Bombay High Court
Alka A. Misra vs J.P. Shoke And Ors. on 16 December, 2002
Equivalent citations: 2003(2)ALD(CRI)43, 2003(3)MHLJ62, 2003 CRI. L. J. 1333, 2004 BOM CRSUP 191, 2003 ALL MR(CRI) 207, (2003) 9 ALLINDCAS 666 (BOM), (2003) 3 MAH LJ 62, (2003) 2 RECCRIR 648
Author: J.G. Chitre
Bench: J.G. Chitre
JUDGMENT J.G. Chitre, J.
1. The petitioner is hereby assailing correctness, propriety and legality of the order passed by J.M.F.C., Igatpuri on 3rd May, 1997, issuing process against her for commission of offences in context with Section 3(1)(viii), (ix), (x), (xv) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as Act for convenience). The complaint if read as itself shows three allegations made in it, which are :
"(1). That petitioner Alka Misra, told the original complainant Shri J.P. Shoke that there are complaints against him and he should leave Igatpuri.
(2) When he reiterated his request for getting a particular quarter, Mrs. Alka Misra said that she knows her job.
(3) Though Alka Misra has been appointed for taking steps for welfare of members of Scheduled Castes and Scheduled Tribes but according to the say of Shri J.P. Shoke, she did not take necessary steps as stated by Shri Shoke for getting him a quarter at Kalyan.
2. The said complaint was filed in the Court of J.M.F.C., Igatpuri as per directions given by the Court of Sessions, Nasik. The learned Magistrate after presentation of the complaint in his Court, issued the process against the present petitioner, as mentioned above and that order has been assailed by this writ petition by the petitioner.
3. Shri P.M. Pradhan, Counsel appearing for the petitioner, submitted that by virtue of Section 14 of the Act the Special Courts have been established for speedy trial of the offences contemplated by provisions of Act and that for each District the Court of Sessions would be the Special Court.
4. It is the submission of Shri Pradhan that while deciding the previous petition bearing No. 256 of 1995 A. D. CRI-No. 9160/1995, the Single Bench of this Court held that the allegations made against the other co-accused in the complaint of respondent No. 1 Shoke were not proved. He confirmed the order, which was passed by Additional Sessions Judge, Nasik who returned the complaint to Shri Shoke for filing it in the Court of J.M.F.C. Igatpuri but while passing the order it was declared that the allegations in the complaint made by Shri Shoke respondent No. 1 were not proved, however the learned Judge of the High Court granted him permission to present a fresh petition in the Court. Shri Pradhan submitted that by taking disadvantage of said order of the High Court, Shri Shoke respondent No. 1 filed fresh complaint against all previous accused and added present petitioner as new accused. The learned J.M.F.C. took cognizance of said complaint and issued process. He submitted that the said act of the learned Magistrate is contrary to law and therefore the process issued by him against the petitioner needs to be quashed.
5. Shri Saste made his best to justify the order passed by J.M.F.C. Igatpuri issuing process against the petitioner for offences punishable under provisions of Section 3(1)(viii), (ix), (x), (xv) and Section 4 of the Act and provisions of Section 7(ii) of Protection of Civil Rights Act and provisions of Sections 114, 166, 167, 145, 53, 177, 178, 200, 217, 218, 500, 505 and 506 of Indian Penal Code.
6. While elaborating his submission Shri Pradhan pointed out that revision petition was filed by the petitioner challenging the said order of issuing the process against the petitioner by J.M.F.C., Igatpuri in the Court of Session, Nasik but the same was dismissed on 20th of November, 1997.
7. Except offences punishable under Section 3(1)(x) and Section 4 of the Act all the allegations made in context with other offences indicated by provisions of the Act and Penal Code are not even prima facie spelled out, if the complaint is read as it is. The allegations made by the complainant in context with offences indicated by provisions of Section 3(1)(x) and Section 4 of the Act would be relevant for consideration. In this context three allegations have been made" by the original complainant/respondent Shri J.P. Shoke and they can be enumerated as mentioned below :--
(1) That the present petitioner intentionally insulted him as contemplated by the provisions of Section 3(1)(x) by saying that there are complaints against him at Igatpuri, therefore, he should leave Igatpuri.
