..(1).. IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2013 OF 2007 [LEAVE TO APPEAL] IN CRIMINAL APPEAL NO. OF 2007 The State of Maharashtra. ..Applicant. Versus Faruq Imam Sayyad and 3 Ors. ..Respondents. .... Mr.Rajesh More, APP, for the Applicant-State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 17th June, 2008. DATED : 17th June, 2008. DATED : 17th June, 2008. P.C.: 1. The applicant-State of Maharashtra has filed this application for leave to file appeal against the judgment and order dated 29th January, 2007 passed by the learned Ad-hoc Addl. Sessions Judge,5, Kolhapur in Sessions Case No.36 of 2006. By the said judgment and order, the learned Sessions Judge acquitted the respondents-orig. accused Nos.1 to 4 of the offences punishable under Section 3(1)(x), 3(1)(viii) and 3(1)(ix) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, hereinafter referred to as the SC & ST Act, for the sake of ..(2).. brevity. 2. Heard the learned APP for the Applicant-State. Perused the judgment and order of the learned Sessions Judge as well as the evidence which has been produced by the learned APP. 3. In the present case, it is seen that there is delay of five months in lodging the FIR. The said delay has not been satisfactorily explained. This inordinate delay itself raises grave doubt in the mind regarding the veracity of the complainant. 4. In addition to the above, it is noticed that the complainant has not stated anywhere that the accused persons do not belong to Scheduled Caste or Scheduled Tribe. Their caste certificates have also not been produced by the prosecution. Thus, the caste of the accused person has not been brought on record. It is incumbent on the part of the prosecution to prove the caste of not only the complainant but also of ..(3).. the accused. Useful reference can be made to the decision of this Court in the case of Ashabala Ashabala Ashabala Ganeshrao Khote & Anr. Vs. State of Maharashtra Ganeshrao Khote & Anr. Vs. State of Maharashtra Ganeshrao Khote & Anr. Vs. State of Maharashtra, reported in 1992(2) Mh.L.J. page-36 1992(2) Mh.L.J. page-36 1992(2) Mh.L.J. page-36, wherein this Court has held that Section 3 of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, contemplates that the prosecution must establish that accused was not member of scheduled caste or scheduled tribe and the person aggrieved was the member of scheduled caste or scheduled tribe. This is the important ingredient to establish offence under Section 3 of the Act. There must be specific evidence with respect to both these aspects. In para-8 of the said Judgement, this Court observed that the prosecution ought to have brought on record the caste certificate of both the parties to prove their allegations. 5. If the caste of the complainant is not disclosed in the FIR, the police authorities could not be said to have any material to invoke the powers under Chapter XII of the Cr.P.C. and to commence the investigation considering the ..(4).. complaint to be a cognizable complaint. Useful reference may be made to a decision of the Division Bench of this Court (V.K.Barde and A.P.Deshpande, JJ.) dated 20th April, 2001 in the case of Anant Vasantlal Sambre V. State of Anant Vasantlal Sambre V. State of Anant Vasantlal Sambre V. State of Maharashtra, Maharashtra, Maharashtra, in Cri.W.P.No.49 of 2001, in which it was held that if the First Information Report does not contain an averment that the accused does not belong to a Scheduled Caste or Scheduled Tribe, the offence under Section 3 of the Atrocities Act, cannot be registered." 6. Section 3(1)(x) of the SC & ST Act provides that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view 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. A Division Bench of this Court (R.M.S.Khandeparkar and Smt.V.K.Tahilramani, JJ.) in the case of Subhadra Sushil Anand and others Subhadra Sushil Anand and others Subhadra Sushil Anand and others Vs. State of Maharashtra and another Vs. State of Maharashtra and another Vs. State of Maharashtra and another in Criminal ..(5).. Writ Petition No.1019 of 2007 decided on 13.9.2007, has held that "plain reading of the provisions of law comprised under Section 3(1)(x) of the said Act therefore would reveal that in order to enable the police to take cognizance of the offence committed under the said provisions of law, it would be necessary for the complainant to disclose that the person who is accused of commission of offence under the said Act is not a member of the Scheduled Caste or Scheduled Tribe and that he intentionally insults or intimidates with intend or humiliate the complainant or any other person who is a member of a Scheduled Caste or a Scheduled Tribe and lastly that such incident should occur in public view. In other words, the complaint has not only to reveal the caste of the person who is sought to be insulted or intimidated or humiliated but he should also disclose that such person belongs to a Scheduled Caste or a Scheduled Tribe and simultaneously the complaint should also reveal that the person who is accused of commission of such offence does not belong either to a Scheduled caste or to a Scheduled Tribe. It is only when the accusation with an ..(6).. intention to insult or intimidate or to humiliate has been made by a person not belonging either to a Scheduled Caste or a Scheduled Tribe and addressed to the person belonging to a Scheduled Caste or a Scheduled Tribe, and such incident occurs in public view, only in that case, he could be said to have committed an offence under section 3(1)(x) of the said Act and not otherwise. Obviously, therefore, if the complaint does not disclose that the accused person does not belong to Scheduled Caste or Scheduled Tribe, it would not disclose an offence in terms of the said section." 7. In the present case, the complaint is totally silent about the caste of the accused persons. So also in her evidence, the complainant has not stated the caste of the accused persons. As stated earlier the caste of the accused persons has not been brought on record by the prosecution. In the absence of essential facts in the evidence of the witnesses especially the evidence of the complainant, it cannot be said that any case is made out under the SC & ST Act. ..(7).. 8. As stated earlier, in the present case there is delay of five months in lodging the complaint and the said delay has not been satisfactorily explained. Looking to all these facts, the learned Sessions Judge has acquitted the respondents-orig.accused. 9. Looking to the evidence on record, I am of the opinion that the view taken by the learned Sessions Judge is a reasonable and possible view. Hence, no interference is called for. Application for leave to file appeal is rejected. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)