Dr. Milind Vivekanand Nagarkar vs Leena Vivek Masal And Ors.

CNR No : HCBM010374882023

301-ALP-2172-2023 C2.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

APPLICATION FOR LEAVE TO APPEAL (PVT) NO. 2172 OF 2023
NAVNATH
SITARAM
WAGHMARE
Dr. Milind Vivekanand Nagarkar
Aged 48 years, Occ.: Doctor
Indian Inhabitant, residing at
C/202, Yashopuram Vasant
CHSL, Opp. V.K. High School,
Ghaate Aali, Panvel- 410 206.
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...Applicant
Versus
1. Leena Vivek Masal,
Age 51 years, residing at Room No. 7,
Plot No. 6, JNPT Employee's Society,
Dronagiri, Opp. JNPT Township, Sheva,
Navi Mumbai -400 707.
Digitally signed by
NAVNATH
SITARAM
WAGHMARE
Date: 2026.10.17
14:02:30 +0530
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2. Manisha Uday Sonar,
Age 48 years, residing at B54/1, Sector 3
JNPT Township, 400 707.
)
)
)
)
)
)
) ...Respondents
3. The State of Maharashtra,
through Public Prosecutor,
High Court, Bombay.

Mr. Rushikesh Nabar i/b Dr. Uday P. Warunjikar for the Applicant.
Mr. Amit Icham for Respondent No.1.
None for Respondent No.2.
Mr. D. J. Haldankar, APP for the Respondent/State.

CORAM : M.M. SATHAYE, J.
th
DATE : 16 OCTOBER, 2026
JUDGMENT :
1. Heard learned counsel for the Parties. Perused the record.
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2. By this application under Section 378 (4) of the Code of
Criminal Procedure, 1973 ('CrPC' for short) Applicant-Orig.
Complainant is seeking leave to file appeal against judgment and order
dated 10.11.2022 passed by Additional Sessions Judge, Panvel- Raigad,
in Special (Atrocity) Case No. 14 of 2019 (Old No. 6 of 2013). By the
said impugned order, Respondents-Accused Nos. 1 and 2 are acquitted
of offences punishable under Sections 3(1)(viii), 3(1)(ix) and 3(2)(ii)
of the Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (hereinafter referred to as 'the said Act' for short).
BACKGROUND
3. The case of the Applicant-Orig. Complainant in short is as
follows. That he is a medical practitioner by profession having brilliant
academic carrier. That he belongs to Hindu Chambhar community. That
Respondent-Accused No.1 is running a beauty parlour in JNPT township
and her husband is employee of JNPT. That Respondent -Accused No.2
is housewife. That on 30.06.2005, when the Applicant was on duty in
the JNPT Hospital along with 3 staff-nurses and 2 attendants, at about
10:25 p.m. Respondent -Accused No. 1 and one JNPT Employee came
for treatment of body ache, fever etc. That the Applicant examined
Respondent-Accused No.1 in sitting position in front of 3 staff nurses
and prescribed necessary medicine. That staff nurse gave injection and
tablet. That on 01.07.2005 at about 11:00 a.m., Applicant was called at
Nhava Sheva Police Station. That when he came to the police station,
police officers abused him, the Applicant was humiliated at the police
station and he was booked for offence punishable under Section 354 of
the Indian Penal Code, 1860, ('IPC' for short). That Accused No. 1 had
lodged false complaint of molestation and gave false evidence thereby
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causing defamation of the Applicant. That Accused No.2 had given false
evidence. That police officers abated a false crime and JNPT officials
acted on such false crime. That JNPT officials were also present there,
who also abused the Applicant referring to his caste. That President of
JNPT and labour trustee designed a plot to remove the Applicant. That
Accused Nos. 6 and 4, gave publicity to the arrest of the Applicant in
print media. That Applicant was charged and tried in R.C.C. No. 114 of
2005 for outraging modesty of the women. That Trial was conducted
against the Applicant and Learned Judicial Magistrate, First Class, Uran
by its judgment and order dated 30.06.2006 has acquitted the
Applicant. That due to false report lodged by Respondent-Accused No.1
and due to the Trial against Applicant (in which he is acquitted)
Applicant suffered humiliation, insult and harassment.