(2) The present petitioner did not allot him a specific railway quarter at Kalyan which Shri J.P. Shoke wants.
(3) Though the present petitioner, has been appointed by Railway Board to look after welfare of the members of Scheduled Caste and Scheduled Tribes, she did not do anything for the purpose of making enquiry of another railway officer who has been shown as accused No. 4 in the complaint and thereby the present petitioner failed and neglected her duty which has been cast upon her by the Act. 8. Section 3 of the Act reads:--
"(1) whoever, not being a member of a Scheduled Caste or a Scheduled Tribe :--
(i) forces a member of a Scheduled Caste or a Scheduled Tribe to drink or eat any inedible or obnoxious substances;
(ii) acts with intent to cause injury, insult or annoyance to any member of a Scheduled Caste or a Scheduled Tribe by dumping excreta, waste matter, carcasses or any other obnoxious substance in his premises or neighborhood.
(iii) forcibly removes clothes from the person of a member of a Scheduled Caste or a Scheduled Tribe or parades him naked or with painted face or body or commits any similar act which is derogatory to human dignity;
(iv) wrongfully occupies or cultivates any land owned by, or allotted to, or notified by any competent authority to be allotted to, a member of a Scheduled Caste or a Scheduled Tribe or gets the land allotted to him transferred;
(v) wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights over any land, premises or water;
(vi) compels or entices a member of a Scheduled Caste or a Scheduled Tribe to do 'beggar' or other similar forms of forced or bonded labour other than any compulsory service for public purposes imposed by Government,
(vii) forces or intimidates a member of a Scheduled Caste or Scheduled Tribe not to vote or to vote to a particular candidate or to vote in a manner other than that provided by law;
(viii) institute false, malicious or vexatious suit or criminal or other legal proceedings against a member of a Scheduled Caste or a Scheduled Tribe;
(ix) gives any false or frivolous information to any public servant and thereby causes such public servant to use his lawful power to the injury or annoyance of a member of a Scheduled Caste or a Scheduled Tribe;
(x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view; (xi) assaults or use force to any woman belonging to a Scheduled Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty;
(xii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed;
(xiii) corrupts or fouls the water of any spring, reservoir or any other source ordinarily used by members of the Scheduled Castes or the Scheduled Tribe so as to render it less fit for the purpose for which it is ordinarily used;
(xiv) denies a member of a Scheduled Caste or a Scheduled Tribe any customary right of passage to a place of public resort or obstructs such member so as to prevent him from using or having access to a place of public resort to which other members of public or any section thereof have right to use or access to;
(xv) forces or causes a member of a Scheduled Caste or a Scheduled Tribe to leave his house, village or other place of residence shall be punishable with imprisonment for a term which shall not be less than six months but which may extended to five years and with fine.
(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe:--
(i) gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offence which is capital by the law for the time being in force shall be punished with imprisonment for life and with fine; and if an innocent member of a Scheduled Caste or a Scheduled Tribe be convicted and executed in consequence of such false or fabricated evidence, the person who gives or fabricates such false evidence, shall be punished with death;
(ii) gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offence which is not capital but punishable with imprisonment for a term of seven years or upwards, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years or upwards and with fine;
(iii) commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause damage to any property belonging to a member of a Scheduled Caste or a Scheduled Tribe, shall be punished with imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine;
(iv) commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause destruction of any building which is ordinarily used as a place of worship or as a place for human dwelling or as a place for custody of the property by a member of a Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for life and with fine;
(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground 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 imprisonment for life and with fine;
(vi) knowingly or having reason to believe that an offence has been committed under this Chapter, causes any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, shall be punishable with the punishment provided for that offence; or
(viii) being a public servant commits any offence under this section, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to the punishment provided for that offence". 9. Section 4 of the Act reads:--
"Whoever, being a public servant but not being a member of a Scheduled Caste or a Scheduled Tribe, wilfully neglects his duties required to be performed by him under this Act, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to one year."
