Bombay High Court
Dr Subhash Kashinath Mahajan vs The State Of Maharashtra And Anr on 5 May, 2017
Bench: S.C. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 673 OF 2016
Dr. Satish Balkrishna Bhise
Age :- 63 yrs. Occ. Retired Principal,
Residing at A/202, Navkar Residency,
Behind Bibavewadi Police Station,
Bibavewadi, Pune - 411 037 ... Applicant
Vs.
1. State of Maharashtra
Through Sr. Inspector,
Karad Police Station,
Karad, Dist. Satara
2. Bhaskar Karbhari Gaikwad
Age:- about 50 yrs.
Residing at B/6 ABC,
Employees Sahakari Housing
Society No.2, Pavana Nagar,
Chinchwad, Pune - 33. ... Respondents
WITH
CRIMINAL APPLICATION NO. 1015 OF 2016
Dr. Subhash Kashinath Mahajan,
Age: Adult, Occ: Director of
Technical Education, Mumbai,
R/at: 403, Asavari,
Near Marine Drive Police Station,
Vachchha Gandhi Road,
Mumbai - 400 020. ... Applicant
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Vs.
1. The State of Maharashtra
(At the instance of City Police Station,
Karad, District Satara).
2. Bhaskar Karbhari Gaikwad,
Age: about 50 years,
Residing at B/6, ABC, Employees
Sahakari Housing Society No.2,
Pavana Nagar, Chinchwad,
Pune - 33. ... Respondents
......
Mr. Sachindra B. Shetye for the Applicant in APL No. 673 of 2016.
Mr. A. A. Kumbhakoni, Senior Advocate a/w Mr. V. V. Purwant for
the Applicant in APL No. 1015 of 2016.
Dr. F. R. Shaikh, APP for Respondent No.1-State in both
Applications.
Mr. Anil V. Anturkar, Senior Advocate a/w Mr. Balasaheb R.
Deshmukh and Mr. Nilesh Y. Ukey for Respondent No.2 in both
Applications.
......
CORAM : S. C. DHARMADHIKARI &
PRAKASH D. NAIK, JJ.
DATE : MAY 05, 2017.
ORAL JUDGMENT (PER S. C. DHARMADHIKARI, J.) :
1. Rule. By consent, Rule made returnable forthwith and heard
finally at the admission stage itself.
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2. These two Applications were heard together and as common
arguments were canvassed and common issues raised, we dispose
of the same by this judgment.
3. We take the facts from Criminal Application No. 1015 of
2016 for convenience.
4. The applicant therein is an Indian citizen and was serving as
Director of Technical Education when this Application was filed.
He is the original accused in C.R. No.164 of 2016 registered at
City Police Station, Karad for the offences punishable under
Sections 3(1)(ix), 3(2)(vi) and 3(2)(vii) of The Scheduled Castes
and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for
short, "the Atrocities Act"), as also Sections 182, 192, 193, 203
and 219 read with 34 of The Indian Penal Code, 1860 (for short,
"I.P.C.").
5. The 2nd respondent is the original complainant.
6. The 2nd respondent alleged in this First Information Report
(for short, "F.I.R.") that he is an ordinary resident of Pune. He is
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serving in the Department of Technical Education. At the time of
registration of F.I.R., he was posted at the Government Distance
Education Institute, Shivaji Nagar, Pune. Prior to that, he was
posted in the Government College of Pharmacy at Karad as a
storekeeper. In the year 2007-2008, one Mr. Satish Bhise and Mr.
Kishor Burade belonging to Brahmin and non scheduled caste
respectively, were posted at this College at Karad. The
complainant-2nd respondent belongs to Mahar community. This
fact is known to both Mr. Bhise and Mr. Burade. It is alleged that
Mr. Bhise and Mr. Burade colluded with each other and
communicated some information which was false and mischievous
with regard to the conduct of the complainant. They have,
therefore, caused an injury to him. The information that was
communicated by these persons in the form of remarks, was made
known to the complainant. The confidential letter dated 26 th
August, 2008 from the Joint Director of Technical Education,
Divisional Office, Pune apprised the complainant of these remarks.
Therefore, the complainant addressed a letter to Joint Director
and simultaneously, on 19th September, 2009, approached the
Karad Police Station. Then, he narrated the nature of the
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information communicated by Mr. Bhise and Mr. Burade. He states
that the annual confidential report of the complainant for the year
2007-2008 contained these remarks (information). These
remarks, according to the complainant, are that he is in the habit
of making false complaints, that he does not deserve any
promotion, that he requires more and extensive training, that he is
not fit to work at the regional level. These remarks, according to
the complainant, are false and mischievous and entered in his
annual confidential report so as to cause injury to him. This act is
attributed to Mr. Satish Bhise. As far as Mr. Kishor Burade is
concerned, in the same year, he has reported that the
complainant's integrity and character is not good. Rather, he is
lacking on both counts. This is also a false and frivolous remark
and entered in the annual confidential report so as to cause insult
and injury to the complainant. It is alleged by the complainant
that the said remarks were false has now been proved and
established. It is alleged that both of them deliberately and in
connivance and collusion with each other, entered and
communicated these remarks so as to cause injury to the
complainant. Both Mr. Bhise and Mr. Burade are Government
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Servants. That is how they are allegedly guilty of the offence
punishable under the Atrocities Act.
7. The complainant then elaborates as to how, when such
adverse remarks were communicated to him, he made a
representation and which was accepted. That is how he relies
upon the action taken by the Joint Director of Technical
Education. The complainant has got his statement recorded
pursuant to which the F.I.R. has been registered. He has submitted
all the official documents in relation thereto. The present
Application has been filed to quash another F.I.R. in C.R. No. 164
of 2016 dated 28th March, 2016 registered at that very Police
Station. We referred to the earlier C.R. and its contents only with
a view to appreciate the contentions raised before us by the
applicant in Criminal Application No. 1015 of 2016, namely, Dr.
Subhash Mahajan.
8. As far as the subject F.I.R. is concerned, the complainant is
the same. He refers to the earlier complaint against Mr. Bhise and
Mr. Burade. He says that after that complaint was registered, the
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prosecution was of the opinion that since the accused are
Government servants, for prosecuting them, sanction under
Section 197 of the Cr.P.C. would have to be obtained. This sanction
will have to be obtained prior to the charge sheet being filed. That
is why the prosecution applied for such sanction. The prosecution
proceeded on the footing that the competent authority is the
Director of Technical Education, Divisional Office, Pune. That is
why, the papers were forwarded to the said office. At that time,
the present applicant was the In-charge Director. The present
applicant is also not belonging to Scheduled Caste, but is a
member of Leva Patil community.
9. The allegations are that despite being aware of the legal
position that the accused Bhise and Burade are Class-I Officers
and in the service of the State Government and a Sanction to
prosecute them would have to be granted by the State
Government, the applicant-accused proceeded as if he is the
sanctioning or the competent authority. He has not provided the
requisite information about the power to grant such sanction and
deliberately. The power to grant such sanction is not vesting in
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this Director In-charge. Yet he has addressed a communication so
as to shield and protect Mr. Bhise and Mr. Burade, acting in
connivance and collusion with them. The intent on the part of the
applicant was to save both Mr. Bhise and Mr. Burade from criminal
legal proceedings and the probable punishment. That is why
despite not possessing requisite powers, he himself took the
decision to refuse sanction. That decision is also contrary to the
material on record and based on conjectures and surmises. That is
because the intent throughout was to cause mental, physical and
financial injury to the complainant. The details in that behalf and
the information which was provided by the applicant-accused to
the Investigating Officer, according to the complainant, is
contained in a communication dated 20th January, 2011. This
resulted in a "C" Summary Report being filed against both accused
in the competent Criminal Court. The complainant has alleged as
to how systematically there was an attempt made to shield and
protect Mr. Burade and Mr. Bhise from criminal prosecution and
the present applicant, acting in connivance and collusion with
them, committed the aforesaid acts. There is a further elaboration
in that regard in the statement pursuant to which the said F.I.R. of
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2016 has been recorded.
