Patna High Court
Kamal Nayan Narsaria Alias Kamal ... vs State Of Bihar And Ors. on 28 July, 1995
Equivalent citations: 1995(2)BLJR1020
Author: G.B. Patnaik
Bench: G.B. Patnaik, P.K. Deb
JUDGMENT G.B. Patnaik, C.J.
1. In these five applications the prayer of the petitioners is to quash the F.I.R.. and for that purpose the extra-ordinary equitable jurisdiction of this Court has been invoked. The aforesaid prayer has been made on the ground that the allegations in the F.I.R. do not constitute any offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter to be referred to as 'the Act') to invoke the jurisdiction of this Court under Articles 226 and 227 of the Constitution. The validity of some of the provisions of the Act has been challenged and to our utter surprise we find that while entertaining these applications for hearing, the Court has passed orders granting anticipatory bail to the persons named as accused persons in the F.I.R. Though the validity of the Act has been assailed which is a Central Act but the Union of India has not been arrayed as a respondent in four of the cases and those cases could be summarily rejected on that score. But since in one of the cases the Union of India has been arrayed as a party respondent, we, therefore, entertain the arguments advanced by the counsel for the petitioner on the question of validity pf the Act itself.
2. Learned Counsel for the petitioner contended that Section 3 of the Act must be struck down being violative of Article 14 of the Construction inasmuch as it is only when a person belonging to non-scheduled caste or non-scheduled tribe commits act of atrocities as mentioned in the different clauses of the said Section that is punishable and not when such acts of atrocities are committed by the members of the Scheduled Castes or Schedules Tribes. He further contended that Clause (xii) of Sub-section (1) of Section 3 of the Act is incapable of being implemented inasmuch as it is not possible to find when a nan-scheduled caste man can be said to be in a position to dominate the will of a woman belonging to Scheduled Caste or a Scheduled Tribe and then uses that position to exploit her sexually. The correctness and legality of the aforesaid submissions will have to be tested bearing in mind the very object and the purpose for which the aforesaid legislation has been enacted. The preamble of the Act itself says that it is an act to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Ttribes, to provide for special courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto. The statements of objects and reasons while introducing the Bill in the Parliament are quoted herein below :
Statement of Objects and Reasons: Despite various measures to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to various offences, indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons.
2. Because of the awareness created amongst the Scheduled Castes and the Scheduled Tribes through spread of education, etc. they are trying to assert their rights and this is not being taken very kindly by the others. When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them down and terrorise them. When the Scheduled Castes and the Scheduled Tribes try to preserve their self-respect or honour of their women, they become irritant for the dominant and the mighty. Occupation and cultivation of even the Government allotted land by the Scheduled Castes and the Scheduled Tribes is resented and more often these people become victims of attacks by the vested interests. Of late, there has been an increase in the disturbing trend of commission of certain atrocities like making the scheduled Castes persons eat's inedible substances like human excreta and attacks on and mass killings of helpless Scheduled Castes and Scheduled Tribes and rape of women belonging to the Scheduled Castes and Scheduled Tribes. Under the circumstances, the existing laws like the Protection of Civil Rights Act, 1955, and the normal provisions of the Indian Penal Code have been found to be inadequate to check these crimes. A special legislation to check and deter crimes against them committed by non-Scheduled Castes and non-Scheduled Tribes has, therefore, become necessary.
3. It is thus apparent that the legislature felt that the normal provisions in the Indian Penal Code or in other Acts are not sufficient to protect the members of the Scheduled Castes and Scheduled Tribes from the exploitation of the members of higher castes. The social condition of these people motivated the legislation in question. It is also crystal clear that the legislature being aware of the fact that whenever the members of the Scheduled Castes and Scheduled Tribes assert their right and demand their protection, the people of the higher castes terrorise them and try to curb them and, therefore, it was thought that special Act providing special procedures and remedies to save these socially and economically backward people from the exploitation of the vested interests is necessary and to achieve that object, the Act in question has been enacted. The challenge of the petitioners to the validity of some of the provisions of the Act has to be adjudged from the above point of view.
