Bhanudas Alias Bhanupratap S/O ... vs The State Of Maharashtra, ...
2003 Latest Caselaw 519 Bom

JUDGMENT

P.B. Gaikwad, J.

1. Complainant Bhanudas alias Bhanupratap s/o Honaji Gajbhiv, being dissatisfied with the order passed by the Additional Sessions Judge, Ahmednagar dated 5/3/1994 below Exh. 12 in Sessions Case No. 127/1993, filed present petition.

2. The facts, in brief, leading to the present petition are that;

According to the petitioner Original Complainant he is Hindu Mahar and belongs to Schedule Caste. He is carrying on business and running petrol pump at Shevgaon, in Gat No. 1127, Grampanchayat No. 2195 and also carrying on business of selling fertilisers. It is further claimed that the Respondents No. 2 and 3 i.e. Shantaram Sakharam and Kusumbai Shantaram Jondhale filed suit against the petitioner in respect of the property Grampanchayat No. 2195 wherein the petitioner carrying on business. It is further claimed that said suit is dismissed. The appeal filed by the Respondent No. 2 and 3 before the District Judge is also dismissed.

3. It is claimed that the Respondents No. 2 and 3 had been to the office of Sub Registrar for making some changes in the documents in respect of the said property, however, the petitioner submitted written objection before the Sub Registrar. It is claimed that, the Respondents No. 2 and 3 at that time abused petitioner in filthy language and insulted him. It is also claimed that on 10/9/1991 at about 3.00 to 3.30 p.m. when the petitioner was at his petrol pump, Respondents No. 2 and 3 along with some others came there abused petitioner- original complainant on his caste, extended threats. Even on 14/9/1991 the Respondents again abused the petitioner on his caste. He has accordingly made report to the Police station on 14/9/1991 in respect of incident dated 10/9/1991 and 14/9/1991. Accordingly, police registered crime No. 35/1991 for the offence under Section 323, 504, 506 of Indian Penal Code and also for the offence under Section 7(1)(3) of Protection of Civil Rights Act. Police Station Officer investigated above crime, recorded statement of witnesses, prepared spot panchanama. During the course of investigation caste certificate of the petitioner was also collected showing that he belongs to Scheduled caste (Hindu Mahar) and accordingly submitted charge sheet before the Judicial Magistrate (First Class).

4. The Judicial Magistrate (First Class) Shevgaon committed case to the Court of Special Judge as offence under Section 3(1)(x) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act exclusively tribal by the court of Special Judge.

5. It is further alleged that, accused No. 2 and 3 filed application Exhibit 12 before the Additional Sessions Judge/Special Judge under Section 227 of Criminal Procedure Code for discharge, contending that the petitioner original Complainant is not a member of Scheduled Caste or Scheduled Tribe. It is also contended that, he is Christian. In support of said application Exh.12, Respondents No. 2 and 3 original accused filed extract of birth and death register of grand father of Bhanudas and also his father Honaji. It is also claimed that, the brother, sister and other relatives of Bhanudas are Christian and Bhanudas also by birth can be said belonging to only Christian community. It is thus contended that, the provisions of Section 7(1)(3) of Protection of Civil Rights Act or Section 3 of Schedule Caste and Scheduled Tribes ( Prevention of Atrocities) Act, 1989 are not attracted and, therefore, if these provisions and sections are deleted other offences are exclusively tribal by the Court of Judicial Magistrate (First Class) and, therefore a request was made to discharge to the accused for the offence under Section 7(1)(3) of the Protection of Civil Rights Act and 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. The application Exh. 12 is accordingly filed before the Additional and Special Judge on 22/6/1993 by the present Respondents No. 2 and 3.

6. The Additional Sessions Judge/Special Judge after hearing Respondents No. 2 and 3 and the prosecution decided said application and allowed the same and original accused No. 1 to 3 i.e. present Respondents No. 2 to 4 were accordingly discharged for the offence under Section 3(i)(x) of Scheduled Caste and Scheduled Tribes (Prevention of Attrocities)Act, 1989. So far as regards other offences, a direction is given that matter be sent to the Chief Judicial Magistrate, Ahmednagar for trying accused for the allegations in respect of offence punishable under Section 323, 504, 506 of Indian Penal Code. Said order passed by the Additional Sessions Judge, Ahmednagar dated 5/3/1994 is challenged by filing present petition by original Complainant.

