Karnataka High Court
Bhimappa Jantakal @ Bhimanna vs State Of Karnataka on 10 May, 2022
Bench: M.Nagaprasannapresided Bymnpj
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH R
DATED THIS THE 10TH DAY OF MAY, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.101825 OF 2019
BETWEEN:
1. BHIMAPPA JANTAKAL @ BHIMANNA
S/O DHARMANNA JANTAKAL
AGE:46 YEARS, OCCP.: BUSINESS.
2. PRAVEENKUMAR JANTAKAL
S/O BHIMAPPA JANTAKAL @ BHIMANNA
AGE ; 20 YEARS, OCCP.:STUDENT.
3. ANANTAKUMAR JANTAKAL
S/O KALAPPA @ KALINGRAJ JANTAKAL
AGE: 20 YEARS, OCCP.: STUDENT.
4. VINODKUMAR JANTAKAL
S/O NAGARAJ JANTAKAL
AGE: 23 YEARS,OCCP.: STUDENT.
ALL THE PETITIONERS ARE
R/O VIKAS NAGAR KOPPAL.
... PETITIONERS
(BY SRI NEELENDRA D.GUNDE, ADVOCATE)
AND:
1. STATE OF KARNATAKA BY
KOPPAL TOWN POLICE STATION
2
REPRESENTED BY THE STATE
PUBLIC PROSECUTOR
HIGH COURT BUILDING
DHARWAD.
2. RAMESH GAVISIDDAPPA GINAGERI
AGE: 37 YEARS, OCCP.: BUSINESSMAN
R/O BASAVESHWAR NAGAR, SAJJI ONI
KOPPAL - 583 231.
(AMENDMENT CARRIED OUT VIDE ORDER
DATED 18.12.2019)
... RESPONDENTS
(BY SRI RAMESH CHIGARI, HCGP FOR R1;
SRI B.C.JNANAYYASWAMI, ADVOCATE FOR R2))
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE ORDER DATED 12.07.2019
PASSED BY THE DIST. & SESSIONS JUDGE, KOPPAL, IN
SPL.C.C.(AC) NO.25/2015 THEREBY REJECTING THE APPLICATION
FILED BY THE PETITIONERS U/S 227 OF CR.P.C., WHEREIN THE
PETITIONERS WERE TRIED FOR OFFENCES P/U/S 323, 505, 506
R/W SEC. 34 OF IPC & SEC. 3(1) (10) OF SCHEDULE CASTE &
SCHEDULE TRIBES (PREVENTION OF ATROCITIES ACT), 1989.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 21.02.2022, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
The petitioners are before this Court calling in question
proceedings in Special C.C.(AC) No.25 of 2015 pending before
the District and Sessions Judge at Koppal arising out of Crime
No.179 of 2015 registered for offences punishable under
Sections 323, 504, 506 read with Section 34 of the Indian Penal
Code and Sections 3(1) and (x) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 ('the Act' for
short).
2. Brief facts, as projected by the prosecution, are as
follows:-
On 23-09-2015 the 2nd respondent one Sri Ramesh
Gavisiddappa Ginageri registered a complaint against the
petitioners alleging that on 20-09-2015 at 11 a.m. in front of the
house of Mallappa Kavalur/CW-8 when he was mediating a civil
dispute between the parties, petitioner No.1, brother of the
father of the complainant was also present along with the
petitioners. It is the allegation that all of a sudden all the
petitioners abused the complainant by taking the name of the
caste viz. Scheduled Caste and also indulged in assaulting and
threatening the complainant. Based on the said incident, a
complaint came to be registered before the jurisdictional police
by the 2nd respondent/complainant for offences punishable
under sections afore-quoted. The police, after investigation, filed
a charge sheet in the matter. On filing of the charge sheet, the
petitioners filed discharge application before the learned
Sessions Judge under Section 227 of the Cr.P.C. The learned
Sessions Judge dismissed the application filed under Section
227 on 12-07-2019 holding that there was prima facie material
against the petitioners to continue the trial. It is this order that
is called in question in the subject petition. A consequential
relief of discharge is also sought by the petitioners.
