IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 49 CRIMINAL APPLICATION NO.3244 OF 2023 1 Shivraj Manmathappa Mule, Age 58 yrs., Occ. Business, R/o Malkapur, Tq. Udgir, Dist. Latur. 2 Rohan Shantiveer Mule, Age 26 yrs., Occ. Business, R/o Uday Nagar, Udgir, Tq. Udgir, Dist. Latur. … Applicants … Versus … 1 The State of Maharashtra Through Rural Police Station, Udgir, Tq. Udgir, Dist. Latur. 2 Kanhaiyya Vitthalrao Kamble, Age 45 yrs., Occ. Labour, R/o Sanjaynagar, Somnathpur, Tq. Udgir, Dist. Latur. … Respondents ... Mr. Ajinkya Reddy, Advocate for applicants Mr. G.A. Kulkarni, APP for respondent No.1 Mr. S.S. Jadhav, Advocate for respondent No.2 … CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ. 2025:BHC-AUG:13643-DB 2 49_Cri.Appln_3244_2023 DATE : 22nd APRIL, 2025 ORDER : ( PER : SMT. VIBHA KANKANWADI, J. ) 1 Present application has been filed initially for quashing First Information Report vide Crime No.391/2023 dated 22.06.2023 registered with Rural Police Station, Udgir, Tq. Udgir, Dist. Latur, for the offence punishable under Sections 3(1)(r), 3(1)(s), 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for the sake of brevity hereinafter referred to as “the Atrocities Act”) and Sections 324, 323, 143, 147, 148 read with Section 149 of the Indian Penal Code, 1860 and later on by way of amendment for quashing the proceedings in Special Case No.63/2023 pending before learned Special Judge, under the Atrocities Act, Udgir, Dist. Latur. 2 Heard learned Advocate Mr. Ajinkya Reddy for applicants, learned APP Mr. G.A. Kulkarni for respondent No.1 and learned Advocate Mr. S.S. Jadhav for respondent No.2. 3 Learned Advocate appearing for applicants has taken us through the entire charge sheet including First Information Report and submitted that the informant even in his First Information Report has admitted that a civil 3 49_Cri.Appln_3244_2023 suit is pending in respect of a property between him and applicants. Regular Civil Suit No.293/2022 is pending, which has been filed for permanent injunction. In the said suit, counter claim has been filed by two applicants, who are defendant Nos.2 and 3 therein, wherein declaration of ownership has been prayed with perpetual injunction. Both are claiming to be in possession of property and no interim orders have been passed. In this background the informant states about the alleged incident dated 16.05.2023, which is stated to have occurred at 8.30 p.m. Informant says that present applicants with some unknown persons were making construction in the agricultural land. Informant went near them and told that they should not carry out any construction as the dispute is pending before the Court and then he says that he was abused in the name of caste and then assaulted by applicant Shantveer with iron rod and others assaulted him by kicks and fists. There appears to be an attempt on the part of informant to show that he is in possession of disputed property. The injury certificate would show that only one injury, that too, abrasion on left forehead was seen. If he would have been assaulted by four persons, then there could not have been a single injury. The statements of alleged eye witnesses would show that they were interested and they are the friends of nephew of informant. Application Exh.5 in Regular Civil Suit No.293/2022 was rejected by 2nd Joint Civil Judge Junior Division, Udgir on 23.11.2023. 4 49_Cri.Appln_3244_2023 One Smt. Kamalbai Bhaktraj Khadke has filed Special Civil Suit No.54/2022 against one Rajesh Vitthal Kamble and others. Said Rajesh is brother of respondent No.2. The said suit is in respect of 27 R land allegedly standing in the name of brother of respondent No.2 from Gat No.56/1/A. By order dated 20.09.2023 Joint Civil Judge Senior Division, Udgir has allowed application Exh.5 and pending the hearing and final disposal of the suit, the brother of informant and two others have been restrained from encumbering, transferring or creating any third party interest in the suit property. When the substantial rights of the parties are involved in the civil suit, the First Information Report in question appears to be a concocted version and, therefore, it would be unjust to ask applicants to face the trial. 4 Per contra, learned APP and learned Advocate for respondent No.2 have vehemently objected the application and submitted that though application Exh.5 in Regular Civil Suit No.293/2022 has been rejected; yet, in the counter claim present applicants had not prayed for temporary protection. The Special Civil Suit No.54/2022 is between different parties i.e. brother of informant and he has been restrained from alienating the property. There is no disturbance to the possession of brother of informant over the suit property. Informant being the brother of owner of the property was justified in restraining the applicants from making any kind of 5 49_Cri.Appln_3244_2023 construction in the suit property, but he was abused in the name of caste on public road within public view and it has been heard by two independent witnesses Vicky Bere and Ajay Sakat. The injury certificate also supports respondent No.2 and, therefore, when there is evidence against applicants, this will not be the fit case where the Court should exercise its powers under Section 482 of the Code of Criminal Procedure. 