Andhra Pradesh High Court - Amravati
Kaligotla China Pydayya vs The State Of Andhra Pradesh on 24 September, 2019
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
IN THE HIGH COURT OF ANDHRA PRADESH
***
W.P. No.33107 of 2018 & W.P. (PIL) No.79 of 2019
W.P. No.33107 of 2018
Between:
Kaligotla China Pydayya
.... Petitioner
and
The State of Andhra Pradesh and others
.... Respondents
Date of Judgment pronounced on : 24.09.2019
HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
1. Whether Reporters of Local newspapers : Yes/No
May be allowed to see the judgments?
2. Whether the copies of judgment may be marked : Yes/No
to Law Reporters/Journals:
3. Whether The Lordship wishes to see the fair copy : Yes/No
Of the Judgment?
2
* HON'BLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
+ W.P. No.33107 of 2018 & W.P. (PIL) No.79 of 2019
% 24.09.2019
W.P. No.33107 of 2018
# Kaligotla China Pydayya
... PETITIONER
Vs.
$ State of Andhra Pradesh, rep. by its
Principal Secretary, Home Department,
Secretariat, Velagapudi, Amaravathi, Guntur District and Others.
... RESPONDENTS
! Counsel for the Petitioner: SMT. RAMANI ANNAM
Counsel for the Respondents: G.P. FOR HOME
<Gist :
>Head Note:
? Cases referred:
1. LAWS(SC)2016 1238
2. (2001) 8 SCC 24
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HON'BLE THE ACTING CHIEF JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
W.P. No.33107 of 2018 & W.P. (PIL) No.79 of 2019
COMMON ORDER:(Per Hon'ble Acting Chief Justice C.Praveen Kumar) Since the reliefs claimed in both the writ petitions are one and the same, they are disposed of by this common order.
2. Writ Petition No.33107 of 2018 was filed by one, Kaligotla China Pydayya to declare the action of the respondents in not paying compensation to the victims, dependents etc., in connection with crime No.55 of 2015 of Cheedikada Police Station and for not taking action against the officers who showed negligence in registering F.I.R. and conducting investigation, including filing of charge-sheet, payment of compensation as per law, as illegal and arbitrary and consequently, direct the respondents (i) to pay compensation to the victims in crime No.55 of 2015 on the file of Cheedikada Police Station; (ii) direct the respondents to take steps to stop the social boycott which is continuing and take steps to restore the normalcy in the village; and (iii) direct the respondents to take action against the negligent officers in registering F.I.R. and conducting investigation and payment of compensation.
3. The second writ petition in the form of Public Interest Litigation came to be filed by an unregistered organization by name, 'Kula Vivaksha Porata Samithi', represented by its General Secretary, seeking the very same reliefs. The petitioner was not able to explain as to why the second writ petition came to be filed, when the writ petition with identical relief is 4 pending adjudication before the learned Single Judge. Be that as it may, having regard to the issues raised, we intend to deal with the same.
4. For the sake of convenience, it would be proper to take P.I.L. as a lead petition.
5. The writ petition-organization was said to have been established in the year 1998 with an aim to fight against discrimination caused to the schedule caste people in various forms. During the course of their activities, some incidents came to light in Cheedikada Mandal, Chodavaram Village, wherein the respondents failed to take steps in stopping social boycott by the villagers, towards members of scheduled castes and scheduled tribes.
