Nagnath Rama Arjun And Ors vs State Of Maharashtra
2021 Latest Caselaw 3723 Bom

           Digitally
                                                                  9-APEAL-361-1998.odt
           signed by
           Shambhavi
Shambhavi N. Shivgan
N. Shivgan Date:
           2021.03.06
           14:02:20     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           +0530
                             CRIMINAL APPELLATE JURISDICTION

                               CRIMINAL APPEAL NO.361 OF 1998

                        1) Nagnath Rama Arjun, age 37,
                        2) Maruti Yeshwant Mohite,
                        age 51 years,
                        3) Dayaram Bhagwan Koli,
                        age 47,
                        All R/o Gulwanchi Tal: North
                        Solapur, Dist. Solapur               ... Appellants
                                                      (Org.Accd.Nos.1 to3)
                                   Vs

                        The State of Maharashtra             ... Respondent
                                                            (Orig. Complt.)
                                                   ...

Mr. Mahadeo A.Chaudhary for the Appellants.

Smt. Sharmila Kaushik, APP for the Respondent-State.

CORAM : SANDEEP K. SHINDE J.

DATE : 1st March, 2021.

ORAL JUDGMENT :

Appellants have preferred this appeal against

the conviction and order of sentence dated 29 th

January, 1998, passed in the Special Case No.2 of

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1995, by the Sessions Judge, Solapur; particulars of

which are as under:

(i) Appellants/Accused Nos.1 and 2 have been

convicted of the ofences punishable under Sections

3(1)(x) and 3(1)(xiv) of the Scheduled Caste and

Scheduled Tribe (Prevention of Atrocities) Act, 1989

('SC & ST Act' for short) and sentenced to sufer

rigorous imprisonment for two years and fne of

Rs.1,000/- each with default stipulation.

(ii) Appellant/Accused Nos.1 and 2 have been

convicted of the ofence punishable under Section 3(a)

and (b) of the Protection of Civil Rights Act, 1955, but

no separate sentence has been awarded as they have

been convicted and sentenced under the SC & ST Act.

(iii) Appellant-accused no.3 has been convicted

of the ofence punishable under Section 504 of the

Indian Penal Code, 1860 ('IPC' for short) and sentenced

to sufer rigorous imprisonment for six months and fne

of Rs.500/- with default stipulation.

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2 Prosecution case in brief is that, complainant

and his family members, being members of scheduled

caste, were denied entry in village temple by the

accused, who belonged to upper caste except accused

no.3, who belongs to scheduled caste community.

Complainant thus, alleged that on 31st May, 1995 when

he had been to village temple to perform, a pre-

wedding ritual, the accused insulted and intimidated

them, with intent to humiliate as member of scheduled

caste. On a report, crime under the provisions of the SC

& ST Act and under Sections 523 and 506 of the IPC

were registered. Investigation was carried out by the

Assistant Police Inspector attached to Solapur Taluka

Police Station. Whereafter he fled charge-sheet. To

prove the charge, prosecution had examined six

witnesses. The Trial Court upon appreciating the

evidence, convicted the accused as stated above

against, which this appeal is preferred.

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3 Mr. Chaudhary, learned counsel for the

appellants, would contend that in view of the clear

mandate of Rule 7 of the Scheduled Castes &

Scheduled Tribes (Prevention of Atrocities) Rules, 1995

('Rules' for short), only specifed Deputy

Superintendent of Police could investigate the ofence

under the Act and, therefore, investigation done by any

officer below that rank and not specifed as per Rule 7,

was not authorised officer to investigate such ofence.

Mr. Chaudhary, therefore, contends, this inherent

defect makes and renders the conviction

unsustainable. Mr. Chaudhary, learned counsel for the

appellants, would also contend, contradictions and

omissions crept in the testimonies, has rendered the

case of prosecution uncertain. He would submit that

evidence of Navnath (P.W.1), Shivaji (P.W.2) and Indrajit

(PW 5) contradict and counter, the complaint at Exhibit

19 fled by Kalidas Jalindar Thorat. Submission is that,

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written complaint fled by Kalidas Jalindar Thorat on

31st May, 1995 does not suggest or show that accused

intentionally insulted with intent to humiliate

complainant and his family being a member of

scheduled caste. Mr. Chaudhary would also contend

that false case has been fled since complainant had

lost Gram Panchayat elections against the accused. On

these grounds, he seeks acquittal of the appellants.

4 Mrs. Kaushik, the learned Additional Public

Prosecutor, on the other hand, fairly admits that the

investigation under the Act being, not carried out by

the officer specifed in the rank of Deputy

Superintendent of Police, the impugned conviction

under the SC & ST Act may not sustain, but since

ofences under Section 523 and 506 of the IPC were

being registered and investigation being carried out by

an officer empowered under the Code of Criminal

Procedure, 1973, conviction under Section 506 of the

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IPC cannot be disturbed. In support of this submission,

she has relied upon the judgment of the Apex Court in

the case of State of Madhya Pradesh v. Babbu

Rathore & Anr.1.

5 I have considered the submissions of the

respective counsel carefully as also perused

prosecution evidence and cited judgments.

