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Andhra HC (Pre-Telangana)

1.N.V. Ramana Raju2.B. Venkatesulu vs The State Of A.P. Rep. By Public ... on 1 August, 2014

Author: T. Sunil Chowdary

Bench: T. Sunil Chowdary

       

  

  

 
 
 THE HONBLE SRI JUSTICE T. SUNIL CHOWDARY          

CRIMINAL PETITION NOs.8269  OF 2011 and batch     

01-08-2014 

1.N.V. Ramana Raju2.B. Venkatesulu...PETITIONERS     

The State of A.P. rep. by Public Prosecutor High Court of A.P, Hyderabad and 3
others.RESPONDENTS     

Counsel for Petitioners : Sri N. Ashwani Kumar

Counsel for Respondent Nos.1 to 3: Addl. Public Prosecutor
 Counsel for Respondent No.4: Sri Ravi Kumar Mathangi 

<GIST: 

>HEAD NOTE:    

?Cases referred

  (2011) 11 SCC 259 
2 (2011) 11 SCC 258 
3 (2000) 12 SCC 531 
4 2012 (1) ALT (Crl.) 240 (A.P)
5 AIR 1960 SC 866  
6 AIR 1992 SC 604  
7 (1976) 3 SCC 736 
8 (2007) 12 SCC 1 


THE HONBLE SRI JUSTICE T. SUNIL CHOWDARY          
CRIMINAL PETITION Nos.8269 and 9066 OF 2011      

COMMON ORDER:

1 These two criminal petitions are filed (Crl.P.No.8269 of 2011 by A1 and A2, and Crl.P.No.9066 of 2011 by A3 and A4) under Section 482 Cr.P.C. to quash the proceedings Cr.No.242 of 2011 of Nagarampalem Police Station, Guntur District.

2 Since the point involved in both the petitions is one and the same, I am inclined to dispose of these two petitions by this common order.

3 The contention of the learned counsel for the petitioners is two fold, viz., 1) Registration of Crime No.242 of 2011 against the petitioners under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is not legally sustainable; and 2) the allegations made in the complaint do not constitute the offence alleged to have been committed by the petitioners. Per contra, the learned Additional Public Prosecutor submitted that the allegations made in the complaint constitute the alleged offence. The contention of learned counsel for fourth respondent is that the petitioners have intentionally insulted and humiliated Dr.Y.Kiran Kumar by delaying promotion to him as he belongs to Scheduled Caste community.

4 On 22.08.2011, the fourth respondent submitted a complaint to the Station House Officer, Nagarampalem Police Station who in turn registered a case in Cr.No.242 of 2011 under section 3 (1) (x) of S.C. & S.T (Prevention of Atrocities) Act against the petitioners. The fourth respondent submitted the complaint shouldering the responsibility of protecting the interest of the employees belonging to the Scheduled Caste and Scheduled Tribe community. As per the allegations made in the complaint, the petitioners herein denied promotion to Dr.Y.Kiran Kumar in time, thereby insulted and humiliated him as he belongs to Scheduled Caste community.

5 Dr.Y.Kiran Kumar joined as Assistant Civil Surgeon in Government General Hospital, Guntur on 26.12.1991. He was promoted as Assistant Professor and joined as such on 06.04.1994 in the same college. On 15.09.2003, the screening committee approved and recommended the name of Dr.Y.Kiran Kumar to the post of Associate Professor and accordingly he was promoted on 06.8.2004. While he was working as Associate Professor, he was reverted to the post of Assistant Professor, as per Proc.Rc.No.34388/E1.A/04, dated 9.6.2005 issued by the then Director of Medical Education. Aggrieved by his reversion, Dr.Y.Kiran Kumar filed O.A.No.7037 of 2007 on the file of Andhra Pradesh Administrative Tribunal, Hyderabad (hereafter, APAT), challenging the proceedings dated 09.06.2005. The said O.A. was allowed by APAT by its order dated 25.04.2006 by setting aside the Proc. Rc.No.34388/E1.A/04, dated 09.06.2005. Accordingly, Dr.Y.Kiran Kumar was again promoted as Associate Professor on 05.9.2006. Alleging that he was not properly placed in the seniority list, Dr.Y.Kiran Kumar filed O.A.No.1777 of 2009 questioning the proceedings in Rc.No.22163/E-1-A/2006, dated 05.9.2006 whereunder he was promoted. The APAT partly allowed O.A.No.1777 of 2009 by its order dated 13.12.2009 and further held that promotion of Dr.Y.Kiran Kumar shall be deemed to be from 06.8.2004 i.e., the date on which he was reverted from the post of Associate Professor. In the order, the respondents therein were directed to prepare seniority list and finalise the same by circulation, and even thereafter if Dr.Y.Kiran Kumar had any grievance, he can approach the respondents.