6. Averments in the affidavit show that a report came to be lodged with the 8th respondent, with regard to attack against scheduled castes people in Thuruvolu village on 23.9.2015, which led to registration of a case in crime No.55 of 2015 for the offences punishable under Section 147, 323, 506 read with Section 149 I.P.C. and provisions of S.Cs. & S.Ts. (PoA) Act, 1989. It is said that even after a lapse of 3 years from the date of registration of a crime, respondents did not pay any compensation to the victims, though they are entitled for the same. It is said that in spite of giving representation, there was no proper response. The affidavit speaks about delay in registering F.I.R. in spite of report being lodged at 10.00 AM; removal of names of some of the accused from the F.I.R.; the charge- sheet being filed only against 42 persons as against 47 names arrayed as accused in F.I.R.; failure of DSP to conduct spot inspection on coming to know about commission of act; and various defects in filing the charge- sheet. It is stated that pursuant to a representation made on 31.7.2017, the DSP filed the first charge-sheet on 11.10.2017. It is said that since the charge-sheet filed was not in consonance with law, another representation 5 came to be made which led to filing of second charge sheet on 9.11.2107 adding the offence of social boycott. The last charge-sheet was filed on 28.5.2018 referring to the injuries caused to the victims. It is said that issue relating to social boycott was never considered earlier and only at the time of filing of the 2nd charge-sheet, the offence of social boycott was added.
7. The averments in the affidavit also refers to negligence and failure of authorities in paying compensation to the victims of offences relating to S.Cs. & S.Ts. Act. It is stated that for the offence punishable under Section 3(1)(r)(s) of S.Cs. & S.Ts. (PoA) Act, the compensation to be paid to all the victims is at the rate of 25% at F.I.R. stage, 50% at the stage of charge-sheet being sent to the court and the balance after conviction. For the offence punishable under Section 3(2)(va) of the Act, a sum of Rs.2,00,000/- is to be paid to the victims at the stage of F.I.R. and 50% at the time of filing the charge-sheet. With regard to the offence under Section 3(1)(zc), it is said that a sum of Rs.1,00,000/- is to be paid to the victims at the time of filing the charge-sheet. In the instant case, though a charge-sheet came to be filed on 9.11.2017, neither any amount is paid to the victims, nor steps have been taken to restore normalcy in the village. The averments in the charge-sheet refer to an agreement arrived at by both parties for providing employment and other reliefs to the S.C. people, but no steps have been taken either by the authorities or by the non-S.C. people for implementation of the same. It is further pleaded that a duty is cast on the respondents to take action in accordance with the spirit of the Act. The residents of the village left the village due to social boycott, which is evident from the report of ASWO dated 5.1.2018. It is urged that as per Rule 8, the 4th respondent is responsible for reviewing and making enquiries about the willful negligence by public servants and also for non-payment of compensation. It is said that the victims and their family 6 members are suffering a lot since three years, hence, filed the Writ Petition seeking the reliefs referred to above.
8. Counters came to be filed by the respondents in W.P.No.33107 of 2018 and in W.P. (P.I.L.) No.79 of 2019 disputing the averments made in the writ petition, stating that L.Ws.1 to 30 were found eligible for sanction of relief up to Rs.90,000/- depending upon the nature of offence. It is further stated that victims are entitled to relief as per G.O.Ms.No.76, Social Welfare (CV.POA) Department, dated 28.11.2014, which is in force as on the date of registration of the crime i.e., 23.9.2015. Hence, stated that all the 30 persons, who are the victims, will be paid amounts depending upon the nature of the offence. It is said that 25% shall be paid when the charge-sheet is sent to the court and the rest on conviction as per the conditions in serial No.10 of the said G.O.
9. Chapter II of the Act deals with the "Offences of Atrocities". Section 3 of the Act deals with punishments to be imposed. Section 3(1)(r) states that whoever, not being a member of a scheduled caste or a scheduled tribe, intentionally insults or intimidates a member of the S.C. or S.T. in any place within a public view shall be punishable. Section 3(1)(s) states that whoever, not being a member of a scheduled caste or a scheduled tribe, abuses any member of a scheduled caste or scheduled tribe by caste in any place within public view shall be punished with imprisonment for various terms. Section 3(1)(zc) states that whoever, not being a member of a scheduled caste or a scheduled tribe, imposes or threatens, a social or economic boycott of any person or a family or a group belonging to a scheduled caste or a scheduled tribe 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. Section 3(2)(va) of the Act states that whoever, not being a member of a scheduled caste or a scheduled tribe, commits any offence specified in the Schedule, against a 7 person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such members, shall be punishable with such punishment as specified under the Indian Penal Code for such offences and shall also be liable to fine.
