1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.799/2009. 1) Bhagwat Dada Adsure Age: 55 Yrs., occu. Agril. 2) Balasaheb Bhagwat Adsure Age: 35 Yrs., occu. Agril. 3) Vijay Bhagwat Adsure Age: 30 Yrs., occu. Agril. All r/o Vilad, Tq. and and Dist. Ahmednagar. - APPLICANTS VERSUS 1) Smt. Kesharbai Prakash Pagare Age: 45 Yrs., occu. Labourer, R/o Vilad, Tq. and District Ahmednagar. 2) The State of Maharashtra. - RESPONDENTS ***** Mr.A.B.Kale, Advocate for Applicants; Mr.A.M.Gholap, Advocate for Respondent No.1; Mr.K.M.Suryawanshi, APP for Resp.No.2/State. ----- CORAM : K.U.CHANDIWAL, J. DATE : 21st August, 2009. ORAL JUDGMENT : 1) Rule, Rule returnable forthwith, by consent parties, the matter is finally heard. 2 2) Issuance of process by order dated 15.12.2008 by learned Judicial Magistrate, First Class, Court no.3, Ahmednagar, for an offence under Section 3(x) and 3(xv) of Scheduled Castes, Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter to be referred as the Atrocities Act), and under Sections 451, 323, 504, 506 r/w 34 of Indian Penal Code, is under challenge by the accused persons. 3) Learned Counsel for the applicants/accused informs that the complaint lodged by complainant – Kesharbai is sheer abuse of process of law. Civil dispute is given colour of criminal prosecution and the ingredients, as carved out under Sections 3(x) and 3(xv) of the Atrocities Act, are absent in the complaint. The Counsel further informs that there being ad interim injunction against the complainant in RCS No.226/2008 by virtue of order dated 21.5.2008, a false complaint is lodged by the complainant on 10th September, 2008. It is further contended, if the incident has taken 3 place on 26.5.2008, there is four months’ delay as the complaint to the learned Magistrate is dated 10.09.2008. 4) Learned Counsel for the accused/applicants herein took recourse to the Judgment of learned brother Judge in the matter of Mohan Gangadharrao Gathadi and Anr. Vs. State of Maharashtra and Anr. reported in 2009 ALL MR (Cri.) 449, to stress that in a matter where the parties are having civil controversies, the nature of F.I.R. should needs consideration. Learned Counsel also took recourse to the Judgment in the matter of Haridas s/o Ajab Shinde Vs. State of Maharashtra, reported in 1996 (4) ALL MR 336, to contend what are the pre- requisites for F.I.R. in such matters. The Judgment of this Court was restricting to the averments in the F.I.R., which was more leaning to the civil controversies, disclosing the ingredients of the penal provisions. No such eventuality is surfacing in the present matter. 4 5) The Counsel for the original complainant/Respondent No.1 herein, contended that it is not sheer offence punishable under Section 3(x), but process is issued in terms of Section 3(xv) of the Atrocities Act. The learned Judge has applied his mind in depth and since he was not satisfied, he did not issue process for an offence under Section 354 of IPC, though it was so canvassed by the original complainant – Kesharbai. 6) The present proceedings are by invoking Section 482 of Cr.P.C. The settled position of law for invoking the jurisdiction of this Court are in three situation, viz. - (i) To give effect to an order under the Code; (ii) To prevent abuse of process of Court; (iii) To otherwise secure ends of justice. 7) In the matter of State of Haryana Vs. Bhajanlal, reported in A.I.R. 1992 SC 604, the Hon’ble Lordships of the Supreme Court have laid down seven categories, in which, jurisdiction under Section 482 Cr.P.C. could be put in 5 acceleration. 8) I quite see that there was some controversy between the complainant and the present applicants/accused. The applicants/accused herein, claimed to be in possession of the agricultural land Gut No. 154(Gut No.165) called as Pagare Vasti,Vilad Road, Tq. and District Ahmednagar, for which injunction was sought by RCS No.226/2008. However, no such relief could operate against the complainant. 9) On the point of delay in lodging the complainant before the Magistrate, the complaint itself specifies that the complainant – Kesharbai approached the Collector, on 26.5.2008, also approached the Superintendent of Police on 7.6.2008, however, since police showed apathy in the matter, she was forced to apply to the court. Consequently, the delay harped is properly explained. 10) The next comes the civil dispute. The dispute relates to the so-called encroachment or 6 possession of the property, for which, the complainant has sought infraction of Section 3(xv) of the Atrocities Act. The complaint read as a whole, and particularly paragraph 2 thereof, in unmistakable terms demonstrates that the applicants/accused entered the complainant’s house on 22.5.2008 at 8.00 p.m. when she was alone in the house, they dragged her outside the house, one of the accused slapped her, three were pulling her head, owing to her screams and yelling, adjoining neighbors, her relations assembled, at such time, the accused persons have threatened the complainant as to how she dares to remain in the property, she should vacate the same, otherwise she will be eliminated and thereafter she was abused in her caste in Marathi script - “________________________________________________ _________________________________________________ ________________________________________________” In the process, accused individually abused her on caste. she has become an arrogant and devil. 7 It would not be possible at this stage to accept that these averments could not attract `public view’. The record indicate that apart from the relations, others had also assembled. 11) The jurisdiction of this Court under Section 482, as stated above, is to be sparingly used. I do not see, going through the complaint as a whole, including the civil proceedings, that it is an abuse of process of the court or that the criminal court is used as a liver of oppression by the complainant to harass or humiliate the accused persons. 12) In the situation, the order of issuance of process cannot be said to be bad in law. It does not require any interference. Criminal Application dismissed. Rule discharged. Ad interim relief in terms of prayer clause (E) dated 21.3.2009 vacated. ( K.U.CHANDIWAL ) JUDGE bdv/cran799.09