7. In the petition I heard Shri K.G. Nawandar Senior Counsel i/b Shri M.N. Nawandar advocate for the petitioner original complainant, Shri Joydeep Chatterji Advocate for the Respondents No. 2 to 4 and Shri K.M. Suryawanshi, A.P.P. for State at length.

8. It is submitted by Shri Nawandar for the complainant that, the order passed by the Additional Sessions Judge discharging the accused under Section 227 of Cr. P.C. is not justified. Firstly, according to him, the material collected during the course of investigation and particularly the caste certificate of present Complainant has been completely ignored by the Additional Sessions Judge. Secondly, according to him, the Additional Sessions Judge, wrongly relied on the documents produced by the accused, though, in fact, these documents are not proved. Thirdly, according to him, no notice is given to the complainant and in the absence of Complainant order passed in respect of his caste holding that he does not belong to Scheduled Caste and Scheduled Tribes. It is contended that, in case if notice of Exh.12 was given to the Complainant it was possible for him to produce certain documents to justify his claim as he belongs to Scheduled Caste. Even, a certificate is also on record in the investigation papers, and in the order no justification is given in discarding said document. Lastly, reliance is placed on one authority. Even on behalf of complainant affidavit is filed along with certain documents showing that he belongs to Scheduled Caste.

9. On the other hand it is submitted by Shri Joydeep Chatterji Advocate for the accused, according to him, present revision is not maintainable. It is contended that State has not challenged that particular order of discharge and the present petitioner original Complainant has no right to challenge said order. Secondly according to him the order passed by the Additional Sessions Judge discharging accused under Section 227 of Cri.P.C. is justified. Firstly, as the additional Sessions Judge has placed reliance on documents filed by the original accused showing that the grand father of the Complainant namely Mohanlal, father of the Complainant namely Honaji were Christian by caste. Even the additional Sessions Judge has also considered the fact that, the brothers and sister of the present Complainant also belong to Christian community and, therefore, the order passed by the Additional Sessions Judge discharging accused for the offence under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is proper and justified.

10. Shri Suryawanshi, A.P.P. for the State contended that, the Additional Sessions Judge ought to have considered the certificate, filed by the complainant and which is in the investigation papers, showing that complainant belongs to Scheduled Caste.

11. Considering the submissions on behalf of the parties to the petition it is necessary to see firstly, about the maintainability of the revision and secondly whether the order passed by the Additional Sessions Judge discharging accused under Section 227 of Criminal Procedure Code is proper and justified.

12. So far as regards maintainability of the petition is concerned, it is contended by Shri Joydeep Chatterji Advocate that it was for the State to challenge the order of discharge, however, State has not filed any revision challenging the said order and the revision filed by the Complainant is not maintainable. Secondly, according to him, the order passed under Section 227 of Criminal Procedure Code discharging the accused can be termed as interlocutory order. In the present case, it is true that the State has not challenged the order of discharge, however, original Complainant being aggrieved by the said order filed present Revision. Shri Joydeep Chatterji has placed reliance on one authority i.e. , wherein it is observed to the following effect;

In a case which has proceeded on a police report a private party has no locus standi. No doubt, the terms of Section 435 are very wide and he can even take up the matter suo motu. The criminal law is not, however, to be used as an instrument of wrecking private vengeance by an aggrieved party against the person who, according to that party, had caused injury to it. Barring a few exceptions, in criminal matters the party who is treated as the aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interest of the community to book.

Relying on ratio laid down in the said authority, it is submitted by Shri Joydeep Chatterji that, in the present case, the petitioner has no authority to challenge the said order.

