Ravindra Ganesh Umale, Vittal ... vs State Of Maharashtra, Through ...
2007 Latest Caselaw 791 Bom

JUDGMENT

C.L. Pangarkar, J.

1. Rule. Returnable forthwith. Heard Finally with consent of parties.

2. The petitioner seeks to quash the First Information Report No. 302/2006 lodged with Police Station, Tamgaon, Distt.Buldhana.

3. The petitioners are resident of village Tunki in Taluka Sangrampur, Distt.Buldhana. Complainant Bhaskar Nimbholkar is also the resident of village Tunki. He is a Press Reporter and working with 'Dainik Lokmat'. As a Reporter, he has published many news item with regard to the working of Gram-panchayat of Tunki. He alleges that he is a member of minority community and the people from majority community prevent him from doing social work. He alleges that there was murderous attack on him on 6/3/2006. The present applicants conspired together and assaulted the complainant/ respondent through petitioner Ravindra. When the respondent's brother came to his rescue, he was also assaulted with pipe. He suffered serious injuries. He alleges further that the petitioners abused him in the public square saying. You Chambhardya, you will not be allowed to live. On such report being lodged, police registered an offence under Section 3(i)(xi) of the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act and other Sections of Indian Penal Code. It is this F.I.R. that is sought to be quashed.

4. The learned Counsel for the petitioner contended that he seeks to strike down the F.I.R. only to the extent of registration of offence under Section 3 of the Atrocities Act. The respondent's counsel submits that the prayer is omnibus i.e. to quash the F.I.R. itself. The prayer is no doubt omnibus but party can any time restrict its prayer to a particular item. There is no difficulty, therefore, in considering the prayer for quashing part of the F.I.R.

5. Shri Jawade, learned Counsel for the applicant contended that the contents of the F.I.R. would show that they do not disclose ingredients of the offence. He contended that in this F.I.R. there is no reference to caste of either applicants or the respondent No. 2 and that itself is enough to strike down that part of the F.I.R. Before dwelling on the controversy any further, I would quote here the Section 3 of the Act.

3. Punishments for offences of atrocities.-(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, -

(i) forces a member of a Scheduled Caste or a Scheduled Tribe to drink or eat any inedible or obnoxious substance;

(ii) acts with intent to cause injury, insult or annoyance to any member of a Scheduled Caste or a Scheduled Tribe by dumping excreta, waste matter, carcasses or any other obnoxious substance in his premises or neighbourhood;

(iii) forcibly removes clothes from the person of a member of a Scheduled Caste or a Scheduled Tribe or parades him naked or with painted face or body or commits any similar act which is derogatory to human dignity;

(iv) wrongfully occupies or cultivates any land owned by, or allotted to, or notified by any competent authority to be alloted to, a member of Scheduled caste or a Scheduled Tribe or gets the land allotted to him transferred;

(v) 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 over any land, premises or water;

(vi) compels or entices a member of a Scheduled Cate or a Scheduled Tribe to do begar or other similar forms of forced or bounded labour other than any compulsory service for public purposes imposed by Government;

(vii) forces or intimidates a member of a Scheduled Caste or a Scheduled Tribe not to vote or to vote to a particular candidate or to vote in a manner other than that provided by law;

(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;

(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;

(xi) assaults or uses force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty;

(xii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed;

(xiii) corrupts or fouls the water of any spring, reservoir or any other source ordinarily used by members of the Scheduled castes or the Scheduled Tribes so as to render it less fit for the purpose for which it is ordinarily used;

(xiv) denies a member of a Scheduled caste or a Scheduled Tribe any customary right of passage to a place of public resort or obstructs such member so as to prevent him from using or having access to a place of public resort to which other members of public or any section thereof have a right to use or access to;

