High Court
Facts
CriAppeal-94-2023-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 94 OF 2023Dharmishtha w/o Vinodkumar Bafna,Age: 46 years, Occu. : Household,R/o: Vaibhav Nagar,Nalawa Road, Nandurbar,Tq. and Dist. Nandurbar.… ApplicantVersus1.The State of MaharashtraThrough Police Station Officer,Upanagar Police Station,Tq. Nandurbar, District Nandurbar.2.Devidas Khandu Nerkar, Age 49 years, Occu. Business,R/o Plot No.1, Roopam Nagar,Nandurbar.… Respondents…..Mr. P. D. Bachate, Advocate h/f Mr. Rahul R. Raghuwanshi and Mr.A. D. Khot, Advocates for the Appellant.Mr. N. D. Batule, APP for Respondent No.1-State.Mr. N. L. Choudhari, Advocate for Respondent No.2...... CORAM :ABHAY S. WAGHWASE, J.Reserved on: 10.01.2024Pronounced on: 16.01.2024JUDGMENT : 1.In the instant appeal, following prayers are raised :A)The Criminal Appeal may kindly be allowed.B)The Hon’ble High Court may kindly quash and setaside the impugned order dated 21/07/2022 passed
Legal Reasoning
CriAppeal-94-2023-8- was no intentional insult to humiliate victim, granted the relief asprayed. In the last case relied i.e. Paramjeet Batra (supra) also, therewere accusations of commission of offence under Sections 406,420,467, 468, 471, 447 and 448 r/w 34 of IPC and there was noallegation of serious offence under the Atrocities Act and hence therelief was granted. Here, at the cost of repetition, there is prima faciematerial in the charge sheet. 11.Hence, necessary ingredients for attracting said charges areprima facie available and hence there is no merit in the appeal.Resultantly, I proceed to pass the following order:ORDERThe criminal appeal is hereby dismissed. [ABHAY S. WAGHWASE, J.]vre
Arguments
CriAppeal-94-2023-2- by the Ld. Sessions Judge, Nandurbar below Exhibit –19 in Special (Atro.) Case No. 21/2019 and therebyallow the application filed by the applicant belowExhibit – 19 U/s. 227 of the Criminal Procedure Codeto Discharge the applicant from Special (Atro.) CaseNo. 21/2019.C)Pending hearing and final disposal of this CriminalAppeal, the Ld. Sessions Judge, Nandurbar be directednot to frame charge against the applicant.D)Any other suitable and equitable relief may kindly begranted in favour of applicant in the interest of justice.2.Learned counsel for the appellant would submit that crime wasregistered against the appellant at Upanagar Police Station byrespondent no. 2 Devidas Khandu Nerkar alleging commission ofoffence punishable under Sections 3(1)(f)(r)(s) of the ScheduledCastes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989[Atrocities Act] and Sections 406, 420, 506 r/w 34 of the IndianPenal Code [IPC]. He would point out that there were financialtransactions between complainant and husband of appellant. That,complainant had executed sale deed in favour of present respondentwith regard to a landed property on 08.08.2017. A copy of the sameis also placed on record. However, after completion of said CriAppeal-94-2023-3- transaction, appellant further executed sale deed in favour of oneNarendra Jain (Burad) and this further resulted into filing of specialcivil suite praying for cancellation of sale deed dated 08.08.2017 withprayers for specific performance of contract. Thus, it is submitted thattransaction between complainant and appellant was apparently civilin nature and dispute also was primarily civil in nature. However,getting annoyed by the institution of civil proceedings, false andfrivolous complaint came to be lodged against appellant allegingcommission of offence punishable under the provisions of AtrocitiesAct and provisions of the penal code like Sections 406, 420,506 r/w34 of IPC. That, this court has already extended relief of anticipatorybail. That, after investigation charge sheet came to be filed. As therewas no material coming out in offence, present appellant invokedproceedings under Section 227 of the Code of Criminal Procedure[Cr.P.C.], but learned Sessions Judge Nandurbar passed order on21.07.2022 rejecting the application and hence instant appeal.3.It is further emphasized that complaint is motivated, moreparticularly in view of pending civil dispute. That, none of theingredients of penal sections like Sections 406, 420 or even 506 ofIPC were available. That, there is apparently misuse of process of lawby leveling false allegations of commission of offence under the CriAppeal-94-2023-4- Atrocities Act. That, all such crucial aspects ought to have beenconsidered by learned Sessions Judge but it failed to do so andunnecessarily appellant is made to face criminal proceedings evenwithout any crime was committed. Resultantly he seeks grant ofabove