Madras High Court
Iyyanar @ Thadi Iyyanar vs State on 13 August, 2019
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
ORDERS RESERVED ON : 16.08.2019
PRONOUNCING ORDERS ON : 22.08.2019
CORAM
THE HONOURABLE JUSTICE MR.N.ANAND VENKATESH
Crl.OP No.20922 of 2019
and
Crl.MP No.10786 of 2019
1. Iyyanar @ Thadi Iyyanar
2. Manikandan @ Kattamani
3. Ajith Kumar @ Chandru
4. Arjun
5. Arulpandian @ Pandi ...Petitioners / Accused 1 to 5
Vs.
1. State, represented by its,
Deputy Superintendent of Police,
Puducherry West,
Puducherry.
2. The Inspector of Police,
Villianur Police Station,
Puducherry. ..Respondents /Investigating
Officers
3. K.Innarasan .... Respondent / Defacto Complainant
http://www.judis.nic.in
2
4. R.Lalitha
(R4 is impleaded as per order made in
Crl. MP No.11331 of 2019 in Crl OP No.20922 of 2019
dated 13.08.2019). ... Respondent
Prayer : Criminal Original Petition filed under Section 482 of Cr.PC
to quash the charge framed against the petitioners for an
offences under Section 3(2) (v) of the SC / ST (Prevention of
Atrocities) Act 1989 in Spl. S.C.No.1 of 2019 on the file of the
Special Judge SC / ST (Prevention of Atrocities) Act 1989,
Puducherry.
For Petitioners : Mr.P.Prince Premkumar
For Respondents : Mr.D.Bharathachakravarthy
Public Prosecutor
(Puducherry) for R1 & R2
M/s.K.Nithyashree
for R3 & R4
ORDER
The instant case has been filed to quash the charges framed by the Court below against the petitioners for an offence under Section 3(2)(v) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities ) Act 1989, in Spl. C.C.No.1 of 2019.
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2. The case of the prosecution is that on 14.07.2019, the accused persons formed themselves into an unlawful assembly and hatched a conspiracy to kill the deceased Tamizh alias Elavarasan and at about 19.30 hrs, when the deceased was coming along with his friend Innarasan in a motorcycle, they were waylaid by the accused persons and the deceased Tamizh alias Elavarasan was assaulted indiscriminately with a sickle causing his instantaneous death. Immediately, the complainant viz., Innarasan (LW1) informed the police about the incident and an FIR came to be registered in Crime No.185 of 2018, for an offence under Section 341, 302 of IPC r/w Section 34 of IPC.
3. The investigation was taken up by the Inspector of Police, Villianur Police Station, Puducherry and the FIR was altered for offences under Sections 147, 148, 341, 302,120(b), 212 of IPC r/w Section 149 of IPC. Totally seven accused persons were identified.
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4. The investigation was completed and final report was filed on 03.10.2018, before the learned Judicial Magistrate III, Puducherry and the same was taken on file in P.R.C.No.10 of 2018.
5. Subsequently, it came to be known that the accused persons knew that the deceased belonged to a Scheduled Caste community and the incident that took place on 14.01.2017 was taken note of for this purpose, wherein, the accused persons had warned the deceased and his friend Moorthy and made them apologize before the people belonging to the Scheduled Caste community, for having consumed alcohol in a public place. Therefore, on 04.10.2018, the Investigating Officer added Section 3(2)(v) of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989 (in Short “the SC/ST Act”) and submitted an application for further investigation under Section 173(8) of Cr.P.C.
6. On the completion of the investigation, a further http://www.judis.nic.in 5 report was filed for an offence under Section 3(2)(v) of the SC/ST Act, r/w Section 149 of IPC. The Court below took into consideration the final report, further report and the statements recorded from the witnesses and framed charges against the accused persons for offences under Sections 147, 148, 341, 302, 120(B), 212 of IPC and Section 3(2)(v) of the SC/ST Act r/w. Section 149 of IPC.