10. It is this F.I.R. which is sought to be quashed by means of
this Application and invoking the power of this Court under
Section 482 of the Cr.P.C. On 13th January, 2017, this Application
was placed before a Division Bench of this Court. The learned
Assistant Public Prosecutor, on instructions of the concerned Police
Officer present on that date, made a statement that the charge
sheet will not be filed against the applicant till the next date. That
is how, after this statement was made, the Application was posted
to 15th February, 2017. On 15th February, 2017, this Application
could not be taken up and it was adjourned to 14 th June, 2017.
However, the papers were again produced on 1st March, 2017 and
the Division Bench passed the following order.
"Not on Board. Taken on Board. No order."
11. However, subsequently, the date was preponed by consent of
parties. A copy of this Application has been served on both, the
State/prosecution and the complainant. There is an affidavit-in-
reply which has been filed by the complainant-respondent no.2.
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12. In that affidavit, the complainant-respondent no.2 states
that it is true that he made a complaint against Mr. Satish Bhise
and Mr. Kishor Burade. That was for the purpose of prosecuting
these officers for the offences with which they have been charged
by him and referred by us hereinabove. The complainant states
that for the purpose of prosecuting them, sanction under Section
197(1) of Cr.P.C. was required. Mr. Bharat Tangade, the Deputy
Superintendent of Police, Karad, wrote a letter dated 21 st
December, 2010. That letter was written to the applicant Dr.
Subhash Kashinath Mahajan, who, at the relevant time, was
working as In-charge Director of Technical Education,
Maharashtra State, Mumbai. The complainant then refers to the
Government Resolution dated 22nd December, 2006, issued by the
Home Department of the Government of Maharashtra. He also
referred to a corrigendum dated 10 th January, 2007 to this
Resolution.
13. The allegation then is that in the light of this Resolution and
the corrigendum, it was necessary for the applicant to refer the
application seeking sanction to the State Government. However,
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instead of referring this matter to the State Government, the
applicant suo motu decided to reject the said application. He,
therefore, refused sanction on the footing that he is the
sanctioning authority and issued a communication in that behalf
on 20th January, 2011.
14. Then, the complainant reiterates his allegations and with
reference to the relevant statutory provisions and the documents
which he had produced at the time of registration of the F.I.R.
15. He denies that this F.I.R. registered on 28th March, 2016 and
the earlier F.I.R. of 2009 can be said to be identical. The role and
involvement of the applicant in this Application, which is
elaborated in F.I.R. of 2016, may be registered at the same Police
Station, is different and distinct. He has been accused of an
offence and which is clearly spelt out by the Atrocities Act and the
I.P.C. The attempt, therefore, to link these two F.I.Rs., and to
contend that for the same act of omission or commission, two
F.I.Rs. cannot be registered, is an erroneous and frivolous plea.
That is how in this affidavit, he has endeavoured to point out this
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distinction.
16. At the same time, he has also relied upon a Government
Resolution dated 1st February, 1996, and particularly, paragraph
12 of Schedule-A thereof, to contend that this, and the other
paragraph 45, would guide the reporting/reviewing authority as
to how the annual confidential remarks have to be entered in the
cases of those officers who belong to Scheduled Castes and
Scheduled Tribes. Such officers require necessary protection and
guidance. Therefore, unduly harsh criticism and unjustified
adverse comments should not be entered about their conduct,
character and performance. The whole attempt ought to be to
encourage and not to discourage them. It is, therefore, the
contention of the complainant that this was the guiding principle
and which has been completely bye-passed in communicating the
adverse remarks. These adverse remarks have been entered
knowingly. Such false and frivolous remarks being deleted, there
was no justification for the applicant Dr. Mahajan to protect and
shield the other two accused, namely Bhise and Burade. With a
view to shield and protect them from criminal prosecution and the
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probable punishment, he has committed the alleged acts which
amount to an offence punishable under both statutes.
17. It is, therefore, the complainant's contention that the
application be dismissed.
18. It is on this material that we have heard Mr. Kumbhakoni,
learned senior counsel appearing for the applicant, Mr. Anturkar,
learned senior counsel appearing on behalf of respondent no.2
and the learned APP.
19. Mr. Kumbhakoni would submit that if this F.I.R. is read and
perused as a whole, it is evident that the same does not cull out
any offence as far as the applicant is concerned. He has taken us
through the present Application and all the annexures thereto.
The complainant, according to Mr. Kumbhakoni, has indulged in
acts which would demonstrate as to how he has been avoiding
work and has made no endeavour to improve his performance.
The remarks were entered in the annual confidential reports
during the course of official duties. The complainant does not
allege that the remarks could not have been entered by the
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reporting authority, nor reviewed by the reviewing authority. He
admits that position. If the adverse remarks are communicated to
a public servant, then his duty is to make a representation and
seek deletion thereof. That such representation is made and the
request therein has been accepted is not a ground to allege
commission of an offence and that too, as serious as an atrocity on
the employee belonging to Scheduled Caste. In Government
service, such remarks as are entered can be entered in the
confidential records of all employees irrespective of their caste.
Therefore, when such an official duty was performed, no offence
and punishable under the provisions of the Atrocities Act was
committed. That apart, as far as the applicant before this Court in
this Application is concerned, Mr. Kumbhakoni has pointed out
that a bare perusal of the two Sections of the Atrocities Act which
are relied upon would reveal that they have no application. Thus,
the argument is that even if all the allegations are assumed to be
correct and taken at their face value, still no offence is made out
under Section 3(1)(ix) as it then stood and Sections 3(2)(vi) and
3(2)(vii) of the Atrocities Act.
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20. Mr. Kumbhakoni submits that the Section presupposes that
whoever, not being a member of a Scheduled Caste or a Scheduled
Tribe, 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, shall be punishable for a term which
shall not be less than six months but which may extend to five
years and with fine. In the present case, the applicant was
performing an official duty. A request was made by the Police
machinery to grant sanction to prosecute Mr. Bhise and Mr.
Burade. That was the application which was forwarded to the
office of the Joint Director (Divisional Office), Technical Education
Department, Government of Maharashtra. The applicant, at the
relevant time, was the Director In-charge of this Department of
Technical Education. He, therefore, acting on the premise that he
is the competent authority to grant or refuse sanction, passed an
administrative order in exercise of his administrative powers and
refused sanction. The complainant himself alleges that this was an
order and passed by the applicant. Once, he alleges so, then, there
is no offence which can be said to be committed within the
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meaning of this provision.
21. The second act and attributed to the applicant is that, within
the meaning of Sub-section (2) of Section 3, and particularly,
clause (vi) and (vii) thereof, he knowingly or having reason to
believe that an offence has been committed under this Chapter
(Chapter II) of the Atrocities Act, gave information respecting the
offence which the applicant knew or believed to be false. Mr.
Kumbhakoni submits, and once again, that given the nature of the
duties and power that is vested in the applicant, an erroneous
exercise thereof would not result in any of these ingredients being
attracted. Therefore, no offence punishable under these provisions
has been committed. Secondly, clause (vii) of Section 3(2)
envisages that, being a public servant, an offence punishable
under Section 3(2) is committed. As explained, the applicant is a
public servant, but when he acted as above, he cannot be accused
of having committed any offence. It is in these circumstances that
Mr. Kumbhakoni would submit that this is a fit case where this
Court should exercise its inherent powers and quash the subject
F.I.R.