10. As stated above, three reliefs are sought for by the petitioners; (i) to pay compensation to the victims in crime No.55 of 2015 of Cheedikada Police Station; (ii) to direct the respondents to take steps to stop social boycott which is still continuing and to restore normalcy in the village; and
(iii) to direct the respondents to take action against the negligent officers in registering F.I.R., conducting investigation and payment of compensation etc.,
11. It is no doubt true that three charge-sheets came to be filed by the Police. Taking into consideration the material, which is being collected during the course of investigation, charge-sheets came to be filed. The offences alleged against six accused are under Sections 147, 323, 506, 504 read with Section 149 I.P.C. and Section 3(1)(r)(s)(zc) and 3(2)(va) of S.Cs. & S.Ts. (PoA) Act, 1989. The instructions, which are placed before the court at the time of hearing of the petition, show that basing on representations made to the then Chief Secretary, by Andra Malyadri, General Secretary, Kula Vivaksha Porata Samithi, Vijayawada, further enquiry was conducted by Deputy Superintendent of Police, CID and as per the order of the Additional Director General of Police, the authorities have decided to file charge-sheet against the accused, whose names figured in the F.I.R. itself. Apart from that, during the course of investigation, DSP identified another 39 accused in addition to the 6 accused charged by the previous Investigating Officer. Investigation Officer further speaks about examining 49 witnesses during the course of investigation. Insofar as social boycott is concerned, the DSP in his instructions to G.P. states that on the directions of National Commission 8 of S.C., he conducted enquiry with regard to the social boycott of S.C. families at Tiruvolu Vilalge of Cheedikada Mandal since September, 2015. According to him, he has visited the said village, examined 8 witnesses, recorded their statements and submitted report to NCSC disclosing the fact that social boycott at water, milk and at other necessaries is not in existence in the village. He further states in his report that non-S.C. people are offering works to the S.C. community people whenever required. Due to drought conditions prevailing in the village, some of the S.C. community people left their village in search of employment, but not due to social boycott. He further states that during his enquiry it came to his notice that non-S.C. community people are also attending works in the houses and fields of S.C. community people. From the contents of the report, which is reflected in the instructions sent to the Government Pleader, it is clear that as on today, the conditions in the village appear to be normal. The S.C. community people are being provided work not only in the houses, but also in the fields of non-S.C. people. Further, the social boycott at water, milk and other necessaries are not in existence in the village pursuant to the counseling by the revenue and police officials on 13.12.2015. Though the learned counsel for the petitioner try to contend that the same are in existences even as on today, but no report came to be filed disclosing the same. If really such instances are in existence even after the month of December, 2015, at least a copy of the same should have been enclosed along with the writ petitions, which are filed in the years 2018 and 2019.
12. Prima facie we feel that version of the DSP, SC/ST Cell-I, Visakhapatnam District can be given due weight, in the absence of any other report. Hence, the argument that the authorities are not taking any steps for protecting the social boycott may not be correct. If really such 9 incidents are happening in the village, the aggrieved persons are at liberty to approach the concerned, who shall take action forthwith.
13. Coming to the compensation that is to be paid to the victims of the social boycott and also the victims of the offences under the Act, the Government Pleader in his counter categorically states that the amounts are being paid as per the G.O. issued by the Government. According to him, the amount of compensation is being paid as per serial No.10 of the annexure of G.O.Ms.No.76, Social Welfare (CV.POA) Department, dated 28.11.2014. In pursuance of the said provision, an amount of Rs.90,000/- shall be paid to each victim depending upon the nature of the offence. 25% of the amount shall be paid when the charge-sheet is sent to the court and rest on conviction. Therefore, it is pleaded that since the payments are being made as per the contents of the G.O., which is applicable to the case on hand, it cannot be said that no compensation is being paid.
