Allowed

Prakash Vishnu Datar and Ors. v. the State of Maharashtra

Bombay HC6 Apr 2005WP/835/2004

Case brief

AI extract

What is this about?

Three petitions filed by bar association office-bearers seeking quashing of an FIR under the Atrocities Act lodged by the acting Junior Metropolitan Magistrate. The High Court held that the FIR failed to disclose an offence due to lack of third-party presence and malafide intent, and ordered it quashed.

What did the court decide?

Quashing of FIR bearing No.II C.R.No.3027/2004 registered with Chavni Police Station, Malegaon.

Prakash Vishnu Datar and Ors. Vs the State of Maharashtra — Cheque Dishonour | Bombay HC (2005)

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[1]

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 APPELLATE SIDE
 CRIMINAL WRIT PETITION NO.835 OF 2004

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 1. Prakash Vishnu Datar,

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 Aged 47 years, Occ: Advocate,
 r/o 10, Arvind Niwas,
 Malegaon, Dist: Nasik.

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 2. Uday Dattatray Kulkarni,
 Aged 42 years, Occ: Advocate,
 r/o Sugandh, Behind LIC Office,

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 Malegaon, Dist: Nasik.

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 3. Vijay Laxman Kulkarni,
 Aged 40 years, Occ: Advocate,
 r/o 913, Sanmitra Society,

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 Behind State Bank of India,

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 Malegaon, Dist: Nasik.

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 4. Shabbir Khan Etbar Khan Kardar,

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 Aged 50 years, Occ: Advocate,
 r/o 201 Hazar Kholi, Malegaon,

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 Dist: Nasik. .... Petitioners

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 - Versus -
 1. The State of Maharashtra

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 2. Sr. Inspector of Police,
 Chavni Police Station,
 Malegaon, Dist: Nasik.

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[2]

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 3. Shri Rajesh Ratanlal Kale,

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 II JMFC & CJJD, Malegaon,

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 Dist: Nasik. .... Respondents

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 Sarvasri P.K. Dhakephalkar with N.P. Shimpi,

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 Advocates for the Petitioners.

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 Shri B.H. Mehta, Addl. Public Prosecutor,

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 for the Respondent Nos.1 and 2.

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 The Respondent No.3 absent, though served.

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CORAM: R.M.S. KHANDEPARKAR &

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 P.V. KAKADE, JJ.

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DATED: APRIL 06, 2005

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ORAL JUDGMENT (Per R.M.S.Khandeparkar, J.):

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 1. Heard the learned Advocate for the petitioners and
 the learned A.P.P.. Neither the respondent No.3 present
 nor any Advocate on his behalf, though served. The
 respondent No.3 has also not filed any affidavit
 in-reply.

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 2. By the present petition, the petitioners seek to
 quash the FIR bearing No.II C.R.No.3027/2004, registered
 with the Chavni police station, Malegaon, District Nasik
 against the petitioners on 19-4-2004.

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[3]

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 3. The petitioners are the practising lawyers at the
 Malegaon Bar and have been in practice for the last
 number of years. The petitioner No.3 is the Secretary
 of the Malegaon Bar Association whereas the petitioner
 No.4 is the Vice-President of the Malegaon Bar
 Association. At the relevant time, the respondent No.3
 was functioning as the J.M.F.C. and II C.J.J.D. at
 Malegaon.

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 4. There were various complaints filed against the said
 respondent No.3 in relation to his functioning as the
 Judge as well as regarding his attitude towards the
 Advocates appearing in his Court. Pursuant to such
 complaints, inquiry was ordered by the High Court and
 under the letter dated 15-4-2004, issued by the District
 and Sessions Judge, Nasik, the said respondent was
 informed that all the civil and criminal matters pending
 on the file of his Court were transferred to the file of
 another Court for the disposal thereof and it was
 further informed to him that all the new presentations
 and institutions which were to be presented before the
 Court of the said respondent would be allotted to
 another Court. Similarly, all the staff attached to his
 Court was also ordered to be attached to another Court
 to which the matters in the Court of the said respondent

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 were allotted for disposal thereof. The said
 communication was received by the respondent on

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[4]

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 16-4-2004. Three days thereafter, the said respondent
 lodged a complaint with the Chavni police station at
 Malegaon against the petitioners alleging the
 petitioners having committed the offence including those
 punishable under Section 3(1)(x) of the Scheduled Castes
 and Scheduled Tribes (Prevention of Atrocities) Act,
 1989, hereinafter referred to as "the Atrocities Act"
 and therefore the said FIR came to be registered.