3. Heard Sri Neelendra D.Gunde, learned counsel
appearing for the petitioner, Sri Ramesh Chigari, learned High
Court Government Pleader appearing for respondent No.1 and
Sri B.C. Jnanayyaswami, learned counsel appearing for
respondent No.2.
4. Learned counsel appearing for the petitioners would
urge the following contentions:
(i) The complainant does not belong to Scheduled Caste.
He belongs to Vishwakarma caste which is not a
Scheduled Caste. The basis for this contention is that
the mother of the complainant did belong to Scheduled
Caste and married to the father of the complainant
who belonged to forward caste and as such he loses
the status of belonging to 'Scheduled Caste'.
(ii) The incident did not take place in a public view at all,
as the parties to a particular civil dispute were
negotiating or mediating the dispute between them.
No other person is involved in the talks.
(iii) To bring home assault, a wound certificate is produced
which does not show any external injuries and
therefore, would contend that neither the case under
the Act nor assault under Section 323 of the IPC and
intimidation under Section 506 of the IPC is present in
the case at hand.
5. On the other hand, the learned counsel representing the
2nd respondent would submit that since the mother belongs to
Scheduled Caste, the 2nd respondent/son also belongs to
Scheduled Caste. Therefore, there is no warrant of interference
insofar as the case under the Act is concerned. He would
further contend that assault or otherwise is a matter of trial and
this Court should not interfere at this juncture, as charges are
yet to be framed in the case at hand.
6. The learned High Court Government Pleader would also
toe the lines of the learned counsel appearing for the 2nd
respondent to contend that it is a matter of trial for the
petitioners to come out clean.
7. I have given my anxious consideration to the
submissions made by the respective learned counsel and
perused the material on record. In furtherance of the
submissions made and on going through the records the
following issues arise for determination:
(i) Whether the mother of the complainant loses her
status of being a member of Scheduled Caste the
moment she married the father of the
complainant who belongs to a forward caste?
(ii) Whether the complainant being a son of a
member of Scheduled Caste/mother and a
forward caste/father would acquire the status as
member belonging to 'Scheduled Caste'?
(iii) Do the impugned proceedings warrant any
interference?
Issue No.(i):Whether the mother of the complainant loses
her status of being a member of Scheduled Caste the
moment she married the father of the complainant
who belongs to a forward caste?
8. The afore-narrated facts are not in dispute. The mother
of the complainant belong to 'Madiga' caste which comes under
Scheduled Caste gets married to the father of the complainant
who is a Vishwakarma by caste. The contention of the learned
counsel for the petitioners is that, the moment woman belonging
to Scheduled Caste gets married to a man belonging to forward
caste, she would lose the status of a member belonging to
Scheduled Caste and, therefore, the son also has lost the status
of 'Scheduled Caste' and as such, the complaint was not
maintainable. The first part of the submission, on the face of it is
unacceptable, as it is fundamentally flawed.
9. It is trite that a woman belonging to Scheduled Caste
getting married to a man belonging to forward caste will not lose
her caste status as one belonging to Scheduled Caste. This
issue need not detain this Court for long or delve deep into the
matter as a Full Bench of the High Court of Bombay in the case
of RAJENDRA SHRIVASTAVA v. STATE OF MAHARASHTRA1
answers the very question whether a lady belonging to
Scheduled Caste or Scheduled Tribe marrying a person
belonging to forward caste can be abused in the name of her
caste by a member of the public or by the husband or his
relative and whether offence under the Act can be registered.
The full Bench answers the issue in the following manner:
"11. The observations made in paragraph 31 of
the decision in the case of Valsamma (supra) [1997 (1)
Mh.L.J. (SC) 618] above cannot be read as a ratio laying
down that on marriage, a wife is automatically
transplanted into the caste of husband. The law on this
aspect has been laid down by a larger bench of the
Apex Court in the case of V. V Giri (supra). The
Constitution bench held that the caste is acquired by
birth and the caste does not undergo a change by
marriage or adoption. The ratio of the decision in the
case of a Valsamma Paul (supra) [1997 (1) Mh.L.J. (SC)
618] is that acquisition of the status of a scheduled
caste or a scheduled tribe by voluntary mobility into
these categories would play fraud on the constitution.
