bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 51 OF 1999 PETITION NO. 51 OF 1999 PETITION NO. 51 OF 1999 1. Shri P.B.Shah 2. Shri Ramesh Chinchalkar 3. Shri S.V.Dhavale 4. Shri S.V.Marathe 5. Shri P.S.Chumbale 6. Smt. Vamala K.S. ... Petitioners v/s 1. Shri Prabhu Mahadeo Kodate 2. Dr.Hemant B. Ratnaparkhi 3. Smt.Joseph B. Albert Fernandes 4. State of Maharashtra ... Respondents Mr.Shiv Swaminathan i/by Mr.V.G.Mujumdar & T.K.Swaminathan for the petitioners. Smt.A.G.Salekar for respondent No.2. Mr.P.A.Pol, A.P.P. for respondent No.4 State. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 25TH JULY, 2008 25TH JULY, 2008 25TH JULY, 2008 ORAL ORAL ORAL JUDGMENT JUDGMENT JUDGMENT: 1. By this petition, the petitioners seek to challenge the order passed by the J.M.F.C., Pimpri, Pune in Criminal Complaint No.203 of 1996 issuing process against them. The order passed by the Sessions Court in revision has also been challenged by the petitioners. Petitioners are officers of the Bank of Maharashtra where respondent No.1 was employed as a peon. 2 Respondent No.2 is an Orthopaedic Surgeon and respondent No.3 is his receptionist. 2. A departmental enquiry was conducted against the respondent No.1 for acts of misconduct including insubordination. The departmental enquiry resulted in the respondent No.1 being found guilty. He was punished in accordance with law after the management accepted the report of the enquiry officer. Two increments of the respondent No.1 were stopped with cumulative effect. This order of punishment was not challenged by the respondent No.1 before any forum. However, he preferred a complaint before the Sessions Court against the petitioners under the provisions of Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Atrocities Act). This complaint was filed some time in the year 1992 and the statement of respondent No.1 was recorded on 16.4.1992. The Sessions Court directed that the case be transferred to the Judicial Magistrate First Class, Pimpri, Pune who was directed to be register and re-number the complaint. Directions were also issued by the Sessions Court to the J.M.F.C. to deal with the complaint in accordance with the procedure contemplated by Chapters XV and XVI of the Code of Criminal Procedure, 1973. These events occurred in the year 3 1996. Process has been issued by the J.M.F.C. against the petitioners and respondent Nos.2 and 3. The Sessions Court has confirmed the issuance of process. Hence this petition for quashing the process issued and the complaint itself. 3. In 1990, respondent No.1 who was working with Bank of Maharashtra was arrested and the charge was framed against him under Section 506 (2) of the Indian Penal Code. Those proceedings i.e. Regular Criminal Case No.11 of 1991 ended in an acquittal on 30.7.1991. It was thereafter that the respondent No.1 filed the present complaint under the Atrocities Act. 4. The main contention of the learned advocate for the petitioners is that the petitioners have not committed any offence much less an offence under the Atrocities Act. He submits that the allegation in the complaint filed by the respondent No.1 is that the petitioners have essentially committed the offences against respondent No.1 under Section 3(1) (viii), (ix) and (x) of the Atrocities Act. The learned advocate submits that reading the complaint as a whole, none of these alleged offences are made out in the complaint filed by the respondent No.1. He submits that in any event the complaint is barred by limitation and, therefore, no 4 cognizance could have been taken of the alleged offences. He further submits that the complaint is nothing but an abuse of the process of law for which respondent No.1 should be dealt with strictly. The learned advocate draws my attention to the fact that the departmental enquiry conducted against the respondent No.1 was in respect of false medical bills submitted by him, besides various other charges like refusal to work, disorderly and indecent behaviour, insubordination, etc. According to the learned advocate, the criminal complaint filed by the respondent No.1 is nothing but a backlash against the petitioners for having taken disciplinary action against the respondent No.1. The learned advocate has meticulously taken me through the complaint and pointed out that the allegations in the complaint are not justified and do not make out offences under Section 3(1) (viii), (ix) and (x) of the Atrocities Act. 5. Respondent No.2 is accused No.7 in Special Case No.2 of 1992 filed by respondent No.1. He has not preferred a writ petition but prays that this Court should grant the same relief as claimed by the petitioners in order to prevent any miscarriage of justice under its inherent powers. It is also submitted that there are no specific allegations against either respondent No.2 or respondent 5 No.3 contained in the complaint. In fact, respondent No.3 who was working with respondent No.2 had lodged a complaint against respondent No.1 under Section 506 (2) of the I.P.C. That charge ended in an acquittal in favour of respondent No.1. It is submitted that the allegations in the complaint against respondent No.2 are vague and unrelated to the events alleged against the petitioners. 