14. In National Campaign on Dalit Human Rights and Ors. v. Union of India and ors.1 the Apex Court observed as under :
"In spite of a major overhaul, it was noticed that the Protection of Civil Rights Act, 1955 and the Indian Penal Code, 1860 were inadequate to check the atrocities committed on Scheduled Castes and Scheduled Tribes. The fact that the Scheduled Castes and Scheduled Tribes remained a vulnerable group in spite of the introduction of several measures to improve their socio-economic condition was a matter of deep concern to the Parliament. The Parliament acknowledged that the Scheduled Castes and Scheduled Tribes were subject to various offences, indignities, humiliations and harassments perpetually. Numerous incidents of brutalities and atrocities depriving the Scheduled Castes and Scheduled Tribes of their life and property were a cause of concern for the Parliament. Considering the fact that there was an increase in the disturbing trend of commission of atrocities against the Scheduled Castes and Scheduled Tribes, the Parliament enacted the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Preamble to the Act reads as under :1
LAWS(SC) 2016 12 38 10 "An Act to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, 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 Act enlarges the scope of criminal liability by including several acts or omissions of atrocities which were not covered by the Indian Penal Code or the Protection of Civil Rights Act, 1955. The Act also provides protection to the Scheduled Castes and Scheduled Tribes for various atrocities affecting social disabilities, properties, malicious prosecution, political rights and economic exploitation. The Act also provides for enhanced punishment for commission of offences against the Scheduled Castes and Scheduled Tribes. The minimum punishment for neglect of duties committed by a public servant was also increased. Provisions were made for granting minimum relief and compensation to victims of atrocities and their legal heirs. The other salient features of the Act include externment of potential offender from Scheduled Areas and Tribal Areas as well as attachment of the properties of the accused. The Act prohibits the grant of Anticipatory Bail to the accused and the Probation of Offenders Act, 1958 was also made inapplicable to the Act. Certain preventive measures provided in the Act include cancellation of arms licenses of potential offenders and even grant of arms licenses to Scheduled Castes and Scheduled Tribes as a means of self defence." The Apex Court further observed as under :
"The Act was made in 1989 because the Parliament found that the provisions of the Protection of Civil rights Act, 1955 were inadequate and did not curb the evil practice of atrocities against Dalits. The grievance of the petitioners has been that though the Act is comprehensive enough to deal with the social evil, its implementation has been painfully ineffective. The ever increasing number of cases is also an indication to show that there is a total failure on the part of the authorities in complying with the provisions of the Act and the Rules. Placing reliance on the NHRC Report and other reports, the Petitioners sought a mandamus from this Court for effective implementation of the Act and the Rules.
We have carefully examined the material on record and we are of the opinion that there has been a failure on the part of the concerned authorities in complying with the provisions of the Act and Rules. The laudable object with which the Act had been made is defeated by the indifferent attitude of the authorities. It is true that the State Governments are responsible for carrying out the provisions of the Act as contended by the counsel for the Union of India. At the same time, the Central Government has an important role to play in ensuring the compliance of the provisions of the Act. Section 21 (4) of the Act 11 provides for a report on the measures taken by the Central Government and State Governments for the effective implementation of the Act to be placed before the Parliament every year. The constitutional goal of equality for all the citizens of this country can be achieved only when the rights of the Scheduled Castes and Scheduled Tribes are protected. The abundant material on record proves that the authorities concerned are guilty of not enforcing the provisions of the Act. The travails of the members of the Scheduled Castes and the Scheduled Tribes continue unabated. We are satisfied that the Central Government and State Governments should be directed to strictly enforce the provisions of the Act and we do so. The National Commissions are also directed to discharge their duties to protect the Scheduled Castes and Scheduled Tribes. The National Legal Services Authority is requested to formulate appropriate schemes to spread awareness and provide free legal aid to members of the Scheduled Castes and Scheduled Tribes."