7. The learned counsel for the petitioners submitted that the charges framed against the petitioners for an offence under Section 3(2)(v) of the SC/ST Act, is not sustainable in view of the fact that Rule 7 of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Rules, 1995 (in short “the SC/ST Rules”) has not been complied with in this case. The learned counsel submitted that, under the said rule, only the designated officer not below the rank of Deputy Superintendent of Police, can investigate the case. In the instant case, the case was investigated intially by the Inspector of Police, who filed a final report on 03.10.2018. Thereafter, the same Inspector of Police, filed an http://www.judis.nic.in 6 alteration report on 04.10.2018 by adding Section 3(2)(v) of the SC/ST Act. Subsequently, the same Investigating Officer had examined LW12, LW13 and LW7. Subsequently, the Case Diary was handed over to the Deputy Superintendent of Police, who filed the Additional Charge Sheet. This Officer had recorded the statements of seven witnesses under Section 161 of Cr.P.C. The Inspector of Police had recorded the statement of 21 witnesses. Therefore, the learned counsel submitted that the entire investigation insofar as the offence under the SC/ST Act is concerned, is completely vitiated and the charges framed by the Court below under Section 3(2)(v) of the SC/ST Act, against the accused persons is not sustainable.
8. The learned counsel for the petitioner further submitted that the 5th petitioner (A5) belongs to a Scheduled Tribe Community and therefore, a charge for an offence under the SC/ ST Act cannot be framed against him.
9. The learned counsel in order to substantiate his http://www.judis.nic.in 7 arguments, relied upon the following judgments :-
[a] [Periyasamy and another Vs. The State Represented by the Deputy Superintendent of Police, Avinashi Sub Division, Coimbatore] reported in 2015 (3) MLJ Criminal 573. [b] [Mariammal Vs. State of Tamil Nadu rep. by Secretary to Government, Home Department, Fort St. George, Madras 9] reported in 1998(1) Madras Weekly Notes Cr. 349.
[c] [Viswanadhula Chittibabu Vs.State of Andhra Pradesh] reported in 2002 (4) R.C.R. (Criminal) 68.
[d] [Sri Sanjaya Rout Vs. The State] reported in 2005 (31) Orissa Crl. R.586 [e] [H.Thenmozhi Vs. The Inspector of Police P.R.C.Unit and another] reported in CDJ 2006 MHC 1332.
[f] [Ranjit @ Rajat Kumar Das and others Vs. State of Orissa] reported in 2003 (3) Crimes 476. http://www.judis.nic.in 8 [g] [Basanta @ Basanta Kumar Palai and others Vs.State of Orissa] reported in 2005(31) Orissa Cri. R.233.
10. The 1st respondent has filed a Counter Affidavit in this case. The relevant portions of the Counter Affidavit are extracted hereunder :-
8...... In this case charge sheet was laid on 03.10.2018 and taken on file by the Hon'ble Court of Judicial Magistrate III, Puducherry vide P.R.C.No.10/2018. It is further submitted that, the complainant and relatives of the deceased stated in their statements that on 14.01.2017 at night hours his deceased brother Tamizh @ Elavarasan along with his villagers warned and made the accused Iyyanar and his friend Moorthy to sought apology among the SC people for consuming alcohol in the public place nearby their Village. Since the said Iyannar and his friends are all belongs to Vanniyar Community and the deceased and Innarasan is belongs to SC Community, on having http://www.judis.nic.in 9 communal enemical view, the said Iyyanar and his friends attacked Innarasan on the next day 15.01.2017 (In this connection a case was registered and under trial).Even after also the accused Iyyanar and his friends Speed Mani and others who are all belongs to Vanniar Caste on having communal inimical view and Grudge used to threaten his deceased brother Thamizh @ Illavarasan while he was going on the way.