6. Reliance is placed on the judgment of a learned Single Judge of the Nagpur Bench of this Court in Ashok Ashok Ashok Lakhaji Lakhaji Lakhaji Halmare v/s State of Maharashtra, reported in Halmare v/s State of Maharashtra, reported in Halmare v/s State of Maharashtra, reported in 2006(1) 2006(1) 2006(1) Bom.C.R.(Cri) 171. Bom.C.R.(Cri) 171. Bom.C.R.(Cri) 171. In my opinion, the submission made on behalf of the respondent No.2 that in the present petition the complaint against respondent No.2 should also be quashed can be accepted as this petition has been filed for exercising the inherent powers of this Court. The Court can always take note of any miscarriage of justice and prevent the same by exercising its powers under Section 482 of the Cr.P.C. Therefore, in my opinion, although respondent No.2 has not challenged the proceedings by filing a separate petition, if the complaint is quashed he will be equally entitled to relief. 7. Before considering the averments contained in the 6 complaint, it would be fruitful to note the provisions under which the respondent No.1 has made serious allegations against the petitioners as well as respondent No.2. Essentially the complaint alleges that offences have been committed by the accused under Section 3(1) (viii), (ix) and (x) of the Atrocities Act. These provisions read as under:- "Section "Section "Section 3:- Punishments for offences of 3:- Punishments for offences of 3:- Punishments for offences of atrocities.- atrocities.- atrocities.- (1) Whoever, not being a member (1) Whoever, not being a member (1) Whoever, not being a member of of of a Scheduled Caste or a Scheduled Tribe,- a Scheduled Caste or a Scheduled Tribe,- a Scheduled Caste or a Scheduled Tribe,- (i) ........... (ii) ........... (iii)........... (iv) ........... (v) ........... (vi) ........... (vii)........... "(viii). "(viii). "(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). (ix). (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). (x). (x). intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view." Bearing in mind these provisions, I will now consider whether the complaint makes out offences under the aforesaid provisions of law. 7 8. The allegation against the petitioner No.1 is that in November, 1986 he had prohibited the respondent No.1 from sitting in a chair only because respondent No.1 belongs to a Scheduled Caste. It is then alleged that on 12.3.1988, petitioner No.1 as the Manager of the Bank had sanctioned an advance payment of an amount on an application made by the respondent No.1 but the same was not credited to his account, thereby causing physical and mental harassment to respondent No.1. The allegation against petitioner Nos.2 and 4 is that on 27.1.1988 they had issued a false charge-sheet against respondent No.1 in order to harass him. Besides this, it is contended that the petitioners have allegedly insulted respondent No.1 only because they belong to a "superior caste". It is then alleged that on 25.2.1988 petitioner Nos.2, 4 and respondent No.2, in collusion issued a bogus medical bill and contended that, that bill was not paid by the respondent No.1. They had also filed vexatious suits against respondent No.1 to harass and insult him, thereby committing offences under Section 3(1) (xiii), (ix) and (x) of of the Atrocities Act. It is also alleged in the complaint that petitioner Nos.2, 4, and respondent Nos.2 and 3 have registered a false police complaint due to which respondent No.1 was arrested, thereby committing an 8 offence under Section 3(1) (viii) of the Atrocities Act. There are no specific allegations against petitioner Nos.3, 5 and 6. However, an allegation has been made against one Alawani that on 21.7.1988 he issued respondent No.1 a false charge-sheet and had him "convicted", thus committing offences under Section 3(1) (viii), (ix) and (x) the Atrocities Act. 9. Reading the complaint as a whole, in my opinion, none of the allegations contained in it make out any offence under the Atrocities Act. The mere fact that the respondent No.1 was an accused in Regular Criminal Complaint No.11 of 1991 filed under Section 506(2) of the I.P.C. would not, in my opinion, attract the provisions of Section 3(1)(viii). Nor is the fact that the trial ended in an acquittal of respondent No.1 relevant for the purposes of determining whether the criminal case instituted against the respondent No.1 was false, malicious or a vexatious case. In my opinion, the acquittal of a person belonging to a Scheduled Caste or a Scheduled Tribe in a proceeding in a criminal case filed against him would not automatically lead to the inference that the criminal case which is instituted was false, malicious or vexatious. 