4. Providing special courts, prescribing special procedure and special legislation to protect the weaker sections of the society from the exploitation of the vested interests cannot be held to be an Act of discrimination within the ambit of Article 14 of the Constitution. As the offences or activities are so heinous or serious then those offences can be treated as a class by themselves and a special procedure may be provided for dealing with them or for their investigation and trial. Article 14 of the Constitution prohibits class legislation and does not prohibit reasonable classification for purposes of legislation. If the subject matter of a legislation has peculiarities which make it fall in a class by itself then the legislation is immune from being attacked being violative of Article 14 of the Constitution provided, of course, there is a reasonable nexus between the classification made and the object sought to be achieved. When special procedure for investigation of breaches of foreign exchange regulations was made, which is different from the Code of Criminal Procedure, a challenge had been made to the said provisions and the Supreme Court upheld the validity of the provisions in the case of Shanti Prasad Jain v. The Director of Enforcement, Foreign Exchange and Regulation Act . If a statute covers only a class of cases, the statute itself will not be bad on the ground of discrimination. The feature that such cases are chosen by the statute to be tried under the special procedure laid down therein will not affect the validity of the statute. It was so held by the Apex Court in the case of The Ahmedabad Municipal, Corporation and Ors. v. Ramanlal Govindram , while examining the vires of Section 437-A(1) as inserted by Gujarat Act 19 of 1964 in Bombay Provincial Municipal Corporations Act, 1949. There is no lack of legislative competence under the Constitution with the Parliament to make any special legislation for the benefit of Weaker Sections of the society or to save those people from the exploitation of the vested interests. In a recent case where the provisions of the very Act refusing the right of an accused to get anticipatory bail was challenged before the Supreme Court, their Lordships of the Supreme Court upheld the validity and held that the said provisions cannot be considered as violative of Article 14 of the Constitution. See -State of M.P. and Anr. v. Ram Kishna Balothia and Anr.. Their Lordships of the Supreme Court observed as follows :
Looking to the historical background relating to the practice of "Untouchability" and the social attitudes which lead to the commission of such offence against Scheduled Castes and Scheduled Tribes, there is justification for and apprehension that if the benefit of anticipatory bail is made available to the person who are alleged to have committed such offences, there is likelihood of their misusing their liberty while on anticipatory bail to terrorise their victims and to prevent a proper investigation.
It is in this context that Section 18 has been incorporated in the said Act, and it can not be considered in any manner violative of Articles 14 and 21 of the Constitution. Their Lordships also have observed that the offences under the Act constitute a separate class and cannot be compared with the offences under the Penal Code as has been observed by the Apex Court in the said case.
The offences which are enumerated under Section 3 are offences which, to say the least, denigrate members of Scheduled Castes and Scheduled Tribes in the eyes of society, and prevent them from leading a life of dignity and self respect. . Such offences are committed to humiliate and subjugate members of Scheduled Castes and Scheduled Tribes with a view to keeping them in a state of servitude.
5. If we examine the contention raised by the learned Counsel for the petitioners bearing in mind the aforesaid observations, we have no hesitation to come to the conclusion that neither Section 3 nor any clause thereof can be struck down by a court, of law on the ground of discrimination. We, accordingly, held the provisions of Section 3 of the Act to be intra vires. Having held the provisions of the Act to be intra vires, the next question that arises for our consideration is how far it is appropriate for this Court to entertain an application for quashing the F.I.R. We are examining this question in more detail since it has come to our notice that it has become a practice in this Court to file applications under Articles 226 and 227 of the Constitution for quashing of the F.I.R. An F.I.R. confers a statutory right of investigation with the police and that right ordinarily cannot be interfered with by the High Court. The F.I.R. if does not disclose a cognizable offence but in course of the investigation that commences upon such F.I.R., materials are available pointing to the guilt of the accused then also it will be open for the investigating agency to file a charge-sheet before the Magistrate and then the Magistrate will embark upon the same as to whether cognizance will be taken or not. It is of course true that if the High Court comes to the conclusion that carrying on the investigation has resulted in gross miscarriage of justice then the High Court would be justified in quashing the continuance of the investigation as well as the F.I.R. itself. But that course can be taken only in certain exceptional circumstances. The Supreme Court in the case of Kurukshetra University and Anr. v. State of Haryana and Anr. has held that the High Court in exercise of inherent power should not quash the F.I.R. more so when the police has not even commenced the investigation and no proceeding is pending in any court pursuant to the said F.I.R.
