1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.587 OF 2009 01. Chakradhar s/o Gopinath Jadhav age 17 years,occup.agriculture 02. Santosh alias Satish s/o Shankar Jadhav, age 15 years, occp.agri. 03. Vinod s/o Shankar Jadhav, age 18 years, occupation agril. 04. Sachin s/o Pralhad Jadhav, age 17 years, occup.education, 05. Bhagat s/o Maroti Jadhav, age 34 years, occup. agril. 06. Vikram s/o Gopinath Jadhav age 22 years, occup.agril. 07. Gopinath s/o Maroti Jadhav, age 48 years, occup. agril. All residents of Sawargaon, Taluka Ardhapur,Dist.Nanded. Petitioners. 2 versus 01. The State of Maharashtra, through Police Station, Ardapur, District Nanded. 02. Ankush s/o Madhukar Waghmare, age 19 years, occup.labour, r/of Sawargaon, Taluka Ardhapur,Dist.Nanded. Respondents ------------- Shri Mahesh V. Ghatge, Advocate, for petitioners. Shri B.V.Wagh, A.P.P. for Respondent No.1. Ms. M.R.Jamdade Advocate for Respondent No.2. Coram: P.R.Borkar J. Date : November 03,2009 ORAL JUDGMENT 01. This writ petition is for quashing First Information Report registered as Crime No.138 of 2009 dated 4.7.2009 with Police Station, Ardhapur, District Nanded for offences punishable under Sections 143, 323, 506 of Indian Penal Code and 3 Section 3(i) (x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (hereinafter referred to as "the Atrocities Act"). 02. From the copy of the F.I.R. which is produced at Exh.A with present writ petition, it reveals that on 5.6.2009 when Respondent No.2- original complainant Ankush Waghmare was in queue on a public tap for fetching water, present petitioner No.1-Chakradhar Gopinath Jadhav came and started taking water from the said tap and there were some exchange of words between Petitioner No.1 and Respondent No.2. Petitioner No.1 gave abuses to Respondent No.2. At that time other petitioners came there and held Respondent No.2 Ankush and petitioner No. 1 beat him with hands. At that time, Petitioner No. 5 also came and man-handled Respondent No.2. Petitioner No.7 came and gave abuses on caste and said "-----------------------". He also threatened to kill Respondent No.2. At that time relatives of Respondent No.2, namely, Daulat Waghmare, Amrapal Waghmare and sister Maya Tate and others 4 intervened in the matter. It is further stated that although Respondent No.2-complainant had filed complaint on 13.6.2009, at that time he had no caste certificate with him and he was producing the same. 03. Heard Shri M.V.Ghatge, Advocate for the petitioners-accused, Shri B.V. Wagh, A.P.P. for Respondent No.1-State and Ms. Maya Jamdade, Advocate for Respondent No.2-complainant. 04. Advocate Shri Ghatge, in support of his submissions, relied upon State of Haryana vs. Bhajanlal AIR 1992 S.C.604 (para. 108) indicating following categories of cases in which the High Court can exercise powers under Article 226 of the Constitution and Section 482 of the Code of Criminal Procedure, 1973. At the same time, it is stated that the powers should be exercised very sparingly and with circumspection and that too in rarest of rare cases The seven categories of cases are :- 5 "(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 allegation in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying investigation by police officers under Section 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 un-controverted allegation 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 allegation in the F.I.R. 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. 05. 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 6 the Code of the concerned Act (under which a criminal proceeding is instituted) to the institution of and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings 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." 05. According to Advocate Shri Ghatge, present case falls under categories, 1,2, 6 and 7. He also relied upon certain other authorities. First, he referred to the judgment rendered by Single Bench of this Court in Balu Galande vs. State of Maharashtra 2006 All MR (Cri.) 3197 in which the expression "public view" in Section 3(i) (x) of the Atrocities Act has been interpreted to mean that the public persons present (however small number it may be) should be independent and impartial and not interested in any of the parties. Persons having any kind of close relationship or association with the complainant, would necessarily get excluded. Relying on this 7 case, it is argued by learned Advocate for the petitioners that the witnesses cited in the present case are relatives of Respondent No.2- complainant and as such, the incident has not taken place in public view. 06. However, expression "public view" is also explained by Division