The Apex Court held that a candidate born in forward
caste who is transplanted in a family of backward caste
by adoption or by marriage does not become eligible to
(2010) 2 Mh.L.J. 198
benefits of reservation under the constitution. The
observations made in paragraph 31 in the case
of Valsamma (supra) [1997 (1) Mh.L.J. (SC) 618] are not
to the effect that a woman born in a forward caste, on
her marriage with a person belonging to a scheduled
caste or a scheduled tribe, is automatically
transplanted in the caste of her husband by virtue of
her marriage. In fact, the ratio of the said decision is set
out in paragraph 34 of the judgment which has been
quoted above.
12. When a woman born in a scheduled
caste or a scheduled tribe marries to a person
belonging to a forward caste, her caste by birth
does not change by virtue of the marriage. A
person born as a member of scheduled caste or a
scheduled tribe has to suffer from disadvantages,
disabilities and indignities only by virtue of
belonging to the particular caste which he or she
acquires involuntarily on birth. The suffering of
such a person by virtue of caste is not wiped out
by a marriage with the person belonging to a
forward caste. The label attached to a person
born into a scheduled caste or a scheduled tribe
continues notwithstanding the marriage. No
material has been placed before us by the
applicant so as to point out that the caste of a
person can be changed either by custom, usage,
religious sanction or provision of law.
13. If the interpretation sought to be put by
the learned counsel appearing for the applicant is
accepted, it will defeat the very object of enacting
the said Act. It will defeat the innovative steps
taken by the framers of our constitution for
protecting the persons belonging to scheduled
castes and scheduled tribes who have suffered for
generations.
14. Thus, the question formulated by the learned
Single Judge will have to be answered in the
affirmative. The question formulated by us in paragraph
one will have to be answered in the negative. A woman
who is born into a scheduled caste or a scheduled
tribe, on marriage with a person belonging to a
forward caste, is not automatically transplanted
into the caste of husband by virtue of her
marriage and, therefore, she cannot be said to
belong to her husband's caste.
(Emphasis as in the original)
It is held that a woman who is born in a Scheduled Caste or
Scheduled Tribe on marriage with a person belonging to forward
caste, is not automatically transplanted into the caste of the
husband by virtue of her marriage and she cannot belong to the
caste of the husband. Therefore, the mother of the complainant
continued to be a Scheduled Caste woman despite her marriage
to a man belonging to Vishwakarma caste. The first issue that
fell for determination on the contention of the learned counsel
appearing for the petitioners is answered against him negating
the submission that once the mother gets married to a forward
caste man, she would lose the status of being a member of
Scheduled Caste.
Issue No.(ii): Whether the complainant being a son of a
member of Scheduled Caste/mother and a forward
caste/father would acquire the status as member belonging
to 'Scheduled Caste'?
10. The subject issue to be determined is, whether the
complainant who is the son born to the mother belonging to
Scheduled Caste and father belonging to Vishwakarma caste,
would become a member of the Scheduled Caste qua the Act.
This issue is dealt with by the Apex Court not in the context of
the Act but in the context of issuance of caste certificate. The
Apex Court in the case of RAMESHBHAI DABHAI NAIKA v.
STATE OF GUJARAT2 has held as follows:
"44. The observation made by Gajendragadkar, J. half a
century ago was tellingly shown to be true in Rajendra
Shrivastava v. State of Maharashtra [(2010) 112 (2) Bom LR 762]
, a case that came before the Full Bench of the Bombay High
Court. In Rajendra Shrivastava [(2010) 112 (2) Bom LR 762] a
Scheduled Caste woman, who had married a man from an upper
caste, accused her husband and his family members of
subjecting her to cruelty and abusing her in the name of her
caste. A case was accordingly instituted against the accused,
including the husband, under Sections 498-A, 406, 494, 34 of the
Penal Code, 1860 read with the provisions of Sections 3(1)(ii) and
Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989. In the anticipatory bail
application filed on behalf of the husband it was contended that
(2012) 3 SCC 400
on getting married with him the complainant had assumed his
caste and lost her identity as a Scheduled Caste person. She
could, therefore, make no complaint under the provisions of the
SCs and STs (Prevention of Atrocities) Act. It goes without saying
that in support of the contention raised on behalf of the husband
strong reliance was placed upon the observations made
in Valsamma [(1996) 3 SCC 545 : 1996 SCC (L&S) 772 : (1996)
33 ATC 713] in para 31 of the judgment.
45. The Full Bench in Rajendra Shrivastava
case [(2010) 112 (2) Bom LR 762] before which the matter
came up for consideration on reference framed the
following issue as arising for consideration:
"If a woman who by birth belongs to a
Scheduled Caste or a Scheduled Tribe marries to a
man belonging to a forward caste, whether on
marriage she ceases to belong to the Scheduled Caste
or the Scheduled Tribe?"