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22. On the other hand, Mr. Anturkar, learned senior counsel
appearing for the complainant, would submit that there is no
merit in any of the contentions of Mr. Kumbhakoni. He would
submit that the power under Section 482 of the Cr.P.C. has to be
exercised in an exceptional case in order to prevent an abuse of
the process of the Court or to otherwise secure the ends of justice.
In the present case, there is neither any abuse of the process of the
Court, nor the ends of justice require exercise of such power. The
inherent power has to be exercised sparingly, carefully and with
caution in order to promote justice. Mr. Anturkar would submit
that the present complaint made against a public servant would
demonstrate as to how any officer in Government service but
belonging to a deprived and backward section of the community
has to suffer insult and harassment on a day to day basis. A fair
treatment expected from highly placed officials is not extended to
them. The annual confidential records have been spoiled
deliberately by two public servants and the superior authority
protected them from criminal prosecution and possible
punishment. It is such an act which is attributable to the applicant
and one should not, therefore, indulge in play of words to quash
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the complaint. The object and purpose of the Atrocities Act cannot
be lost sight of in arriving at any conclusion. Mr. Anturkar would
submit that both provisions are squarely attracted. All the
ingredients are present in the complaint of the complainant. That
would have to be read as a whole and not in parts or reading
certain sentences therefrom, but torn from the context and
complete factual backdrop. Mr. Anturkar criticizes Mr.
Kumbhakoni's argument by submitting that merely because a
sanction was sought to prosecute Mr. Bhise and Mr. Burade and
that sanction has been refused, an innocuous administrative act is
highlighted and blown up. That is not how the complaint
proceeds. The complaint, read as a whole, demonstrates as to how
from the beginning and inception, the communication of the
adverse remarks by Mr. Bhise and Mr. Burade was never objected
to by the applicant. Even the applicant has a grudge against the
complainant. He deliberately and in order to harass, insult and
cause injury to the complainant, protected and shielded Mr. Bhise
and Mr. Burade. It is not as if he was approached only to seek a
sanction. The act attributed to the applicant is far more serious.
He was aware of the complaint against Mr. Bhise and Mr. Burade
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and the F.I.R. registered pursuant thereto. He was aware of the
fact that he cannot be termed as a sanctioning or competent
authority insofar as grant of sanction under Section 197(1) of
Cr.P.C. Yet, he assumed the powers of the sanctioning authority
and acted at the behest of these two officers. He was acting in
collusion with them. Hence, he is also guilty of the offence
alleged. It is in these circumstances that it is demonstrated by the
complainant and by filing an affidavit-in-reply as to how the
harassment continued. Mr. Anturkar relied upon the affidavits
filed in this Application in October, 2016 and in January, 2017 so
as to buttress his submissions. He has also placed reliance upon
certain decisions of the Hon'ble Supreme Court.
23. With the assistance of both the senior counsel and the
learned APP, who supported the complainant, we have perused
this Application and all the annexures thereto.
24. This Application invokes Section 482 of the Cr.P.C. The
parameters governing exercise of this power which is inherent and
conferred in order to secure the ends of justice or to prevent the
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abuse of process of the Court, reveal that the power has to be
exercised not as a matter of course. No accused can, as of right,
contend that this Court's inherent powers be exercised so as to
quash the prosecution merely because he is reluctant to face it. No
applicant/accused, all the more, can contend that because the
criminal trial is a long drawn process, the other two accused
having retired from service, he should not be subjected to and
forced to face a trial. He should not be forced to face trial merely
because in his opinion no offence is committed. We must at the
outset, dispel this impression of all the applicants-accused. We
have found that this Court is flooded with applications seeking to
quash criminal prosecution essentially on the ground that the
criminal justice delivery system in our country moves at a crawling
pace. It takes years and sometimes decades together in order to
establish the guilt or prove one's innocence. That itself cannot be a
factor to quash the criminal prosecution. Crime is against the
society and it is public at large which is adversely affected. If the
necessary ingredients and enabling the exercise of this inherent
power are lacking, then, we must not exercise it. The categories of
cases in which such power has to be exercised have been
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summarized exhaustively but illustratively in the case of State of
Haryana and Others vs. Ch. Bhajan Lal and Others, reported in
AIR 1992 SC 604. Further, the Hon'ble Supreme Court of India, in
a reasoned judgment, has summarized these principles as under :
"108. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of the
principles of law enunciated by this Court in a series of
decisions relating to the exercise of the extraordinary power
under Article 226 or the inherent powers under Section 482
of the Code which we have extracted and reproduced above,
we give the following categories of cases by way of illustration
wherein such power could be exercised either to prevent abuse
of the process of any Court or otherwise to secure the ends of
justice, though it may not be possible to lay down any precise,
clearly defined and sufficiently channelised and inflexible
guidelines or rigid formulae and to give an exhaustive list of
myriad kinds of cases wherein such power should be
exercised:
1. where the allegations made in the First Information Report
or the complaint, even if they are taken at their face value
and accepted in their entirety do not prima facie constitute
any offence or make out a case against the accused.
2. where the allegations in the First Information Report and
other materials, if any, accompanying the F.I.R. do not
disclose a cognizable offence, justifying an investigation by
police officers under Section 156(1) of the Code except under
an order of a Magistrate within the purview of Section
155(2) of the Code.
3. where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same
do not disclose the commission of any offence and make out a
case against the accused.
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4. where, the allegations in the F.I.R. do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
5. where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
6. where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a
specific provision in the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.
7. where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on
the accused and with a view to spite him due to private and
personal grudge."
25. In paragraph 109 of this decision, the Hon'ble Supreme
Court sounded a note of caution in the following terms:
"109. We also give a note of caution to the effect that the
power of quashing a criminal proceeding should be exercised
very sparingly and with circumspection and that too in the
rarest of rare cases; that the Court will not be justified in
embarking upon an enquiry as to the reliability or
genuineness or otherwise of the allegations made in the F.I.R.
or the complaint and that the extraordinary or inherent
powers do not confer an arbitrary jurisdiction on the Court
to act according to its whim or caprice."
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26. Further, in the case of State of Rajasthan vs. Dr. Rajkumar
Agarwal and Another, reported in AIR 2013 Supreme Court 847,
at page 850, the Hon'ble Supreme Court explained the ambit and
scope of the inherent power by observing that "It is against this
background that in Shiji alias Pappu, this Court held that exercise
of power under Section 482 of the Code was justifiable. However,
this court added that the plentitude of the power under Section
482 of the Code by itself makes it obligatory for the High Court to
exercise the same with utmost care and caution. The width and
the nature of the power itself demands that its exercise is sparing
and only in cases where the High Court is, for reasons to be
recorded, of the clear view that continuance of the prosecution
would be nothing but an abuse of the process of law. We feel that
in the instant case, the High Court failed to appreciate that the
wholesome power vested in it under Section 482 of the Code has
to be exercised with circumspection and very sparingly."