4. Hence, after acquittal, present complaint was filed against as
many as 14 accused, out of which accused Nos. 3, 5, and 9 are police
officers and Accused Nos. 4, 6, 7, 8 and 9 are office bearers of JNPT.
However, the complaint was dismissed against accused Nos. 3, 4 and 6
to 14 and Accused No.5 was discharged. Charges were framed.
Remaining Accused Nos. 1 & 2 - Respondents denied the charges and
claimed to be tried. The Applicant examined himself by entering into
witness box.
5. The Additional Sessions Judge who heard and tried the case
was pleased to acquit Respondents by the impugned order. In these
circumstances, the Applicant- Orig. Complainant is before this Court
seeking leave to file appeal against acquittal.
6. The advocate for Applicant is appointed through legal aid as
per order dated 25.11.2024.
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SUBMISSIONS
7. Learned counsel for the Applicant-Complainant submitted as
under. That the learned Sessions Judge proceeded on the footing that
the prosecution was obliged to prove that JNPT authorities designed a
plot and that Respondent Nos. 1 and 2 acted in furtherance of a
conspiracy with JNPT officials for removal of the Applicant. That this
was never the charge. That charge was confined to Sections 3(1)(viii),
3(1)(ix) and 3(2)(ii) of the said Act and no charge of criminal
conspiracy under Section 120B of IPC and no allegation of designed
plot with JNPT officials was framed. That the learned Sessions Judge
has considered extraneous requirement not provided under law. That
the learned Sessions Judge has traveled beyond the charge. That
Sections 3(1)(viii), 3(1)(ix) of the said Act do not require proof of
intention or motive unlike Sections 3(1)(ii) and 3(1)(x) of the said Act.
That deliberate use of intent in some sub-clauses and its conspicuous
absence in other sub clauses ought to have been considered. That the
learned Sessions Judge insisted proof of a conspiratorial design is
illegal. That order dated 30.06.2006 of acquittal of the Applicant shows
that the complaint of Respondent No.1 was false and the circumstances
indicated concoction prior to lodging of the complaint. That the order of
acquittal is not appealed by the State or by Respondent Nos. 1 and 2,
which has attained finality. That unchallenged findings in the order of
acquittal ought to have been treated as compelling, if not conclusive
evidence of falsity of complaint filed by Respondent Nos. 1 and 2. That
caste certificate and caste validity certificate are exhibited documents
establishing that Applicant belongs to the Scheduled Caste. That it is for
the Respondent-Accused to demonstrate that they do not belong to
higher caste than that of the Applicant-Complainant which burden is
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not discharged. That the observations of the learned Sessions Judge that
there is no ‘whisper’ in the complaint about the Respondent No.1 and 2
not being members of Scheduled Caste and Scheduled Tribe inverts the
burden of proof. That Applicant’s motive for filing private complaint is
irrelevant for the ingredients of the offence alleged. That it was not
proved that he filed a private complaint solely to seek reinstatement.
That the Applicant suffered loss of employment, denial of reinstatement
even after honourable acquittal and also suffered financial and
emotional hardship due to conduct of Respondent Nos. 1 and 2. He
relied on the judgment of Shivkumar @ Baleshwar Yadav Vs. The State
of Chhattisgarh in Criminal Appeal No.4502 of 2025 (SLP) (Criminal)
No. 14625 of 2024 judgment dated 14.10.2025 in support of his
submission about presumption under Section 8(c) of the said Act.
According to learned counsel for the Applicant, the Respondent -
Accused was having personal knowledge of the Applicant or his family
and therefore Court ought to have presumed that the Respondent -
Accused were aware of the caste of the Applicant.
8. Per contra , learned counsel for the Respondent No. 1
submitted that the presumption under Section 8(c) of the said Act
cannot apply in the facts of the case because the said section has been
introduced in the said Act much after filing of complaint. That the
Respondents are already acquitted on appreciation of evidence and
there is reinforced presumption of innocence. That unless perversity is
shown in the impugned order, leave should not be granted. That the
Applicant has only examined himself, who is obviously an interested
witness and therefore his evidence has been rightly found as not
sufficient proof beyond reasonable doubt. He submitted that since
Section 8(c) was not on the statute book on the date of complaint, the
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argument about the Respondent-Accused having personal knowledge of
the Applicant or his family does not arise. In any case, it is submitted
that there is nothing on record to indicate that Respondent Nos. 1 and 2
had any personal knowledge of the Applicant or his family. He invited
the Court's attention to various admissions given by the Applicant-
Complainant in cross-examination. That the acquittal of the Applicant-
Complainant from the offence punishable under Section 354 of the IPC,
in itself, will not make the allegations leveled by Respondent Nos. 1 and
2 as false and therefore even the ingredients of Sections 3(1)(viii), 3(1)
(ix) and 3(2)(ii) of the said Act are not made out.