46. The Full Bench of the Bombay High Court in Rajendra
Shrivastava case [(2010) 112 (2) Bom LR 762]
examined Valsamma [(1996) 3 SCC 545 : 1996 SCC (L&S) 772 :
(1996) 33 ATC 713] in light of the two Constitutional Bench
decisions of this Court, namely, Indra Sawhney v. Union of
India [1992 Supp (3) SCC 217 : 1992 SCC (L&S) Supp 1 : (1992)
22 ATC 385] and V.V. Giri v. D. Suri Dora [AIR 1959 SC 1318 :
(1960) 1 SCR 426] . The Full Bench also considered the law of
precedent and referred to the decision of this Court in State of
A.P. v. M. Radha Krishna Murthy [(2009) 5 SCC 117 : (2009) 2
SCC (Cri) 612] . It finally came to hold that the observations made
in para 31 of the decision in Valsamma [(1996) 3 SCC 545 : 1996
SCC (L&S) 772 : (1996) 33 ATC 713] cannot be read as the ratio
laying down that on marriage, a wife is automatically
transplanted into the caste of her husband. In para 12 of the
judgment in Rajendra Shrivastava [(2010) 112 (2) Bom LR 762]
the Full Bench of the Bombay High Court it held as follows:
"When a woman born in a Scheduled Caste or a
Scheduled Tribe marries to a person belonging to a forward
caste, her caste by birth does not change by virtue of the
marriage. A person born as a member of a Scheduled
Caste or a Scheduled Tribe has to suffer from
disadvantages, disabilities and indignities only by virtue of
belonging to the particular caste which he or she acquires
involuntarily on birth. The suffering of such a person by
virtue of caste is not wiped out by a marriage with the
person belonging to a forward caste. The label attached to
a person born into a Scheduled Caste or a Scheduled Tribe
continues notwithstanding the marriage. No material has
been placed before us by the applicant so as to point out
that the caste of a person can be changed either by
custom, usage, religious sanction or provision of law."
We fully endorse the view taken by the Bombay High Court and
we feel that in the facts of the case that was the only correct
view.
47. In light of the discussion made above it is clear that the
view expressed in para 31 of the Valsamma [(1996) 3 SCC 545:
1996 SCC (L&S) 772: (1996) 33 ATC 713] judgment that in an
inter-caste marriage or a marriage between a tribal and a non-
tribal the woman must in all cases take her caste from the
husband, as a rule of the constitutional law is a proposition, the
correctness of which is not free from doubt. And in any case it is
not the ratio of the Valsamma [(1996) 3 SCC 545: 1996 SCC
(L&S) 772: (1996) 33 ATC 713] decision and does not make a
binding precedent.
48. It is also clear to us that taking it to the next logical
step and to hold that the offspring of such a marriage would in all
cases get his/her caste from the father is bound to give rise to
serious problems. Take for instance the case of a tribal woman
getting married to a forward caste man and who is widowed or is
abandoned by the husband shortly after marriage. She goes
back to her people and the community carrying with her an infant
or may be a child still in the womb. The child is born in the
community from where her mother came and to which she went
back and is brought up as the member of that community
suffering all the deprivations, humiliations, disabilities and
handicaps as a member of the community. Can it still be said
that the child would have the caste of his father and, therefore,
not entitled to any benefits, privileges or protections sanctioned
by the Constitution.
49. Let us now examine how the issue has been dealt with
by some of the High Courts.