15. Keeping in view the observations made and the findings given by the Apex Court in the judgment referred to above, we shall now proceed to deal with the case on hand.
16. The learned counsel for the petitioner would contend that compensation to an extent of 25% is being paid only to those victims, in cases where charge-sheets are filed and balance after the conviction of accused, which is incorrect. The learned counsel for the petitioner would contend that payment of compensation in terms of clause 10 may not be correct since the charge-sheet came to be filed for the offences under Sections 3(1)(r)(s)(zc) and Section 3(2)(va) of S.Cs. & S.Ts. Act, for which no provision of payment of compensation was made in earlier G.O. G.O.Ms.No.95, Social Welfare (CV.POA) Department, dated 29.8.2016 which came to be issued after commission of the offence refers to payment of compensation when the offences are tried under the amended Act. It states that under Section 3(1)(r) and 3(1)(s) a sum of Rs.1,00,000/- shall be paid to the victim in the following manner : (i) 25% at First Information Report stage; (ii) 50% when the charge sheet is sent to the court; and (iii) 25 % when the accused are convicted by the lower court. Insofar as Section 3(1)(zc), clause 38 of the table states that steps should be taken for restoration of provision of all economic and social services equally with 12 other persons, by the concerned State Government or Union Territory Administration and relief of one lakh rupees to the victim, to be paid in full when the charge sheet is sent to the lower court.
17. As seen from the record, though crime was registered initially under the provisions of Section 3(1)(x) of the S.Cs. & S.Ts. (PoA) Act, but at the time of filing the charge-sheet, the Investigating Officer requested the court to treat the offence under Section 3(1)(x) of S.Cs. & S.Ts. (PoA) Act as one under Section 3(1)(r)(s) and (zc) of the Act and Section 3(2)(va) of the Act. The argument of the learned Government Pleader is that Government is taking steps to pay to the victims in terms of G.O.Ms. No.76, dated 28.11.2014, since the said G.O. was in force at the time when the offence was committed. But, it is to be noted here that though the provisions of Section 3(1)(x) of the Act is identical to Section 3(1)(r) and Section 3(1)(s), but while filing charge-sheet the prosecution added Section 3(1)(zc) which was not reflected in the F.I.R. That being the position, payment of compensation in terms of G.O.Ms.No.76, dated 28.11.2014 on the ground that the said G.O. was in force when the said crime was registered may not be correct.
18. Since charge-sheet is filed in the year 2017 for the offence punishable under Section 3(1)(r)(s)(zc) and 3(2)(va) of S.Cs. & S.Ts. (PoA Act, 1989) Amendment Act, 2015; the subsequent G.O. i.e., G.O.Ms.No.95, dated 29.8.2016 being a beneficial legislation issued for the benefit of the members of S.Cs. and S.Ts.; and having regard to the observations made in the judgment referred to above, we feel that it is a fit case where the benefit of subsequent G.O. shall be extended to the victims for the offences under Section 3(1)(r)(s)(zc) and 3(2)(va) of the S.Cs. & S.Ts. (PoA Act, 1989) Amendment Act, 2015.
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19. Generally, rule of interpretations is meant to assist the Court in advancing the ends of justice. It is, therefore, true in the case of application of rule of benevolent construction also. If on application of rule of benevolent construction, the Court finds that it would be doing justice within the parameters of law there appears to be no reason why such rule of construction be not applied in the case. The judicial precedents have laid down that, ordinarily, where and when the rule of benevolent construction is required to be applied and not to be applied. One of the situations is, when the Court finds that by application of rule of benevolent construction it would be re-legislating a provision of statute either by substituting, adding or altering the words used in the provision of the Act. In such a situation generally Courts have refrained themselves to apply rule of benevolent construction. The second situation is when the words used in a statute is capable of only one meaning. In such a situation, the courts have been hesitant to apply the rule of benevolent construction. But if it is found that the words used in the statute give rise to more than one meaning, in such circumstances, the Courts are not precluded to apply such rule of construction. The third situation is when there is no ambiguity in a provision of a statute so construed. If the provision of a statute is plain, unambiguous and does not give rise to any doubt, in such circumstances the rule of benevolent construction has no application. However, if it is found that there is a doubt in regard to meaning of a provision or word used in provisions of an enactment it is permissible for court to apply the rule of benevolent construction to advance the object of the Act. Ordinarily, the rule of benevolent construction has been applied while construing welfare legislations or provisions relating to relationship between weaker and stronger contracting parties. The amending Act either expressly or by necessary implication is not retrospective. Vide Shyam Sunder and Others v. Ram Kumar and Another2.