(xv) forces or causes a member of a Scheduled caste or a Scheduled Tribe to leave his house, village or other place of residence, shall be punishable with imprisonment for a term which shall not be less than six months but which may extent to five years and with fine. The requirement, therefore, is that the complainant must belong to Scheduled Caste or Scheduled Tribe and accused must not belong to either. Now, if the contents of F.I.R. are seen, it is clear that in the F.I.R. the caste of the complainant as Chambhar is mentioned. It is clearly stated in the F.I.R. that the applicants called him Chambhardya. If it is mentioned in F.I.R. that he was called as Chambhardya, it ought to be said that the caste of complainant is mentioned in F.I.R. The caste of the accused persons i.e. the present applicants is certainly not mentioned. What is alleged is that the accused belong to majority community and he belongs to minority community. Saying that the accused belong to Majority community carries no sense. The words majority and minority are used with reference to the religion of the citizens. The words are never used in the context of the caste. Assuming that they could be used in the context of the caste, still that carries no sense. In some villages, districts and Talukas, even the Scheduled Caste's people could be in majority and non-scheduled caste's could in minority. It could be vice versa. Therefore, when the complainant said that the accused belong to majority community, it cannot be taken for granted that they are necessarily non-scheduled caste. It is only on the basis of caste that it can be determined if the person is non-scheduled caste. Thus, it must follow that the caste of accused in this F.I.R. is not disclosed. It is not clear from the contents of F.I.R. if the accused are not member of Scheduled Caste or Scheduled Tribe.

6. On this subject, this Court has rendered decision in the following cases.

(1) Criminal Writ Petition No. 49/2001 at Aurangabad. (Anant Vasantlal Sambre v. State of Maharashtra)

(2) 2005(4) Mah.L.J.588 (Manohar s/o Martandrao Kulkarni and Anr.)

(3) 2006 ALL MR (Cri),787 Madanlal Pardeshi v. State of Maharashtra)

(4) Bai @ Laxmibai w/o Nivratti Poul v. State of Maharashtra 2001 ALL MR (Cri.) 219. The Division Bench in Anant Vasantlal Sambre's case makes following observations

6. The report, which is filed by the petitioner at the police Station, mentions that the petition belongs to Hindu Khatik caste, which is a Scheduled caste. However, in the report, it is now here mentioned that the person against whom the complaint is made viz Shri Kailash Gorantyal, does not belong to Scheduled caste or Scheduled tribe. The opening words of Section 3 of the said Act are like this:

Whoever, not being a member of Scheduled caste or Scheduled Tribe....

7. Shri R.M.S.Khandeparkar, J. in Laxmibai's case observes thus-

8. However, there is considerable substance in the second ground of challenge by the learned Advocate for the applicants i.e. the F.I./R. Nowhere discloses the caste of the complainant. Indeed, the perusal of the F.I.R. discloses that the complainant has nowhere stated anything about his caste to which he belonged to. There is no doubt that the format under Section 154 of Cr.P.C. filled in by the Police authorities does disclose that the complainant is of Mahar caste. It is, however, not known as to from where this information was acquired by the police authorities to record the same in the format under Section 154 of Cr.P.C. The format prescribed under Section 154 by itself does not provide for any need for the complainant to disclose his caste. At the same time, the statement lodged by the complainant also does not disclose the case of the complainant. Once it is apparent on the face of the provisions contained in Section 3 as well as Section 7 of both the Statutes referred to above, that in order to constitute an action on the part of the person to be an offence within the meaning of those sections, the insult or intimidation has to be addressed to a member of the Scheduled Castes. It is nobody's case that the complainant belongs to any Scheduled Tribes. In the absence of any such information, therefore, as rightly submitted by the learned Advocate for the applicants, there was absolutely no material before the police authorities to invoke powers under Chapter XII of the Cr.P.C. and to commence investigation considering the complaint to be a cognizable com;plaint.