27. The duration of a criminal trial is not a factor to quash the
investigation or compliant simply because crime is against the
society. Social crimes like corruption and bribery, atrocities on
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women, children and Scheduled Castes and Scheduled Tribes
ought to be punished severely in order to curb them. In the case of
Niranjan Hemchandra Sashittal and Another vs. State of
Maharashtra, reported in AIR 2013 Supreme Court 1682, the
Hon'ble Supreme Court held thus:
"19. It is to be kept in mind that on one hand, the right of the
accused is to have a speedy trial and on the other, the
quashment of the indictment or the acquittal or refusal for
sending the matter for re-trial has to be weighed, regard
being had to be impact of the crime on the society and the
confidence of the people in the judicial system. There cannot
be a mechanical approach. From the principles laid down in
many an authority of this Court, it is clear as crystal that no
time limit can be stipulated for disposal of the criminal trial.
The delay caused has to be weighed on the factual score,
regard being had to the nature of the offence and the concept
of social justice and the cry of the collective. In the case at
hand, the appellant has been charge-sheeted under the
Prevention of Corruption Act, 1988 for disproportionate
assets. The said Act has a purpose to serve. The Parliament
intended to eradicate corruption and provide deterrent
punishment when criminal culpability is proven. The
intendment of the legislature has an immense social
relevance. In the present day scenario, corruption has been
treated to have the potentiality of corroding the marrows of
the economy. There are cases where the amount is small and
in certain cases, it is extremely high. The gravity of the
offence in such a case,in our considered opinion, is not to be
adjudged on the bedrock of the quantum of bribe. An attitude
to abuse the official position to extend favour in lieu of benefit
is a crime against the collective and an anathema to the basic
tenet of democracy, for it erodes the faith of the people in the
system. It creates an incurable concavity in the Rule of Law.
Be it noted, system of good governance is founded on
collective faith in the institutions. If corrosions are allowed to
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continue by giving allowance to quash the proceedings in
corruption cases solely because of delay without scrutinizing
other relevant factors, a time may come when the
unscrupulous people would foster and garner the tendency to
pave the path of anarchism.
20. It can be stated without any fear of contradiction that
corruption is not to be judged by degree, for corruption
mothers disorder, destroys societal will to progress, accelerates
undeserved ambitions, kills the conscience, jettisons the glory
of the institutions, paralyses the economic health of a
country, corrodes the sense of civility and mars the marrows
of governance. It is worth noting that immoral acquisition of
wealth destroys the energy of the people believing in honesty,
and history records with agony how they have suffered. The
only redeeming fact is that collective sensibility respects such
suffering as it is in consonance with the constitutional
morality. Therefore, the relief for quashing of a trial under
the 1988 Act has to be considered in the above backdrop.
21. It is perceivable that delay has occurred due to dilatory
tactics adopted by the accused, laxity on the part of the
prosecution and faults on the part of the system, i.e., to keep
the court vacant. It is also interesting to note that though
there was no order directing stay of the proceedings before the
trial court, yet at the instance of the accused, adjournments
were sought. After the High Court clarified the position, the
accused, by exhibition of inherent proclivity, sought
adjournment and filed miscellaneous applications for
prolonging the trial, possibly harbouring the notion that
asking for adjournment is a right of the accused and filing
applications is his unexceptional legal right. When we say so
we may not be understood to have said that the accused is
debarred in law to file applications, but when delay is caused
on the said score, he cannot advance a plea that the delay in
trial has caused colossal hardship and agony warranting
quashment of the entire criminal proceeding......."
vikrant 26/56 906APL-673-2016+1.odt
28. It is these guiding principles which would enable us to
consider the request of the applicant-Dr. Mahajan before us.
29. As far as the other Application is concerned, it is common
ground that the prosecution is under way. It is set out in
Application No. 673 of 2016 itself that as far as the first F.I.R. is
concerned, that has proceeded and we will indicate as to how it
has progressed till date a little later.
30. Further, the applicant Dr. Bhise states that the second F.I.R.,
namely, C.R. No.164 of 2016 has to be quashed and set aside
because the earlier complaint, which was taken cognizance of in
the year 2009 and which was investigated by the investigating
officer, resulted in a "C" Summary report under Section 169 of
Cr.P.C. being submitted before the learned Magistrate. Thus,
pending adjudication of the "C" Summary Report filed in the
earlier case on the same set of allegations and facts, the
investigating agency cannot entertain a fresh complaint. The
whole emphasis, therefore, is on the contention that the
foundation for the second F.I.R. is the same. It is not a fall out but
vikrant 27/56 906APL-673-2016+1.odt
necessarily the same incident or allegation which is made subject
matter of this second F.I.R.
31. However, we are called upon to go into a larger question
and posed for our consideration by Dr. Mahajan.
32. Before we proceed to analyze and interpret the relevant
provisions, we must at once clarify that we were hesitant to enter
into this issue and at this stage. The reason for the same is
obvious.
33. None has disputed the factual background as set out in the
additional affidavit of the 2nd respondent. He has filed the
additional affidavit on 9th January, 2017 which indicates that the
investigations in F.I.R No. 164 of 2016 dated 28 th March, 2016
have been completed on 18th August, 2016. A charge sheet was
prepared. At this stage, an application was made by the
investigating authority to the State Government seeking
permission under Section 197 (1) of the Cr.P.C. to file a charge
sheet against all the three accused. On 24 th October, 2016, the
Desk Officer, Department of Higher and Technical Education, State
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of Maharashtra wrote to the investigating authority/
Superintendent of Police, Satara and replied to the application for
sanction dated 18th August, 2016 recording that it will not be
advisable to take further steps at this stage including considering
the request for grant of sanction to prosecute the above three
accused till this criminal Application is disposed of.
34. Then, what is stated is that on 17th December, 2016, the
Judicial Magistrate First Class, Karad rejected the prayer for grant
of "C" Summary in F.I.R. No. 3122 of 2009 and directed the
Investigating Officer to re-investigate the case, apply for sanction
under Section 197(1) of the Cr.P.C. and then submit a report.
Annexure R-2 is the copy of this order dated 17 th December 2016
of the trial Court.
35. It is then pointed out that because the "C" Summary report
has been rejected, there is a prima facie case against the accused.
There is no question of quashing the F.I.R.
36. It is stated that in the case of F.I.R. 164 of 2016, the
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investigations are complete but the Investigating Officer is
awaiting the outcome of this Application.
37. We do not wish to enter into the controversy particularly
about 'whether for prosecution of the accused, obtaining of
sanction was necessary or otherwise'. We are not called upon to
decide that issue. We are only called upon to consider whether the
ingredients of the offence, and alleged to have been committed
within the meaning of the Atrocities Act, are fulfilled or satisfied
or not.
38. For that purpose, we would have to refer to the Atrocities
Act.
39. The Act has now been extensively amended. What the Act
envisages, and right from the time it was enacted is that in spite of
various measures adopted to improve the socio-economic
conditions of the Scheduled Castes and Scheduled Tribes, they
have remained vulnerable. They are subjected to various offences,
indignities, humiliations and harassments. Through spread of
education some awareness has been created amongst them and
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they have been trying to assert their rights. When they assert their
rights and resist practices of untouchability against them or
demand statutory minimum wages or refuse to do any bonded
and forced labour, the vested interests try to cow them down and
terrorise them. Of late, there has been an increase in the
disturbing trend of commission of certain atrocities. The normal
provisions of the existing laws like the Protection of Civil Rights
Act, 1955 and the Indian Penal Code have been found to be
inadequate to check these atrocities. Under these circumstances, it
was found necessary to enact a special legislation to check and
deter crimes against the Scheduled Castes and Scheduled Tribes.
To achieve this objective, a Bill was introduced in the Parliament,
i.e. "The Scheduled Tribes (Prevention of Atrocities) Bill".
40. The 'Statement of Objects and Reasons' to the Act 33 of
1989 reads thus:
"Despite various measures to improve the socio-economic
conditions of the Scheduled Castes and the Scheduled Tribes,
they remain vulnerable. They are denied number of civil rights.