Finally, on 14.07.2018 at about 7.30 pm the accused persons Iyyanar, Speed Mani and others belongs to Vanniyar Community had blocked Tamil @Elavarasan and Innarasan while they were going to Mil Society and killed Tamil @ Elavarasan in Cruel manner.Thus, the Section 3(2) (v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act 1989 is attracted in this case. Hence, the Inspector of Police, Villianur altered the Section of law in this case from 147, 148, 341, 302, 120(B), 212 IPC r/w. 149 IPC to 147, 148, 341, 302, 120(b), 212 IC and Sec. 3(2)(v) of http://www.judis.nic.in 10 SC & ST (Prevention of Atrocities) Act 1989 r/w.149 IPC and submitted this case file for further investigation and submission of further charge sheet u/s.173(8) Cr.PC.
9. I sincerely state that pursuant to the alteration of offences, investigation was entrusted to this respondent, namely, the Superintendent of Police (West) on 05.10.2018. Thereafter, on 23.10.2018, I examined the witnesses LW1 to LW5, on 30.10.2018,I examined the witnesses LW6 to LW9 and recorded their statements and filed the additional charge sheet against the accused persons A1) Iyyanar @ Thadi Iyyanar, A2) Manikandan @ Kattamani, A3) Ahithkumar @ Chandru A4) Arjun A5) Arulpandian @ Pandi and the Juveniles in Conflict with Law 1) Manikandan @ Speed Mani, 2) Arun Kumar @ Arun and 3) Manikandan @ Sindru Under Section 3(2) (v) of SC/ST (Prevention of Atrocities) Act, 1989 r/w. 149 IPC vide Spl. SC http://www.judis.nic.in 11 No.01/2019 and the charge framed on 09.07.2019.
10. I respectfully submit that on 23.07.2019 the LW1 to LW5 were summoned before the learned Special Court under SC / ST atrocities Act for examination. On the same day, the examination in chief was over and the counsel for the accused persons filed a defer petition before the Hon'ble Court under Section 311 of Cr.Pc by stating that the accused persons have not received some of the documents while framing of charge sheet and issuing of free copies. The Hon'ble Court issued the alleged missing documents to the accused persons on the same day. Further the defense counsel to prayed time to read the said document for cross-examination. The Hon'ble Court also allowed and granted time till 06.08.2019 and it is at this stage the present petition is filed.
11. I sincerely state that the present Criminal Original petition is filed basically on two premises. http://www.judis.nic.in 12 First, it is alleged that Rule 7 is violated. The same is factually incorrect. This respondent is empowered to conduct investigation into the offenses under the SC/ST Act and accordingly, the investigation was entrusted to this respondent and this respondent again examined LW1 to LW11 and filed the additional charge sheet and as such the allegation of violation of Rule 7 is factually erroneous.
12. I sincerely state that the second premise on the ground the above petition is filed is that A-5 is a scheduled Tribe belonging to Hindu Malaikuravan Community and therefore, no charge under SC & ST Act can be framed against him. The said contention is again fallacious since the Act itself defines who is the member of Scheduled Caste or Scheduled Tribe under Section 2(c) of the Act, which provides that the same shall have the same meaning as per Clause 24 and 25 of Article 366 of the Constitution of India. Article 366 of the Constitution of India in Clause 24 and 25 lays http://www.judis.nic.in 13 down that SC and ST would mean those casts which are deemed under Article 341 and 342 as SC and ST. Article 342 clearly lays down that only members of those tribes which are notified by the President in respect of that State or Union Territory can be the STs in respect of that Union Territory. The President of India has notified "The Constitution (Puducherry) Scheduled Tribes Order, 2016" on 22.12.2016 which makes only "Irular (Including Villi and Vettaikaran) as the Members of Schedule Tribe as far as the Union Territory of Puducherry is concerned.The Accused No.5 does not belong to this case and therefore, no schedule Tribe Status is given to him in the Union Territory of Puducherry which is clear from the Community Certificate produced by him. Therefore, that Criminal Original Petition fails on this score also. All the other contentions and averments are untenable and cannot be grounds for quashing the charges which are duly and correctly framed. http://www.judis.nic.in 14
11. The learned Public Prosecutor appearing on behalf of the respondent police submitted that the 1st respondent has re-examined LW1 to LW11 and has filed the Additional Charge Sheet for the offence under Section 3(2)(v) of the SC/ST Act and therefore, there is absolutely no violation of Rule 7 of the SC/ST Rules. The learned counsel submitted that the Court below took into consideration, the statements recorded from the wtinesses during the course of further investigation by the 1st respondent and found that there were sufficient materials to frame a charge under Section 3(2)(v) of the SC/ST Act. Therefore, the mandatory requirement under Rule 7 of SC/ST Rules, has been complied with and the charges have been framed based on the materials collected during further investigation and there is absolutely no ground to interfere with the charges framed by the Court below for the offences under the SC/ST Act.