Bench of this Court in the case of Pradnya Pradeed vs. State of Mah. 2005 (3) Mh.L.J. 368. It is held that the expression "public view" has been prefixed by the preposition "within" which in fact follows the expression "in any place" and therefore the incidence of insult or intimidation has to occur in a place accessible to and in the presence of the public. The presence of both these ingredients would be absolutely necessary to constitute an offence under the said provision of law. The compliant disclosing absence of both or even any one of those ingredients would not be sufficient to accuse the person of having committed an offence under section 3(1)(x) of the said Act. 8 07. Another case on the same point is of Swaran Singh vs. State 2009 (2) Mh.L.J. 22. In paragraph 28 of the reported case, expression "public view" was considered by the Apex Court. It has been observed thus; "28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by appellants 2 and 3 (by calling him a "Chamar") when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside the building and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the law can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is a public view with the expression "public place." A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies." 9 08. In the said reported case, it is held that calling a member of the scheduled caste "chamar" with intent to insult or humiliate him in a place within public view constitutes an offence under section 3(1)(x) of the Atrocities Act. It is also observed that whether there was intent to insult or humiliate by using the word "chamar" by the so-called upper castes and OBCs, will of course depend upon the context in which it is used. The word "chamar" used by the so called upper castes and OBCs will certainly attract section 3(1)(x) of the Act, if from the context it appears that it was used in a derogatory sense to insult or humiliate a member of SC/ST. 09. The Division Bench of this Court in State of Maharashtra vs. Dnyaneshwar 2006 All MR 404 has observed that merely because the victim belongs to Scheduled Caste or the accused is upper caste Hindu, it does not follow that the offence punishable under Section 3 of the SC & ST (Prevention of Atrocities) Act, 1989 would be made out. 10 10. It is argued before me by Advocate Ms. Jamdade for Respondent No.2 that all ingredients of Section 3(1)(x) of the Atrocities Act are complete in the present case inasmuch as the words used by petitioner No.7-Gopinath did amount as derogatory remarks. In my opinion, this will have to be considered in the light of statements of other witnesses and the matter should not be considered at this stage merely on the basis of FIR. 11. Advocate Shri Ghatge for the petitioners argued that only petitioner No.7 Gopinath at the most could be said to have committed offence under Section 3(1)(x) of the Atrocities Act. Whether Section 34 of IPC will be applicable or not would be clear only when entire evidence is considered together. I leave this point open to be considered by the concerned court after chargesheet is filed and it would be too premature to say that petitioner No.7 would alone be liable and not others. Such conclusion is possible on appreciation of entire evidence on record. Even 11 in case it is held that said offence under the Attrocities Act is committed only by petitioner No.7, other offences will also have to be tried with it as all offences are committed during some course of same transaction. It cannot be said that the FIR should be quashed partially for particular offence. This contention can be taken into consideration by the court before framing of charge and leave to that effect is granted. 12. After considering the meaning of "public view" interpreted by the division bench, so also by the Supreme Court, in my opinion, present incident can be said to be "public view" inasmsuch as it has taken place in the presence of villagers who had gathered near the public tap to fetch water and, therefore, present case does not fall under category 6. The charge-sheet is yet not filed. The investigation is in progress. In the circumstances, it would be pre-mature to say that the complaint is filed malafide or proceedings are instituted maliciously. 12 13. In view of above, this writ petition cannot be allowed since the investigation is yet not complete and nothing more than FIR is before this court. Hence, Writ Petition is dismissed. 14. At this stage Advocate Shri Ghatge states that he wants to approach the Supreme Court and, therefore, interim protection may be continued. Interim protection to continue for a period of four weeks from today. pnd/criwp587.09 (P.R.BORKAR, J.) 13