They are subjected to various offences, indignities, humiliations
and harassment. They have, in several brutal incidents, been
deprived of their life and property. Serious crimes are
committed against them for various historical, social and
economic reasons.
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2. Because of the awareness created amongst the Scheduled
Castes and the Scheduled Tribes through spread of education,
etc., they are trying to assert their rights and this is not being
taken very kindly by the others. When they assert their rights
and resist practices of untouchability against them or demand
statutory minimum wages or refuse to do any bonded and
forced labour, the vested interests try to cow them down and
terrorise them. When the Scheduled Castes and the Scheduled
Tribes try to preserve their self-respect or honour of their
women, they become irritants for the dominant and the
mighty. Occupation and cultivation of even the Government
allotted land by the Scheduled Castes and the Scheduled Tribes
is resented and more often these people become victims of
attacks by the vested interests. Of late, there has been an
increase in the disturbing trend of commission of certain
atrocities like making the Scheduled Caste persons eat inedible
substances like human excreta and attacks on and mass
killings of helpless Scheduled Castes and the Scheduled Tribes
and rape of women belonging to the Scheduled Castes and the
Scheduled Tribes. Under the circumstances, the existing laws
like the Protection of Civil Rights Act, 1955 and the normal
provisions of the Indian Penal Code have been found to be
inadequate to check these crimes. A special Legislation to check
and deter crimes against them committed by non-Scheduled
Castes and non-Scheduled Tribes has, therefore, become
necessary.
3. The term 'atrocity' has not been defined so far. It is
considered necessary that not only the term 'atrocity' should be
defined but stringent measures should be introduced to provide
for higher punishments for committing such atrocities. It is
also proposed to enjoining on the States and the Union
Territories to take specific preventive and punitive measures to
protect the Scheduled Castes and the Scheduled Tribes from
being victimised and where atrocities are committed, to provide
adequate relief and assistance to rehabilitate them.
4. The Bill seeks to achieve the above objects."
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41. A perusal of the above would indicate that the Act has a
preamble, namely, to prevent the commission of offences of
atrocities against the members of the Scheduled Castes and the
Scheduled Tribes, to provide for Special Courts and Exclusive
Special Courts for the trial of such offences and for the relief and
rehabilitation of the victims of such offences and for matters
connected therewith or incidental thereto. This is, thus, a social
and welfare legislation. Its provisions must receive an
interpretation and ought to be construed in a manner conducive
to and achieving its objective. It is a legislation seeking to deal
with and suppressing crimes against the oppressed classes styled
as untouchables. They are known as "Harijans" and "Dalits".
Atrocities on these classes is a social crime and adversely affects
peace, harmony, unity and brotherhood amongst diverse sections
of the society. Thus, the mischief has to be suppressed by
advancing the remedy.
42. Chapter I of this Act contains preliminary provisions,
namely, the definitions. The term "atrocity" is defined in Section
2(1)(a) to mean an offence punishable under Section 3. The term
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"Code" is defined in Section 2(1)(b) to mean the Code of Criminal
Procedure, 1973 and the term "public servant" is now defined by
insertion of clause (bg) in Section 2(1)(b) by Act 1 of 2016. Thus,
a public servant means a public servant as defined under Section
21 of the Indian Penal Code (45 of 1860), as well as any other
person deemed to be a public servant under any other law for the
time being in force and includes any person acting in his official
capacity under the Central Government or the State Government,
as the case may be. As per Section 2(1)(c), the term "Scheduled
Castes and Scheduled Tribes" shall have the meanings assigned to
them respectively under clause (24) and clause (25) of Article 366
of the Constitution of India. The words and expressions "social
boycott" and "victim" also have been inserted and defined by
exhaustive amendments made in 2016.
43. We are not concerned with any larger or wider aspect.
Suffice it to note that the object and the purpose of the Act, as
aforenoted, was not achieved and there are serious complaints
and grievances insofar as its implementation and enforcement is
concerned. Recently, in a decision reported in (2017) 2 Supreme
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Court Cases 432 (National Campaign on Dalit Human Rights
and Others vs Union of India and Others), the Hon'ble Supreme
Court of India had before it a complaint or grievance as to
ineffective implementation of the Act and indifferent attitude of
authorities in implementation of the Act. In highlighting once
again the object and purpose of the Act, the Hon'ble Supreme
Court held thus :
"3. The Preamble to the Constitution of India provides for
social, economic and political justice and equality of status and
opportunity to all its citizens. Article 15 of the Constitution
prohibits discrimination on the grounds of religion, race, caste,
sex or place of birth. Untouchability is abolished and its
practice in any form is forbidden by Article 17 of the
Constitution. The enforcement of any disability arising out of
untouchability as per Article 17 shall be an offence punishable
under the law.
4. Article 46 reads as under:
"46. Promotion of educational and economic
interests of Scheduled Castes, Scheduled Tribes and
other weaker sections- The State shall promote with
special care the educational and economic interests of
the weaker sections of the people, and, in particular, of
the Scheduled Castes and the Scheduled Tribes, and shall
protect them from social injustice and all forms of
exploitation."
5. ......
6. ......
7. ......
8. ......
9. ......
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10. ......
11. ......
12. To give effect to Article 17 in its true letter and spirit,
Parliament enacted the Untouchability (Offences) Act, 1955.
Sections 3 to 7 of the said Act prescribed punishments for
enforcing religious, social and any other kind of disabilities on
the ground of untouchability. There were several complaints
from various quarters of the society about the lacunae and
loopholes in the said Act. Several amendments were made to
the said Act which was rechristened as the 'Protection of Civil
Rights Act, 1955'. In spite of a major overhaul, it was noticed
that the Protection of Civil Rights Act, 1955 and the Indian
Penal Code, 1860 were inadequate to check the atrocities
committed on Scheduled Castes and Scheduled Tribes. The fact
that the Scheduled Castes and Scheduled Tribes remained a
vulnerable group in spite of the introduction of several
measures to improve their socio- economic condition was a
matter of deep concern to Parliament.
13. Parliament acknowledged that the Scheduled Castes and
Scheduled Tribes were subject to various offences, indignities,
humiliations and harassments perpetually. Numerous incidents
of brutalities and atrocities depriving the Scheduled Castes and
Scheduled Tribes of their life and property were a cause of
concern for the Parliament. Considering the fact that there was
an increase in the disturbing trend of commission of atrocities
against the Scheduled Castes and Scheduled Tribes, the
Parliament enacted the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989. The Preamble to the Act
reads as under:
"An Act to prevent the commission of offences of
atrocities against the members of the Scheduled
Castes and the Scheduled Tribes, to provide for
special courts for the trial of such offences and for the
relief and rehabilitation of the victims of such
offences and for matters connected therewith or
incidental thereto."
vikrant 36/56 906APL-673-2016+1.odt
14. The Act enlarges the scope of criminal liability by
including several acts or omissions of atrocities which were not
covered by the Penal Code or the Protection of Civil Rights Act,
1955. The Act also provides protection to the Scheduled Castes
and Scheduled Tribes for various atrocities affecting social
disabilities, properties, malicious prosecution, political rights
and economic exploitation. The Act also provides for enhanced
punishment for commission of offences against the Scheduled
Castes and Scheduled Tribes. The minimum punishment for
neglect of duties committed by a public servant was also
increased. Provisions were made for granting minimum relief
and compensation to victims of atrocities and their legal heirs.
