Dr. Sushil Indoria And Ors. vs State Of Maharashtra
2001 Latest Caselaw 819 Bom

JUDGMENT

J.G. Chitre, J.

1. These two applications have been decided by a common order because both the matters are revolving around a similar set of facts and circumstances. One Manjula Gaikwad happened to be serving with Petitioner Nos. 1, 2 and 3 in their hospital as "Aya". Applicant No. 4 happens to be working in the same hospital as a Medical Consultant Doctor. Complainant Manjula Gaikwad alleged that on 14.7.2001 at about 2.00 p.m.. Applicant No. 4 Dr. Iyer called her to the hospital and at that time Dr. Sushil Indoria told Manjula Gaikwad that there was a theft in the hospital and when Manjula Gaikwad asked him about the nature of the theft and the amount stolen, he as per the allegation of the prosecutrix Manjula Gaikwad, told that it was the amount which Manjula Gaikwad could not have seen in her life time. Next important factor which is to be considered while deciding these two applications is that thereafter in the night time applicant No. 4 Dr. Iyer visited the house of Manjula Gaikwad with two more persons and they searched her house by dislodging the furniture and articles kept in it. Manjula Gaikwad made it clear that they wanted to search her house for the purpose of finding any incriminating articles in the house. After that Manjula Gaikwad was given some empty card board boxes along with other staff members of the said hospital telling each of them including Manjula Gaikwad that those card board boxes were charged with mantras and spiritual power. The applicants conjointly told Manjula Gaikwad and others that the person or persons involved in the said theft should keep the amounts stolen in the said box or boxes and return those boxes to the applicants. None put in the cash in those boxes and the said attempt went in vain. Thereafter as per allegations of Manjula Gaikwad, applicant No. 4 Dr. Iyer told Manjula Gaikwad, Sister Meeta, Yogita to go to the place of said priest "Mantrik". Manjula Gaikwad did not go to the said priest. Thereafter on 19.7.2001 the applicants called Manjula Gaikwad to the chamber of applicant No. 1 where two police officers were present in plain dress. She was asked to go to police station where she was interrogated.

2. Thereafter some rice seeds were given to Manjula Gaikwad and other staff members telling them that those rice seeds were charged with spiritual power and the person involved in the said alleged theft would start vomitting blood after accepting said rice seeds. That also went in vain. Ten minutes thereafter all the staff members including Manjula Gaikwad were given coconut to hold telling each of them that those coconuts were charged with spiritual power and the family members of the culprit would die. They were directed to shout loudly "In the event of myself taking away the said money, my family members would die." This was the sentence which Manjula Gaikwad was directed to shout loudly. As alleged by Manjula Gaikwad, all the applicants thereafter started abusing Manjula Gaikwad that she was the thief and other staff members went to the cabin of applicant No. 1 and asked Manjula Gaikwad to confess by saying that she was the thief stealing the said amount. She alleged that in presence of all the staff members applicant No. 4 Dr. Iyer caught her hair and pushed her head on the wall and all the applicants at that time were telling that "she was belonging to low caste like mahar, she had committed the said theft, her name was uttered by four mantrikas." She further alleged that thereafter between 2.00 to 4.00 p.m. she was detained there as if confined wrongfully and during that period she was mentally and physically tortured.

3. These are the allegations which have been made by Manjula Gaikwad who has stated that she is the member of scheduled caste. In context with the complaint which has been lodged by her in the police station in context with the said allegations, the applicants are apprehending that they would be arrested. The applicants have prayed for directions in the nature of anticipatory bail in their favour by one application and by another application they made a prayer that the said complaint, investigation and prosecution be quashed as it is incorrect, improper and illegal.

4. Mr. Mundargi, counsel appearing for the applicants, submitted that whether the prosecution happens to be false, malicious or vexacious could be determined only after filing or non-filing of the charge-sheet. He submitted that if the Investigating Officer comes to a conclusion that the complaint which was made by the applicant No. 1 was false, malicious or vexacious, then only the applicants would be answerable to the charge alleged against them in view of provisions of Section 3(viii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Act for convenience). Mr. Mundargi further submitted that considering the allegations as they are, what at the most the applicants have done is nothing but exercising their right of making a complaint against the Aya named Manjula Gaikwad. They have exercised their legal right and, therefore, the act alleged against them cannot come within the purview of Section 3(viii) or (x) of the Act, Mr. Mundargi submitted that the allegations mad by Manjula Gaikwad do not indicate any way that she was insulted or humiliated.

5. Mr. Mundargi submitted that though provisions of Section 18 of the Act prohibits the grant of anticipatory bail in favour of the accused who have been charged for committing the said offences, the said section has not taken out the authority, jurisdiction and power of the Court to scan out the material brought forth by the complainant for the purpose of coming to a conclusion whether any case has been made out by the complainant attracting the provisions of the Act. He submitted that if the Court comes to the conclusion that no such case has been made out prima facie, the Court can exercise the power vested in it in view of provisions of Section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Code for convenience). He submitted that the provisions of Section 438 of the Code are to be read together with the provisions of Sections 437 and 439 of the Code. These provisions are to be read conjointly and the Court has to exercise the jurisdiction and power while dealing with prayer made by an accused for getting the direction in the nature of anticipatory bail in his favour. He submitted that in view of that, this Court be pleased to issue such directions in favour of the applicants.

