Bombay High Court
Yashwant Mehetar Rambhau Bombarde vs Balkrishna Mahagu Motghare And 2 Others on 14 December, 2020
Author: Swapna Joshi
Bench: Swapna Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APL) NO. 366 OF 2019
Yashwant s/o Mehetar @ Rambhau
Bombarde,
Aged about 62 years,
Occ. Agriculturist,
R/o Amgaon Khurd, Tahsil Salekasa,
Distt. Gondia. .. APPLICANT
...Versus...
1. Balkrishna s/o Mahagu Motghare,
Aged about 78 years,
Occ. Agriculturist
2. Parasram s/o Mahagu Motghare,
Aged about 73 years,
Occ. Agriculturist
3. Bhaurao s/o Balkrishna Motghare,
Aged about 48 years,
Occ. Agriculturist,
All R/o. Amgaon Khurd,
Tahsil Salekasa, District Gondia. .. NON-APPLICANTS
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Shri R.M. Pande, Advocate for the Applicant.
Shri S.G. Karmarkar, Advocate for the Non-applicants.
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CORAM : MRS. SWAPNA JOSHI, J.
DATED : 14th December, 2020.
ORAL JUDGMENT :-
Heard. Admit. By consent of learned counsel for ::: Uploaded on - 21/12/2020 ::: Downloaded on - 10/02/2021 04:54:25 ::: 2 11.APL. NO. 366-2019 JUDGMENT.odt both the parties, present matter is taken up for final hearing at the stage of admission itself.
2. Heard, Shri R.M. Pande, the learned counsel for the applicant and Shri S.G. Karmarkar, the learned counsel for the non-applicants.
3. Being aggrieved by the order passed by the learned Judicial Magistrate First Class, Amgaon in Regular Case No. 241/2006 dated 03.01.2019, dismissing the complaint filed by the applicant and discharging the present non-applicants/accused under Section 245 (1) of the Code of Criminal Procedure; so also the judgment and order passed by the learned Sessions Judge, Gondia in Criminal Revision No. 54/2017, dated 04.12.2018, confirming the judgment and order passed by the learned Judicial Magistrate First Class, Amgaon, the present Criminal Application has been filed by the applicant for invoking the provisions under Section 482 of the Code of Criminal Procedure.
4. The brief facts of the case are as under:
The applicant belongs to "Mahar" caste which is ::: Uploaded on - 21/12/2020 ::: Downloaded on - 10/02/2021 04:54:25 ::: 3 11.APL. NO. 366-2019 JUDGMENT.odt recognized as a "Scheduled Caste" in the State of Maharashtra. On 28.11.2016, the applicant had filed a complaint against the non-applicants and six officers of the Revenue Department of District Gondia, before the Judicial Magistrate First Class, Amgaon, praying for calling for the original record from the original accused No.8-The District Superintendent of Land Record and stating that the accused persons have forged and fabricated the documents and on the basis of it, caused obstruction to the possession of the applicant-complainant over the disputed land, and therefore, they have committed offence punishable under Sections 193, 196, 197, 198, 199 of the Indian Penal Code and Sections 3(4) & (5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
5. The Sub-Divisional Police Officer, Amgaon investigated the said complaint pursuant to order passed by the learned Magistrate, Amgaon and submitted his report inter-alia stating that on the basis of the report given by the Sub- Divisional Police Officer, Deori, to effect the mutation entry in respect of Amgaon Khurd is wrong and illegal and prima-facie it ::: Uploaded on - 21/12/2020 ::: Downloaded on - 10/02/2021 04:54:25 ::: 4 11.APL. NO. 366-2019 JUDGMENT.odt did not indicate the offence punishable under punishable Section 166 & 167 of the Indian Penal Code committed by the then Talathi Shri Dongre and the Circle Inspector Shri Mankar.
6. The learned Magistrate, Amgaon, had issued process against the accused Nos. 1 to 3 for the offence punishable under Sections 193, 196, 198 & 199 read with Section 34 of the Indian Penal Code, however, refused to issue process against accused Nos. 4 to 9 for want of previous sanction being a public servant. The learned Magistrate dismissed the complaint for the offence punishable under Sections 3(4) & (5) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred as " the said Act ").
7. The Revision was preferred on 10.10.2017, challenging the order passed by the learned Magistrate, Amgaon, before the learned Sessions Judge, Gondia who confirmed the order passed by the learned Magistrate, Amgaon and dismissed the revision and the said order is impugned in the present application.