The other salient features of the Act include externment of
potential offenders from Scheduled Areas and Tribal Areas as
well as attachment of the properties of the accused. The Act
prohibits the grant of Anticipatory Bail to the accused and the
Probation of Offenders Act, 1958 was also made inapplicable
to the Act. Certain preventive measures provided in the Act
include cancellation of arms licences of potential offenders and
even grant of arms licences to Scheduled Castes and Scheduled
Tribes as a means of self defence.
15. ......
16. ......
17. The Act was made in 1989 because Parliament found
that the provisions of the Protection of Civil Rights Act, 1955
were inadequate and did not curb the evil practice of atrocities
against Dalits. The grievance of the Petitioners has been that
though the Act is comprehensive enough to deal with the social
evil, its implementation has been painfully ineffective. The ever
increasing number of cases is also an indication to show that
there is a total failure on the part of the authorities in
complying with the provisions of the Act and the Rules. Placing
reliance on the NHRC Report and other reports, the Petitioners
sought a mandamus from this Court for effective
implementation of the Act and the Rules.
18. We have carefully examined the material on record and
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we are of the opinion that there has been a failure on the part
of the authorities concerned in complying with the provisions of
the Act and Rules. The laudable object with which the Act had
been made is defeated by the indifferent attitude of the
authorities. It is true that the State Governments are
responsible for carrying out the provisions of the Act as
contended by the counsel for the Union of India. At the same
time, the Central Government has an important role to play in
ensuring the compliance with the provisions of the Act. Section
21 (4) of the Act provides for a report on the measures taken
by the Central Government and State Governments for the
effective implementation of the Act to be placed before the
Parliament every year. The constitutional goal of equality for
all the citizens of this country can be achieved only when the
rights of the Scheduled Castes and Scheduled Tribes are
protected. The abundant material on record proves that the
authorities concerned are guilty of not enforcing the provisions
of the Act. The travails of the members of the Scheduled Castes
and the Scheduled Tribes continue unabated. We are satisfied
that the Central Government and State Governments should be
directed to strictly enforce the provisions of the Act and we do
so. The National Commissions are also directed to discharge
their duties to protect the Scheduled Castes and Scheduled
Tribes. The National Legal Services Authority is requested to
formulate appropriate schemes to spread awareness and
provide free legal aid to members of the Scheduled Castes and
Scheduled Tribes."
44. Prior thereto, and in several decisions rendered from time to
time, the Hon'ble Supreme Court had emphasized as to how the
Scheduled Castes and the Scheduled Tribes have suffered at the
hands of the non-Scheduled Castes and non-Scheduled Tribes
throughout the country. In a decision reported in AIR 2011
Supreme Court 1859 (Arumugam Servai vs State of Tamil
vikrant 38/56 906APL-673-2016+1.odt
Nadu), the Hon'ble Supreme Court referred to the indignities,
insults and injustice suffered by these communities. It referred to
the curse and the social evil of casteism. The caste system has
destroyed the peace and harmony and the mandate of the
Constitution itself. The Hon'ble Supreme Court, in that regard,
held thus:
"8. The word `pallan' no doubt denotes a specific caste, but it
is also a word used in a derogatory sense to insult someone
(just as in North India the word `chamar' denotes a specific
caste, but it is also used in a derogatory sense to insult
someone). Even calling a person a `pallan', if used with intent
to insult a member of the Scheduled Caste, is, in our opinion,
an offence under Section 3(1)(x) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities Act), 1989
(hereinafter referred to as the `SC/ST Act'). To call a person as
a `pallapayal' in Tamilnadu is even more insulting, and hence
is even more an offence.
9. Similarly, in Tamilnadu there is a caste called `parayan' but
the word `parayan' is also used in a derogatory sense. The
word `paraparayan' is even more derogatory.
10. In our opinion uses of the words `pallan', `pallapayal'
`parayan' or `paraparayan' with intent to insult is highly
objectionable and is also an offence under the SC/ST Act. It is
just unacceptable in the modern age, just as the words `Nigger'
or `Negro' are unacceptable for African-Americans today (even
if they were acceptable 50 years ago).
11. ......
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12. In the modern age nobody's feelings should be hurt. In
particular in a country like India with so much diversity (see in
this connection the decision of this Court in Kailas vs. State of
Maharashtra in Crl. Appeal No. 11/2011 decided on
5.1.2011) (reported in AIR 2011 SC 598 : AIR 2011 SC (Cri)
259) we must take care not to insult anyone's feelings on
account of his caste, religion, tribe, language, etc. Only then
can we keep our country united and strong.
13. In Swaran Singh & Ors. vs. State thr' Standing Counsel &
Anr. (2008) 12 SCR 132, this Court observed (vide paras 21 to
24) as under:
"21. Today the word `Chamar' is often used by
people belonging to the so- called upper castes or
even by OBCs as a word of insult, abuse and
derision. Calling a person `Chamar' today is
nowadays an abusive language and is highly
offensive. In fact, the word `Chamar' when used
today is not normally used to denote a caste but to
intentionally insult and humiliate someone.
22. It may be mentioned that when we interpret
section 3(1)(x) of the Act we have to see the
purpose for which the Act was enacted. It was
obviously made to prevent indignities, humiliation
and harassment to the members of SC/ST
community, as is evident from the Statement of
Objects & Reasons of the Act. Hence, while
interpreting section 3(1)(x) of the Act, we have to
take into account the popular meaning of the word
`Chamar' which it has acquired by usage, and not
the etymological meaning. If we go by the
etymological meaning, we may frustrate the very
object of the Act, and hence that would not be a
correct manner of interpretation.
23. This is the age of democracy and equality. No
people or community should be today insulted or
looked down upon, and nobody's feelings should be
hurt. This is also the spirit of our Constitution and
is part of its basic features. Hence, in our opinion,
the so-called upper castes and OBCs should not use
vikrant 40/56 906APL-673-2016+1.odt
the word `Chamar' when addressing a member of
the Scheduled Caste, even if that person in fact
belongs to the `Chamar' caste, because use of such a
word will hurt his feelings. In such a country like
ours with so much diversity - so many religions,
castes, ethnic and lingual groups, etc. - all
communities and groups must be treated with
respect, and no one should be looked down upon as
an inferior. That is the only way we can keep our
country united.
24. In our opinion, calling a member of the
Scheduled Caste `Chamar' with intent to insult or
humiliate him in a place within public view is
certainly an offence under section 3(1)(x) of the
Act. Whether there was intent to insult or humiliate
by using the word `Chamar' will of course depend
on the context in which it was used".
14. We would also like to mention the highly objectionable two
tumbler system prevalent in many parts of Tamilnadu. This
system is that in many tea shops and restaurants there are
separate tumblers for serving tea or other drinks to Scheduled
Caste persons and non-Scheduled Caste persons. In our
opinion, this is highly objectionable, and is an offence under
the SC/ST Act, and hence those practicing it must be criminally
proceeded against and given harsh punishment if found guilty.
All administrative and police officers will be accountable and
departmentally proceeded against if, despite having knowledge
of any such practice in the area under their jurisdiction they do
not launch criminal proceedings against the culprits."
45. We are, therefore, bound by these judgments and the
principles laid down therein. These have to be applied to achieve
the laudable object and purpose of the Atrocities Act. We must
interpret the provisions in the light of the same and not contrary
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to the legislative mandate. Before we proceed, we must also make
reference to another judgment of the Hon'ble Supreme Court of
India which would indicate as to what is the purpose achieved by
the confidential reports. In the case of S.T. Ramesh vs. State of
Karnataka and Another, reported in (2007) 9 Supreme Court
Cases 436, the Hon'ble Supreme Court has emphasized that the
confidential report is an important document as it provides the
basic and vital inputs for assessing the performance of an officer
and further achievements in his career. The performance appraisal
through CRs should be used as a tool for human resource
development and should not be used as a fault-finding process but
a developmental one. Thus, the authorities ought to encourage the
officials working under them and the superior officers have,
therefore, been entrusted with a public duty so as not to
discourage, unduly harass and completely demoralize those
reporting to and working under them.
