Criminal Application No.1759 of 2007,Criminal Application No.1756 of 2007

10th July, 2007

Petitioner Counsel: Shri. ABHAY SAMBRE
Respondent Counsel: Shri. A. S. SONARE

Cases Cited:
Manohar S/o. Martandrao Kulkarni Vs. State of Maharashtra, 2005 ALL MR (Cri) 2602=2005(4) Mh.L.J. 588 [Para 5]
Ashok Lakhaji Halmare Vs. State of Maharashtra, 2005 ALL MR (Cri) 2489 [Para 5]
Balu B. Galande Vs. State of Maharashtra, 2006 ALL MR (Cri) 3197=2006(6) AIR Bombay Reporter 251 [Para 6]

JUDGMENT

JUDGMENT :- Rule, returnable forthwith.

2. Heard finally with the consent of parties.

3. By this petition under Section 482 Criminal Procedure Code applicant seeks to quash the F.I.R. registered against him. It is alleged that applicant is a Municipal Councilor and is a law abiding citizen. He is said to be Vice President of the Nationalist Party. On 4-6-07 one Ratna Morey who happens to be the neighbour of the applicant, lodged report with the police. There is a common lane which leads to the house of the applicant as well as that of the complainant Ratna Morey. Applicant Sanjay Gaikwad started construction of house. In order to carry out said construction some portion was being dug. Aggrieved by this Ratna Morey the complainant went to persuade the applicant not to carry out the said construction. It is alleged that when she went there applicant Sanjay abused her in filthy language and said that you Bhilas are not fit to live in city since you belong to Jungles. He also threatened that he would put kerosene on her person and set her on fire. He beat her. At that time complainant lost her Mangalsutra. It is alleged in the said complaint lodged by Ratna further that the accused/applicant said that be belongs to Maratha Caste. With these allegations she lodged report. Offences under Section 392, 323, 504, 506 and 294 of Indian Penal Code and Section 3(1)(x) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act came to be registered. It is this F.I.R. which the petitioner seeks to quash.

4. Learned counsel for the petitioner submitted that there are three grounds for quashing the F.I.R.. He contended that in the F.I.R. lodged by applicant's wife separately, it is clearly mentioned that the applicant was not at home and had gone to the Court. These are the averments in the F.I.R. lodged by the applicant's wife and at this stage Court cannot look into the documents of investigation in the other crime. F.I.R. lodged against the applicant clearly shows that it was the applicant who was present and who allegedly assaulted complainant Ratna.

5. The second ground for quashing the F.I.R. as far as offence under Section 3 of the Prevention of Atrocities Act is concerned, it was contended that it does not disclose the caste of the applicant/accused and since it does not so disclose the F.I.R. liable to be quashed. He relied on a decision of this Court in Manohar s/o. Martandrao Kulkarni and Another Vs. State of Maharashtra and Others, 2005(4) Maharashtra Law Journal 588 : [2005 ALL MR (Cri) 2602]. In this decision the court has made the following observations :

"In my view, after the passing of the aforesaid two judgments, holding that there can be no registration of a crime under the Atrocities Act, or investigation as regards the said crime, if the caste of the complainant and/or the accused is not contained in the body of the F.I.R. all investigations and further Court proceedings on the basis of such investigations, cannot be maintained in law. Such First Information Reports and Court proceedings on the basis of crimes registered on the basis of such First Information Reports will, therefore, have to be quashed and set aside."

After having gone through the F.I.R. it is clear that the F.I.R. does disclose caste of the complainant as Bhila. Bhila is admittedly recognised as scheduled tribe. It is mentioned in the F.I.R. that applicant/accused said to the complainant :

"On Bhils who reside in Jungle you have no right to live in city and we belong to Maratha Caste."

It is apparent that the applicant himself stated that he is Maratha. Shri. Sambre contended that applicant does not belong to Maratha but he belongs to OBC i.e. Kunbi. He invited my attention to Caste Certificate filed on the record. It does disclose the caste of the applicant as Kunbi. Obviously the fact is that neither of the caste i.e. Maratha or Kunbi falls in scheduled caste or scheduled tribe. When the applicant said that he is Maratha he certainly intended to say that he does not belong to scheduled caste or scheduled tribe. Obviously the complaint does disclose that he belongs to non scheduled caste/scheduled tribe category. Relying on a decision of this Court in Ashok Lakhaji Halmare Vs. State of Maharashtra & Another, 2005 ALL MR (Cri) 2489, it was contended that every quarrel cannot be given a colour of caste dispute and if the allegations are vague Court should quash proceedings. The proposition cannot be disputed. In this case, a caste colour is apparently given to the dispute. It is mentioned in the F.I.R. that the accused/applicant said to complainant that she is a Bhila who resides in jungle and she was no right to live in city and that he himself belongs to Maratha caste. These allegation cannot be treated as vague. They certainly prima facie go to show that the petitioner intended to insult the complainant on the basis of her being a Bhila.

6. Shri. Sambre the learned counsel also contended that the main ingredient of dispute is that the dispute must have taken place in view of the public. He submitted that the said ingredient is missing. He contended that F.I.R. would disclose that the dispute took place over the construction sought to be made in a small lane leading to the house of the complainant and accused. It is contended that it is not a public place and therefore prima facie no offence is made out. He relied on a decision of this Court in Balu B. Galande Vs. State of Maharashtra & Another, 2006(6) AIR Bombay Reporter 251 : [2006 ALL MR (Cri) 3197]. Court made the following observations:

"The interpretation which suppresses or evades the mischief and advances the object of the Act has to be accepted. Keeping this in view looking to the aims and objects of the Act, the expression "public view" in Section 3(1)(x) of the Act has to be interpreted to mean that the public persons present, (however small number if may be), should be independent and impartial and not interested in any of the parties. In other words, the persons having any kind of close relationship or association with the complainant, would necessarily get excluded."

The lane is certainly a place which could be said to be visible to all those passing by. Further the F.I.R. discloses that the work of digging for the purpose of construction was going on and at that time one Vimal Morey and Radha Morey were also present. Thus since the lane is visible to those passing by and those two ladies were certainly present on the spot the incident had taken place in public view. Apparently therefore labourers as well as two ladies were present, hence the ratio as laid down in Balu Galander's case cannot be applied. In the circumstances the ingredients of the offence under Section 1(x) prima facie appear to be fulfilled. F.I.R. therefore cannot be quashed. Application is rejected.

In view of the order in Criminal Application No.1759 of 2007 Criminal Application No.1756 of 2007 stands rejected.

Application rejected.