.2009 not only he was beaten but was abused and humiliated with reference to his caste by the petitioner Nos.1 and 4 and other petitioners (members of the Ghodke family) as well; and the learned Judicial Magistrate, First Class, without considering the said allegations as afterthought and brainchild of the complainant to harass Ghodke family, had allowed the plea of the prosecution to conduct further investigation in the matter on 8.6.2010; and as a 3 Cri.Appln. No.3873/2010 result of the said direction a supplementary charge sheet levelling false accusations of the commission of the offence punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was lodged against all the petitioners. 5. According to the petitioners, the original complaint dated 19.9.2009 makes no whisper about any caste related offence much less any allegation of any offence against the petitioners No. 5 to 7, and subsequent belated grievance made by the respondent No.2 involving all the petitioners in the caste related offence is product of the design of the respondent No.2 to harass the entire Ghodke family by resorting to abuse of the judicial process and, therefore, it needs to be nipped in the bud for curtailing such harassment. 6. To the petition, the petitioners have annexed copies of the initial charge sheet, complaint dated 19.9.2009, application dated 7.6.2010, moved by the police before the Judicial Magistrate, First Class, Beed, application dated 20.5.2010 of the respondent No.2 to the Collector, communication dated 22.5.2010 to the Superintendent of Police Beed from Additional Collector, Beed, application dated 16.10.2009 of the respondent No.2 complainant to Superintendent of Police, Beed. Both Superintendent of Police, 4 Cri.Appln. No.3873/2010 Beed and Sub-Divisional Police Officer, Sub-Division, Beed have tendered affidavits in reply, giving core account of the facts about how the things proceeded from 19.9.2009 – day of the complaint. to lodging of the charge sheet No.84/2010 dated 16.12.2010 against the petitioners in the Court of the Judicial Magistrate, First Class, Beed, accusing the petitioners of the commission of offence punishable under Sections 324, 323, 504, 506, 395 of the Indian Penal Code, 1860 and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 being R.C.C. No.87/2011, dated 28.1.2011. 7. Learned Advocate for the petitioners submitted that, the belated lodging of the application dated 16.10.2009 making fresh accusations against all the petitioners regarding offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is a clear cut case of abuse of the process of law and deserves to be quashed. According to him, if such offences were committed, the same would have reflected in the original complaint dated 19.9.2009. He cited the judgment in Asmathunnisa’s case, passed by the Hon’ble Apex Court – Asmathunnisabegum Vs. State of Andhra Pradesh, ( 2011 (11) SCC 259 ), to place before this Court the instance of use of inherent powers by the High Court under Section 482 of the Code of Criminal Procedure and the principles governing such use. 5 Cri.Appln. No.3873/2010 8. In Asmathunnisabegum’s case (supra), the Hon’ble Supreme Court found that the ingredients of the offence punishable under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 were not present and no offence could be perceived even if the contents of the complaint in its entirety were taken as correct and and true. The Hon’ble Apex Court while setting aside the said complaint took into account the following Judgments: I] Gorige Pentaiah V. State of A.P. ([(2009) 1 SCC (Cri) 446] II] R.P. Kapur V. State of Punjab ( AIR 1960 SC 866) III] Nagawwa V. Veeranna Shivalingappa Konjalgi [(1976) 3 SCC 736] IV] State of Karnataka V. L. Muniswamy [ (1977) 2 SCC 699 ] V] Janta Dal V. H.S. Chowdhary [ (1992) 4 SCC 305 ] VI] Raghubir Saran (Dr.) V. State of Bihar (AIR 1964 SC 1) VII] Connelly V. Director of Public Prosecutions (1964 AC 1254 VIII] State of Haryana V. Bhajan Lal [ 1992 SCC (Cri) 426] IX] Zandu Pharmaceutical Works Ltd. V. Mohd. Sharaful Haque [ 2005 SCC (Cri) 283] X] Inder Mohan Goswami V. State of Uttaranchal [(2008) 1 SCC (Cri) 259] XI] Devendra V. State of U.P. [(2009) 7 SCC 495] 6 Cri.Appln. No.3873/2010 XII] State of A.P. V. Gourishetty Mahesh [(2010) 11 SCC 226 XIII] M. Mohan V. State [(2011) 3 SCC 626] In all these cases exercise of inherent powers by the High Court was recommended for remedying a flagrant abuse by subordinate Court of its powers particularly in the cases where no offence was disclosed. In Bhajanlal’s case (Supra) the Hon’ble Apex Court in the back drop of various relevant provisions of Code and the principles of law enunciated in series of decisions relating to the exercise of extra ordinary power under Article 482 of Criminal Procedure Code, 1973, gave the following categories of cases by way of illustration, wherein such power could be exercised to prevent abuse of the process of the Court or otherwise to secure the ends of justice :-- “102. . . . it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised: (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 FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 7 Cri.Appln. No.3873/2010 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 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 Act concerned (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fides 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.” 9. In this context, learned Advocate Shri R.S. Shinde for the respondent No. 2 pointed out that there were reasons for the complaint being denuded of the facts disclosing the offence punishable under the Scheduled Castes and Scheduled Tribes 8 Cri.Appln. No.3873/2010 (Prevention of Atrocities) Act, 1989, and the same could be apparent from the reading of the application dated 16-10-2009 made by him to the Superintendent of Police, Beed, and the merit of the reasons so manifest in the application needs to be adjudged in the fullfledged trial. He urged the Court to be circumspect and judicious in exercising its discretion under Section 482 of the Code for the fear of same working as an instrument in the hands of the accused to short circuit a prosecution. In support of his submission he invited the attention of the Court to the para No. 5 In Baijinath Jha’s case (Baijinath Jha V Sita Ram & anr, AIR 2008 SC 2778 ) “ In dealing with the last case, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not, whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. The Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unlesh vendetta to harass any person needlessly. At the same the Section is not an instrument haded over to an accused to short circuit a prosecution and bring about its sudden death. The scope of exercise of 9 Cri.Appln. No.3873/2010 power under section 482 of the Code and the categories of case where the High Court may exercises its power under it relating to cognizable offences to prevent abuse of process of any Court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana V. Bhajan Lal (1992 Supp. (1) SCC 335). A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases.” In the instant case, the respondent No. 2 in his application dated 16.10.2009 revealed that the petitioners had indulged in caste abusive conduct and assaulted the respondent No.2. This application offers explanation for absence of the allegations involving the petitioners in the caste related offence in the original statement recorded by the duty officer at Government Hospital, Beed. It alleged that the police acted in collusion with the accused persons and did not record the facts as narrated by him on 19.9.2009. This fact suggests that there is much to be revealed in the trial about the allegations made by the respondent No.2. 10. At this stage, therefore, it would not be prudent to conclude that the material collected by the police following the investigation do not disclose an offence punishable Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. It is for the trial to help the judicial mind to appreciate the evidence and adjudge the merit of the allegations 10 Cri.Appln. No.3873/2010 made by the respondent No. 2 against the petitioners and quashing of further proceedings as prayed for would only short circuit the prosecution to the detriment of cause of justice. 11. Criminal Application 3873/2010, therefore, must fail and is rejected accordingly. ( U.D. SALVI, J. ) fmp/cri387310