REASONS AND CONCLUSION
9. I have considered the rival submissions and perused the
record.
10. At the outset, it is material to note that Applicant has
examined himself and there are other independent witnesses. The
Applicant-Complainant has admitted that his caste is nowhere displayed
at JNPT Hospital where he was working as a Doctor. He has admitted
that when Respondent Nos. 1 and 2 had came for treatment there was
no interaction referring to the caste of Applicant. He has also admitted
that in the report that was lodged by Respondent No.1 and even in the
trial (in respect of offence under Section 354 of IPC) there was no
mention about Applicant belonging to a particular caste. He has also
admitted that another lady i.e. Smt. Sangita Dharmendra Patil had
made complaint to JNPT against the Applicant of outraging her modesty
and as a result he was suspended from 27.05.2004 to 08.02.2005. He
has also admitted that when the medical officer examines a lady
patient, one male person or her husband is asked to stand nearby,
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however, when he examined Respondent-Accused No.1, though a male
member by name Mr. Patil was present, he did not ask Mr. Patil to stand
nearby. It appears that after resuming duties post suspension, after 4
months, the incident about outraging modesty had occurred.
11. At this stage, it would be apposite to reproduce sections 3(1)
(viii), 3(1)(ix) and 3(2)(ii) of the said Act, under which the offence is
alleged.
"3.(1) Whoever, not being a member of a Scheduled Caste
or a Scheduled Tribe,-
xxxx
(viii) institutes false, malicious or vexatious suit or criminal
or other legal proceedings against a member of a
Scheduled Caste or a Scheduled Tribe;
(ix) gives any false or frivolous information to any public
servant and thereby causes such public servant to use his
lawful power to the injury or annoyance of a member of a
Scheduled Caste or a Scheduled Tribe;
xxxx
3.(2) Whoever, not being a member of a Scheduled Caste or
a Scheduled Tribe,-
xxxx
(ii) gives or fabricates false evidence intending thereby to
cause, or knowing it to be likely that he will thereby cause,
any member of a Scheduled Caste or a Scheduled Tribe to
be convicted of an offence which is not capital but
punishable with imprisonment for a term of seven years or
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upwards, shall be punishable with imprisonment for a term
which shall not be less than six months but which may
extent to seven years or upwards and with fine;
xxxx"
12. It is therefore clear that for offence under above sections to be
proved, there has to be evidence beyond reasonable doubt that false
malicious or vexatious suit or criminal or other legal proceedings are
instituted against member of a Scheduled Caste or that any false or
frivolous information is given to public servant thereby causing such
public servant use his lawful power to the injury or annoyance of a
member of a Scheduled Caste.
13. Similarly evidence is necessary to prove beyond reasonable
doubt that the Respondents-Accused have given fabricated false
evidence intending thereby to cause the Applicant to be convicted of an
offence with imprisonment for a term of 7 years or upwards.
14. The Legal proceedings involved in the present case which
were started against the Applicant-Complainant was criminal
prosecution under Section 354 of IPC, he was punishable for a term
which shall not be less than 1 year but may extend upto 5 years i.e. not
7 years or upwards. In that view of the matter, Section 3(2)(ii) cannot
be attracted.
15. Next, it is necessary to consider the judgment and order of
acquittal of the Applicant dated 30.06.2006. Perusal of the said
judgment indicates that according to Respondent No. 1 (who was
complainant therein) the Applicant, as a medical practitioner,
intentionally pressed her breasts and repeated the act of pressing her
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breasts even after she exhibited her resistance. It was argued before the
learned Judge in that case that woman is the best Judge to analyse the
sense of touch by a male. It came on record in the said judgment that
the Applicant examined Respondent No. 1 at nurses counter by making
her sit on the stool in front of her lady friend. Learned Judge in that
judgment has held that there was an isolated cabin just next to the spot
of incident and if the Applicant had any bad intention then he could
easily facilitated himself for doing the crime by asking Respondent No.1
to examine her in closed cabin but he chose to examine her in nurses
counter. This has been held as an act of ‘gentlemanship’ by the learned
Judge in that judgment. The learned Judge found that the offence of
molestation is not sufficiently proved and therefore the Applicant was
acquitted.