6. Mr. Mundargi further submitted that the said investigation-prosecution is totally false and vexacious and is infringing the fundamental right of the applicants. Therefore, such investigation and prosecution be quashed.

7. Mr. Gadkari for prosecution opposed the prayer for direction in the nature of anticipatory bail and for quashing of the said investigation and prosecution. He submitted that the complaint of Manjula Gaikwad is selfeloquent and it is spelling out the offences indicated under Sections 3(viii), 3(ix) and 3(x) of the Act. He submitted that in view of that, the Court be pleased to dismiss the application for anticipatory bail as well as the application for quashing said investigation and prosecution.

8. It is true that the provisions of Section 438 of the Code are to be read in context of provisions of Sections 437 and 439 of the Code. They cannot be read independently. While dealing with the application filed by an accused for invoking the jurisdiction and power of the Court in view of provisions of Section 438 of the Code, the Court will have to consider the provisions of Sections 437 or 439 of the Code, as the case requires and the situation demands. The said provisions cannot be read isolately because the main purpose of enacting that provision is to render protection to the persons against whom a complaint has been lodged or against whom a complaint is likely to be lodged and such person is reasonably apprehending that he would be arrested in context with that. It is true that for the purpose of avoiding humiliation, mental or physical torture of such persons, the said provision has been enacted. Nevertheless, its nexus with provisions of Section 437 or provisions of Section 439 of the Code cannot be forgotten. If an application which is invoking the jurisdiction and power of the Court in view of provisions of Section 438 of the Code for granting such directions in the nature of anticipatory bail is to be decided, the Court has to consider whether the criteria which has been indicated by provisions of Section 438 of the Code exists. The Court will have to acquaint itself with the material which has been collected by the investigating agency and will have to come to a conclusion whether the accused has been charged for a category of offence which is punishable with death or imprisonment for life and in that context the Court will have to see whether there are reasonable grounds to believe that such person has committed such an offence. On the other side, if the Court thinks that the case is appropriate in which the Court should exercise its jurisdiction and power in view of provisions of Section 438 of the Code, the Court will have to consider that provision of the Code also for the purpose of finding out whether that case is a fit case in which provisions of Section 439 of the Code are to be applied and the Court should use a wider jurisdiction and wider powers conferred on it or not.

9. So far present case is concerned, the Court will have to consider the provisions of Section 18 of the Act and the Court will have to inform itself whether a prima facie case has been made out showing that the person who is seeking the relief from the Court has committed an offence which is indicated by provisions of the Act more particularly provisions of Section 3. An appropriate consideration has to be given to the material which has been brought to the notice of the Court through a private complaint or through investigation done by police machinery. Simultaneously such a complainant belonging to scheduled tribe or scheduled caste may file a complaint in police station also. In some cases such member may file a complaint in police station and if he feels that his grievance is not likely to be redressed by the help of police machinery, he is entitled to file a private complaint also. There is no legal bar to such a right of putting his grievance before the machinery duly established by a legal process. In some cases, if such member finds that after making a complaint in police station, police machinery is treating his complaint as non-cognizable complaint, such member may prefer the option of filing a private complaint in the Court of competent criminal jurisdiction. There is no legal bar to that.

10. In the present case, Manjula Gaikwad did file a complaint in the police station but her complaint was treated as non-cognizable complaint. It means that police indicated that the police machinery would not do the investigation on its own accord but would wait for the order of the Court of competent criminal jurisdiction permitting it to do further investigation or allowing it to do necessary investigation in the matter of the said complaint. She has filed a complaint in the Court of Judicial Magistrate, First Class and, therefore, the applicants are reasonably apprehending that they would be arrested.

11. In this context, what this Court will have to see would be, not the recitals in the complaint which have been treated as non-cognizable by the concerned police station. The Court will have to look to her complaint which has been filed in the Court of J.M.F.C. privately. Simply because the text of the said complaint which has been treated as non-cognizable, is nothing but reducing in writing of the complaint of complainant by the concerned Police Officer, so recorded the version, which has been narrated by the complainant Manjula Gaikwad, may not be depicting the real version of the narration given by Manjula Gaikwad in respect of the things which she suffered. That is the writing of the concerned Police Officer who thought it fit to reduce her grievance in writing according to his understanding, according to his thinking and according to his mental and physical capacity to understand the grievance of Manjula Gaikwad. In this context, the spirit behind introducing the said Act has to be considered in proper perspective. The Court cannot permit itself to be swayed by non-relevant things on such important aspect of the matter.

12. Therefore, prima facie the allegations made by Manjula Gaikwad against the applicants in her complaint filed in the Court of Judicial Magistrate, First Class will have to be considered while considering the prayer made by the applicants for granting the directions in the nature of anticipatory bail or prayer for quashing the complaint, investigation or the prosecution resulting out of that. In this context, following factors will have to be considered.