6 In the above factual background, let me consider the allegations made in the complaint. It should be remembered that the complaint was given to the Police by the president of Indian Dalith Employees Association. It is alleged in the complaint that Accused Nos.1, 3 and 4 were responsible for injustice caused to Dr.Y.Kiran Kumar for getting promotion in 2004. Accused No.2 harassed Dr.Y.Kiran Kumar without considering his representations for about eight (8) years i.e. till his (A2s) retirement on 31.07.2011. The substance of the complaint is that Dr. Y. Kiran Kumar could not get promotion in time because the petitioners intentionally delayed the promotion to Dr.Y. Kiran Kumar as he belongs to Scheduled Caste community. 7 As per Section 2(a) of the Act, atrocity means an offence punishable under Section 3. According to Oxford English Reference Dictionary, atrocity means an extremely wicked cruel act especially one involved physical violence or injury. As per the provisions of the Act, an act or omission on the part of a person, who does not belong to Scheduled Caste or Scheduled Tribe, will fall within the definition of atrocity if the same is punishable under Section 3. 8 In the instant case, the crime has been registered under Section 3 (1) (x) of S.C. & S.T (PoA) Act. The crucial question that falls for consideration is whether the alleged act of the petitioners will fall within the ambit of Section 3 of the said Act. Section 3 of the Act reads as under:

Section 3 - Punishments for offences of atrocities (1) Whoever, not being a member or 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 substance;

(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 neighbourhood;

(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 'begar' 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 a 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) institutes 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 uses 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 Caste or the Scheduled Tribes 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 a 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 extend 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, 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 punishable 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 member, 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

(vii) 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 A careful scanning of the provisions of Section 3 clearly demonstrates that the disputes pertain to service matters do not fall within the purview of Section 3. Promotion to a Government employee depends upon service conditions and relevant Rules and Regulations issued from time to time besides his eligibility, seniority coupled with entries made in Annual Confidential Records. The promotions from Assistant Civil Surgeon to Assistant Professor and from Assistant Professor to Associate Professor are governed by G.O.Ms.Nos.502 HM&FW (A1) Department, dated 13.9.2003 and G.O.Ms.No.154, HM&FW (A2) Department, dated 04.5.2002. When promotions were given basing on the assessment made by the screening committee, prima facie, the petitioners cannot be found fault with. Even assuming that the entire screening committee has violated or deviated from the Rules in order to deny promotion to Dr.Y.Kiran Kumar, then the entire screening committee has to be found fault with. It is not the case of the fourth respondent that petitioners have violated certain Regulations, which were in force and caused injustice to Dr.Y.Kiran Kumar in getting promotion in 2004. The fact remains that Dr. Y.Kiran Kumar got promotion in the year 2004 itself. But due to the orders of the Andhra Pradesh Administrative Tribunal (APAT), he was reverted back. It is a known fact that the Government officials have to implement the orders of the APAT. Otherwise, they have to face consequences. In order to avoid the legal consequences, the concerned officials have implemented the orders of the APAT. There is no specific averment in the complaint that Dr.Y.Kiran Kumar was eligible to the post of Associate Professor much prior to August 2004 and at that point of time the petitioners alone are competent to promote Dr.Y.Kiran Kumar as Associate Professor.

10 For better appreciation of the rival contentions, it is apt to mention few admitted facts.

11 A perusal of the record reveals that G.O.Ms.No.154 HM&FW (A2) Department, dated 04.5.2002 provides guidelines for fixing of inter-se seniority in the feeder cadre to the post of Assistant Professor and Associate Professors by following seniority vertically. For one reason or the other, the State Government has made necessary amendments to G.O.Ms.No.154 and issued G.O.Ms.No.502, HM&FW (A1) Department, dated 13.9.2003. As per G.O.Ms.No.502, the inter- se seniority in the feeder cadre shall be fixed horizontally. The procedure to be followed for fixing of inter-se seniority in both the G.Os is diametrically opposite. In the year 2003, the screening committee recommended and promoted Assistant Professors as Associate Professors. The Assistant Professors who could not get promotion, in view of the change of mode of fixing the inter-se seniority, filed O.As before the APAT, challenging the legality of the G.O.Ms.No.502 dated 13.09.2003. The said O.As were allowed setting aside the promotions recommended by the screening committee in the year 2003. Due to setting aside of the promotions recommended by the screening committee, consequently it also effected the promotion given to Dr. Y. Kiran Kumar and others. Therefore, the material placed before this Court clinchingly establishes the root cause for setting aside of the promotion of Dr. Y. Kiran Kumar and delay in giving promotion is due to change of the policy of the Government in respect of inter-se seniority of Assistant Professors. 12 The crucial question that falls for consideration is whether the allegations made in the complaint satisfy the basic ingredients of Section 3(1)(x) of the Act. The Honble apex Court, in Asmathunnisa Vs. State of Andhra Pradesh , observed as follows:

8. In this connection, learned counsel for the appellant has placed reliance on a judgment of the Kerala High Court in E. Krishnan Nayanar v. Dr. M.A. Kuttappan & Others 1997 Crl. L.J. 2036. The relevant paragraphs of this judgment are paras 12, 13 and 18. The said paragraphs read as under:

"12. A reading of Section 3 shows that two kinds of insults against the member of Scheduled Castes or Scheduled Tribes are made punishable - one as defined under sub-section (ii) and the other as defined under sub-section

(x) of the said section. A combined reading of the two sub-sections shows that under section (ii) insult can be caused to a member of the Scheduled Castes or Scheduled Tribes by dumping excreta, waste matter, carcasses or any other obnoxious substance in his premises or neighbourhood, and to cause such insult, the dumping of excreta etc. need not necessarily be done in the presence of the person insulted and whereas under sub-section (x) insult can be caused to the person insulted only if he is present in view of the expression "in any place within public view". The words "within public view", in my opinion, are referable only to the person insulted and not to the person who insulted him as the said expression is conspicuously absent in sub-section (ii) of Section 3 of Act 3/1989. By avoiding to use the expression "within public view" in sub-section (ii), the Legislature, I feel, has created two different kinds of offences an insult caused to a member of the Scheduled Castes or Scheduled Tribes, even in his absence, by dumping excreta etc. in his premises or neighbourhood and an insult by words caused to a member of the Scheduled Castes or Scheduled Tribes "within public view" which means at the time of the alleged insult the person insulted must be present as the expression "within public view" indicates or otherwise the Legislature would have avoided the use of the said expression which it avoided in sub-

section (ii) or would have used the expression "in any public place".

13. Insult contemplated under sub-section (ii) is different from the insult contemplated under sub-section (x) as in the former a member of the Scheduled Castes or Scheduled Tribes gets insulted by the physical act and whereas is the latter he gets insulted in public view by the words uttered by the wrongdoer for which he must be present at the place. xxx xxx xxx

18. As stated by me earlier the words used in sub- section (x) are not "in public place", but "within public view" which means the public must view the person being insulted for which he must be present and no offence on the allegations under the said section gets attracted. In my view, the entire allegations contained in the complaint even if taken to be true do not make out any offence against the petitioner".

9. The aforesaid paragraphs clearly mean that the words used are "in any place but within public view", which means that the public must view the person being insulted for which he must be present and no offence on the allegations under the said section gets attracted if the person is not present.

13 Establishment of the following two conditions is sine qua non to register the crime under Section 3 (1) (x) of the Act in view of the ratio laid down in the case cited supra.