12. The learned Public Prosecutor further submitted that Section 2(c) of the Act, defines the 'Member of a Scheduled http://www.judis.nic.in 15 Caste or a Scheduled Tribe' and it provides that it will have the same meaning as per Clauses 24 & 25 of Article 366 of the Constitution of India. Article 342 clearly lays down that only members of those tribes which are notified by the President of India in respect of the State or Union Territory, can be recognised as a person belonging to the Scheduled Tribe Community. He further stated that insofar as the Union Territory of Puducherry is concerned, the Government of India by its notification dated 22.12.2016 has identified only one Community viz., Irular (including Villi & Vettaikaran) as belonging to Scheduled Tribe. The 5th petitioner (A5) does not belong to this community and therefore, he cannot claim himself to belong to Scheduled Tribe.
13. The learned Public Prosecutor in order to substantiate his arguments relied upon the following judgments :-
[a] [R.A.H.Siguran Vs.Shankare Gowda @ Shankara and another] reported in 2017 SCC Online SC 1082.
[b] [Union of India and others Vs.T.Nathamuni] reported in 2014 (16) SCC cases 285.
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[c] [Elumalai Vs. State by the Deputy
Superintendent of Police, Tindivanam] in Crl.A.No.601 of 2011
dated 25.01.2019.
14. The learned counsel appearing on behalf of the 3rd & 4th respondents adopted the arguments of the Public Prosecutor and submitted that there are abundant materials available against the petitioners both for the offence under IPC and under Section 3(2) (v) of SC/ST Act. The learned counsel submitted that the mandatory requirement under Rule 7 of the SC/ST Rules, has been followed in this case and that there is no ground to interfere with the charges framed by the Court below.
The learned counsel in order to substantiate her arguments has relied upon the following judgments :-
[a] [State of Bihar and others Vs. Anil Kumar and others] in Civil Appeal Nos.4397 – 4400 of 2017.
[b] [Keshav Singh Vs. State of Madhya Pradesh] reported in 2007 Crl LJ 721.
[c] [Yannam Sathyanarayana Vs. State of http://www.judis.nic.in 17 Andhra Pradesh] reported in 2006 Crl LJ 2320.
15. This Court has carefully considered the submissions made on either side and the materials available on record.
16. The learned counsel for the petitioners confined his arguments in this quash petition only insofar as the charges framed against the petitioners for an offence under Section 3(2)(v) of the SC/ST Act. The learned counsel has raised two grounds to justify his submissions to quash the charges. The 1st ground raised by the learned counsel for the petitioner is that Rule 7 of the SC/ST Rules, has not been complied with. The 2nd ground that has been raised by the learned counsel for the petitioner is that the 5th petitioner belongs to Scheduled Tribe community and therefore, no charge can be framed against him under the SC/ST Act.
17. It is to be borne in mind that in this case http://www.judis.nic.in 18 initially a final report was filed by the Inspector of Police.
Thereafter, the Investigating Officer added an offence under SC/ST Act and filed an application under Section 173(8) of Cr.P.C. for further investigation. It is alleged that he examined LW12, LW13, LW7 and only thereafter handed over the Case Diary to the Deputy Superintendent of Police who filed the Additional Charge Sheet. Thereafter, charges were framed and PW1 to PW5 were examined on the side of the prosecution and after filing a defer petition for cross-examination, the present quash petition has been filed before this Court.
