( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 412 OF 2009 1. Hanumant s/o Kishanrao Shirale 2. Shobha @ Indubai w/o Hanumantrao Shirale 3. Ganpat s/o Hanumantrao Shirale 4. Shrikant s/o Tukaram Shirale 5. Kalyani d/o Hanumantrao Shirale Petitioner Nos. 4 and 5 being minors, under guardianship of petitioner No. 1. All r/o Ulhas Nagar, Nanded, District Nanded. PETITIONERS VERSUS 1. The State of Maharashtra, through Police Station, Bhagyanagar, Nanded. 2. Nagnath s/o Ramrao Kamble, R/o Ulhas Nagar, Nanded. RESPONDENTS ..... Mr. M.V. Ghatge, advocate holding for Mr. B.N. Gadegaonkar, advocate for the petitioners. Mrs. R.D. Reddy, APP for respondent No.1/State. Mr. R.R. Suryawanshi, advocate for respondent No.2. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 21st August, 2009] ORAL JUDGEMENT : ( 2 ) 1. By this petition, the petitioners seek to challenge FIR lodged by the respondent No. 2 whereby crime No. 128/2009 has been registered at Police Station, Bhagyanagar, Nanded, for offences punishable under sections 143, 147, 148, 452, 323, 504 and 506 of the I.P. Code alongwith section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, “the Atrocities Act”). 2. The respondent No. 2 is a lecturer and resides in the neighbourhood of the petitioners. The family members of the petitioners and the family members of the respondent No. 2 were not pulling on well. The respondent No. 2 lodged FIR dated 01-05-2009 alleging that the petitioners and some other assailants, who had been brought in a Tata Sumo Jeep vehicle No. MH-26/C-4191, had entered his residential house in the evening of May 1st, 2009 and mounted a sudden assault on his wife, son and himself. He further asserted that during course of the assault, the petitioners were ( 3 ) abusing him in name of his caste. They were saying that he was the progeny of `dhor’. They were addressing him as `dhorgya, dhed’. The crime was registered against the petitioners and others. The police carried out certain investigation. The police have filed chargesheet after due investigation. 3. Heard learned counsel and learned A.P.P. 4. The learned advocate for the petitioners would submit that the incident occurred in the house of the respondent No.2 and, therefore, section 3 (1) (x) of the Atrocities Act is not attracted. He would further submit that there was a prior complaint lodged by petitioner No. 1 Hanuman and, therefore, false report was lodged by the respondent No. 2 in order to retaliate and by way of counter blast. The learned advocate would submit that the allegations about abuses on the ground of the respondent being member of Scheduled Caste have been carved out and, therefore, the FIR is liable to be quashed. He invited my attention to “State of ( 4 ) Maharashtra v. Dnyaneshwar s/o Pandurang Bhokare” 2006 ALL MR (Cri) 404. He further seeks to rely on observations in “State of Haryana and others v. Ch. Bhajan Lal and others” (AIR 1992 S.C. 604) in support of his contention that where the allegations, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or cognizable case against the accused, the FIR may be quashed. He also invited my attention to observations in “M/s Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others” (1998 S.C. 128) in support of his contention that the chargesheet also may be quashed as a sequel to the quashing of FIR. 5. I have gone through the investigation papers which are made available by the learned APP during course of the hearing. The mere reference in the FIR that the petitioners suddenly entered house of the respondent No. 2 (complainant) in the relevant evening and started beating his wife would not by itself be decisive to reach conclusion that no case is made out to ( 5 ) attract section 3 (1) (x) of the Atrocities Act. The police statement of PW Kazi Azaroddin reveals that the respondent No. 2 received a call from his residential house and, therefore, had left the college premises in the relevant evening. Some of the students went to see as to why the respondent No. 2 was in hurry as he was found in troubled condition. His version reveals that during course of the incident, the assault was being mounted on the respondent No. 2 and a woman in front of the entrance gate of the residential house. There are versions of other witnesses including Shaikh Aziz, Kondiram Patne, etc. The evidence collected by the Investigating Officer revealed that a part of the incident regarding initial assault took place inside the house, but thereafter, the members of the family of the respondent No. 2 were wriggled out of the house and were dragged in front of the entrance gate. What prima facie appears from the record is that the residential house of the respondent No.2 (complainant) is situated by side of a public road. The requirement of section 3 (1) (x) of the Atrocities Act would show that there must be some evidence to indicate availability of public view and it ( 6 ) is not necessary that the incident must occur within public premises. The place in front of the entrance gate of the house of the respondent No. 2 could be regarded, prima facie, as the place in public view. There are witnesses who narrated about the incident of assault and the insult caused to the respondent No.2 by addressing him as progeny of `dhor’ or “dhorgya, dhed”. 