relief.4.Learned counsel for the appellant seeks reliance on thedecisions in Dilip Kaur and Others v. Jagnar Singh and Another[(2019) 14 SCC 696]; Randheer Singh v. The State of U.P. andOthers [Criminal Appeal No. 932 of 2021 with connected matterdecided by the Hon’ble Apex Court on 02.09.2021]; Ajay Pattanaik @Ajaya Kumar Pattanayak and Another v. State of Odisha and Another[CRLMC No. 2636 of 2021 decided by the High Court of Orissa atCuttack on 01.03.2023] and Paramjeet Batra v. State of Uttarakhandand others [(2013) 11 SCC 673]5.In answer to above, learned APP pointed out that seriousoffence of atrocity has been committed. Complaint has been lodgedpromptly. Though attempt has been made to give it a colour of civildispute, apparently investigation revealed commission of offenceunder Sections 406 and 420 of IPC. That, there is commission ofoffence of atrocity in public view. There is intentional insult on the CriAppeal-94-2023-5- basis of caste. Therefore, learned Sessions Judge, Nandurbar hasrightly rejected the proceedings filed under Section 227 of Cr.P.C.6.Supporting the order of learned Sessions Judge and resistingthe present proceedings, learned counsel for respondent no.2-complainant would submit that though there was civil transaction,there was cheating even when agreement was executed. Fraud hasbeen played against the complainant. As the same was questioned, inpresence of public, there was insult and humiliation with reference tocaste. That, there is ample evidence upon investigation of crime andhence it is prayed that present appeal, having no merits, be dismissed.7.After considering the above submissions advanced by each ofthe side, it seems that there is transaction of sale of immovableproperty. There is no dispute to that extent between the parties.However, what is of concern is that after agreement withcomplainant, clandestine transaction has been entered into by presentappellant with third party i.e. even before conclusion of contractbetween complainant and appellant. No doubt civil proceedings areinstituted and same are pending, but on prima facie going throughthe FIR dated 29.01.2019 filed by respondent no.2 Devidas, ittranspires that on 20.01.2019 around 1.00 p.m. Vinodkumar Bafna CriAppeal-94-2023-6- and his wife i.e. present appellant came to the office of respondentwhich was situated in Indira Gandhi complex, Nandurbar. Afterabusing for instituting proceedings, it is alleged that whencomplainant went to give understanding by coming out of his office,at that time there was said to be utterance thereby humiliating oncaste basis. Utterance is attributed to both, Vinodkumar and presentappellant i.e. his wife. FIR further shows that again on 29.01.2019around 12.00 noon, Vinodkumar again entered the office ofrespondent-complainant and hurled abuses on caste basis andtherefore, on same day respondent-complainant seems to haveapproached police who appears to have entertained the complaintand registered rime for above sections.8.Prima facie going through the chargesheet, the persons namedto be present along with complainant during alleged utterance ofcaste abuse are examined as witnesses. Therefore there is material forcriminal proceedings. Prima facie offence is made out though there ishistory of civil proceedings.9.At this stage it is merely to be seen whether case for dischargehas at all been made out. In the considered opinion of this Court, ongoing through the entire charge sheet, prima facie there seems to be CriAppeal-94-2023-7- commission of offence under both, Atrocities Act as well as penalsections. It cannot be hence said that there is no case to be proceededagainst appellant.10.I have gone through the citations relied by learned counsel forthe appellant. In the case of Dilip Kaur (supra) crime was registeredonly for commission of offence under Sections 420, 425, 405 and 406of IPC and in that case when Hon’ble Apex Court was convincedabout non-availability of necessary ingredients, relief was granted byexercising power under Section 482 of Cr.P.C. Here it is not so. Here,prima facie material is available suggesting clandestine transaction byappellant even before conclusion of contract entered into withrespondent-complainant and moreover, there are abuses withreference to caste in public view. In the second ruling of Randheer Singh (supra) also there wasexercise of power under Section 482 of Cr.P.C. by the Hon’ble ApexCourt on noticing that no criminal offence was made out on readingthe FIR. Likewise in the case of Ajay Pattanaik (supra) the facts weredistinct and the High Court of Orissa at Cuttack on finding that there