OF HIGH COURT AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO. 1189 OF 20241.Vishal v. The State of Maharashtra & Ors.

Aurangabad and by way of amendment, forquashing the charge-sheet and proceedings in Special Case No.209 of2024, pending before the learned Special Judge under the AtrocitiesAct, Aurangabad, for the offences punishable under Sections 323,504, 427 read with Section 34 of The Indian Penal Code, 1860 (forshort “the I.P.C.”) and Sections 3(1)(r), 3(1)(s), 3(2)(va) of TheScheduled Castes and The Scheduled Tribes (Prevention of Atrocities)Act, 1989 (for short "the Atrocities Act").2.Heard learned Advocate for both the sides as well aslearned APP for the State. 3. Learned Advocate for the applicants has taken us throughthe entire charge-sheet including the F.I.R. and submits that thoughthe incident as per the F.I.R. had taken place at around 08.45 p.m. on 3criappln-1189-202418.12.2023, the F.I.R. came to be lodged on 06.02.2024 and thereasons for the delay tried to be given appears to be concocted andnot reasonable.

In fact, applicant No.1 had filed an F.I.R. vide C.R.No.487 of 2023 against respondent No.2/informant with the samepolice station for the offences punishable under Sections 327, 323,324, 504, 506 read with Section 34 of the I.P.C. The informant, in theF.I.R. itself, then states that he had absconded and remained presentbefore the police station only on 17.01.2024. He came to be arrestedin the matter and was released on bail. Thereafter also, he says thathe went home on 18.01.2024. Yet the F.I.R. has been lodged on06.02.2024. The F.I.R. is nothing but lodged with malafide intention. Further, the contents of the charge-sheet would show that the socalled eyewitnesses viz. Gokul Jadhav and Ganesh Borse, who hadcome to resolve the dispute at the place of incident, in theirstatements recorded under Section 161 of the Cr.P.C., are notsupporting the informant. The other eyewitnesses are hearsaywitnesses and therefore, there is nothing on record which wouldattract the provisions under the I.P.C. or the Atrocities Act. It wouldbe then unjust to ask the applicants to face the trial.

State of U.P. and Others,[(2023) AIR (SC) 3784], wherein, in para.30, it is held thus: -"30.........it will not be just enough for the Court to lookinto the averments made in the FIR/ complaint alone forthe purpose of ascertaining whether the necessaryingredients to constitute the alleged offence are disclosedor not. In frivolous or vexatious proceedings, the Courtowes a duty to look into many other attendingcircumstances emerging from the record of the case overand above the averments and, if need be, with due careand circumspection try to read in between the lines. TheCourt while exercising its jurisdiction under Section 482of the CrPC or Article 226 of the Constitution need notrestrict itself only to the stage of a case but is empoweredto take into account the overall circumstances leading tothe initiation/registration of the case as well as thematerials collected in the course of investigation...." 6criappln-1189-20247.Respondent No.2/informant, in his F.I.R., contends thatthe incident had taken place at around 08.45 p.m. on 18.12.2023 andthe F.I.R. has been lodged on 06.02.2024, for giving reasons.

Hestates that and it shows that he was aware about the F.I.R. lodgedagainst him by applicant No.1 vide C.R. No.487 of 2023. But, then, heis admitting that he had gone out of the village after the registrationof the said offence and he states that it was due to fear. Thus, he hastried to avoid the word absconding. But, then, he states that, on17.01.2024, he himself appeared before the police station. He wasreleased on bail on 18.01.2024. Yet, he took the time to lodge theF.I.R. Now it is required to be seen as to whether this delay is taintedwith malafides. 8. The F.I.R. states that when there was dispute betweenrespondent No.2/informant and applicant No.1, the informant calledhis brother viz. Pravin Thorat and one Amol Jadhav to the spot andthereafter, according to the informant, applicant No.1 abused him inthe name of caste. The quarrel had continued and then the otherapplicants joined applicant No.1.

It is then stated that all of them hadassaulted him with fists and hands and while abusing, his vehicle wasdamaged. He then states that witnesses Gokul Jadhav and GaneshBorse came there and supported them. That means, till he 7criappln-1189-2024disappeared from the spot, his brother Pravin Thorat and witnessAmol Jadhav had not arrived at the spot. 9. The statements of Pravin Thorat and Amol Jadhav woulddisclose that the entire incident was told by respondentNo.2/informant to them. That means it shows that they went to theshop of applicant No.1 after they were called and applicant No.1abused all of them in the name of caste and then the other applicantsjoined applicant No.1. A question then arises if the abuses were givento Pravin and Amol also, then why they had not lodged the F.I.R.immediately. It was absolutely not necessary that they ought to havewaited for the informant. There is no reason given by these witnessesas to why they had not lodged the F.I.R. though their statementsunder Section 161 of the Cr.P.C. would show that they are also themembers of scheduled caste.

If they would have felt offended, thenthere was no hurdle for them to approach the police stationimmediately. In connection with this fact, then it will have to beconsidered that the said F.I.R. lodged by the informant is tainted withmalafides. 10. The statements of witnesses Gokul Jadhav and GaneshBorse would show that they were not supporting the prosecution. Interestingly, the Investigating Officer has taken the statements of 8criappln-1189-2024panch witnesses also under Section 161 of the Cr.P.C. The statementof respondent No.2/informant, under Section 164 of the Cr.P.C.,recorded by the learned Judicial Magistrate First Class, Phulambri, isnothing but the replica of his F.I.R. But, interestingly, whileexplaining the said delay, he states that his brother viz. Pravin Thoratcame to the spot after he fled away and thereafter, Pravin went andmade the payment from phone pay in respect of price of the grocery, which he had purchased and then he states that, along with thebrother, he went home and thereafter, he went for the work ofsugarcane cutting.

11. Thus, after taking into account the entire charge-sheet, we can see that, as per the F.I.R., not a single independent witnesswas present when the alleged abuses were given to the informant inthe name of caste and even if we take note of the statements ofwitnesses Pravin Thorat and Amol Jadhav, yet they were the onlywitness i.e. members of the scheduled caste who had allegedly heardthe imputation. Again, no independent witness was there andtherefore, we would like to rely upon the judgment of the Hon'bleApex Court in the case of Hitesh Verma Vs. State of Uttarakhand and Another, [(2020) 10 SCC 710], wherein it has been observed inpara.19 that - 9criappln-1189-2024"This Court in a judgment reported as Dr. SubhashKashinath Mahajan Vs. State of Maharashtra & Anr.,[(2018) 6 SCC 454] issued certain directions in respect ofinvestigations required to be conducted under the Act. Ina review filed by the Union against the said judgment, this Court in a judgment reported as Union of India Vs.State of Maharashtra & Ors., [(2020) 4 SCC 761]reviewed the directions issued by this Court and held thatif there is a false and unsubstantiated FIR, theproceedings under Section 482 of the Code can beinvoked.

The Court held as under: “52. There is no presumption that the members of the Scheduled Castes and Scheduled Tribes may misuse theprovisions of law as a class and it is not resorted to by themembers of the upper castes or the members of the eliteclass. For lodging a false report, it cannot be said that thecaste of a person is the cause. It is due to the humanfailing and not due to the caste factor. Caste is notattributable to such an act. On the other hand, membersof the Scheduled Castes and Scheduled Tribes due tobackwardness hardly muster the courage to lodge even afirst information report, much less, a false one. In case itis found to be false/unsubstantiated, it may be due to thefaulty investigation or for other various reasons includinghuman failings irrespective of caste factor. There may becertain cases which may be false that can be a ground forinterference by the Court, but the law cannot be changeddue to such misuse.