cran17.11 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 17 OF 2011 Pratap s/o Bansi Kolate Age 49 years, Occ. Service (P.S.I.) R/o. C/o. Kranti Chowk police Station, Aurangabad ...Applicant Versus 1 The State of Maharashtra Through Police Station Cidco, Aurangabad (Copy to be served on P.P. High court of Bombay Bench at Aurangabad) 2 Raju s/o Madhav Dehade, Age 34 years,Occ. Social Work, R/o. N-11, Navjiwan Colony, Hudco, Aurangabad ...Respondents ..... Mr. S.S. Patil, advocate for the applicant Mr. G.R. Ingole, A.P.P. for respondent No.1. Mr. Madhav Ghade h/f Mr. S.A. Deshmukh, advocate for R. No.2 ..... CORAM: A.V. POTDAR, J. DATED: 7TH APRIL, 2011 JUDGMENT:- 1 By the present application under section 482 of Cr.P.C. the applicant approached this court with a prayer to quash and set aside the F.I.R. bearing M. Case No. 11 of 2010 dated 21.12.2010 registered cran17.11 -2- for the offence punishable under Sections 3(1), 3(2) (I), 3(2)(vi), 3(2) (vii) and section 4 of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in brief “Atrocities Act”) and further to quash and set aside the order dated 20.12.2010 passed by the learned J.M.F.C. -7 Aurangabad u/Sec. 156(3) of Cr.P.C. in Criminal Misc. Application No. 1910 of 2010 to the extent of present applicant. 2 Rule. Rule made returnable forthwith. By consent of the parties, heard finally at the stage of admission. 3 Heard counsel appearing for respective parties. Also perused the record. The record shows that second respondent herein lodged private complaint directly to the learned J.M.F.C. Aurangabad, which was numbered as R.C.C. No. 1738 of 2010, against the present applicant and one Baburao Uttam Bodkhe. Perusal of complaint shows that offences are alleged against the applicant and Baburao Bodkhe under Sections 3(1) (viii), 3(2) (i), 3(2) (vi) of Atrocities Act. In para 6, the narration about the incident dated 9.1.2010 is mentioned. In para 7 narration about incident dated 27.2.2010 for which second respondent had been to Cidco police station to lodge the complaint is mentioned. It is alleged that not only that accused No.2 had not taken any cognizance and not registered the offence on the complaint lodged by second respondent but at the same time also second respondent was cran17.11 -3- abused on his caste and an offence was registered under Section 395 of I.P.C. against second respondent. It is further alleged in para 13 about the incident dated 1.3.2010, for which complaint was lodged on 20.3.2010 by the wife of second respondent against the applicant in CIDCO police station but as no cognizance was taken and an application was moved before the Dy.S.P. It appears that after this complaint was lodged on 19.10.2010, the second respondent complainant in the said complaint was directed by 7th J.M.F.C. Aurangabad to produce his evidence in support of his complaint. It further appears that after recording statement/evidence of the second respondent/complainant and his witness, vide order dated 29.10.2010, the learned Magistrate dismissed the complaint, as according to him, perusal of the evidence given by the complainant and his witness on oath do not constitute an offence punishable under the Atrocities Act. For the reasons recorded, the complaint R.C.C. No. 1738 of 2010 was dismissed. In other words, learned J.M.F.C. Aurangabad, even though has not quoted any specific section in his order, he declined to issue process. Then the order to be treated as order passed under Section 203 of Cr.P.C. 4 Counsel for the applicant would submit that thereafter Misc. Criminal Application No. 1910 of 2010 was filed by the second respondent in the same Court. Learned counsel would further urge cran17.11 -4- that in para 6, the second respondent has given reference about the incident dated 1.3.2010. While in para 7, reference is given about incident dated 26.3.2010. By this, complaint came to be lodged on 2.12.2010 to the learned J.M.F.C. praying to entertain the complaint and to give directions to the police to carry out investigation under section 156(3) of Cr.P.C. It appears that vide order dated 20.12.2010, learned 7th J.M.F.C. Aurangabad issued directions under Section 156(3) of Cr.P.C. to the police to treat the complaint as F.I.R. and register the offence accordingly. It appears that Cidco police station in view of this order registered the offence as Case No. 11 of 2010 on 21.12.2010 against the present applicant and others. Thereafter, the present applicant moved this application under Section 482 of Cr.P.C. for quashment of proceeding lodged in CIDCO police station to the extent of the applicant only. 5 In this background, I have heard learned counsel for the applicant, learned A.P.P. for the State and learned counsel for respondent No.2. During the course of submissions across the bar all parties have taken me through entire record produced alongwith the application. Relying on the observations of Apex Court in the matter of Poonam Chand Jain and Anr. Vs. Fazru (2010 AIR [SC] 659 : 2010 (2) SCC 631), wherein it is observed by the Apex Court that by virtue of provisions of section 203 and Section 245 of Cr.P.C. there is no bar cran17.11 -5- to entertain second complaint when first complaint is dismissed under Section 203 of Cr.P.C. on the ground that exceptional circumstance requires to lodge the second complaint on the same ground. Secondly, it is also observed in the case of Pramatha Nath Talukdar and Anr. Vs. Saroj Ranjan Sarkar (AIR 1962 SC 876), Jatinder Sigh and Ors. Vs. Ranjit Kaur (AIR 2001 SC 784), Mahesh Chand Vs. B. Janardhan Reddy and Anr, [(2003) 1 SCC 734] and in the matter of Hiralal and Ors. Vs. State of U.P. (AIR 2009 SC 2380) that second complaint is not completely barred nor there is any statutory bar in filing second complaint on same set of facts in case first complaint was dismissed without assigning any reason, the Magistrate under Section 204 can take cognizance and issue process if there are sufficient grounds. 6 In the light of these observations, it is necessary to test the second complaint on which basis offence came to be registered against the applicant and others vide C.R. No. M-11 of 2010 in Cidco police station. At the first instance, on perusal of second complaint, it do not reflect or find reference of earlier complaint which came to be dismissed under Section 203 vide order dated 29.10.2010. Secondly, on bare perusal of contents of second complaint it do not reflect what are the exceptional grounds or exceptional circumstances which gave rise to file second complaint to which there is no bar as observed by cran17.11 -6- the Apex Court. On perusal of second complaint so also on perusal of affidavit in reply filed to this application by the second respondent, I do not find any explanation offered by the second respondent- complainant about non mentioning or not giving reference about earlier complaint which came to be dismissed under section 203 of Cr.P.C. It amounts suppression of material facts to obtain requisite orders from the Courts of law. Even though about exceptional circumstances, on perusal of second complaint as well as by affidavit in reply, it appears that specific words are used which attract an offence under the Atrocities Act. 7 It is settled position that if first complaint is dismissed, the second complaint is filed only with a view to fill up the lacuna and something to be substituted in place of recitals of first complaint then the same will not amount exceptional circumstances which give rise to file second complaint. Thus, on bare perusal of the second complaint so also affidavit in reply, I do not find that it pass the test given by the Apex Court in the judgments cited supra, the circumstances in which the second complaint is maintainable and can be entertained. As the crime is registered against the present applicant on the basis of second complaint, which do not pass this test, then application filed by the present applicant deserves to be succeeded. cran17.11 -7- 8 Accordingly, application is allowed in terms of prayer clause “B”. Rule thus made absolute as indicated above. Application stands disposed of accordingly. No costs. *****