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 5. While assailing the impugned FIR, the learned
 Advocate for the petitioners submitted that the incident
 narrated in the complaint is purely a concocted one and
 the same is apparent from the records placed before this
 Court as well as the conduct of the said respondent
 which is revealed from the materials on record. He
 further submitted that none of the petitioners were at
 the concerned site on the relevant day and time, and all
 of them were at a totally different place, as has been
 described in the petition and the contents of the
 petition have not been denied by the respondent No.3
 though served. The fact that the said respondent was
 interested in getting the petitioners somehow entangled
 in a case under the Atrocities Act was apparent from the
 conduct of the respondent and the threats in that regard

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 which he used to give in the open Court to the
 petitioners. Further even the inquiry conducted by this
 Court has resulted in his dismissal on account of the

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[5]

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 misbehaviour on the part of the said respondent. In any
 case, the complaint on the face of it nowhere discloses
 any offence under the Atrocities Act or any other
 statute and therefore the same should be quashed.

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 6. Attention was also drawn to the complaint which was
 addressed by the Malegaon Bar Association to the
 Administrative Judge of this Court on 7-4-2004 wherein
 the fact regarding the threats of the complaint under
 the Atrocities Act, at the instance of the said
 respondent, were clearly mentioned.

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 7. Normally this Court is reluctant to interfere to
 quash an FIR or a complaint once it is shown that ex
 facie the same discloses a cognizable offence. It is
 also well-settled that the writ Court is not expected to
 analyse the contents of the complaint to ascertain
 whether the complainant would be able to establish the
 allegations made therein or not. It is also

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 well-settled that in a matter where the petitioner, who
 is named as an accused in an FIR seeks to quash the FIR
 is not entitled, as a matter of right, to place reliance
 on any material other than the FIR itself or the
 material accompanying the FIR to justify the quashing of
 the FIR. However, at the same time, it is also to be
 borne in mind that when the plea raised in the petition
 challenging the FIR is supported by cogent material on

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[6]

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 record which could apparently reveal the allegations in
 the complaint to be fallacious and having been made with
 the sole intention to harass the petitioner, and the
 investigation on the basis of such FIR would not lead to
 any fruitful result but sheer harassment to the
 petitioner, then certainly interference by the High
 Court in writ jurisdiction would not only be appropriate
 but would be necessary. The view that we are taking in
 the matter is clearly fortified by the recent decision
 of the Apex Court in the matter of Netai Dutta v. State
of West Bengal, reported in 2005 AIR SCW 1326.

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 8. Perusal of the complaint filed by the respondent
 undoubtedly discloses the allegation of utterances of
 some objectionable words by some of the petitioners,
 like "Mahardya". It also discloses expressions like,
 "Dekho Kaisa Ja Raha Hai Bhadwa", "See how the impotent
 is going". The complaint also alleges that the
 complainant was abused by mentioning his caste and he
 was insulted. The complaint also discloses that the
 complainant is a Hindu Mahar by caste. However, the
 complaint on the face of it nowhere discloses that the
 petitioners did not belong to the Scheduled Caste or the
 Scheduled Tribe nor the complaint discloses that the
 utterances were in a place within the public view.
 Undoubtedly, the utterances are alleged to have been
 made in an open place, at about 20:25 hours. However,

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[7]

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 it is nowhere disclosed that the incident was either in
 the presence of any third party or any other person,
 such person being present either in the vicinity or even
 at a far distance.

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 9. The provisions of Section 3(1)(x) of the Atrocities

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 Act are attracted and an offence can be said to have
 been committed when a person, not being a member of a
 Scheduled Caste or Scheduled Tribe intentionally insults
 or intimidates with intent to humiliate a member of a
 Scheduled Caste or Scheduled Tribe in any place within
 public view. The expression "public view" essentially
 requires that the act on the part of the accused person
 must be seen by a third party so as to cause insult or
 humiliation to the person belonging to the member of the
 Scheduled Caste or Scheduled Tribe on account of such
 acts. Any open place or for that matter even a public
 place by itself would not be sufficient to arrive at the
 finding about commission of such offence but it must be
 a place in a public view. In the absence of any third
 person having occasion to perceive the acts causing
 insult or intimidation resulting in humiliation to a
 member of the Scheduled Caste or the Scheduled Tribe,
 there could be no occasion to warrant action under the
 Atrocities Act under the said provision of law.