50. A Full Bench decision of the Kerala High Court in M.C.
Valsala v. State of Kerala [AIR 2006 Ker 1] is a case in point. The
Government of Kerala had issued G.O. (Ms) No. 298 dated 23-6-
1961 stating that children born of inter-caste marriages would be
allowed all educational concessions if either of the parents
belonged to the Scheduled Caste/Scheduled Tribe. Later, on a
query made by the Kerala Public Service Commission, the
Government clarified vide a G.O. (Ms) dated 25-1-1977 that the
Government Order dated 23-6-1961 could be adopted for
determining the caste of the children born of such inter-caste
marriage for all purposes. Resultantly, such children were
treated as belonging to the Scheduled Caste or Scheduled Tribe if
either of their parents belonged to SC/ST. After the decision of
this Court in Punit Rai [(2003) 8 SCC 204] and in light of the
separate though concurring judgment of Sinha, J. the State of
Kerala cancelled the earlier G.O. (Ms) dated 23-6-1961 and its
clarification dated 25-1-1977 and replaced it by another order
G.O. (Ms) No. 11/2005/SCSTDD dated 20-6-2005 directing that
the competent authorities would issue the Scheduled
Caste/Scheduled Tribe community certificates to the children
born from inter-caste marriage only as per the caste/community
of his/her father subject to the conditions of acceptance,
customary traits and tenets as stipulated in the judgments of the
Supreme Court. The validity of the Government Order dated 20-6-
2005 came up for consideration before the Full Bench of the
Kerala High Court.
51. The High Court considered the decisions of this Court
in a number of cases including Valsamma [(1996) 3 SCC 545:
1996 SCC (L&S) 772: (1996) 33 ATC 713], Sobha Hymavathi
Devi [(2005) 2 SCC 244] and Punit Rai [(2003) 8 SCC 204] and in
para 21 of the judgment came to hold as follows: (M.C. Valsala
case [AIR 2006 Ker 1] , AIR p. 10)
"21. The Government, vide order G.O. (Ms) No.
25/2005/SCSTDD dated 20-6-2005 directed the
competent authorities to issue SC/ST community
certificates to the children born out of inter-caste married
couples as per the caste/community of the father subject to
the conditions of acceptance, customary traits and tenets
stipulated in Punit Rai case [(2003) 8 SCC 204] and Sobha
Hymavathi Devi case [(2005) 2 SCC 244] . The above
Government order would also be applicable to the children
born out of inter-caste married couple if the mother belongs
to SC/ST community. Subject to the above direction, rest of
the directions contained in G.O. (Ms) No. 11/05 and G.O.
(Ms) No. 25/2005 would stand."
(emphasis supplied)
We are in agreement with the view taken by the Kerala High
Court.
52. A Division Bench of the Delhi High Court in Kendriya
Vidyalaya Sangathan v. Shanti Acharya Sisingi [(2011) 176 DLT
341] after considering a number of decisions of this Court
summed up the legal position as to the offspring of an inter-caste
marriage or a marriage between a tribal and a non-tribal in
clauses (3) and (4) under para 30 of the judgment as follows:
(DLT p. 355)
"(3) The offshoot of wedlock between Scheduled
Caste/Scheduled Tribe male and a female belonging to
forward community can claim Scheduled Caste/Scheduled
Tribe status for Indian society is patriarchal society where
the child acquires the caste of his father.
(4) The offshoot of wedlock between Scheduled
Caste/Scheduled Tribe female and a male belonging
to forward community cannot claim Scheduled
Caste/Scheduled Tribe status unless he demonstrates
that she has suffered the disabilities suffered by the
members of the community of his mother."
(emphasis supplied)
53. In Arabinda Kumar Saha v. State of Assam [(2001) 3
Gau LT 45] a Division Bench of the Gauhati High Court had a
case before it in which a person whose father belonged to the
upper caste and mother to a Scheduled Caste claimed the
Scheduled Caste status. The Court found and held that though
the father of the writ petitioner was admittedly a forward caste
man he was brought up as a member of the Scheduled Caste.
This was evident from the fact that the writ petitioner had not
only been the office-holder of Anusuchit Jati Karamchari
Parishad but the Scheduled Caste community treated the
appellant as belonging to the Scheduled Caste and even the non-
Scheduled Caste people treated him as Scheduled Caste,
inasmuch as in his college career and in his service career he
was treated as a person belonging to a Scheduled Caste.
