( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 61 OF 2009 1. Nanasaheb s/o Dnyandeo Ubale, at present A.P.I. Police Station, Bhada, Tq. Ausa, Dist. Latur, R/o c/o Police Station, Bhada, Tq. Ausa, Dist. Latur. 2. Tanaji Rangnath Phadtare, Police Constable at present Head Quarters, Osmanabad. 3. Bhagwat Yeshwant Gade, at present Constable, Osmanabad City Police Station, R/o c/o City Police Station, Osmanabad. 4. Rajendra Vishwanath Khanapure, at present Police Constable, Shiradhon, Tq. Kallam, Dist. Osmanabad. PETITIONERS VERSUS 1. The State of Maharashtra, through Secretary, Home Department, Mantralaya, Mumbai. 2. Police Station, Shiradhon, through Police Inspector, Tq. Kallam, Dist. Osmanabad. 3. Arjun s/o Nagorao Raut, Retired Police Head Constable, R/o Hasegaon (Shiradhon), Tq. Kallam, Dist. Osmanabad, at present r/o Pimple Gurav Sudarshannagar, No. 2 Near Bende Hospital, Pune, Post Aundh, Tq. Haveli, Dist. Pune. RESPONDENTS ( 2 ) ..... Mr. N.L. Jadhav, advocate for the petitioners. Mr. K.S. Patil, APP for the respondents No. 1 and 2. Mr. P.M. Gaikwad, advocate for respondent No. 3. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 25th August, 2009] ORAL JUDGEMENT : 1. Rule. Rule made returnable forthwith and heard finally by consent of the learned counsel for the parties and learned A.P.P. 2. The petitioners are police officers and members of constabulary. The respondent No. 3 – Arjun is the original complainant. He is retired police head constable in his seventies. He has certain dispute with his real brother by name Shravan. According to him, he made complaints to the police to the effect that his brother Shravan was committing theft of electricity and was drawing water of the well situated in his ( 3 ) agricultural land. It was the grievance of the respondent No. 3 that his several complaints made against the brother were not being properly attended by the police and no inquiry was being conducted in respect of the theft of electricity and the theft of the water of his well. The petitioner No. 1 did not conduct any inquiry in the complaint application dated 09-12-2000 filed by him (respondent No. 3) and, therefore, he had made several complaints to the Superintendent of Police, Osmanabad. He alleged that on 23-11-2000, the petitioner No. 1 demanded illegal gratification of Rs. 500/- from him for registration of crime against his brother i.e. Shravan. The respondent No. 3 further alleged that he submitted an application to the Superintendent of Police to the effect that he shall proceed on indefinite hunger strike or may immolate himself. The Superintendent of Police called him and dissuaded him from going on hunger strike or committing of act of self-immolation. The respondent No. 3 further alleged that on 26-01-2001, he was unnecessarily detained in custody of Shiradhon Police Station. When he inquired with the petitioner No. 1 as to why he was put ( 4 ) in the lockup, then the petitioners insulted him in name of his caste and called him “Dhedgya, Mahargya”. They further told him that he had become arrogant and they will teach him a lesson. He subsequently attempted to lodge a report with the police, but it was not accepted. He, therefore, filed a private complaint case. The learned Judicial Magistrate inquired into the complaint under section 202 of the Criminal Procedure Code and issued process against the petitioners for offences punishable under section 342, 504 and 506 read with section 34 of the I.P. Code and under section 7 (3) of the Prevention of Civil Rights Act as well as under section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. Heard learned counsel for the petitioners, the respondent No. 3 and the learned A.P.P. 4. What transpires from the record is that the respondent No.3 wanted prosecution of his brother by name Shravan for the alleged offence of electricity theft and the water theft. However, his complaints were ( 5 ) not being heeded to by the petitioner No. 1. The petitioner Nos. 2 to 4 were not involved in the inquiry about such complaints lodged by the respondent No. 3. It is abundantly clear that the respondent No. 3 thereafter resorted to tantrums. He gave an application to the Superintendent of Police and the Collector, Osmanabad, that he would go on indefinite hunger strike or immolate himself. It is pertinent to notice that he was allegedly detained in the lockup on 26th January, 2001. That is not a sheer coincidence. It appears that by way of preventive action, he was temporarily detained so as to avoid any untoward incident on occasion of the Republic Day and particularly, at the time of flag hoisting. The Collector had called report of the Superintendent of Police in the context of the complaint application filed by the respondent No.3. The report dated 28-06-2001 (Exh-G) reveals that the well in question is situated in survey No. 191 and both the brothers are the co-sharers thereof. The Superintendent of Police noticed that the agreement about use of the well water is reduced into writing on a stamp paper. He also reported that the Deputy Engineer of M.S.E.D.L., ( 6 ) Govindpur, was informed to take further action as regards the alleged theft of electricity. The Superintendent of Police gave a report that the respondent No. 3 was informed that his applications were disposed of as the dispute was of civil nature and civil litigation was pending before the concerned civil Court. The report clearly shows that the respondent No. 3 had sought permission to go on hunger strike or to commit self-immolation on 26th January, 2001. It is reported further that though the respondent No. 3 was requested to refrain himself from committing self-immolation or to go on hunger strike, yet, he did not decline to do so. It was for such reason that the preventive action was taken against him. The Superintendent of Police further reported that the incident of so called abuses on the ground of the caste of the respondent No. 3 had been carved out so as to trouble the petitioners. 