..(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.1975 OF 2001 S.P.Ramdasi ..Applicant Vs. The State of Maharashtra. ..Respondent .... Mr.C.K.Pendse, Adv. for the Applicant. Ms.A.A.Mane APP for State .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : OCTOBER 8, 2008. DATED : OCTOBER 8, 2008. DATED : OCTOBER 8, 2008. P.C.: 1. Heard the learned advocate for the applicant-original accused no.2 and the learned APP for the State. 2. The applicant is seeking quashing of FIR being CR No. 51 of 2001 of Manikpur Police Station. The said case is under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. I have perused the FIR and the other material. The case of the complainant is that she belongs to Baudha community. There was some dispute in relation to water between the complainant and the accused ..(2).. persons, hence, on account of the said dispute on 8.6.2001 both the accused persons i.e. accused no.1 Gul Bajaj and accused no.2 i.e. the present applicant abused the complainant with reference to her caste. 3. 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 bring on record the caste of not only the complainant but also of the accused. Useful reference can be made to the decision of this Court in the case of Ashabala Ganeshrao Khote & Ashabala Ganeshrao Khote & Ashabala Ganeshrao Khote & Anr. Vs. State of Maharashtra Anr. Vs. State of Maharashtra 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 ..(3).. 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 material 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. 4. If the caste of the accused 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 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, ..(4).. cannot be registered." 5. 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 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 ..(5).. 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 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 ..(6).. to Scheduled Caste or Scheduled Tribe, it would not disclose an offence in terms of the said section." 6. In the present case, the FIR is totally silent about the caste of the accused persons. As stated earlier the caste of the accused persons has not been brought on record by the prosecution. The learned APP was not able to point out any material to show the caste of the accused persons. In the absence of essential facts, it cannot be said that any case is made out under the SC & ST Act. In this view of the matter, rule is made absolute in terms of prayer clause (a). 7. Application is disposed of. [SMT.V.K.TAHILRAMANI,J.] [SMT.V.K.TAHILRAMANI,J.] [SMT.V.K.TAHILRAMANI,J.]