8. Shri Pande, the learned counsel for the applicant, ::: Uploaded on - 21/12/2020 ::: Downloaded on - 10/02/2021 04:54:25 ::: 5 11.APL. NO. 366-2019 JUDGMENT.odt vehemently argued that the learned Magistrate, Amgaon as well as the learned Additional Sessions Judge, Gondia has failed to consider that the applicant-complainant belongs to Scheduled Caste and the offence punishable under Section 3(1)(g) of the said Act is made out against the present non-applicants. The learned Magistrate has failed to consider that there was no application for sanction as required under the provision of the said Act. The learned Magistrate although directed to register the First Information Report, did not direct to the police to apply for obtaining sanction against the non-applicants, in order to proceed under the provisions of the said Act, as the non- applicant Nos. 4 to 9 were the public servants. It is further submitted that even the Revisional Court has failed to call for the record and proceedings of the case and simply observed that the applicant has not produced the concerned relevant documents, in order to find out whether the reports submitted by the Sub-Divisional Police Officers were making out prima- facie case against the accused persons or not. It is thus contended by the learned counsel that both the orders are illegal and erroneous.
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9. Per contra, Shri Karmarkar, the learned counsel for the non-applicants contended that the present non-applicants were not included as the party respondents before the Sessions Court. Therefore, they were not aware about the proceedings about the Sessions Court. It is further submitted that a bare perusal of the complaint lodged by the applicant, reveals that its contents there on do not in any manner attract the provisions under the said Act.
10. A plain reading of the complaint lodged by the applicant-complainant, indicates that although the caste of the complainant is recorded as "Mahar" which is recognized as "Scheduled Caste" in the State of Maharashtra, however, the caste of the non-applicants is not reflected in the complaint. Similarly, although clause-13 of the complaint indicates that the applicant-complainant is of "Mahar" caste, however it does not reveal that since the applicant-complainant is of "Mahar" caste, the accused persons had taken possession of the disputed land and accused Nos. 1, 2 and 3 are interfering with the possession and accused Nos. 4 to 8 are assisting them by creating false documents.
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11. In that regard, it would be useful to go through the provision under Section 3(1)(g) of the said Act, which is reproduced below:
"3. Punishments for offences of atrocities.-
(1) Whoever, not being a member of
a Scheduled Caste or a Scheduled Tribe,-
(a) ..........;
(b) ..........;
(c) ..........;
(d) ..........;
(e) ..........;
(f) ..........;
(g) wrongfully dispossesses a
member of a Scheduled Caste or a
Scheduled Tribe from his land or premises
or interferes with the enjoyment of his
rights, including forest rights, over any land or premises or water or irrigation facilities or destroys the crops or takes away the produce therefrom."
12. As per the aforesaid provision, it is necessary to mention that the accused persons are not belonging to Scheduled Caste or Scheduled Tribe.
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13. In the instant case, no doubt the caste of the applicant-complainant is mentioned in the complaint, however, the caste of the accused persons is not reflected in the complaint. Thus, the applicant-complainant has failed to point out any prima-facie material on record to point out any offence committed by the accused persons under the said Act.
14. The learned Magistrate has rightly observed that from the evidence available on record, it appears that the applicant-complainant is trying to give a colour of criminal nature to a civil dispute. He has further observed that as per the provisions under Section 244 of the Code of Criminal Procedure, the applicant-complainant has laid evidence, however, no case is made out against the accused persons. The order passed by the learned Magistrate has been confirmed by the learned Additional Sessions Judge, Gondia and he has also rightly observed that since there were no relevant documents placed on record by the applicant-complainant, no prima-facie case against the accused Nos. 4 to 9 is made out. In fact, the applicant-complainant should have placed the relevant documents on record, which would have certainly assisted the ::: Uploaded on - 21/12/2020 ::: Downloaded on - 10/02/2021 04:54:25 ::: 9 11.APL. NO. 366-2019 JUDGMENT.odt learned Sessions Judge in coming to a certain conclusion. However, the applicant-complainant has not even produced the relevant documents on record. It is not the case of the applicant- complainant that those documents were not available to him. Therefore, both the Courts below have rightly come to the conclusion that for want of documents no case is made out against the accused persons and dismissed the complaint filed by the complainant. As discussed above, none of the accused persons were made party in the said revision.
15. In view thereof, for the reasons stated above, as the application filed by the applicant is devoid of merit, it is liable to be dismissed. Hence, the following order is passed.
ORDER The Criminal Application is dismissed.
( MRS. SWAPNA JOSHI, J.) S.D.Bhimte ::: Uploaded on - 21/12/2020 ::: Downloaded on - 10/02/2021 04:54:25 :::