13. Considering the factual aspects in the present case, the Additional Sessions Judge while discharging the accused has decided that the present petitioner- original complainant does not belong to Scheduled Caste or Scheduled Tribes and that to without hearing him, without giving him any notice and that too ignoring certificate in respect of his caste which is already on record in the investigation papers showing that he belongs to Scheduled Caste and, therefore, I find that, in the present case, considering the nature of the order passed by the Additional Sessions Judge, the Complainant - present Petitioner can be said to be a aggrieved party and the revision is definitely maintainable. So far as regards order of discharge it can be safely said that same is not an interlocutory order and revision against said order is maintainable. Thus, so far as regard first grievance made on behalf of the Respondents - original accused needs to be ignored.

14. Second aspect is whether the order passed by the Additional Sessions Judge discharging the accused under Section 227 of Criminal Procedure Code is proper and justified. In this respect, to my mind, a reference to section 227 of Cr. P.C. is necessary which reads as under ;

Discharge:- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.

On bare reading of Section 227 and considering the scope of this Section it is very apparent that the documents which are necessary to be considered by the Additional Sessions Judge which are filed or collected during the course of investigation and not documents which are filed at the that stage by the accused. It is further necessary to made it clear that the purpose of Section 227 and 228 used to ensure that the accusation made against the accused is not frivolous. So far as regards Section 227 is concerned, if the material collected by the investigating agency creates a very grave or strong and serious suspicion about the complicity of the accused in the crime, then the court has to frame charge otherwise court may discharge the accused persons. It is also necessary to made it clear that the truth, veracity and effect of evidence not to be judged at initial stage and for the purpose of claiming discharge under Section 227 the accused does not get a right to invite the Court to consider any other additional material than the one collected by the police. The stage of deciding the matter under Section 227 of the Cri.P.C. is only for the purpose of deciding prima facie whether Court should proceed with the trial or not and the accused at this stage can not insist upon filing any documents favourable to the defence or that may create some suspicion in the prosecution case while making its submissions. A reference in this respect is necessary to one authority, 1985 Mah. L.J. Sopan Namdev Vs. State of Maharashtra, Page 504 wherein it is observed to the following effect.

In view of the terminology of Section 227 and 228 of the Criminal Procedure Code, the Sessions, Judge has to consider the record of the case and the documents submitted therewith which are forwarded by the Magistrate to the Court of Sessions forming a record of the case. The accused does not get a right under the procedural law to invite the Court to consider any other additional material than the one collected by the police, lodged with the Magistrate and forwarded to the Court of Sessions on which the Prosecution wants to rely for, for the purpose of claiming discharge. The accused therefore, can not seek calling of documents to substantiate case for discharge on the basis of the same. The entitlement of the defence of the accused and the jurisdiction of the Court to call for any such documents for the purpose of a trial is apparent........... However as the documents can not be used till the accused is called upon to enter on his defence under Section 233 of the Code of Criminal Procedure in the Sessions court at which point of time he is entitled to lead defence evidence, there is no propriety of granting the said request under Section 91..........

Thus considering the scope of Section 227 and considering the factual aspects in the present case I find that the Additional Sessions Judge has wrongly considered the scope of Section 227 and by passing cryptic order discharged the accused ignoring the certificate, as regards caste of the present petitioner as he belongs to Schedule Caste, issued by the Taluka Magistrate which is along with report under Section 173 of Cr.P.C., and relying on the documents filed by the accused in support of application Exhibit 12.

15. So far as regards other aspects it is apparent from the record that the petitioner, during the course of investigation, has filed certificate issued by the Taluka Executive Magistrate that he belongs to Scheduled Caste. Even otherwise other material on record from which it can be gathered safely or at least prima face that he belongs to Scheduled caste and, therefore, the order of discharge passed by the Additional Sessions Judge is definitely not justified. Even I further find that, the Additional Sessions Judge ought to have framed charge considering the material on record as there is prima facie case to proceed against the Respondents original accused for the offence under Section 3(1)(x) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act.

16. Thus, in the result order of discharge is set aside. The Additional Sessions Judge is directed to proceed with the matter. Parties are directed to appeared before the Additional Sessions Judge/Special Judge on 9/6/2003. Record and proceedings be sent back to the lower court immediately.