16. Even if that be so, the said acquittal per se will not mean that
allegation of Respondent No.1 is false malicious or vexatious or
amounts to giving false or frivolous information to JNPT officials or
amount to fabricating false evidence intending to cause the Applicant to
be convicted of an offence. It is beyond doubt that a woman is the best
judge to evaluate nature of a male’s touch. The certificate of
‘gentlemanship’ given by the learned Judge in the earlier proceedings
will not automatically make the allegations of Respondent Nos. 1 and 2
false.
17. In that view of the matter, the conclusion drawn by the
learned Sessions Judge in the present case, acquitting Respondent Nos.
1 and 2 cannot be said to be perverse and the view taken by the learned
Sessions Judge is the most probable view, even if the learned Sessions
Judge has considered the aspect of conspiracy with JNPT officials in
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detail. The learned Sessions Judge has considered the aspect of JNPT
officials designing a plot and conspiring to remove the Applicant and
has held that those allegations are not proved, because it was alleged in
complaint. Overall, it cannot be said that other aspects about
ingredients of the alleged offence are not considered at all.
18. So far as the argument of learned counsel for the Applicant
that the burden of proving caste of Respondent Nos. 1 and 2 (accused)
is on accused and reliance on the judgment of Ashabai Machindra
Adhagale Vs. State of Maharashtra and Ors. (2009) 3 SCC 789 is
concerned, the said argument is misconceived, in as much as, in the
said judgment, the accused had filed proceedings for quashing of FIR
under the said Act contending that caste of accused is not mentioned in
the FIR. Since the accused had filed proceedings for quashing, the
burden was held to be discharged by the accused. In the present case at
hand, the Complainant is challenging acquittal and it is the
Complainant who wants the Court to hold that offence is proved. In that
context, no fault can be found with the view adopted by the learned
Trial Judge that there is no whisper in the complaint about caste of the
accused. Therefore, the said argument does not have any merit.
19. Lastly, so far as the aspect of Respondent Nos. 1 & 2 having
personal knowledge of Applicant or his family is concerned, first and
foremost, it is material to note that Applicant has filed present
complaint on 24.07.2013 and section 8(c) of the said Act has came into
force on 26.01.2016. Therefore presumption under section 8(c) can not
be applied to Respondents. Even assuming that such presumption is to
be considered, it can not be held as proved in the teeth of following
admissions given by the Applicant in cross-examination :
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i) That there was no enmity between Applicant and
Respondent No.1.
ii) That there was no occasion for the Applicant to visit the
house of Respondent Nos. 1 and 2 and whenever Respondent
Nos. 1 and 2 came to him as patient, there was no occasion to
discuss his caste.
iii)That in the complaint filed by Respondent-Accused No. 1
against the Applicant and in the trial against him (for offence
Section 354 of IPC), there was no issue of Applicant belonging
to a particular caste.
iv) That he received advice from his advocate and he also
realised himself that if action is to be taken against JNPT
authorities then the same is to be taken in the present private
complaint by making Respondent No. 1 and 2 as accused party
and for this reason Respondent No. 1 and 2 were included as
accused.
v) That he has not challenged dismissal of the complaint
against other accused including JNPT officials and he could
not independently take action against JNPT officials.
vi) That he has sympathy towards Respondent Nos. 1 and 2.
20. In the teeth of aforesaid admissions, it cannot be said that it is
proved that Respondent Nos.1 and 2 were having personal knowledge
of the Applicant or his family. Therefore, there is no question of
presumption against the Respondent Nos. 1 and 2. Nothing is shown to
the Court to prove contrary.
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21. In the peculiar facts and circumstances narrated above the
judgment of Shivkumar @ Baleshwar Yadav (Supra) relied upon by the
Applicant [about presumption under section 8(c)] will not advance his
case.
22. For reasons indicated above, the impugned order does not
require any scrutiny in appeal. No case for the grant of special leave to
appeal is made out.
23. Accordingly, Leave Application is rejected.
(M.M. SATHAYE, J.)
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