1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Criminal Writ Petition No. 561 of 2009 a/w Criminal Application NO.136 of 2009 in Criminal Writ Petition No.561 of 2009. Mr. I. Sudharma S. Rao & Anr. .. Petitioner v/s. The State of Maharashtra & Others ..Respondents Mr.P.G.Badole for the Petitioner. Mrs.M.M.Deshmukh, APP for the State Mr.R.D.Soni i/b. M/s. Ram & Co. for the applicant in Cri. Application No. 136 of 2009/ CORAM : B.H. MARLAPALLE & R.Y.GANOO, JJ. DATED : 16th December, 2009 P.C. : 1. Rule. 2. Rule made returnable forthwith. By consent of learned advocates for the respondents in the petition and the learned advocate for the applicant in Criminal Application No.136 of 2009 the petition is taken up for final 2 hearing. 3. By this petition the petitioners have prayed that respondent no.5, Commissioner of Police, Thane be directed to take appropriate legal action against the respondent nos.2 and 3 for illegal arrest and detention of both the petitioners in C.R.No.368 of 2008 registered by Vartaka Nagar police station under Section 354, 323, 341, 352, 504, 506(2) IPC r/w. Section 7 of Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as said Act). The petitioners have also prayed that FIR filed by Mrs. Smitali Baburao Humraskar with Vartak Nagar Police Station vide C.R.No.368/2008 be quashed and set aside. 4. Few facts necessary for disposal of this petition are as under: The petitioner no.1 is the Chairman of Raunak Park Society situated at Kokani Pada, Thane (hereafter referred to as “the said society”). Petitioner no.2 is a member of the society and occupies flat in the said society. The applicant in Criminal Application No.136 of 2009 Dr. (Mrs.) Smitali B Humraskar is also a member of the said society and occupies a flat in the said society. According to the petitioner, on the staircase of the 7th floor, Dr. (Mrs.) Humraskar had stored certain articles and she was 3 requested by the society to remove the said articles. Mr. Nair came to stay in flat No.701-702 in March 2008 and the articles kept by Dr. (Mrs.) Humraskar were causing inconvenience to him. She was requested time and again to remove the same. At about 3 p.m. of 23rd December, 2008 Dr. (Mrs.) Humraskar had brought down all her belongings on the 7th floor and with the help of builder’s men broke open the chain which the society had put on the lock. She then threw out the bicycles and kept her own belongings into the stilt and locked the door with her lock. The watchman who witnessed the episode contacted Mrs. Anita Rege staying in flat No. 303-304. Along with Mrs. Rege, Mr. Ashish Tandon and Mrs.Neha Bansal went down. By this time the job was already done and bicycles were lying out and belongings owned by Dr. (Mrs.) Humraskar were inside and the doors were locked. This fact was informed to petitioner no.1 on phone. On advice given by the petitioner no.1 Mrs.Rege along with two other members went to Vartak Nagar Police Station to lodge the complaint against Dr. (Mrs.) Humraskar. At the police station, Senior P.I. Mrs.Donde i.e. respondent No.2 enquired with Mrs.Rege as to what happened. Mrs. Rege gave complaint at 5.00 p.m. and took the acknowledgement and left. 5. The petition also narrates the incident which took place between Dr. 4 (Mrs.) Humraskar and Mrs. Rai in the premises of the society at about 9.15 of 23.12.2008. According to the petitioner, at the relevant time when the incident between Mrs.Rai and Dr. (Mrs.) Humraskar took place they were not present in the premises of the society. According to the petitioner, while the petitioners were waiting at the police station, Dr. (Mrs.) Humraskar alongwith Dr.Rai’s brother and watchman of the society came to police station. The petitioners then realised that some problem had erupted in the society. At that time Dr. (Mrs.) Humraskar alleged that petitioners are culprits as they had brought Dr.Rai in the building. The petition thereafter narrates about visit of Mrs. Chitra Hankare, a judicial officer (sister of Dr. (Mrs.) Humraskar) and talk which took place between respondent no.2 and Dr. (Mrs.) Humraskar and Mrs. Chitra Hankare. According to the petitioners at the relevant time it was decided by Dr. (Mrs.) Humraskar, Mrs. Chitra Hankare and Respondent no.2 to falsely implicate petitioners in case under India Penal Code and said Act. According to the petitioners, at the instance of Mrs. Chitra Hankare, the respondent no.2 booked them under said Act and petitioners were arrested on the night between 23rd and 24th December, 2008. The petition further states that they subsequently came to know that they have been arrested on the basis of the FIR filed by Dr. (Mrs.) Humraskar at Vartak Nagar Police Station being FIR No. 5 368/2008 under Section 354, 323, 341, 352, 504, 506(ii) and Section 7 of said Act. 6. By the said FIR Dr. (Mrs.) Humraskar has alleged that on the night of 23.12.2008 near the garage situated in the premises of the society the petitioners uttered certain words calling Dr. (Mrs.) Humraskar as “Chambhar”. In substance, if one peruses the FIR the allegations levelled against the petitioners relate to the provisions of the said Act. The F.I.R. also narrates as to how Dr. (Mrs.) Humraskar was dealt with by one unknown person. 7. According to the petitioners, the petitioners were never present at the premises of the society at or about the time when the incident is alleged to have taken place whereby it is alleged that the petitioners had referred to Dr. (Mrs.) Humraskar as “Chambhar”. 