(i) Dr. Iyer visited the residential place of Manjula Gaikwad with some persons and tried to take search of her house and during the said process dislodged the furniture and articles kept in her house.

(ii) Manjula Gaikwad was required to hold card board empty boxes when she was told along with other staff members, that those card board empty boxes were charged with spiritual power and that was meant for detecting the thief who had committed the alleged theft in the said hospital.

(iii) Handing over seeds of rice to Manjula Gaikwad and other staff members telling each of them that those seeds of rice were charged with divine power and the thief would start vomitting blood.

(iv) Prosecutrix Manjula Gaikwad and other staff members were asked to hold a coconut by telling each of them that the said coconuts were charged with divine power and the family member of the thief would die.

(v) At this juncture it is important to note that Manjula Gaikwad was told something more than the other staff members in this context.

(vi) Manjula Gaikwad was also asked to come to the house of the said priest (mantrik).

(vii) Manjula Gaikwad was called in the cabin of applicant No. 1 and she was accused that she was a thief.

(viii) Manjula Gaikwad was detained in the said hospital from 2.00 p.m. to 4.00 p.m. and she was forced to physical as well as mental torture.

13. At this juncture, the submission advanced by Mr. Mundargi will have to be adverted to. Mr.Mundargi submitted that Manjula Gaikwad was told what other staff members were told and, therefore, no special treatment humiliating Manjula Gaikwad was given. Whatever may be the feeling of other staff members, this Court is not concerned with that so far as dealing with these two applications is concerned and at this present stage it will have to be seen what Manjula Gaikwad felt about the said treatment given to her. The humiliation and insult caused, experienced by Manjula Gaikwad will have to be considered prima facie. Provisions of the Act are enacted for the purposes of giving protection to the members of the scheduled castes and scheduled tribes. Keeping in view the atrocities which they suffered in the years of the past, the Legislature decided to grant special protection to them for the purpose of protecting their fundamental rights as envisaged by the Constitution of India because still they are weaker section of society. Therefore, what Manjula Gaikwad could have reasonably felt would be an important criteria for consideration of these two applications, prima facie.

14. The Court is entitled to consider the material for the purpose of coming to the conclusion whether an offence or act which has been indicated by the relevant provisions of the Act has been committed or not. The Court is definitely entitled to review the material for the purpose of coming to a conclusion as to the exact nature of the offence which has been spelt out by the allegations made by the complainant. It is empowered to do such scrutiny but that has to be within the four corners permitted by the legal provisions in existence and while doing so, a reasonable approach has to be adopted which would not go astray from the legal pronouncements, precedents and enacted provisions.

15. When a Court is called upon for quashing the investigation, prosecution, the Court has to consider the very allegations made in the complaint as they are for considering whether a prima facie case has been made out against the accused which would result in conviction if not rebutted. That is the accepted criteria which is to be applied. Thus in view of discussion, this Court comes to a conclusion that a prima facie case for framing the charge has been made out. Therefore, Court has to restrain its hands from exercising the revisional jurisdiction and consequential power for quashing such investigation and prosecution. In fit cases only such jurisdiction and power has to be exercised in revisional jurisdiction.

16. Mr. Mundargi made a prayer for invoking the inherent powers of this Court in view of the provisions of the Code. But the inherent powers are to be exercised only when the Court comes to the conclusion that by permitting the investigation or prosecution of proceedings in existence, there would be violation of fundamental rights and miscarriage of justice. For maintaining the flow of administration of justice without obstruction and for keeping the fair play of administration of justice continuously flowing unobstacled, non-impeded, non-subverted, the Court should exercise the inherent powers, otherwise not. The inherent powers in view of provisions of the Code are not to be used for the purposes of denying the protection given to a particular section of the society by valid provisions of law enacted by the Legislature. Those powers are not to be exercised against the interest of justice. There has to been legal base and basis for exercising such powers. In this case, while deciding these two applications, this Court comes to the conclusion that this is not a fit case in which this Court should exercise its jurisdiction for granting the direction in the nature of anticipatory bail keeping in view the material which is on record prima facie and the ban which has been indicated by provisions of Section 18 of the Act. So also this Court comes to the conclusion that this is not a fit case in which the Court should quash the investigation and prosecution which is pending in the Court of J.M.F.C. Thus, these two applications stand dismissed.

17. At this juncture, Mr. Mundargi submitted that this Court has made an observation while deciding the application for direction in the nature of anticipatory bail and while deciding the prayer made by the applicants for quashing the prosecution pending in the Court of J.M.F.C. Therefore, this Court be pleased to make it clear that these observations will not come in the way of the applicants if they file an application for getting bail in view of provisions of Sections 437 and 439 of the Code. It is made clear that these observations would not in any way prejudice any side at the time of deciding the bail application by further legal proceedings.

18. Parties to act on an ordinary copy of this order duly authenticated by the Private Secretary.