Bombay High Court
Yunus Daud Bhura vs State Of Maharashtra on 2 May, 2001
Equivalent citations: 2002BOMCR(CRI)~, (2001)4BOMLR181, 2001(3)MHLJ783
Author: R.K. Batta
Bench: R.K. Batta
JUDGMENT R.K. Batta, J.
1. The applicant, who is an Advocate, approached this Court under Section 482, Criminal Procedure Code for quashing of First Information Report as also investigation under section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Preventation of Atrocities) Act, 1989 (for short, the "Act"). The applicant has made further prayer to stay his arrest. By order dated 11.11.1997 by way of interim relief the police were directed not to arrest the applicant and the said order was continued vide order dated 15.12.1997 till final disposal of the mattter after the matter was admitted.
2. Learned Advocate for the applicant made the following submissions before me:--
(1) There is delay of fifteen days in filing the complaint.
(2) That, the utterances attributed to the applicant do not make out any case under Section 3(1)(x) of the said Act.
(3) The alleged utterances were not made within the "public view" as no witnesses were present and the witnesses are alleged to have come to the room after the incident, and (4) That, according to Rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (for short, the "Rules"), investigation into the offence committed under the Act has to be done by a police officer not below the rank of a Deputy Superintendent of Police and the investigation in this case has been carried out by the Police Inspector who is not authorised to Investigate into the offence under the Act and as such, the entire investigation as vitiated upon which no proceedings can be based.
3. Learned Advocate for the applicant relied upon the judgment of the Single Judge of Madras High Court in M. Kathiresam v. State, in support of his contention that the investigation conducted by the officer other than the Deputy Superintendent of Police is improper and the same is bad in law as a result of which the proceedings are required to be quashed. Learned Advocate for the applicant also placed reliance on the judgment of the learned Single Judge of Karnataka High Court in Chandra Poojari v. State of Karnataka, on the question of delay; that, the offence under Section 3(1)(x) of the Act is required to have taken place in public view and that merely calling a person by his caste, is not sufficient to attract Section 3(1)(x) of the said Act.
4. On the other hand, learned A.P.P. urged before me that the delay has been properly explained in the complaint itself; that the utterances by the applicant are sufficient to attract Section 3(1)(x) of the Act; that the utterances were heard by a number of staff members and as such, the offence has been committed within the "public view" and that the investigation by an unauthorised officer does not vitiate the trial unless the accused is able to establish prejudice on that count. In support of his contention, he relied upon the judgment of learned Single Judge of the Madras High Court in P. Nallammal & Ors. u. State, in which reliance has been on number of judgments of the Apex Court on the subject.
5. Section 18 of the said Act provides that nothing in Section 438 of the Criminal Procedure Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence under the said Act. Thus, the remedy of anticipatory bail is not available to the applicant in respect of the offence committed under the said Act. If the First Information Report, statements recorded by the police under section 161 of the Criminal Procedure Code and the available material in the case diary ex facie do not disclose the ingredients constituting the offence under any of the provisions of the Act, the jurisdiction of the Court to grant anticipatory bail cannot be said to be taken away. This view has been taken by the learned Single Judge of this Court, in Ramchandra v. State. The applicant had sought stay of his arrest and no application for anticipatory bail was filed.
6. Coming to the merits of the arguments advanced by either side, I must say, to start with, that the delay in filing the complaint has been explained inasmuch as the Presiding Officer of the Court where this incident took place, was not available which resulted into delay in filing the complaint.
7. The next contention advanced by the learned Advocate for the applicant is that the alleged utterances attributed to the applicant do not attract section 3(1)(x) of the Act. I do not prima facie find any merit in the contention of the learned Advocate for the applicant in view of the fact that the applicant is reported to have told the complainant-Nazir of the Court ^^lkys HkkslM+h ds eSa rsjs dks ns[k ywaxk rqe lkys gks ekt x;s gks ,d tekus esa rqEgkjs dks dksbZ iwNrk ugha Fkk vkSj lkyksa vkfnoklh dh vkSykn eq>s fl[kk jgh gSA** These utterances, on the face of it prima facie attract the provisions of Section 3(1)(x) of the said Act.
8. The next contention advanced by the learned Advocate for the applicant is that the offence is not reported to have taken place in "public view". His case is that no one was present and it is only after hearing the utterances that the staff members came, who are not independent witnesses. Prima facie, at this stage, I am not inclined to take restricted view of the expression "public view" since in my opinion, prima facie, even if the utterances are heard by someone else, it would be a case of an offence having taken place in public view. The statements of staff members of the Court have been recorded wherein they have stated that though they were in adjoining room and rushed to the spot when the incident took place, yet they had heard the utterances made by the applicant. Thus, I do not find any merit in the third contention of the learned advocate for the applicant.
9. Coming to the last point raised by learned Advocate for the applicant, learned Advocate relied upon the judgment of the Madras High Court in M. Kathiresam v. State (supra). The Judgment in this case was dictated on 22.3.1999. On the other hand, the judgment of the Madras High Court in P. Nallammal v. State (supra) relied upon by the learned A.P.P., was passed on 25-1-1999. In P. Nallammal & Ors. v. State (supra) this aspect has been dealt with at a greater length in paragraphs 10 and 11 with reference to the Apex Court judgments starting from H. N. Rishbud and Anr. v. State of Delhi. In the latter judgment of the Madras High Court in M. Kathiresam v. State (supra), there is neither elaborate discussion on the law point nor judgment of the learned Single Judge which was prior in point of time, was cited before the learned Judge. In H. N. Rishbud and Anr v. State of Delhi (supra), it was clearly held that the defect or illegality in investigation, howsoever serious, has no direct bearing on the competence or the procedure relating to cognizance or trial and if, therefore, cognizance is in fact taken on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. The Apex Court has further laid down that it is not possible to say that cognizance on an invalid police report is prohibited and Is therefore a nullity since such invalid report may still fall either under clause (a) or clause (b) of Section 190(1) of the Criminal Procedure Code. It was further pointed out by the Apex Court that when a breach of the mandatory provision is brought to ihe notice of the Court at an early stage of the trial, the Court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirement of the law in question. This view was followed by the Apex Court in Munnalal v. State of U.P., and State of U.P. v. Bhagwant Kishore Joshi. In view of the above position, I do not find any merit in the last contention advanced by the learned Advocate for the applicant.
10. Besides the offence under Section 3(1)(x) of the said Act, the other offences under Sections 504, 506, 352, 253, 294 of the Indian Penal Code and section 7(1)(d) of the Protection of Civil Rights Act, 1955 are also prima facie disclosed against the applicant.
11. For the aforesaid reasons, the application for quashing the proceedings is dismissed.