46. Keeping this backdrop as well in mind, if we peruse what
are essentially projected before us, namely, two clauses, Clause
(vi) and Clause (vii) of Sub-section (2) of Section 3, then, it is
vikrant 42/56 906APL-673-2016+1.odt
evident that they advance or carry forward the object of the
legislation. These provisions read as under:
"Section 3(2)
(vi) knowingly or having reason to believe that an
offence has been committed under this Chapter, causes any
evidence of the commission of that offence to disappear
with the intention of screening the offender from legal
punishment, or with that intention gives any information
respecting the offence which he knows or believes to be
false, shall be punishable with the punishment provided
for that offence; or
(vii) being a public servant, commits any offence under
this section, shall be punishable with imprisonment for a
term which shall not be less tan one year but which may
extend to the punishment provided for that offence."
47. We must also reproduce Section 3(1)(ix) of the unamended
Act which is identical to Section 3(1)(q) of the amended Act. It
reads as under:
"3(1)(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;"
48. A bare perusal of these provisions would indicate that as far
as Section 3(1)(ix) is concerned, giving of any false or frivolous
information to any public servant and thereby causing such public
vikrant 43/56 906APL-673-2016+1.odt
servant to use his lawful power to the injury or annoyance of a
member of a Scheduled Caste or a Scheduled Tribe shall be
punishable under the provisions of this Act. Thus, to prevent
injury or annoyance to the member of Scheduled Caste or
Scheduled Tribe, which is an offence, if any one of the acts as
enumerated in the sub-clauses are committed, then, they are
punishable under the said Act. Hence, when the investigating
officer (public servant) on registering the F.IR. has proceeded to
investigate the crime and found that because the complaint is
lodged by a public servant against two other public servants,
possibly, sanction under Section 197(1) of Cr.P.C. to prosecute
them would be necessary from the Government. He then
forwarded the requisite application in that behalf. The allegation
is that the applicant-accused proceeded, though aware that he is
not the sanctioning authority and the power in that behalf vests in
the State Government, to inform this authority, namely, the
investigating officer/Deputy Superintendent of Police, that he is
empowered to grant such sanction and that the papers have been
forwarded to him and that having considered the request, he is
proceeding to reject the same.
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49. It is, therefore, not an isolated act of passing an order, as is
emphasized by Mr. Kumbhakoni, which has been made the basis
of the allegation of atrocity against the applicant. It is his overall
involvement in the alleged crime and from the inception. Since
the intent allegedly was to protect and shield Mr. Bhise and Mr.
Burade from facing a possible punishment under the previous
F.I.R. that the moment the files were placed before him, the
applicant, acting as In-charge Director and not as an alleged
authorised official of the State Government, took upon himself the
task of considering the request to grant or refuse sanction. It is
elementary that such a power vests only in the Government, but it
is this alleged illegal assumption of power by the applicant which
points towards his intent from the beginning and that was to
cause injury and annoyance to the complainant. It was to prevent
a lawful exercise of power by another public servant, namely, the
Deputy Superintendent of Police. Accordingly, if the sanction had
been obtained from the State Government, the Deputy
Superintendent of Police would have acted to prevent the injury or
annoyance to a member of the Scheduled Caste like the
complainant by bringing those guilty of the offence of atrocity to
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book. However, the information that was given by the applicant,
which is the basis for the offence. We are not prepared to accept
the argument that an official act, as the applicant was performing,
on that basis alone, no complaint of atrocity can be made. That is
not a proper reading of the complaint. The complainant has also
relied upon several documents to support his allegations. He has
relied upon the communication from the Divisional Office of the
Department of Technical Education, Pune dated 29 th April, 2009.
The complainant has also relied upon the Government Resolution
dated 1st February, 1996. He has also, in the course of his
complaint, referred to the communication dated 21st December,
2010.
50. Mr. Kumbhakoni would submit that this communication,
copy of which is at page 24 of the paper book in Criminal
Application No. 1015 of 2016, points out as to how the same was
addressed to the Director, Technical Education, Government of
Maharashtra, Mumbai. That makes a reference to the two letters,
one dated 3rd November, 2010 from the Office of the Deputy
Superintendent of Police, Office at Karad, and the latter dated 14 th
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December, 2010 from the Prabhari Sanchalak (In-charge Director)
of this Department. This communication, therefore, refers to the
whole complaint and its gist and states that in the light of the fact
that the complainant has alleged that the offences of atrocity have
been committed by a public servant, in the opinion of the then
Deputy Superintendent of Police, sanction under Section 197(1) of
Cr.P.C. would be necessary. That is why detailed correspondence
was carried out and the records were forwarded to the Director's
(Department of Technical Education) Office at Pune. However,
that office has informed that it is not the competent authority to
consider the request for grant of sanction. That is why the letter
and the application was forwarded to the Director at his office at
Mumbai.
51. The provisions of Section 197 of the Cr.P.C. are clear and
according to the complainant, the power to grant sanction vests
only in the State Government. That power could not have been
usurped by anybody else, much less, the applicant-accused. In that
regard, it is clear from the provisions of Section 197 of the Cr.P.C.
that by Sub-section (1) thereof, when any person who is or was a
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Judge or Magistrate or a public servant not removable from his
office save by or with the sanction of the Government is accused
of any offence alleged to have been committed by him while
acting or purporting to act in the discharge of his official duty, no
Court shall take cognizance of such offence except with the
previous sanction of the Government. The words "Government",
"State Government" and "Central Government" appear in various
Sub-sections of Section 197. The accusation is that, intentionally,
the applicant took up the application and on 20 th January, 2011,
informed the Investigating Officer/Deputy Superintendent of
Police that the sanction is refused.
52. Once these documents are on record, then, we are not
prepared to discard them straightway. If the allegations in the
F.I.R. are perused and in their entirety, it would be apparent that
the complainant alleges that as far as Mr. Bhise and Mr. Burade
are concerned, they are guilty of the offence of atrocity. The
applicant, acting as an In-charge Director, in order to shield and
protect Mr. Bhise and Mr. Burade from facing criminal prosecution
and possible punishment, took upon himself the authority or
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power which he does not possess within the meaning of Sub-
section (1) of Section 197. That was in order to shield and protect
these officers. These are thus clear allegations and to be found in
the F.I.R. The allegations also are that the applicant has given a
false information within the meaning of the other clauses of Sub-
section (2) of Section 3 of the Atrocities Act. That is how these
two clauses have been invoked.
53. As far as Clause (vi) is concerned, it's first part has not been
invoked, but we would prefer to read this clause in it's entirety.
Therefore, "knowingly or having reason to believe that an offence
has been committed under this Chapter (means the Chapter No.II
of the Atrocities Act), causing disappearance of any evidence of
the commission of that offence with the intention of screening the
offender from legal punishment" is one part. It means, with the
intention of screening the offender from legal punishment, giving
of information, respecting the offence, which was known or
believed to be false, attracts the punishment. Once the applicant is
a public servant and he has allegedly acted with an intention of
screening the offender from the legal punishment and with that
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intention, he gave information vide the communication as if he is
the sanctioning authority, then, prima facie, we cannot hold since
an administrative power was exercised, he cannot be charged with
this offence. The allegation is that no power to grant or refuse
sanction vests in the applicant as he is not a Government which
alone is endowed with the authority to refuse or grant sanction. In
the garb of exercising an alleged administrative power this offence
is committed, is thus the allegation.
