- 1 - 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 CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1546 OF 2007 WRIT PETITION NO.1546 OF 2007 WRIT PETITION NO.1546 OF 2007 Yogesh Babanrao Borade & Others ...Petitioners vs. The State of Maharashtra ...Respondent Mr.V.A.Shastry for the Petitioners Ms A.T.Jhaveri A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : JULY 22,2008 : JULY 22,2008 : JULY 22,2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Heard the learned counsel for the Petitioners and the learned A.P.P. for the Respondent-State. With a view to appreciate the submissions made by the Advocates appearing for the parties, it will be necessary to refer to the facts of the case in brief. 2. The F.I.R. was lodged by one Amol Samadhan Arak. He alleged that on 15th May 2006 he was present at Shastri Chowk,Bhosari, Pune in the marriage ceremony of son of one Mr.Naikare. He stated that he was dancing in the marriage procession. According to him at that time, there was an altercation between him and first and second Petitioners. He alleged that the petitioners insulted him by using abusive language and humiliated him by referring to him as a member of ‘Mahar’ caste. He alleged that in the night on the same day, around 11.15 p.m., the petitioners came near his house. He alleged that the second and third petitioners assaulted him and the first petitioner gave a blow over his head by an iron rod. He stated that he sustained injury to his head and left eye. He alleged commission of offences under sections 323, 323, 504 and 34 of the Indian Penal Code as well as under - 2 - section 3 (1) (x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act,1989 (hereinafter referred to as the said Act of 1989). 3. An application was made by the Petitioners seeking discharge from the offences alleged against them under section 3 (1) (x) of the said Act of 1989. The discharge was sought on the ground that the complainant has not disclosed his caste in the F.I.R and that he has not stated that he belongs to either a scheduled caste or a scheduled tribe. The said application for discharge was rejected by the learned Additional Sessions Judge by order dated 22nd June 2007. It is this order which is challenged by the petitioners. 4. The learned counsel for the Petitioners placed reliance on the decision of the learned Single Judge of this court in case of Manohar Martandrao Kulkarni and another vs. State of Maharashtra & others [2006 (1) Bombay Cases Reporter (Cri) page 778]. He submitted that the offence against the Petitioners could not have been registered under the said Act of 1989 as the caste of the complainant was not mentioned in the body of the F.I.R. The learned A.P.P. opposed the petition by relying upon a decision of the another learned Single Judge of this Court in case of Rama @ Ramchandra s/o Babbruvan Naikwadi Vs. State of Maharashtra [2006 All M.R. (Cri) page 3375]. She submitted that there is no requirement of law that the caste of the complainant should be incorporated in the F.I.R as a condition for registration of the offence under section 3(1) (x) of the said Act of 1989. - 3 - She relied upon what is observed by the learned Single Judge in paragraph 15 of the said decision in case of Rama @ Ramchandra Naikwadi (supra). 5. I have carefully considered the submissions. This court has taken a consistent view that if the F.I.R. does not disclose the basic fact regarding the caste of the complainant as well as the caste of the accused , such F.I.R. would not be sufficient to take cognizance of the offence under section 3(1) (x) of the said Act of 1989. This court has held that unless F.I.R. discloses the said basic requirement of law, the investigating Officer cannot initiate investigation by considering the allegations to be in the nature of cognizable one. As pointed out by the Advocate for the Petitioner the said view has been taken in the case of Manohar Kulkarni (supra). Similar view has been taken by this Court in case of Prakash Gopalrao Pohare Vs. State of Maharashtra [2008 All M.R. (Cri) page 180 as well as in case of Sandip Vilas Poopal & another vs. State of Maharashtra [2008 All M.R. (Cri) page 681]. In the Judgment of a Division Bench of this Court in case of Anant Vasantlal Sambre Vs. State of Maharashtra in Criminal Writ Petition No.49 of 2001, a Division Bench held that is it a pre condition that a person committing offence under the said Act of 1989 must not be belong to Scheduled Caste or Scheduled Tribe. The Division Bench also held that in the report filed at the police station there ought to have been averment indicating that the accused does not belong to scheduled caste or scheduled tribe. It was held that in absence of such averments in the complaint, offence under - 4 - section 3(1) (x) of the said Act of 1989 can not be registered. By the same analogy, this court has taken a consistent view in catena of decisions that in the F.I.R. or the report filed in the police station, the complainant must disclose his caste and unless the caste is disclosed, offence under section 3(1) (x) of the said Act of 1989 cannot be registered. The decision of the learned Single Judge in the case of Rama @ Ramchandra (supra) does not lay down law to the contrary. The learned Single Judge was dealing with an Appeal against conviction. What is observed in paragraph 15 thereof cannot be terms as a ratio. 6. Now turning back to the facts of the present case, perusal of the F.I.R. shows that the complainant has not at all disclosed his caste. He has also not stated that he belongs to a scheduled caste or a scheduled tribe. 7. In the circumstances, application at Exh.4 made by the Petitioners ought to have been allowed by the learned Additional Sessions Judge. 8. Hence, I pass the following order : i) Application made by the Petitioners at Exh.4 in Special Case No.21 of 2006 is allowed in terms of prayer clause (A) thereof. ii) As a consequence of this order, the case will have to be sent back by the learned Sessions Judge to the court of appropriate Judicial Magistrate (First Class) for trial. - 5 - iii) The trial is expedited. JUDGE JUDGE JUDGE