2 [2001] 8 SCC 24 14
20. In the instant case, the subject matter is the implementation of Government Orders issued from time-to-time with regard to the payment of compensation to victims, who were subjected to various forms of assault and other harassment in the hands of Non-Scheduled Castes and Scheduled Tribes people. The subsequent G.O., which has been issued, covers the amended provisions of the S.Cs. and S.Ts. Act, some of which are similar to the provisions of the old Act, which are already referred to above. Merely because some of provisions of the amended Act are not included in the F.I.R. [could not have been done so by the investigation officer as they were not in existence then], does not by itself preclude the authorities from extending the benefit under the subsequent Government Order, more so, having regard to the object of the Act and the purpose for which the amendments are introduced.
21. The subsequent G.O. being introduced for the benefit of victims of assault in the hands of Non-S.Cs. & S.Ts., we feel that payment of compensation in terms of G.O.Ms.No.76, dated 28.11.2014 would not arise, since it relates to payment of compensation for offences which are punishable under the unamended provisions of S.Cs. & S.Ts. Act. Since the charge-sheet came to be filed under the amended provisions of the Act, compensation should be paid in terms of G.O.Ms.No.95, dated 29.8.2016, though the incident took place prior to the issuance of the G.O. As observed earlier, this being a beneficial order, we feel that the same Act has to be given retrospective effect.
22. Coming to the third issue viz., action to be taken against the Investigating Officers, it is to be noted that there is some delay in filing of the charge-sheet, but definitely, it cannot be said that there is abnormal delay in registering the crime. The information was received in the Police Station on 23.9.2015 at 9.30 PM, though the incident was at 9 AM. Immediately thereafter the crime came to be registered. Though it is urged 15 that the police have intentionally done it, but this issue, in our view, cannot be decided in this petition, but can only be appreciated during the course of trial. Therefore, the request of the petitioner that action should be taken against the Investigating Officers because of the delay in registering the F.I.R. and also in filing the charge-sheet cannot be accepted. Prima facie, the record indicates that the report came to be lodged at 9.30 PM and immediately thereafter F.I.R. came to be issued. It is no doubt true that there was some delay in filing the charge-sheet, but the same came to be explained in the counter which we intend to accept. It is not a case where no charge-sheet is filed, but the first charge-sheet was filed in the month of October, 2017 and immediately thereafter second charge-sheet was filed in the month of November, 2017. Finally, pursuant to the representations received and the report of the National Commission for S.C., the matter was re-looked and a final charge-sheet came to be filed in the month of May, 2018. Therefore, though revised charge-sheets came to be filed, but the same were for the benefit of the victims only. Aggrieved person, if any, should be the accused, as the prosecution went on adding the accused from charge-sheet to charge-sheet.
23. For the aforesaid reasons, writ petitions are disposed of in terms of findings given above with regard to the manner in which the compensation has to be paid, giving liberty to the individuals to take steps in case social boycott still exists.
24. With the above observations, both writ petitions are disposed of. No order as to costs.
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Consequently, miscellaneous petitions pending, if any, shall stand closed.
_________________________________________________ ACTING CHIEF JUSTICE C. PRAVEEN KUMAR _________________________________________ JUSTICE M. SATYANARAYANA MURTHY Dated: 24.09.2019.
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