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IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD49 CRIMINAL APPLICATION NO.3244 OF 20231Shivraj Manmathappa Mule,Age 58 yrs., Occ. Business,R/o Malkapur, Tq. Udgir,Dist. Latur. 2Rohan Shantiveer Mule,Age 26 yrs., Occ. Business,R/o Uday Nagar, Udgir,Tq. Udgir, Dist. Latur. … Applicants… Versus …1The State of MaharashtraThrough Rural Police Station, Udgir, Tq. Udgir,Dist. Latur. 2Kanhaiyya Vitthalrao Kamble,Age 45 yrs., Occ. Labour,R/o Sanjaynagar, Somnathpur,Tq. Udgir, Dist. Latur. … Respondents...Mr. Ajinkya Reddy, Advocate for applicantsMr. G.A. Kulkarni, APP for respondent No.1Mr. S.S. Jadhav, Advocate for respondent No.2…CORAM :SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ. 249_Cri.Appln_3244_2023DATE :22nd APRIL, 2025ORDER : ( PER : SMT. VIBHA KANKANWADI, J. )1Present application has been filed initially for quashing FirstInformation Report vide Crime No.391/2023 dated 22.06.2023 registeredwith Rural Police Station, Udgir, Tq. Udgir, Dist. Latur, for the offencepunishable under Sections 3(1)(r), 3(1)(s), 3(2)(va) of the Scheduled Castesand the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for the sake ofbrevity hereinafter referred to as “the Atrocities Act”) and Sections 324, 323,143, 147, 148 read with Section 149 of the Indian Penal Code, 1860 andlater on by way of amendment for quashing the proceedings in Special CaseNo.63/2023 pending before learned Special Judge, under the Atrocities Act,Udgir, Dist. Latur. 2Heard 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. 3Learned Advocate appearing for applicants has taken us throughthe entire charge sheet including First Information Report and submitted thatthe informant even in his First Information Report has admitted that a civil 349_Cri.Appln_3244_2023suit is pending in respect of a property between him and applicants. RegularCivil Suit No.293/2022 is pending, which has been filed for permanentinjunction. In the said suit, counter claim has been filed by two applicants,who are defendant Nos.2 and 3 therein, wherein declaration of ownershiphas been prayed with perpetual injunction. Both are claiming to be inpossession of property and no interim orders have been passed. In thisbackground the informant states about the alleged incident dated16.05.2023, which is stated to have occurred at 8.30 p.m. Informant saysthat present applicants with some unknown persons were makingconstruction in the agricultural land. Informant went near them and toldthat they should not carry out any construction as the dispute is pendingbefore the Court and then he says that he was abused in the name of casteand then assaulted by applicant Shantveer with iron rod and others assaultedhim by kicks and fists. There appears to be an attempt on the part ofinformant to show that he is in possession of disputed property. The injurycertificate would show that only one injury, that too, abrasion on leftforehead was seen. If he would have been assaulted by four persons, thenthere could not have been a single injury. The statements of alleged eyewitnesses would show that they were interested and they are the friends ofnephew of informant. Application Exh.5 in Regular Civil Suit No.293/2022was rejected by 2nd Joint Civil Judge Junior Division, Udgir on 23.11.2023. 449_Cri.Appln_3244_2023One Smt. Kamalbai Bhaktraj Khadke has filed Special Civil Suit No.54/2022against one Rajesh Vitthal Kamble and others. Said Rajesh is brother ofrespondent No.2. The said suit is in respect of 27 R land allegedly standingin the name of brother of respondent No.2 from Gat No.56/1/A. By orderdated 20.09.2023 Joint Civil Judge Senior Division, Udgir has allowedapplication Exh.5 and pending the hearing and final disposal of the suit, thebrother of informant and two others have been restrained from encumbering,transferring or creating any third party interest in the suit property. Whenthe substantial rights of the parties are involved in the civil suit, the FirstInformation Report in question appears to be a concocted version and,therefore, it would be unjust to ask applicants to face the trial. 4Per contra, learned APP and learned Advocate for respondentNo.2 have vehemently objected the application and submitted that thoughapplication Exh.5 in Regular Civil Suit No.293/2022 has been rejected; yet,in the counter claim present applicants had not prayed for temporaryprotection. The Special Civil Suit No.54/2022 is between different partiesi.e. brother of informant and he has been restrained from alienating theproperty. There is no disturbance to the possession of brother of informantover the suit property. Informant being the brother of owner of the propertywas justified in restraining the applicants from making any kind of 549_Cri.Appln_3244_2023construction in the suit property, but he was abused in the name of caste onpublic road within public view and it has been heard by two independentwitnesses Vicky Bere and Ajay Sakat. The injury certificate also supportsrespondent No.2 and, therefore, when there is evidence against applicants,this will not be the fit case where the Court should exercise its powers underSection 482 of the Code of Criminal Procedure. 5At the outset, important point to be noted is that informant is notowner of said land admeasuring 27 R from Gat No.56/A situated inMalkapur, Tq. Udgir. But he says that around 8.30 p.m. on 16.05.2023, whenhe 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 personsand asked them not to go ahead with the construction. Thereupon, presentapplicants gave abuses in the name of caste. Thereupon informant askedthem not to abuse, but at that time applicant Shantveer gave blow of iron rodon the head of informant and other persons had assaulted him with fists andkicks. Important point to be noted is that there is no supplementarystatement of informant. He wanted to attribute all the applicants/accusedpersons with the offence under the Atrocities Act. The abuses cannot begiven in chorus by two or more persons at the same time and in the same 649_Cri.Appln_3244_2023words. 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 theoffence cannot be attracted when the abuses are stated to have been given inchorus. 