54. It is the giving of the information respecting the offence, and
prima facie, that information has been given by the
communications and documents referred to by the complainant
and which are part of the official records. That an application was
made by the Deputy Superintendent of Police to the State
Government but which application was directed to the applicant
before us and who, as if he is empowered by law to grant or refuse
sanction but aware that he was not authorized to do so, took upon
himself the task or the job of informing the grant or otherwise of
the sanction, is the precise allegation and flowing from the F.I.R.
which should be read as a whole. In such circumstances, we do
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not think that any interpretation, which runs contrary to the
laudable object and purpose of the legislation and it's social
context, can be placed on the provisions. It is the giving of false or
frivolous information to any public servant and causing such
public servant to use his lawful power to the injury or annoyance
of a member of the Scheduled Caste or Scheduled Tribe which is
an offence and the nature of the power resorted to or exercised
while giving false or frivolous information is not strictly relevant.
Anybody including a public servant indulging in such act is prima
facie covered by the expression "whoever". It is the assumption of
that power and erroneously and wrongfully, and thereafter
providing information which, in the facts and circumstances, is
false is the foundation or the basis of alleged atrocity. If a serious
offence is committed by a public servant, all the more therefore, it
should not be lightly interfered with when it is at the stage of
investigation and filing of charge sheet. At such a stage, if the
arguments, as canvassed by Mr. Kumbhakoni, are accepted, they
are likely to defeat the object and purpose of the law itself.
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55. We are, not for a minute, suggesting that exercise of official
power, as Mr. Kumbhakoni projects, would bring the erroneous or
assumed exercise thereof within the meaning of this particular
clause. It is only in the facts and circumstances of this case and
peculiar thereto, and only with a view to appreciate the
submissions of Mr. Kumbhakoni, that we have elaborated as
above. It is our prima facie and tentative opinion on the facts and
circumstances of this case which we think suffices for the purpose
of the disposal of this Application. Beyond this, we are not laying
down any broader or wider principle. Therefore, there is no scope
for the apprehension that in the case of a Scheduled Caste or
Scheduled Tribe Government employee, every time his superior
enters any adverse remark in the confidential reports, that he
would be necessarily charged with the commission of the offence
of atrocity. Further argument is that, if adverse remarks entered in
the annual confidential reports of a Scheduled Caste or Scheduled
Tribe employee are not deleted but confirmed, then, the
superior/reviewing authority would have to face a trial for the
offence of atrocity, which is entirely misconceived. Therefore, no
public servant or a reporting or reviewing authority should
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apprehend that there will be a prosecution the moment he
impresses upon his colleague or junior level Scheduled Caste or
Scheduled Tribe employee to improve his performance. If he acts
bonafide in discharge of his duties as a superior officer, then, he
need not fear any prosecution. Further, there are sufficient
safeguards in the Act itself which guarantee protection against
frivolous and false prosecution. Secondly, whenever applications
seeking sanction are made to the State Government, if the State
Government delegates that power to grant or refuse it to an officer
like the Director or In-charge or Head of the Department, then,
refusing sanction would amount to inviting prosecution for an
offence covered by Clause (vi) of Sub-section (2) of Section 3 is a
submission which is too far fetched and cannot be accepted. It is
only in the facts and circumstances of each case that exercise of
the above power would attract the penal provision and provided
all the necessary ingredients are satisfied. Therefore, mere giving
of information to any public servant, but which is not false or
frivolous or even if it is so, the giving of such information does not
result in the consequences enumerated in Section 3(1)(ix), then,
no offence and punishable under Section 3(1)(ix) is committed.
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With these clarifications, we do not think that the Act will be
misused and abused as is the apprehension raised before us by Mr.
Kumbhakoni. We do not think that we should thwart the
enforcement or implementation of the Atrocities Act merely
because there is a possibility of the law being abused. That way,
every law or every provision is capable of being abused. In the
case of Sushil Kumar Sharma vs Union Of India and Others,
reported in 2005 (6) SCC 281, the Hon'ble Supreme Court of
India, while rejecting the challenge to the constitutional validity of
a provision enacted so as to protect women from the offence
punishable under Section 498A of I.P.C., held that mere possibility
of abuse of power in a given case would not make it objectionable,
ultra-vires or unconstitutional. In such cases, "action" and not the
"Section" may be vulnerable. In paragraphs 13, 14, 15 and 16 of
this decision, the legal position is enunciated with great precision
and clarity. In the facts and circumstances of this case, and all the
more, with the above clarifications, we do not think that we
should exercise our inherent power to quash the prosecution as
that would send a wrong signal and message to the downtrodden
and backward sections of the society. As a result of the above
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discussion, we dismiss both the Criminal Applications.
56. At this stage, Mr. Shetye appearing for the applicant in
Criminal Application No. 673 of 2016, prays for a protection in
the event if the investigations are to proceed and a charge sheet is
filed, the applicant's liberty may be at stake. Hence, either there
should be a restraint against investigation, or if that is allowed, to
proceed against possible arrest.
57. This request is opposed and it is prayed by Mr. Deshmukh
that sufficient time was available to the Applicant Dr. Bhise if he
desired to apply for anticipatory bail. Now, having taken his
chance, he should not be granted any protection.
58. We have noted that in the Criminal Application No. 673 of
2016, there was an order passed on 20 th June 2016 which reads as
under:
"1. Not on board. Taken on board.
2. Heard learned Counsel for the Applicant and learned
APP for the Respondent No.1. Our attention is invited to C.R.
No.3122 of 2009 registered with Karad City Police Station and
'C' Summary Report submitted by the investigating officer. The
learned Counsel appearing for the Applicant on instructions
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states that there is no final order passed on the said Report.
3. It appears that 2nd Respondent/Complainant filed an
objection in writing on 2nd April 2016 to the report claiming 'C'
Summary. An order is passed by the learned Judge on the said
objection recording that recently second FIR is registered in
connection with the same crime. Our attention is invited to the
second F.I.R. registered on 28th March 2016. Prima facie it
appears that the said F.I.R. is based on the same incident.
Prima facie it appears to us that the second F.I.R. is abuse of
process of law.
4. Issue notice to the 2nd Respondent returnable on 5th
August 2016. By way of ad-interim relief, we direct that the 1 st
Respondent will not take any further steps on the basis of F.I.R.
No.164 of 2016 dated 28th March 2016 as against the
Applicant. We make it clear that pendency of this Application
will not preclude the concerned Court from passing final order
on the Report submitted by the investigating officer claiming
'C' Summary. In addition to the service through Court, private
notice is permitted."
That order, according to Mr. Shetye, is in force. Whereas, Mr.
Deshmukh would submit that it was not in force on 13 th January,
2017 and thereafter.
59. We do not wish to enter into this controversy, for this Court's
order is clear and we have reproduced it above. We are of the
opinion that when there is a substantive challenge raised by
invoking the inherent powers of this Court, which has failed, then,
we do not think that this is a fit case for granting any protection.
Further, the "C" Summary Report and which was filed in the
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earlier prosecution, namely, F.I.R. No. 3122 of 2009 has already
been rejected by the trial Court by an elaborate order dated 17 th
December, 2016. In the circumstances, the request as made by Mr.
Shetye is refused.
(PRAKASH D. NAIK, J.) (S. C. DHARMADHIKARI, J.)