54. In view of the analysis of the earlier decisions
and the discussion made above, the legal position that
seems to emerge is that in an inter-caste marriage or a
marriage between a tribal and a non-tribal the
determination of the caste of the offspring is essentially a
question of fact to be decided on the basis of the facts
adduced in each case. The determination of caste of a
person born of an inter-caste marriage or a marriage
between a tribal and a non-tribal cannot be determined in
complete disregard of attending facts of the case.
55. In an inter-caste marriage or a marriage between
a tribal and a non-tribal there may be a presumption that
the child has the caste of the father. This presumption
may be stronger in the case where in the inter-caste
marriage or a marriage between a tribal and a non-tribal
the husband belongs to a forward caste. But by no means
the presumption is conclusive or irrebuttable and it is
open to the child of such marriage to lead evidence to
show that he/she was brought up by the mother who
belonged to the Scheduled Caste/Scheduled Tribe. By
virtue of being the son of a forward caste father he did not
have any advantageous start in life but on the contrary
suffered the deprivations, indignities, humilities and
handicaps like any other member of the community to
which his/her mother belonged. Additionally, that he was
always treated as a member of the community to which
her mother belonged not only by that community but by
the people outside the community as well."
(Emphasis supplied)
On a coalesce of the judgments rendered by various High
Courts, the Apex Court at paragraphs 54 and 55 holds that it is
a question of fact to be proved by the child born to such parents
that he still belongs to Scheduled Caste, in view of continuance
of deprivations and humilities that he suffers in the society. The
Apex Court follows the judgment of the Full Bench afore-quoted
of the Bombay High Court, as also the judgment of the Delhi
High Court. At paragraph 52 of the judgment, the Apex Court
quotes the judgment of the Delhi High Court. The Delhi High
Court holds that the offshoot of wedlock between the Scheduled
Caste/Scheduled Tribe female and a male belonging to forward
community cannot claim Scheduled Caste/Scheduled Tribe
status, unless he/she demonstrates that he/she has suffered
the disabilities suffered by the members of the community of
his/her mother.
11. The case at hand is the one under the Act. Section
2(ec) of the Act defines who is a victim. A 'victim' would fall
within the definition of the Scheduled Caste and Scheduled
Tribe as declared by the State. Section 3 determines
punishments for offences of atrocities and reads as follows:
"3.Punishment 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 excrete, 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
allotted to, a member of a Scheduled Caste or 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 any land, premises
or water;
(vi) compels or entices a member of a Scheduled Caste or
Scheduled Tribe to do 'begging' or other similar forms of forced
or bonded labour other than any, compulsory service for public
purpose 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) internationally 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 women 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 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
Scheduled Tribe to leave his house, village, or other place or
residence;
shall be punishable with imprisonment for a term which shall
not be less than six months but which may extend to five
years and with fine.
(2) Whoever, not being a member of a Scheduled Caste or a
Scheduled Tribe,-
(i) gives or fabricates false evidence intending thereby to
cause, or knowing it to be likely that he will thereby cause,
any member of a Scheduled Caste or a Scheduled Tribe to be
convicted of a offence which is capital by the law for the time
being in force shall be punished with imprisonment for life and
with fine and if an innocent member of a Scheduled Caste or a
Scheduled Tribe be convicted and executed in consequence of
such false or fabricated evidence, the person who gives or
fabricates such false evidence, shall be punished with death;
(ii) gives fabricates false evidence intending/hereby to
cause, or knowing it to be likely that he will thereby cause,
any member of a Scheduled Caste or a Scheduled Tribe to be
convicted of an offence which is not capital but punishable
with imprisonment for a term of seven years or upwards, shall
be punishable with imprisonment for a term which shall not
be less than six months but which may extend to seven years
or upwards and with fine;
(iii) commits mischief by fire or any explosive substance
intending to cause or knowing it to be likely that he will
thereby cause damage to any property belonging to a member
of a Scheduled Castes or a Scheduled Tribe, shall be
punishable with imprisonment for a term which shall not be
less than six months but which may extend to seven years
and with fine;
(iv) commits mischief by fire or any explosive substance
intending to cause or knowing it to be likely that he will
thereby cause destruction of any building which is ordinarily
used as a place of worship or as a place for human dwelling
or as a place for custody of the property by a member of a
Scheduled Caste or a Scheduled Tribe, shall be punishable
with imprisonment for life and with fine;
(v) commits any offence under the Indian Penal Code (45 of
1860) punishable with imprisonment for a term often years or
more against a person or property on the ground that such
person is a member of a Scheduled Caste or a Scheduled
Tribe or such property belongs to such member, shall be
punishable with imprisonment for life and with fine;
(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 the 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 than one year but which may extend
to the punishment provided for their offence."