9. The Apex Court in Manoj @ Bhau and Ors. v. State of Maharashtra 1687 (S.C.), has observed that F.I.R. is not an encyclopedia of events but at the same time it is held that what is required to be stated therein in basic prosecution case. Unless the F.I.R. discloses the basic requirement of law which can enable the Police authorities to initiate investigation by considering the allegations to be in the nature of cognizable one, the applications are certainly justified in making grievance about initiation of the investigation on the basis of F.I.R. which does not disclose such information which can empower the police to investigate in terms of provisions contained in Chapter XII of Cr.P.C. The F.I.R. in the case in hand, being not disclosing the basic ingredients of Section 3 or 7 of the above Statutes, there was absolutely no case for the police authorities to initiate investigation under Chapter XII of Cr.P.C.

8. In Manohar Kulkarni's case 2005 ALL MR (Cri) 2602, the following observations are made

11. In my view, after the passing of the aforesaid two judgments, holding that there can be no registration of a crime under the Atrocities Act, or investigation as regards the said crime, if the caste of the complainant and/or the accused is not contained in the body of the F.I.R., all investigations and further court proceedings on the basis of such investigations, cannot be maintained in law. Such First Information Reports and Court proceedings on the basis of crimes registered on the basis of such First Information Reports will, therefore, have to be quashed and set aside.

9. In Madanlal's Case (2006 ALL MR (cri),787) following observations are made.

10. The plain reading of the Section makes it clear that the offence alleged is a offence committed as against a member of a Scheduled Castes by the person who do not belong to members of a Scheduled Castes, then the F.I.R. must disclose that the offence committed by the members, who do not belong to a Scheduled Castes and the offence is committed against a member of a Scheduled Caste. In the complaint of the matter in hand, the complainant/informant disclosed her caste and there is no dispute that she is a member of a Scheduled Caste. However, in the complaint, there is no whisper as regards the caste of the offenders including the present applicant saying that the offenders are not the members of a Scheduled castes, unless the specific allegations are set out in the complaint it cannot be presumed that the offenders were not the members of a Scheduled caste.

11. This Court in the case of Manohar s/o Martandrao Kulkarni and Anr. v. State of Maharashtra and Ors. reported in 2005(4) Mh.L.J. : 2005 ALL MR (cri), 2602, took the view that where the caste of the complainant and/or the accused is not contained in the body of the F.I.R., there can be no registration of a crime under the Atrocities Act and all investigations and further court proceedings on the basis of such F.I.R., cannot be maintained in law. Such First Information Reports and Court proceedings on the basis of crimes registered on the basis of such First Information Reports will, therefore, have to be quashed and set aside. The present case is squarely covered by the said decision. In the present case, the F.I.R. does not disclose the offence under Section 3(1)(x) and 3(1)(xi) of the Atrocities Act, therefore, registration of the crime under the said Sections of the Atrocities Act is illegal and, therefore, to that extent, the said F.I.R. needs to be quashed. However, since the F.I.R. discloses the offences under the Sections of IPC, as mentioned in F.I.R., the prosecution is at liberty to investigate the said offences and submit appropriate report to that effect.

12. This Court, therefore, in plethora of cases laid down a proposition that no offence could be registered, investigated under Section 3 of the Atrocities Act if caste of either is not mentioned in body of F.I.R.

13. In spite of so many decisions, the learned Counsel for respondent No. 2 contended that the law as laid down cannot be said to be correct. He contended that once a report is lodged, the police must be allowed to investigate into the crime and the court cannot stifle or gag the investigation. He contended that it is not necessary that minutest details should be given in F.I.R. It is enough if details disclose offence. He contended that the question as to whether the accused belongs to Scheduled caste or non-Scheduled Caste is a thing which can be taken care of during investigation.