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 10. Perusal of the complaint apparently discloses that

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[8]

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 the expressions quoted therein were allegedly uttered by
 the petitioners "amongst themselves" i.e. amongst the
 petitioners and there was no third person present at
 that time either in the vicinity of or even at a
 distance from where he could have heard them or
 otherwise perceived the alleged humiliation caused to
 the said respondent. Being so, on the face of the
 complaint itself, there was no case made out for
 registration of the said complaint as a cognizable case
 under the Atrocities Act. For the same reason, there
 was no offence also revealed under any of the provisions
 of the Indian Penal Code also.

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 11. Apart from what is stated hereinabove, the
 materials placed on record, as rightly submitted by the
 learned Advocate for the petitioners, clearly reveal
 that the respondent No.3 lacked bona fide in lodging the
 said complaint in as much as that on 7-4-2004 a
 complaint was filed with the Administrative Judge of
 this Court by the Malegaon Bar Association against the
 said respondent stating therein that on 5-4-2004 while
 the Secretary of the Malegaon Bar Association had been
 to the Court of the respondent No.3, he was threatened
 that unless the Malegaon Bar Association takes steps to
 stop complaining against the respondent, he would lodge
 a complaint under the Atrocities Act against the
 petitioners. The said complaint was followed by an

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[9]

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 action on the part of the authorities in the nature of
 withdrawal of all the judicial work from the respondent
 No.3 and allotment thereof to another Court and this was
 communicated to the respondent No.3 under the letter
 dated 15-4-2004 by the District and Sessions Judge of
 Nasik and it was received by the respondent No.3 on
 16-4-2004. This obviously discloses that on account of
 refusal on the part of the members of the Bar at
 Malegaon to withdraw the complaints against the
 respondent No.3, by way of retaliation and as a counter
 to the complaints against him, the present complaint was
 lodged by the respondent No.3 against the petitioners.
 Undisputedly, the petitioners were the office bearers of
 the Malegaon Bar Association at the relevant time. This
 apparently discloses, as already observed above, lack of
 bona fide on the part of the respondent in lodging the
 complaint in question.

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 12. Lack of bona fide on the part of the respondent
 No.3 is further revealed from his conduct even during
 the pendency of this petition. It is to be noted that
 by the order dated 5-5-2004 when this Court was informed
 by the learned A.P.P. that the respondent No.3 was
 insisting for the police authorities to register his
 complaint against the District and Sessions Judge,
 Nasik, which was lodged by him on 30-4-2004, in fact by
 the order dated 21-4-2004 this Court had directed the

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 [10]

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 District and Sessions Judge, Nasik to furnish a detail
 report with regard to all the aspects of the matter by
 5-5-2004, and in fact the report was furnished to this
 Court when the Bench was presided over by Shri Justices
 S. Radhakrishnan and R.S. Mohite, who on perusal
 thereof had ordered the said report to be kept under
 seal with the Registrar (Legal). Today it was ordered
 to be produced before us and has accordingly been
 produced before us under a sealed cover. The sealed
 cover is opened at this stage. On perusal of the said
 report, the same clearly reveals objectionable acts on
 the part of the respondent No.3 during his tenure as
 Magistrate in the Court at Malegaon. The report also
 raises doubt about the genuineness of the complaint
 lodged by the respondent No.3. The Registry is directed
 to keep this report with the annexures thereto on the
 service file of the respondent No.3.

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 13. In the facts and circumstances of the case, we are
 of the considered opinion that the investigation based
 on the impugned FIR would not lead to any fruitful
 result, except harassment to the petitioners. Taking
 into consideration all the aspects of the matter,
 therefore, the impugned FIR needs to be quashed and is
 accordingly hereby quashed.

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 14. The petition, therefore, succeeds. The FIR bearing

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 [11]

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 No.II C.R.No.3027/2004, registered with the Chavni
 police station, Malegaon, District Nasik against the
 petitioners at the instance of the respondent No.3 on
 19-4-2004 is hereby quashed. The rule is made absolute
 accordingly. No order as to costs.

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 (R.M.S. Khandeparkar, J.)

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 (P.V. Kakade, J.)

Prakash Vishnu Datar and Ors. v. the State of Maharashtra

Case brief

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What did the court decide?

Prakash Vishnu Datar and Ors. v. the State of Maharashtra

Case brief

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