Section 3 begins with whoever not being a member of Scheduled
Caste indulges in several of the incidents against members of
Scheduled Caste, the offences become punishable under Section
3. Therefore, the soul of the provision is undoubtedly the
complainant should belong to Scheduled Caste.
12. The complainant, in the case at hand, is the son born
to a member of Vishwakarma/father and a member of
Scheduled Caste/mother. Though the mother does not lose the
status of Scheduled Caste after marriage, the status of the son
to complain that he is a Scheduled Caste and accused are
amenable for punishment under the Act, is not axiomatic. The
whole hog of pleadings in the complaint should be made while
registering one such complaint by a child whose parents are
both Scheduled Caste and forward caste. The pleading in the
case at hand qua the complaint is bald and vague as vagueness
could be.
13. The police, after investigation, have filed a charge sheet
in the matter showing the complainant to be a Scheduled Caste.
The policemen have not gone on patriarchal principle which may
not by itself correct. But, the facts pleaded in the complaint or
other documents in the investigation should demonstrate that
the son has suffered the same disabilities that persisted with his
mother. It is germane to notice the complaint which reads as
follows:
"«µÀAiÀÄ:- eÁw ¤AzÀ£É ªÀiÁr CªÁZÀå ±À§ÝU½
À AzÀ ¨ÉÊzÀÄ zÉÊ»PÀªÁV ºÀ¯Éè
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À À «gÀÄzÀÞ zÀÆgÀÄ zÁR°¸ÀĪÀ PÀÄjvÀÄ.
F ªÉÄïÁÌt¹  zÀ «µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ F ªÀÄÆ®PÀ vÀªÀÄä°è
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£ÀUgÀ À (¸ÀfÓ ºÀÆ°) ªÀAiÀĸÀÄì 32, GzÉÆåÃUÀ ªÀåªÀºÁgÀ eÁw ªÀiÁ¢UÀ, ¢£ÁAPÀ
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PÉÆrgÉAzÀÄ vÀªÀÄä°è «£ÀAw¹PÉƼÀÄîvÁÛ F WÀl£ÉAiÀÄ §UÉÎ £ÀªÀÄä ªÀÄ£ÉAiÀÄ°è »jAiÀÄjUÉ
«ZÁj¹ vÀqª À ÁV EAzÀÄ vÀªÀÄä°èUÉ §AzÀÄ zÀÆgÀ£ÀÄß PÉÆqÀ®Ä §A¢gÀÄvÉÛÃ£É ªÀÄvÀÄÛ CzÉÃ
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À ÉÆA¢UÉ,
zÀ¸ÀÆÛgÀ vÀªÀÄä «±Áé¹
¸À»/- ¸À»/-."
The complaint does not contain any fact about anything
whatsoever, with regard to the complainant belonging to the
Scheduled Caste. It is bald and vague. The Police, after
investigation, have filed the charge sheet in the matter. Column
No.17 - summary of the charge sheet reads as follows:
"17.Brief facts of the case
¢£ÁAPÀ : 20.09.2015 gÀAzÀÄ ¨É½UÉÎ, 11.00 UÀAmÉ ¸ÀĪÀiÁgÀÄ PÉÆ¥Àà¼À £ÀUg À À
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ªÀÄUÀ£ÃÉ ' JAzÀÄ eÁw JwÛ ¨ÉÊzÀÄ, 'ªÀiÁ¢UÀ ¸ÀƼɪÀÄUÀ£Àß £ÁAiÀÄå §Uɺj À ¸À°PÉÌ KPÉ
PÀg¹
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¨ÉÊAiÀÄÄwÛÃj JA¢zÀÝPÉÌ DgÉÆævÀg® É è gÆ
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ªÀÄUÀ£ÃÉ ¤£ÀUÉ ªÀÄvÀÄÛ ¤£Àß PÀÄlÄA§zÀªj À UÉ gÉÆÃr£À°è ¥ÉmÉÆÃæ ¯ï ºÀQ ¸ÀÄqÀÄvÉÛêÉ.'