5 At the outset, important point to be noted is that informant is not owner of said land admeasuring 27 R from Gat No.56/A situated in Malkapur, Tq. Udgir. But he says that around 8.30 p.m. on 16.05.2023, when he had gone to the field owned by brother, he found present applicants there, who were making construction along with some unknown persons. Therefore, he raised the objection regarding the presence of accused persons and asked them not to go ahead with the construction. Thereupon, present applicants gave abuses in the name of caste. Thereupon informant asked them not to abuse, but at that time applicant Shantveer gave blow of iron rod on the head of informant and other persons had assaulted him with fists and kicks. Important point to be noted is that there is no supplementary statement of informant. He wanted to attribute all the applicants/accused persons with the offence under the Atrocities Act. The abuses cannot be given in chorus by two or more persons at the same time and in the same 6 49_Cri.Appln_3244_2023 words. If we consider the statements of witnesses Vicky Bere and Ajay Sakat, those are also saying on the same line. This itself is a point to state that the offence cannot be attracted when the abuses are stated to have been given in chorus. 6 Now, Vicky Bere and Ajay Sakat appear to be the friends of nephew of informant. Though they have stated that they had heard the applicants giving abuses in the name of caste to informant; yet, their statement does not fulfil the requirement that such abuses ought to have been heard by independent witness. We would like to rely on the decision in Hitesh Verma vs. State of Uttarakhand and another [(2020) 10 SCC 710], wherein it has been observed by the Hon’ble Supreme Court in paragraph Nos.13 and 14 that - 13. The offence under Section 3(1)(r) of the Act would indicate the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe. All insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. The object of the Act is to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes as they are denied number of civil rights. Thus, an offence under the Act would be made out when a member of the vulnerable section of the society is subjected to indignities, humiliations and harassment. The assertion of title over 7 49_Cri.Appln_3244_2023 the land by either of the parties is not due to either the indignities, humiliations or harassment. Every citizen has a right to avail their remedies in accordance with law. Therefore, if the appellant or his family members have invoked jurisdiction of the Civil Court, or that respondent 2 has invoked the jurisdiction of the Civil Court, then the parties are availing their remedies in accordance with the procedure established by law. Such action is not for the reason that respondent 2 is a member of Scheduled Caste. 14. Another key ingredient of the provision is insult or intimidation in “any place within public view”. What is to be regarded as “place in public view” had come up for consideration before this Court in the judgment reported as Swaran Singh v. State, (2008) 8 SCC 435. The Court had drawn distinction between the expression “public place” and “in any place within public view”. It was held that if an offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, then the lawn would certainly be a place within the public view. On the contrary, if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then it would not be an offence since it is not in the public view. The Court held as under : “28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by Appellants 2 and 3 (by calling him a “chamar”) when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a 8 49_Cri.Appln_3244_2023 place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression “place within public view” with the expression “public place”. A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies.” (emphasis in original) 7 Another fact to be noted is that brother of informant had filed a civil suit against two of the applicants on 11.04.2022. Then after so many months why they would indulge in such activity, would be a question ? Two of the applicants had appeared in the matter and placed the counter claim on 21.11.2022 claiming to be in possession of the suit property. 8 Another fact to be noted is that in First Information Report the exact place appears to have not been stated. In the spot panchnama the place is shown on the Eastern side edge of the road which is going North- South. Already there appears to be construction in the suit premises. What was the construction, in the spot panchnama it is specifically stated, “iwosZl yxr mn; isVªksy iai v’kh ikVh o R;kyxr ukyk o R;kiyhdMs rkj daikÅaM R;kyxr 'ksr lOgsZ uacj 56@1@v e/khy oknxzLr tkxk T;koj nxMfoVkps v/kZoV vkodksuh cka/kdke dsysyh tkxsoj tkfgjkrhpk cWuj ykoysys R;kyxr f’kojkt eqGs ;kaps e’kkxr dsysys 'ksr fnlr vkgs- -------------------- ” Height of the construction already made uptill the date 9 49_Cri.Appln_3244_2023 of incident has not been stated in the panchnama. But then if the construction had already started, then the resistance by the informant to the applicants appeared to be belated. Under such circumstance, it cannot be stated that the ingredients of offence punishable under Sections 3(1)(r) and 3(1)(s) of the Atrocities Act have been made out. The spot tried to be shown in First Information Report appears to be different in the spot panchnama and it appears to be different in the statements of eye witnesses. 9 As regards the offences under Indian Penal Code sections are concerned, definitely, there are averments and prima facie evidence and, therefore, application deserves to be partly allowed. Hence, following order. ORDER i) Criminal Application stands partly allowed. ii) The proceedings in Special Case No.63/2023 pending before learned Special Judge, under the Atrocities Act, Udgir, Dist. Latur, arising out of First Information Report vide Crime No.391/2023 dated 22.06.2023 registered with Rural Police Station, Udgir, Tq. Udgir, Dist. Latur, stands quashed and set aside to the extent of offence punishable under Sections 3(1) (r), 3(1)(s), 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 only, as against applicants viz. 1) Shivraj 10 49_Cri.Appln_3244_2023 Manmathappa Mule and 2) Rohan Shantiveer Mule. 3 Matter to proceed for other offences and learned Special Judge to take note of above observations. ( SANJAY A. DESHMUKH, J. ) ( SMT. VIBHA KANKANWADI, J. ) agd