10. It is difficult to determine on reading the 9 complaint as to how any offence under Section 3(1)(ix) is made out. By registering a complaint against respondent No.1 under Section 506(2) of the I.P.C., the respondent No.3 cannot be said to have given false or frivolous information to a public servant thereby resulting in such public servant using his lawful power to cause injury or annoyance of a member of a Scheduled Caste or a Scheduled Tribe. Registering an offence in respect of which later a trial was conducted and in which the member of the Scheduled Caste was acquitted, would not necessarily mean that the complainant had given false or frivolous information which led the police to take action in accordance with law. The acquittal of respondent No.1 in the criminal case cannot lead to those inferences. Apart from this, the proceedings initiated in the departmental enquiry against the respondent No.1 can also not be considered to be either false, malicious or vexatious. Neither can these proceedings be said to have been initiated by false or frivolous information given to a public servant. Therefore, the charges under Section 3(1) (viii) and (ix) in respect of the petitioners as well as respondent Nos.2 and 3 are not made out in the complaint. 11. The charge of intentionally insulting or 10 intimidating with an intent to humiliate a member of a Scheduled Caste or Scheduled Tribe in any place within public view is contained in Section 3(1)(x). The allegations against the petitioners are that petitioner No.1 had refused a chair to respondent No.1, that disciplinary action was initiated against him and that a criminal complaint had been lodged against him. In my opinion, these acts would not amount to insults or intimidation with an intent to humiliate respondent No.1. Besides this, none of the acts complained of have taken place within public view. Assuming respondent No.1 was not offered a chair by petitioner No.1, while on duty, it cannot lead to the conclusion which respondent No.1 seeks to draw for attracting the provisions of Section 3(1)(x). The acts under Section 3(1)(x) must take place within public view. Obviously, public view would mean where members of the public are able to hear the insults or see the intimidation. These are not the allegations contained in the complaint and, therefore, the offence is not made out. 12. The learned advocate for the petitioners also draws my attention to the fact that the complaint is barred by limitation. He submits that under the Act, the punishment which may be imposed on a person who has allegedly committed offences under Section 3 is 11 imprisonment for a term which shall not be less than six months but which could extend to five years with fine. The allegations contained in the complaint are of incidents which have occurred in 1986, 1988 and 1990. Thus, the allegations in respect of the incidents which have occurred in 1986 can be said to be barred by limitation. The other allegations contained in the complaint are of events which occurred in 1988 and 1990 which cannot be said to be barred by limitation. 13. However, as I have already held that the offences complained of under the Atrocities Act are not made out in the complaint, the proceedings must be quashed. 14. It must be noted here that this matter appeared for final hearing on 3.6.2008 when nobody appeared for the respondent No.1 nor was he present in Court. I, therefore, adjourned it to the next day. Again respondent No.1 and his advocate remained absent. I then directed the petitioners’ advocate to give notice to respondent No.1 as well as his advocate, stating that the matter would appear on board on 16.6.2008 for final hearing. The learned advocate for the petitioners has filed an affidavit dated 12.6.2008 indicating service on respondent No.1 as well as his advocate. However, since neither the respondent No.1 nor his advocate present, I 12 was constrained to proceed with hearing of the petition in their absence. 15. In the result, writ petition allowed. Rule made absolute. No order as to costs. 16. Criminal Complaint No.203 of 1996 pending before the J.M.F.C., Pimpri, Pune, as also the investigation pending under the orders passed by the Sessions Judge, Pune, in Special Case No.2 of 1992 are quashed and set aside.