6Now, Vicky Bere and Ajay Sakat appear to be the friends ofnephew of informant. Though they have stated that they had heard theapplicants giving abuses in the name of caste to informant; yet, theirstatement does not fulfil the requirement that such abuses ought to havebeen heard by independent witness. We would like to rely on the decision inHitesh Verma vs. State of Uttarakhand and another [(2020) 10 SCC 710],wherein it has been observed by the Hon’ble Supreme Court in paragraphNos.13 and 14 that - 13.The offence under Section 3(1)(r) of the Act would indicatethe ingredient of intentional insult and intimidation with an intent tohumiliate a member of a Scheduled Caste or a Scheduled Tribe. Allinsults or intimidations to a person will not be an offence under theAct unless such insult or intimidation is on account of victimbelonging to Scheduled Caste or Scheduled Tribe. The object of theAct is to improve the socio-economic conditions of the ScheduledCastes and the Scheduled Tribes as they are denied number of civilrights. Thus, an offence under the Act would be made out when amember of the vulnerable section of the society is subjected toindignities, humiliations and harassment. The assertion of title over 749_Cri.Appln_3244_2023the land by either of the parties is not due to either the indignities,humiliations or harassment. Every citizen has a right to avail theirremedies in accordance with law. Therefore, if the appellant or hisfamily members have invoked jurisdiction of the Civil Court, or thatrespondent 2 has invoked the jurisdiction of the Civil Court, then theparties are availing their remedies in accordance with the procedureestablished by law. Such action is not for the reason that respondent2 is a member of Scheduled Caste. 14.Another key ingredient of the provision is insult or intimidationin “any place within public view”. What is to be regarded as “place inpublic view” had come up for consideration before this Court in thejudgment reported as Swaran Singh v. State, (2008) 8 SCC 435. TheCourt had drawn distinction between the expression “public place”and “in any place within public view”. It was held that if an offence iscommitted outside the building e.g. in a lawn outside a house, andthe lawn can be seen by someone from the road or lane outside theboundary wall, then the lawn would certainly be a place within thepublic view. On the contrary, if the remark is made inside a building,but some members of the public are there (not merely relatives orfriends) then it would not be an offence since it is not in the publicview. The Court held as under : “28. It has been alleged in the FIR that Vinod Nagar, the firstinformant, was insulted by Appellants 2 and 3 (by calling him a“chamar”) when he stood near the car which was parked at the gate ofthe premises. In our opinion, this was certainly a place within publicview, since the gate of a house is certainly a place within public view.It could have been a different matter had the alleged offence beencommitted inside a building, and also was not in the public view.However, if the offence is committed outside the building e.g. in alawn outside a house, and the lawn can be seen by someone from theroad or lane outside the boundary wall, the lawn would certainly be a 849_Cri.Appln_3244_2023place within the public view. Also, even if the remark is made inside abuilding, but some members of the public are there (not merelyrelatives or friends) then also it would be an offence since it is in thepublic view. We must, therefore, not confuse the expression “placewithin public view” with the expression “public place”. A place can bea private place but yet within the public view. On the other hand, apublic place would ordinarily mean a place which is owned or leasedby the Government or the municipality (or other local body) or gaonsabha or an instrumentality of the State, and not by private persons orprivate bodies.” (emphasis in original)7Another fact to be noted is that brother of informant had filed acivil suit against two of the applicants on 11.04.2022. Then after so manymonths why they would indulge in such activity, would be a question ? Twoof the applicants had appeared in the matter and placed the counter claim on21.11.2022 claiming to be in possession of the suit property. 8Another fact to be noted is that in First Information Report theexact place appears to have not been stated. In the spot panchnama theplace 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. Whatwas the construction, in the spot panchnama it is specifically stated, “iwosZlyxr mn; isVªksy iai v’kh ikVh o R;kyxr ukyk o R;kiyhdMs rkj daikÅaM R;kyxr 'ksrlOgsZ uacj 56@1@v e/khy oknxzLr tkxk T;koj nxMfoVkps v/kZoV vkodksuh cka/kdkedsysyh tkxsoj tkfgjkrhpk cWuj ykoysys R;kyxr f’kojkt eqGs ;kaps e’kkxr dsysys 'ksrfnlr vkgs- -------------------- ” Height of the construction already made uptill the date 949_Cri.Appln_3244_2023of incident has not been stated in the panchnama. But then if theconstruction had already started, then the resistance by the informant to theapplicants appeared to be belated. Under such circumstance, it cannot bestated that the ingredients of offence punishable under Sections 3(1)(r) and3(1)(s) of the Atrocities Act have been made out. The spot tried to be shownin First Information Report appears to be different in the spot panchnamaand it appears to be different in the statements of eye witnesses. 9As regards the offences under Indian Penal Code sections areconcerned, definitely, there are averments and prima facie evidence and,therefore, application deserves to be partly allowed. Hence, following order. ORDERi)Criminal Application stands partly allowed. ii)The proceedings in Special Case No.63/2023 pending beforelearned Special Judge, under the Atrocities Act, Udgir, Dist. Latur, arising outof First Information Report vide Crime No.391/2023 dated 22.06.2023registered with Rural Police Station, Udgir, Tq. Udgir, Dist. Latur, standsquashed 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 1049_Cri.Appln_3244_2023Manmathappa Mule and 2) Rohan Shantiveer Mule. 3Matter to proceed for other offences and learned Special Judgeto take note of above observations. ( SANJAY A. DESHMUKH, J. ) ( SMT. VIBHA KANKANWADI, J. ) agd