8. The petitioners have therefore contended that the contents of the FIR are patently false and as such the FIR is required to be quashed. It is also the case of the petitioners that the said FIR came to be filed at the behest of Mrs. Hankare and the police officers respondent Nos.2 and 3 yielded to the 6 pressure put by Mrs.Hankare and proceeded to carry out investigation in regard to the said offence though in law it was not permissible for them to conduct the investigation as the investigation in the said case could not have been conducted by the police officer below the rank of Deputy Superintendent of Police. 9. In the course of hearing of this petition it was pointed out by the learned Advocate for the state that Dr. (Mrs.) Humraskar had filed a complaint with Vartak Nagar Police Station in regard to the incident which is said to have taken place on 23.12.2008 between 9.45 to 10.00 p.m. against the petitioners and one more person. We have perused the text of the said N.C. as well as the text of the FIR No.I-368/2008. The N.C. is filed at the police station at 10.15 p.m. of 23.12.2008. It relates to the incident which is said to have taken place on the road near the building. It relates to the incident which is said to have taken place between 9.45 to 10.00 p.m. of 23.12.1008. The FIR as mentioned above relates to the incident said to have taken place between 9 p.m. to 10 p.m. of 23.12.2008 and the information is lodged with the police station at 1.15 a.m of 24.12.2008. Said N.C. as well as the FIR is filed against the petitioners and one more person. The allegation levelled against the petitioners in the 7 said N.C. relate to the dispute as regards the garage premises and it is further alleged that the petitioners gave abuses to Dr. (Mrs.) Humraskar and threatened her. The unknown person is alleged to have pushed Dr. (Mrs.) Humraskar and damaged the camera. The text of the FIR is similar to what is stated in the N.C. with addition as regards the allegations by which it is said that the petitioners referred to Dr. (Mrs.) Humraskar as the person belonging to “Chambhar” caste thereby trying to allege that the petitioners have committed an offence punishable under Section 7 of the said Act. Based on the text of these two documents it is required to be noted that the incident said to have taken place in regard to which the N.C. has been filed is the same incident which is reflected in the FIR No. I-368 of 2008. This is being observed because it is not the case of Dr. (Mrs.) Humraskar that on the night of 23.12.2008 two incidents took place between the petitioners and herself. If one carefully peruses the text of the N.C. and FIR it is clear that the FIR is the improved version of what is said to have taken place on the night of 23.12.2008 between 9.45 to 10.00 p.m. as reflected in the N.C. If it was the case of Dr. (Mrs.) Humraskar that the petitioners had referred to her with reference to her caste “Chambhar” certainly that should have been mentioned in the N.C. filed by her. Absence of allegations in the N.C. concerning the caste and mentioning of the same in the FIR supports the 8 stand of the petitioners that the FIR came to be filed with specific intention to falsely implicate the petitioners in a case under the said Act. 10. Learned Advocate for the State, Mrs. Deshmukh had tendered in the court, copy of the report filed by the Deputy Commissioner of Police, Zone V-WE, Thane District, addressed to the Commissioner of Police being report dated 7.12.2009. By the said report it is recommended that departmental action be initiated against P.I. Lata Donde i.e. respondent no. 2, who is presently working with Shahu Nagar Police Station, Mumbai and PSI Shirole respondent no.3, presently working with the City Traffic Branch, Kalyan Unit for failing to discharge legal duties and acting negligently. Having perused the text of the report we are inclined to observe that the prayer clause (b) of the petition does not survive and to that extent the petition can be disposed off. 11. Prima facie the complaint filed under the said Act appears to be by way of an after thought as the N.C. lodged at the first instance does not make out any case of an offence punishable under said Act. 12. Be that as it may, we are informed by the learned Advocates 9 appearing in the matter that on 14.12.2009 a meeting of all the members of the said society took place and the dispute as regards the garage premises and other disputes between Dr. (Mrs.) Humraskar on one hand and other concerned persons have been resolved. Minutes to that effect came to be recorded duly signed by the 14 members who were present in the said meeting. A copy of the minutes of settlement was made available by learned Advocate Mr. Soni appearing on behalf of Dr. (Mrs.) Humraskar- the applicant. The spirit in which the parties have acted to arrive at the amicable settlement is seen in the minutes of settlement of meeting. It is clear that the dispute between Mr and Mrs. Humraskar, the petitioners and other concerned have now been amicably settled. This is also one more point to quash the FIR. 13. Learned Advocate Mr. Badole, appearing on behalf of the petitioners fairly conceded that certain allegations were levelled against the Judge Mrs. Chitra Hankare. He further submits that he has instructions to withdraw the said allegations. In the peculiar facts and circumstances, we accept the statement made by learned Advocate Mr. Badole and accordingly the allegations levelled against Mrs. Hankare as regards her alleged role in the event which had taken place at the police station on the night of 10 23.12.2008/ 24.12.2008 also stand withdrawn. 14. The F.I.R. filed with Vartak Nagar Police Station, Thane , vide C.R.No.368/2008 is quashed. 15. The petition and the criminal application No.136 of 2009 stand disposed off in above terms. [R.Y.GANOO, J.] [B.H. MARLAPALLE, J.]