14. It is for this reason, he contended that the Police machinery must be allowed to investigate into the crime. He submitted that it is the exclusive domain of the police machinery to determine if the offence is prima facie made out. It is also contended that, therefore, the Criminal Procedure Code has made provisions of two sections i.e. Section 169 and 173. If the police Officer himself finds that there is no reason to proceed, he can seek discharge under Section 169 or file B summary under Section 173 of Cr.P.C. or even a charge-sheet. He contends, therefore, that the court cannot usurp the power vested in the Investigating Officer or it cannot curtail his power. The contention of Shri Kaptan, learned Counsel, is not correct. If the information as given itself does not disclose any offence, the Police Officer cannot proceed to register the crime at all. What is necessary, therefore, is that the information must be such that it should be intelligible. If the information as laid does not disclose the ingredients of offence, the Police Officer has no right to register an offence under that Section. The question of gaging or stifling would arise only when it is shown that all ingredients are disclosed and yet the Police Officer is not allowed to register the crime and proceed to investigate. Even the authorities which are cited on behalf of the petitioner clearly hold that if the caste of both complainant and accused is mentioned, there is no difficulty in registering the offence and proceed to investigate. It is because when caste is disclosed that the offence is made out. It is for this reason, the decisions have been quoting the very opening words of Section 3 of the Prevention of Atrocities Act which say that 'whoever not being a member of a Scheduled Caste or a Scheduled Tribe '. Thus whoever commits the offence must not be a member of the Scheduled Caste and the victim must also be alleged to be belonging to Scheduled Caste or a Scheduled Tribe. If caste of neither of the persons or anyone is not disclosed, prima facie it would not disclose an offence at all. It would however, be different if the police machinery defers registration of the crime under Section 3 till such time it collects the necessary material and then registers the offence. But on the basis of a report which does not contain caste both or either, it certainly cannot.

15. The learned Counsel for the respondent No. 2 had relied on a decision of the Supreme Court reported in 2006(3) Crimes 203 (SC) (State of Karnataka and Anr. v. Pastor P. Raju). It is observed as follows

There is another aspect of the matter which deserves notice. The FIR in the case was lodged on 15.1.2005 and the petition under Section 482 Cr.P.C. was filed within 12 days on 27.1.2005 when the investigation had just commenced. The petition was allowed by the High Court on 23.2.2005 when the investigation was still under progress. No report as contemplated by Section 173 Cr.P.C. had been submitted by the in charge of the police station concerned to the Magistrate empowered to take cognizxance of the offence. Section 482 Cr.P.C. saves inherent powers jof the High Court and such a power can be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This power can be exercised to quash the criminal proceedings pending in any Court but the power cannot be exercised to interfere with the statutory power of the police to conduct investigation in a cognizable offence. This question has been examined in detail in Union of India v. Prakash P. Hinduja and Anr. , where after referring to Kind Emuperor v. Khwaja Nazir Ahmad , H.N. Rishbud & Inder Singh v. The State of Delhi , State of Wesdt Bengal v. S.N. Basak , Abhinandan Jha and Ors. v. Dinesh Mishra State hof Bihar and Anr. v. JAC Saldanha and Ors. , it was observed as under in para 20 of the reports:

20. Thus the legal position is absolutely clear and also settled by judicial authorities that the Court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the First Information Report till the submission of the report by the officer in charge of police Station in court under Section 173(2) Cr.P.C., this field being exclusively reserved for the investigating agency....

16. Power cannot be used to interfere with the statutory power of Police to investigate. In the cases as have been discussed above and cited by the petitioner, the court has held that if an offence itself is not disclosed when castes are not mentioned and when such offence is not disclosed registration of F.I.R. is not legal. Therefore, if F.I.R. does not disclose offence under the Act, the police have no right to register the F.I.R. and consequently to investigate. The investigation could not be stifled when the offence is disclosed and the ingredients of offence are made out in F.I.R. The ratio in Paster P.Raju's case can be applied when ingredients of offences are disclosed in F.I.R. and the F.I.R. is sought to be quashed. The Supreme Court does not say that even when no offence is disclosed in F.I.R. that must be investigated. Here, the ratio of this case cannot be applied to the facts of the present case. The petition, therefore, must be allowed and the F.I.R. to the extent of registration of crime under Section 3 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act must be quashed. Order accordingly.