6. Learned Counsel appearing for the petitioners drew our attention to the case of the Supreme Court State of West Bengal and Ors. v. Swapan Kumar Guha and Ors. in support of their contention that the F.I.R. can be quashed when the entire facts do not disclose a commission of any cognizable offence. We have no dispute with the aforesaid proposition but we would like to observe that such power can be exercised by the Court only when it is established that carrying on of the investigation pursuant to the F.I.R. has resulted in gross miscarriage of justice. We would further hold that when the power has been conferred on the Court under Section 482 of the Cock of Criminal Procedure to take such action as it thinks fit to prevent any miscarriage of justice, the Court would refrain from invoking its extraordinary equitable jurisdiction under Articles 226 and 227 of the Constitution in entertaining a writ petition. We may not be understood to have laid down that the Court lacks jurisdiction under Articles 226 and 227 of the Constitution. But we are of the considered opinion that the Court should retrain from invoking its extra-ordinary jurisdiction under Articles 226 and 227 of the Constitution particularly when the jurisdiction is available under Section 482 of the Code of Criminal Procedure. Needless to mention that the Supreme Court has indicated in a catena of cases about the parameters of the Court for exercise of jurisdiction under Section 482 Cr.P.C. Those parameters being :
(i) Where the Court comes to the conclusion that there is an abuse of the process of the Court and it is necessary for interference to secure the ends of justice;
(ii) It should be exercised very cautiously and sparingly to prevent an abuse of the process of the Court;
(iii) It should not be exercised if there is any specific provision in the Code itself for redressing the grievance of the aggrieved party;
(iv) In exercising the power the Court is debarred from embarking upon as to whether the allegation would be ultimately established by evidence or not;
(v) It is to be exercised ex debito justitia to do real and substantial justice for the administration of justice for which the Court exists.
In the aforesaid premises, we are of the considered opinion that for quashing of the F.I.R. or investigation pursuant to the same, the proper remedy is us provided under Section 482 of the Code of Criminal Procedure and even though under Articles 226 and 227 of the Constitution there is no lack of jurisdiction; but the Court would refrain from invoking the extra-ordinary jurisdiction.
7. Notwithstanding our aforesaid conclusion, we are not inclined to dismiss these applications solely on that ground since that would embolden the petitioners to file another round of petitions under Section 482 Cr.P.C. and. accordingly, we propose to examine the F.I.R. is of each case.
8. Before examining the F.I.R. in the individual case it would be appropriate for us to notice a recent decision of the Supreme Court indicating the circumstances where the High Court would quash an F.I.R. In the case of State of Haryana v. Ch. Bhajan Lal , the Apex Court, by way of illustration and guidelines for exercise of such powers has observed as follows :
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under on order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any oftence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence but constitute only a non-cognizuble offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act. providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
In the case of Janta Dal v. H.S. Chowdhary the Supreme Court held that, this inherent power conferred by Section 482 of the Code should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a premature decision in a case wherein the entire facts are extremely incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved whether factual or legal are of great magnitude and cannot be seen in their true perspective without sufficient material.
9. In the case of Union of India v. B.R. Bajaj where the Supreme Court reversed the order of the High Court and held that the High Court could not have quashed the F.I.R. and observed that, the High Court has grossly erred in quashing the F.I.R. itself when several aspects of the allegations in the FIR had still to be investigated.
