1 Cri.Appln.No.5041/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.5041/2010 1) Deepak Pravinchand Nagaria and 5 Ors. - APPLICANTS VERSUS 1) The State of Maharashtra and one another. - RESPONDENTS ***** Mr.V.B.Patil, Advocate for Applicants; Mr.VH Dighe, APP for Respondent No.1-State. Mr.A.S.Londhe, Advocate for Respondent No.2. ----- CORAM : K.U.CHANDIWAL, J. DATE : 10th March, 2011. PER COURT : 1) Heard extensively. Rule made returnable forthwith. By consent, heard finally. 2) The applicants, in the capacity as Chairman, Secretary and Professors of the D.Ed.College at Yawal, Tq. Yawal, District Jalgaon, seek quashment of the proceedings being RCC No.23/2010, pending before the learned Judicial Magistrate, First Class, Yawal, initiated at the instance of Respondent no.2 for an offence under sections 306, 108, 107 of Indian Penal Code and also under sections 3(1)(x); 4(3) 2 Cri.Appln.No.5041/2010 (2) and 7 of the Scheduled Castes, Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3) The Counsel submits, that the institution, conducting D.Ed. course to the students is itself a minority institution. Son of Respondent No.2, namely, Vijendra Sukhlal Vadar, based on his application dated 26.11.2003, admitted to D.Ed. course from a reserved category, i.e. Vimukta Jatis, as belonging to “Vadar” caste, based on his caste certificate. 4) Letter dated 30.11.2009, asking son of the Respondent No.2 to deposit an amount of Rs. 12,000/- for confirmation of his admission was sent by the institution, pursuant to which, Vijendra deposited such amount. The deceased Vijendra attended college classes up to 23rd December, 2009. On 24th December, 2009, he abstained from college, went to the village, committed suicide on 28.12.2009. His father lodged a report on 8th January, 2011, making allegations of demanding extraneous consideration against the applicants and the respondent no.2 had carried as part of compliance of payment of Rs.80,000/-, but the management of the applicant no.1 and few of the applicants were not convinced for deficit, they insisted full payment and he was humiliated. The respondent no.2 has also 3 Cri.Appln.No.5041/2010 referred the instances of misbehavior of the lecturers with his son, since he belonged to Vimukta Jati and and how he was singled in the college nagged. This was because the institution had to loose one seat against the payment seat/quota. 5) Based on such complaint, the learned JMFC, directed investigation in terms of Section 156(3) of Cr.P.C. vide order dated 5th March, 2010, as under, - “Read the complaint, perused the documents O/C police station is directed to investigate under section 156(3) Cr.P.C. and report the compliance on or before next date.” 6) The learned JMFC has yet to take cognizance based on police report. 7) Mr.Patil submits, nature of accusations seldom attracts the infraction of SC and ST Atrocities Act. It is the humiliation and harassment on the part of the teachers and president/secretary of the institution. I feel, since Law permits exemption from regular attendance, such application be moved before the learned JMFC, who, based on merits of the contentions, shall consider dispensing attendance of any of the applicants. 4 Cri.Appln.No.5041/2010 8) The learned Counsel placed reliance to the judgment of the Hon’ble Apex Court in the matter of Netai Dutta Vs. State of West Bengal – (2005 DGLS(Cri.) Soft 692 = 2005 Cri.L.J. 1737, paragraph 4, reads as under, - “4.....An offence under Section 306 IPC would stand only if there is an abetment for the commission of the crime. The parameters of the abetment have been stated in Section 107 of the Indian Penal Code. Section 107 says that a person abets the doing of a thing, who instigates any person to do that thing; or engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, or the person should have intentionally aided any act or illegal omission. The explanation to Section 107 says that any willful misrepresentation or willful concealment of a material fact which he is bound to disclose, may also come within the contours of abetment.” 9) There cannot be a quarrel and contest to the observations of the Hon’ble Lordships in relation to explanation of effect and rigor of Section 107 of IPC. 10) The learned Counsel also placed reliance to the judgment in the matter of Baskar Rao Vs. L.Kamalamma – (2005 DGLS(Cri.) Soft 791 = 2005 5 Cri.Appln.No.5041/2010 Crimes 4 408, which also deals with identical issue. However, with converse, being aggrieved by B-Summary Report of no case in terms of Section 306 of IPC, the complainant approached the High Court. Said Court declined any relief to the complainant in the said case to re-call B- Summary report. 11) At this stage of the matter, when the learned Judge has yet to take cognizance, the accused/applicants are yet to be called upon to demonstrate their response, the challenge in terms of Section 482 of Cr.P.C. is certainly premature. This is incidentally the identical feature in which the applicants desire to reject the contentions of Respondent No.2. 12) The fate that has been faced by the Respondent No.2 at the instance of the applicants/accused, is highlighted by him, will have to be addressed on evidence, and the learned Judge will evaluate the same on its own merits. Thereafter only effect of Section 107 of IPC and Section 306 will have its impact. At this stage, this Court cannot act upon to accept the contention that the grievance of Respondent No.2 is illusory. On the other hand, prima facie, the grievance of Respondent no.2 is toilsome and need not be taciturn by this Court, 6 Cri.Appln.No.5041/2010 as is indicated by the Apex Court in 2006 AIR SCW 95 and also in AIR 1997 SC 3104 in the matter of Madhubala Vs. Suresh Kumar. 13) The Criminal Application lacks merit, dismissed. Rule discharged. The observations are prima facie in nature. ( K.U.CHANDIWAL ) JUDGE bdv/