JAzÀÄ PÉʬÄAzÀ ºÉÆqɧqÉ ªÀiÁr, ¸ÁzÁ ¸ÀégÀÆ¥ÀzÀ UÁAiÀĪÀ£ÀÄßAlÄ ªÀiÁrgÀÄvÁÛgÉ
ªÀÄvÀÄÛ '¯Éà ªÀiÁ¢UÀ ¸ÀÆ¼É ªÀÄUÀ£ÃÉ ¤Ã£ÀÄ AiÀiÁgÀ£Àß PÀj¬Ä¹zÀgÀÄ, £ÁªÀÅ ºÀħâ½î¬ÄAzÀ
gËrUÀ¼£ À ÀÄß ¸Él®ªÉÄAl¢AzÀ PÀg¬ É Ä¹ ¤£Àß ªÀÄvÀÄÛ PÀÄlÄA§zÀ J¯Áè ªÀÄ£ÉU½ À UÉ
¥ÉmÉÆÃæ ¯ï GV, ¨ÉAQ ºÀZÀÄwÑ Ûä CAvÁ fêÀzÀ ºÉzj À PÉ ºÁQgÀÄvÁÛg.É "
A reading of the complaint, the summary of the charge sheet and
the statement of witnesses, all speak about only assault and not
anything about determination of caste of the complainant. As a
matter of fact, the first petitioner is the brother of the father of
the complainant. Unless it is demonstrated from the facts that
from the birth till registration of complaint the complainant does
belong to Scheduled Caste, in terms of the judgment of the Apex
Court, the Act on the face of it cannot be invoked. If the Act
cannot be invoked, the complaint by the complainant was not
maintainable. Therefore, the 2nd issue is answered against the
complainant, as there is no evidence or documents produced, to
demonstrate that he continues the disability of being a member
of Scheduled Caste in terms of the judgment of the Apex Court.
Issue No.(iii): Do the impugned proceedings warrant any
interference?
14. Since the Act itself was not invokable in the case at
hand, the issue that now remains to be answered is as to
whether, further proceedings are permitted to be continued
against the petitioners for offences punishable under Sections
323, 504, 506 read with Section 34 of the IPC. All the aforesaid
offences are non-cognizable. That may not be the determinative
factor to stall further proceedings. The parties to the lis were in a
civil dispute with regard to the property. Settlement talks were
on between the parties. It is at that time, it is alleged, that
assault has taken place. Complaint is registered on 23-09-2015
for an incident that happened on 20-09-2015. There is no
explanation, whatsoever, as to why complaint was not
immediately registered.
15. To contend that the petitioners have assaulted the
complainant, a wound certificate is produced, which depicts that
there are no external injuries at all. X-ray was not even taken
and the complaint had little pain over the chest and it is
declared that the injury was simple in nature. This cannot be
enough evidence to contend that there was assault by the
petitioners on the complainant. What remains is offence alleged
under Sections 504 and 506 of the IPC. The intimidation in the
backdrop of a civil dispute between the parties cannot be
brushed aside, since the complainant and the 1st petitioner do
belong to the same family and were in dispute with regard to a
property. It cannot be probablised that other offences under
Sections 504 and 506 have happened even. Therefore, finding
the complaint in terms of the Act and the Code being untenable,
I answer the issue holding that the impugned proceedings
warrant appropriate interference, as a result whereof, I deem it
appropriate to terminate the proceedings against the petitioners
for the aforesaid offences, as permitting further proceedings
would become an abuse of the process of law and result in
miscarriage of justice.
16. For the aforesaid reasons, I pass the following:
ORDER
(i) The Criminal Petition is allowed.
(ii) The order dated 12.07.2019 passed by the District
and Sessions Judge, Koppal in Special C.C.(AC)
No.25 of 2015 stands quashed and consequently, the
application filed by the petitioners under Section 227
of the Cr.P.C. before the District and Sessions Judge,
Koppal is allowed.
I.A.No.1/2019 stands disposed, as a consequence.
Sd/-
JUDGE
bkp
CT:MJ