10. Section 3(1) starts with the sentence that whoever, not being a member of Scheduled Caste and Scheduled Tribe intentionally insults or intimidate with intent to humiliate a member of Scheduled Caste and Scheduled Tribes in any place within public view. What according to the allegations of Shri J.P. Shoke, the present petitioner has done is that she told him that there are many complaints against him at Igatpuri, therefore, he should leave Igatpuri. If it is taken to be true as it has been mentioned in the complaint, it is in all probability an advise given to respondent No. 1 J.P. Shoke. The petitioner was very much within her power to so advise Shri J.P. Shoke, because in his complaint he has mentioned that she has been appointed as a Special Officer for taking care of welfare of the members of Scheduled Caste and Scheduled Tribes. Therefore, she might have advised him that there are many complaints against him at Igatpuri and therefore, it is better for him to leave Igatpuri. Apart from that for bringing Section 3(1)(x) in play there should be an allegation that the accused intentionally insulted the member of the Scheduled Caste and Scheduled Tribe in any place within public view." As per complaint this talk took place in the office of the present petitioner. He has not mentioned that the said office was visible to public at large and was exposed to public view. The learned Magistrate has not considered this important aspect of the complaint and has committed the error of issuing process against the present petitioner and as it happens to be against the provisions of law, it has to be quashed.
11. Section 4 deals with the provisions of punishments. It provides that;
"If any officer being a public servant but not being a member of a Scheduled Caste or a Scheduled Tribe, wilfully neglects his duties required to be performed by him under this Act." He deserves to be punished.
She may have been appointed by Railway Board for taking care of welfare of the members of Scheduled Caste and Scheduled Tribe, but there is nothing indicated by the complainant that she has been appointed by provisions of the Act and she has neglected to perform her duties required to be performed by her under the Act.
12. The petitioner happens to be Sr. DPO of Railway Station at Mumbai-CST. She may not be sole authority for allotting the quarters to railway employees. It is to be noted that Shri J.P. Shoke had made request of allotting him a particular quarter and that to out of turn. An officer who has been empowered to allot such quarter must have been bound by some rules framed in that context. Such officer cannot give go-by to those rules capriciously, arbitrarily and without following due process of law. Shri Shoke cannot expect such a behaviour from petitioner because, one who comes to the Courts for a relief has to come with clean hands. One cannot get everything as desired by him, in a democracy and in an institution which is governed by rules of administration. Those quarters are not personal property of petitioner and therefore, she cannot herself allot any quarter to anybody according to her will or the will of such allotee. Shri J.P. Shoke is expecting something which is not permissible by due process of law. He could have his own grievance but that grievance cannot be for cognizance in the criminal Court for issuing process against the accused.
13. When the revisional, appellate Court, High Court permits a complainant to file a fresh complaint, such complainant can add some more accused if they happened to have been omitted. Their criminal liability would be judged during the trial. Their names cannot be expunged only because they were not included in previous complaint. Of course, such omission would be a strong shot in their armoury.
14. Thus, this Court has no hesitation in coming to the conclusion that the process issued against the petitioner by J.M.F.C., Igatpuri, which has been challenged by this petition, needs to be quashed. In fact the learned Additional Sessions Judge, Nasik, should have quashed it while deciding the revision. As he has not done so and as indicated by above discussion the said order issuing process against the petitioner happens to be against the law. This Court will have to issue a writ of certiorari in favour of the petitioner for correcting the error committed by J.M.F.C., Igatpuri. The order passed by him issuing process against the petitioner stands quashed in exercise of jurisdiction of this Court in view of Articles 226 and 227 of Constitution of India and Section 482 of Code of Criminal Procedure, 1973. The respondent J.P. Shoke happens to be member of Scheduled Castes or Scheduled Tribes, therefore, this Court does not find it proper to saddle him with costs. Thus, petition stands allowed. Rule made absolute in view of prayer Clauses (a) and (b).
The parties are directed to act upon the copy of this order duly authenticated by the Sheristedar/Court Stenographer of this Court.