6 For appreciating the rival submissions, let me

reproduce Section 9 of the Act and Rule 7 of the Rules,

which read as under:

"9. Conferment Powers

1.Notwithstanding anything contained in the Code or in any other provision of this Act, the State Government may, if it consider it necessary or expedient so to do -

a. for the prevention of and for coping with any ofence under this Act, or

b. for any case or class or group of cases under this Act,in any district or part thereof, confer, by notifcation in the Official Gazette, on any officer of the State Government, the powers exercisable by a

1 (2020) 2 Supreme Court Cases 577 Shivgan

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police officer under the Code in such district or part thereof or, as the case may be, for such case or class or group of cases, and in particular,the powers of arrest, investigation and prosecution of persons before any Special Court.

2.All officer of police and all other officers of Government shall assist the officer referred to in sub- section (1) in the execution of the provisions of this Act or any rule, scheme or order made thereunder.

3.The provisions of the Code shall, so far as may be, apply to the exercise of the powers by an officer under sub-section (1)."

"7. Investigating Ofcer.r

(1) An ofence committed under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. The investigating officer shall be appointed by the State Government, Director-General of Police, Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time.

(2) The investigating officer so appointed under sub-rule (1) shall complete the investigation on top priority within thirty days and submit the report to the Superintendent of Police who in turn will immediately forward the report to the Director-General of Police of the State Government.

(3) The Home Secretary and the Social Welfare Secretary to the State Government, Director of Prosecution the officer-in-charge of Prosecution and the Director-General of Police shall review by the end of every quarter the position of all investigations done by the investigating officer."

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7 On conjoint reading of the provisions in

Section 9 of the SC & ST Act, Rule 7 of the Rules and

Section 4 of the Code of Criminal Procedure, 1973, it

leads to conclusion that investigation of an ofence

under Section 3 of the Act by an officer not appointed

in terms of Rule 7 is illegal and invalid. But when the

ofence complained are both under the IPC and any of

the ofences enumerated in Section 3 of the Act, the

investigation which is being made by a competent

police officer in accordance with the provisions of the

Code, cannot be quashed for non- investigation of the

ofence under Section 3 of the Act by a competent

police officer. In the case of State of MP v. Chunnilal

@ Chunni Singh2 , the Apex Court has held "In such a

situation, the proceedings shall proceed in an

appropriate Court for the ofences punishable under

IPC notwithstanding investigation and the charge-sheet

2 (2009) 12 Supreme Court Cases 649 Shivgan

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being not liable to be accepted only in respect of

ofence under Section 3 of the Act for taking

cognizance of that act."

. In the recent judgment, the Hon'ble Apex

Court in the case of Babbu Rathore (Supra) has held

thus, in paragraph 10 thus,

"11. Undisputedly, in the instant case, the respondents were charged under Sections 302/34, 404/34 IPC apart from Section 3(2)(v) of the Act, 1989 and the charges under IPC have been framed after investigation by a competent police officer under the Code, in such a situation, in our view, the High Court has committed an apparent error in quashing the proceedings and discharging the respondents from the ofences committed under the provisions of IPC where the investigation has been made by a competent police officer under the provisions of the Code. In such a situation, the chargesheet deserves to proceed in an appropriate competent Court of jurisdiction for the ofence punishable under the IPC, notwithstanding the fact that the chargesheet could not have proceeded confned to the ofence under Section 3 of the Act, 1989. "

8 As such, in view of the law laid down by the

Apex Court in aforesaid two judgments, conviction of

the appellant-accused no.3 under Section 506 and

under Section 3(a) and (b) of the Protection of Civil

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Rights Act, 1955 cannot be quashed merely because

these ofences were not investigated by the officer of

the rank, specifed in Rule 7 of the Rules.

9 Consequently, conviction under Sections 3(1)

(x) and 3(1)(xiv) of the SC & ST Act, 1989 is quashed

and set aside.

10 In so far as, ofence relating to enforcing

religious disabilities under Protection of Civil Rights Act,

1955 is concerned, there is no evidence to hold that

appellants prevented complainant and his family from

entering the village temple on the ground of

untouchability. In fact evidence suggests, in the

marriage of Shivaji (P.W.2), contract was awarded to

relative of accused no.1.

11 In so far as the conviction of accused no.3,

for an ofence under Section 506 of the IPC is

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concerned, it may be stated that neither the

complainant (P.W.1) nor Shivaji (P.W.2) nor Indrajit

(P.W.5) testifed that the accused intimidated or

terrifed the complainant and his family, and

threatened to injure them or their property or

reputation so as to prevent them from entering the

village temple. Thus, in absence of cogent and

convincing evidence, conviction under Section 506 of

the IPC and conviction under Section 3 of the Protection

of Civil Rights Act, 1955 is quashed and set aside.

12 Besides, the complaint at Exhibit 19 fled by

Kalidas Thorat soon after the alleged incident, also

does not further the prosecution case that the

appellant no.3 caused criminal intimidation to the

complainant and his family while they were entering

the village temple. The evidence suggests, complainant

had lost Gram Panchayat elections against accused

nos.1, 2 and wife of accused no.3 just before the

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alleged incident. Admittedly, the place of occurrence of

the incident, has not been proved by the prosecution

beyond reasonable doubt, in-as-much as evidence

suggests there was another temple in the feld of

Shivaji where he could have performed rituals as part

of his marriage ceremony and apparently there was no

reason for him to all the way to go to village temple,

which was away from his home.

13 In consideration of the evidence on record,

conviction recorded against the accused no.3 under

Section 506 of the IPC is quashed and set aside.

14 Appeal is allowed. Bail bonds executed by

the appellants are cancelled. Sureties are discharged.

Fine amount, if any, paid by the appellants be refunded

to them.

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15 Appeal is disposed of in aforesaid terms.

(SANDEEP K. SHINDE, J.)

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