18. The Judgements relied upon by the learned counsel for the petitioners shows that a consistent view has been taken to the effect that Rule 7 of the SC/ST Rules is mandatory and investigation must be conducted by a police officer not below the rank of Deputy Superintendent of Police. There is no quarrel with regard to the said proposition and therefore, there is no need to dwell in detail with the judgements cited by the learned counsel for the petitioners.
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17. On a careful scrutiny of the materials placed before this Court, it is seen that after the investigation was handed over to the 1st respondent, he had examined LW1 to LW5 on 23.10.2018 and LW6 to LW9 on 30.10.2018. They are the important witnesses who speak about the facts which formed the basis to add the charge under Section 3(2) (v) of the SC / ST Act. Only after the examination of these witnesses by the 1st respondent, the Additional Charge Sheet was filed before the Court and thereafter, the Court below proceeded to frame the charges against the accused persons.
18. An entire reading of the initial Charge Sheet, additional Charge Sheet and the statement recorded from the witnesses, clearly make out a prima facie case for offences under Sections 147, 148, 341, 302, 120(B) and 212 of IPC r/w. Section 149 of IPC and 3(2)(v) of the SC/ST Act.
19. The Judgements relied upon by the learned http://www.judis.nic.in 20 Public Prosecutor appearing on behalf of the respondent police brings out the following principles :-
● If the irregularity in the investigation is brought to the notice of the Court at the early stage, the Court will issue such direction to rectify the irregularity.
● However, after taking cognizance of the offence at a later stage, the proceedings cannot be quashed for irregularity.
● However, in the trial, if the accused is able to establish miscarriage of justice on account of such irregular investigation, the same will be considered.
20. As already held by this Court, this Court does not find any violation of Rule 7 of the SC/ST Rules and that portion of the investigation has been conducted by the 1st respondent, who is the competent officer stipulated under the said Rule. Even if the petitioners are able to point out any http://www.judis.nic.in 21 irregularity by virtue of the Inspector of Police examining the same witnesses, it can only tantamount to an irregularity and the statement recorded by the Inspector of Police must be taken only for the purpose of the investigation for the offences under the Indian Penal Code. Certainly, the alleged irregularity does not in any way cause any prejudice to the petitioners and will not result in miscarriage of justice for the petitioners.
21. In view of the above findings, this Court is not in agreement with the 1st issue that was raised by the learned counsel for the petitioners and this Court holds that the investigation has been conducted in accordance with Rule 7 of the SC/ST Rules by the 1st respondent.
22. Insofar as the 2nd issue that was raised by the learned counsel for the petitioners is concerned, this Court is totally in agreement with the submissions made by the learned Public Prosecutor to the effect that a person will be recognised as belonging to the Scheduled Tribe Community only if the http://www.judis.nic.in 22 community is notified by the President of India as provided under Artilce 342 of Constitution of India. The 5th petitioner does not fall within the only community that has been notified in the Union Territory of Puducherry and therefore, he cannot be recognised as a person belonging to Scheduled Tribe Community. In view of the same, the 2nd issue that was raised by the learned counsel for the petitioners is also rejected by this Court.
23. This Court does not find any merits in this petition and this Court is of the considered view that there are prima facie materials to proceed further against the petitioners for the charges framed against them by the Court below and there is no ground to interfere with the same.
24. In the result, this Criminal Original Petition is dismissed and there shall be a direction to the Special Judge, SC / ST (Prevention of Atrocities) Act, 1989, Puducherry to complete the proceedings in Spl. S.C.No.1 of 2019, within a period of four months from the date of receipt of the copy of this order. http://www.judis.nic.in 23 Consequently, the connected miscellaneous petition is also closed.
22.08.2019 Index : Yes Internet : Yes rka To
1. The Special Judge SC / ST (Prevention of Atrocities) Act,1989, Puducherry.
2. State, represented by its, Deputy Superintendent of Police, Puducherry West, Puducherry.
3. The Inspector of Police, Villianur Police Station, Puducherry.
http://www.judis.nic.in 24 N.ANAND VENKATESH.J., rka Crl.OP No.20922 of 2019 and Crl.MP No.10786 of 2019 http://www.judis.nic.in 22.08.2019