10. Bearing in mind the aforesaid legal position we would examine the F.I.R. in each case.
The F.I.R. in Cr.W.J.C. No. 88 of 1993 (R) is by a victim girl belonging to Scheduled Tribe, who has given a vivid account as to how on 5.11.1992 while she was travelling by a Bus from Ranchi to Giddi, how the Bus stopped on the way at a traffic gate by closing the gate and how she was bodily lifted by the two accused persons and thereafter she was taken to a distant place and rape was committed on her. The allegations in the FIR constitute offences under Sections 366, 376, 326 and 307 I.P.C. as well as under Section 3 of the Act and, in such a case, the jurisdiction of this Court has been invoked by filing an application under Articles 226 and 227 of the Constitution in the garb of challenging the validity of Section 3 of the Act and then an order of anticipatory bail has been obtained on 16.3.1993. We are indeed pained to find this sort of maneuvering and we have no hesitation to hold that the Court was not at all entitled to grunt anlicipatory bail even if it has entertained the application for examining the validity of the provisions of the said Act. This is a glaring example where the process of the Court has been abused and in such a heinous offence the accused persons are moving freely. The purpose of legislation enacting Act to prevent the weaker sections of the society from the exploitation by higher caste people will not be achieved if the Court entertains such applications and pass such orders, which emboldens the accused persons to commit such heinous acts. On going through the F.I.R. we find no semblance of any jurisdiction on this Court either under Article 226 of the Constitution or under Section 482 of the Code of Criminal Procedure to quash the F.I.R. or the investigation commenced pursuant thereon. This case should be an eye-opener for future and the Court should be cautious in the matter of exercising jurisdiction under Articles 226 and 227 of the Constitution. We do not find any merit in this application, which is, accordingly, dismissed. The interim order dated 16.3.1993 stands vacated. We further direct that the Investigating Agency should take immediate steps for taking appropriate action in accordance with law for the arrest of the accused and to proceed further in accordance with law.
11. Cr.W.J.C. No. 511 of 1993 (R) is by the other accused in the F.I.R. which was the subject mailer of consideration in Cr.W.J.C. No. 88 of 1993 (R). For the grounds already slated earlier, there is no justification for this Court to interfere at this stage. Accordingly, this application is dismissed. The interim order dated 18.11.1993 stands vacated. The Investigating Officer is directed to take immediate and prompt action against the accused person for his arrest and to proceed further in accordance with law.
12. Cr.W.J.C. No. 200 of 1992 (R), the F.I.R. in this case discloses the fact that even though the accused persons have obtained a lease but in respect of raiyati land of Scheduled Tribes people due compensation has not been paid and by force have displaced those Scheduled tribe people. On examining the entire materials on the F.I.R. It is difficult for us at this stage to hold that no offence under the Act has been constituted. Interference at this stage by the Court would tantamount to stifle of legitimate prosecution. On examining the F.I.R. and applying the principle already discussed for interference, we do not find any justification for our interference at this stage. This application, accordingly, stands dismissed. The interim order dated 9.7.1992 and 31.7. 1992 stand vacated. The Investigating Agency is directed to take immediate and prompt action in the matter in accordance with law, and proceed further in the matter.
13. The F.I.R. in Cr.W.J.C. No. 157 of 1992 (R) is almost identical with the F.I.R. of Cr.W.J.C. No. 200 of 1992 (R). For the grounds already stated earlier, on examining the F.I.R. of this case (Cr.W.J.C. No. 157 of 1992 (R)) we do not find any justification for our interference with the same at this stage. This application also stands dismissed.The interim order dated 6.7.1992 stands vacated. The Investigating Agency is directed to take immediate and prompt action in the matter in accordance with law, and proceed further in the matter.
14. In Cr.W.J.C. No. 73 of 1992 (R) the F.I.R. discloses that the entire allegation is that the laboure is belonging to Scheduled Tribe are not being paid at the rate fixed under the Minimum Wages Act and in construction of road the old labourers are being driven out. The entire allegation taken on face value do not prima facie constitute any cognizable offence under the provisions of the Act. On examing the F.I.R. We are of the view that in this case the police has abused its power by starting investigation, in the garb of the commission of offence under the Act even though there is not a semblance of material for the same. We, accordingly, quash the F.I.R. as well as the proceeding initiated thereon. This application is allowed.
15. In the net result, therefore, Cr.W.J.C. Nos. 88 of 1993 (R), 511 of 1993 (R), 200 of 1992 (R) and 157 of 1992 (R) are dismissed and Cr.W.J.C. No. 73 of 1992 (R) is allowed.
P.K. Deb, J.
16. I agree.