5. One cannot be oblivious of the nature of the work which the police machinery is required to undertake. Though sometimes genuine complaints of the citizens are not attended to, yet, there was no reason ( 7 ) for the petitioners No. 1 to put aside the complaint of the respondent No. 3. For, the respondent No.3 himself was a member of police department in the past. What emerges from the record is that he was stubborn and was not amenable to the advice given to him by the Superintendent of Police and, therefore, he was temporarily detained on 26th January, 2001 so as to avert in an untoward incident on the day of flag hoisting because he had threatened to commit self- immolation. Such preventive detention cannot be termed as wrongful detention with criminal intention. The recitals of the complaint would show that the petitioner No. 1 demanded an amount of Rs. 500/- on 23-01-2000 through the petitioner No. 2 for registration of crime against brother of the respondent No.3 i.e. Shravan. The verified statement of the respondent No. 3 reveals that the petitioner No. 1 directly demanded amount of Rs. 500/-, for the purpose of his bail. Thus, there is material variance as regards the reason for the demand as well as in regard to the time of such demand. The learned Judicial Magistrate lateron recorded the statement of the respondent No. 3 in detail and then ( 8 ) again, he reiterated the averments in the complaint, but did not refer to the date of such demand of illegal gratification. The statement of his son i.e. PW Arjun purports to show that amount of Rs. 500/- was demanded for release of the respondent No. 3 from the police lockup. Needless to say, these allegations are not only inconsistent, but are totally without foundation. 6. Coming to the averments regarding the insults on the ground that the respondent No. 3 is member of the Scheduled Caste, it may be stated that nowhere the complainant (respondent No.3) stated in the complaint that he is member of the Scheduled Caste. The next significant aspect is that the so called insulting words were used by the petitioners while the respondent No. 3 was in the police lockup under preventive detention. The presence of the wife and son of the respondent No.3 and the place of such incident is rather unbelievable. Besides that, section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, “the Atrocities Act”) would be attracted only when such incident of insult would occur ( 9 ) in the “public view”. There is absolutely nothing on record to show that the police lockup was placed within the “public view”. In “State of Maharashtra v. Dnyaneshwar s/o Pandurang Bhokare” 2006 ALL MR (Cri) 404, 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. In “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 does imply that the incident ought to have taken place in presence of independent public persons. 7. The learned advocate for the respondent No. 3 invited my attention to “Mrs. Pushpa Vijay Bonde etc. v. The State of Maharashtra” 2009 CRI.L.J. 3204. The Full Bench of this Court held that the complainant need not disclose caste of accused and non-mentioning of caste of ( 10 ) accused in complaint is no ground to refuse registration of the offence or to quash the complaint for offence punishable under section 3 of the Atrocities Act. The legal position need not be discussed in as much as the complaint of the respondent No. 3 is not being challenged on the score that his caste or the caste of the petitioners is not stated. If that is the ground to be considered, then, ofcourse, the petition does not hold any water. However, the petition is not being decided on such a ground. I find that the private complaint was lodged by the respondent No. 3 at a belated stage after about four (4) months of the incident in question. I also find that detention of the respondent No. 3 was with a view to prevent him from committing any untoward act of self-immolation on the Republic Day. The learned counsel for the respondent No. 3 relied upon “Nana Narayan Shinde and others v. State of Maharashtra and another” 2001 (3) Mah.LR 381 and argued that the process can be issued by the learned Magistrate on the basis of prima facie evidence tendered. Considering the foregoing reasons, the ( 11 ) issuance of process against the petitioners and that too without there being any sanction under section 197 of the Criminal Procedure Code is quite illegal and improper. The continuation of such proceedings would amount to abuse of the process of the Court. The criminal actions of such kind cause demoralization of the officials of the police department. Under these circumstances, the proceedings of the criminal case instituted vide private complaint case bearing R.C.C. No. 104/2001 are liable to be quashed. 8. In the result, the petition is allowed. The impugned proceedings bearing R.C.C. No. 104/2001 are quashed. The Rule is made absolute accordingly. [ V.R. KINGAONKAR ] JUDGE NPJ/criwp61-09