6. The reply-affidavit of the respondent No.2 reveals that medico-legal certificates have been issued by the Medical Officer of the Government Hospital, Nanded, which indicated that his son sustained four (4) injuries including two (2) contusion injuries. He himself had received seven (7) injuries and Rangat, may be wrongly referred though she is Ratnamala, also was injured. Thus, there is prima facie evidence regarding the fact that the respondent No.2 and his family members received injuries during course of the relevant incident. It appears that on the same day, the petitioner No. 1 had lodged FIR alleging that the respondent No. 2 and his wife had beaten up the petitioner No. 4 and had abused him. It is yet to be ( 7 ) determined whether such FIR lodged by the petitioner No. 1 is by way of counter blast or that the FIR lodged by the respondent No. 2 is by way of counter blast. This can be decided only after the full-fledged trial in as much as the medico-legal certificates tend to show, prima facie, that the allegations made by the respondent No. 2 cannot be regarded as totally unfounded or carved out. 7. In “State of Maharashtra v. Dnyaneshwar s/o Pandurang Bhokare” (supra), a Division Bench of this Court held that merely because the victim belongs to Scheduled Caste, or the accused is of upper caste, it would not follow that the offence punishable under section 3 of the Atrocities Act would be made out. This observation is rendered while dealing with appeal against acquittal. Needless to say, there was a full- fledged trial and the accused had been acquitted. There was evidence on record to show that there was no rape committed by the accused – Dnyaneshwar and it is in such context that the Division Bench observed that mere caste ( 8 ) of the complainant or the accused by itself would not be a decisive factor unless the offence is committed with intention to commit the atrocity because the complainant is a member of Scheduled Caste. 8. Reference is also made to “Balu s/o Bajirao Galande v. State of Maharashtra & another” 2006 ALL MR (Cri) 3197. A Single Bench of this Court held that the expression “public view” as used in section 3 (1) (x) of the Atrocities Act has to be interpreted to mean that the public persons present (however small number it may be) should be independent and impartial. It prima facie appears that PW Kazi Azaroddin, Vinod Giri, Shaikh Aziz and Kondiram Patne are unrelated to the family of the respondent No. 2 (complainant) and, therefore, the observations in “Balu s/o Bajirao Galande” are of no much avail. Further reference is made to “Pradnya Pradeep Kenkare and another v. State of Maharashtra” 2005 (3) Mh.L.J. 368, “Udaysingh Ramsingh Pawar v. State of Maharashtra and another” 2009 (3) Mh.L.J. 225 and “Swaran Singh and others v. State through Standing ( 9 ) Counsel and another” 2009 (2) Mh.L.J. 22. It is not necessary to elaborately to deal with each of the cases referred by the learned advocate. For, the place of the offence is yet to be determined after the trial. One cannot be oblivious of the fact that in case of an assault, it is not necessary that the assailants and the victim would remain stationary. The FIR reveals that there were about 18 assailants. Obviously, it is probable that some of the assailants entered the residential house and some were outside the house. It is probable that first part of the incident occurred inside the house and lateron, the venue was shifted to the road in front of the house. No opinion on merits can be expressed in this behalf. 9. Considering the foregoing reasons, I am of the firm view that this is not a fit case in which the FIR needs to be quashed. The petition is, therefore, destitute of substance and is accordingly dismissed. 10. On oral request of learned counsel for the petitioners, the interim protection granted to the ( 10 ) petitioner No. 4 (Shrikant) and petitioner No. 5 (Kalyani) is continued for four (4) weeks as they appear to be minors. [ V.R. KINGAONKAR ] JUDGE NPJ/CRIWP412-09