i. The person belongs to Scheduled Caste or Scheduled Tribe being insulted or intimidated in his presence in the name of the caste; ii. The incident must occur in any place within the public view. 14 As per the principle enunciated in Gorige Pentaiah v. State of A.P. , D. Santosh Reddy v. S.H.O. of Shamshabad P.S and U.Sadasivaiah v. State of Andhra Pradesh , if the allegations made in the complaint or FIR do not satisfy the basic ingredients of Section 3 (1) (x) of the Act, the Court can quash the proceedings by exercising inherent jurisdiction under Section 482 Cr.P.C. 15 It is an admitted fact that Dr. Y.Kiran Kumar did not lodge the complaint against the petitioners alleging that the petitioners have committed the offence under Section 3 (1) (x) of the Act. The fourth respondent association lodged the complaint alleging as if the petitioners have intentionally insulted Dr. Y. Kiran Kumar by delaying his promotion on the sole ground that he belongs to Scheduled Caste community. There is no allegation in the complaint that the petitioners have intentionally insulted or intimidated Dr. Y. Kiran Kumar in his presence in the name of his caste and in a place within the public view. Even if the allegations made in the complaint ex facie taken to be true and correct, the petitioners never insulted Dr. Y. Kiran Kumar in the name of his caste so as to attract the alleged act of the petitioners within the ambit of Section 3 (1)(x) of the Act. The substance of the allegations made in the complaint is that the petitioners herein denied promotions to Dr. Y. Kiran Kumar as he belongs to Scheduled Caste community. Even assuming but not admitting the allegations are true and correct, the same will not fall under anyone of the provisions enumerated under Section 3 of the Act. When the alleged act of the petitioners is not punishable under Section 3 of the Act, by any stretch of imagination, it cannot be presumed that the alleged act of the petitioners will come under the purview of atrocity as defined under section 2 (a) of the Act. 16 It is a settled principle of law that the Court can quash the proceedings under section 482 Cr.P.C. in the following circumstances. i. If the allegations made in the complaint do not constitute any offence much less the offence alleged to have been committed by the accused, ii. If there is a legal bar for registration of the criminal case and continuation of investigation against the accused. iii. Even if the allegations made in the complaint ex facie are taken to be true and correct, the possibility of conviction of the accused is too remote or bleak, iv. If the registration of the case and continuation of the investigation would amount to abuse of process of law; and v. To secure the ends of justice.

17 The Apex Court in R.P.Kapoor v State of Punjab , held as hereunder:

"Cases may also arise where the allegations in the F.I.R. or the complaint even if they are taken at their face value and accepted in their entirety do not constitute the offence alleged. In such cases, no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In this case it would be legitimate to the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person."

18 In State of Haryana v Bhajanlal the Apex Court after having surveyed the entire case law on the point has laid down certain indicia with reference to which, a High Court may in exercise of powers under Article 226 of the Constitution of India or under Section 482 Cr.P.C may interfere in proceedings relating to cognizable offences to prevent abuse of the process of any court or otherwise to secure the ends of justice.

19 In State of Karnataka v L.Muniswamy , the Supreme Court observed that the wholesome power under Section 482 Cr.PC entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceedings to continue would be an abuse of the process of the court or that the ends of justice require that the proceedings ought to be quashed.

20 A three-Judge Bench of the Supreme Court in Inder Mohan Goswami v State of Uttaranchal , after examining the scope and ambit of Section 482 of the Criminal Procedure Code, observed that inherent powers under Section 482 should be exercised for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the Court, then the Court would be fully justified in preventing injustice by invoking the inherent powers of the Court. 21 Before parting with the order, one has to observe that the parliament enacted the S.C & S.T (PoA) Act with avowed object to prevent atrocities against the members of that community. The scheme of the Act clearly demonstrates that the parliament with an intention to enhance the social dignity and self respect of the members of the S.C. & S.T community incorporated various provisions in the Act. The various provisions of the Act will be a shield but not a sword. In recent days the number of cases registered under this Act is increasing day by day, which clearly manifests the social awareness among the members of the S.C & S.T. community. The letter and spirit of the constitution of this country is that a citizen of this country should not claim that he can do everything as a matter of right without discharging the social and moral obligations cast on him. Before making an allegation, one should take reasonable care and caution. Lodging a complaint by an association without noticing the factual background may send a wrong signal to the society. The provisions of the Act are being misused for selfish ends. In the instant case, the possibility of filing of the present complaint by the association in order to achieve the object of the Act without verifying the factual background may not be ruled out. If the association has bestowed its interest prior to filing of the complaint to the rules and regulations governing the promotion avenues as well as the inter-se seniority being followed in the feeder cadre, certainly it would not have ventured to lodge the complaint. The trauma likely to be undergone, more particularly, by person at the helm of affairs to be an accused of moral turpitude on the ground that he has shown discrimination towards down trodden people, is unfathomable. For one reason or the other, the person whose promotion was alleged to have been denied or delayed by the petitioners, has not chosen to invoke the provisions of the Act. Strictly speaking, any dispute pertaining to inter-se seniority or the service matter falls outside the purview of the provisions of the S.C & S.T (PoA) Act. The parliament in its wisdom visualised the far reaching consequences being faced by the officials who were entrusted with the work of promotions, might have intentionally deleted the service matters from the purview of the Act. 22 Viewed from any angle, the association has no locus standi to fight for the cause related to the service matters. The parliament in its wisdom excluded the service jurisprudence from the purview of S.C & S.T (PoA) Act. If the intention of the legislature is otherwise, certainly, it would have brought the service matters pertaining to the members of the S.C & S.T community within the purview of the Act.