Andhra Pradesh High Court - Amravati
Smt. Mohd. M. Jahera, E.G.Dist. vs P.P., Hyd Ano on 20 September, 2019
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
Criminal Petition No.9598 of 2014
ORDER:
1. Smt. Mohd. M. Jahera filed this petition under Section 482 of Criminal Procedure Code (for short 'Cr.P.C') to quash the proceedings in Crime No.130 of 2014 dated 25.06.2014 on the file of Indrapalem Police Station, Kakinada, East Godavari District, registered for the offence punishable under Section 3(1)(x) of SC, ST's (Prohibition of Atrocities) Act, 1989 (for short The Act).
2. 2nd respondent herein is the complainant and the petitioner herein is working as A.N.M.C.M.H.A.(F), and 2nd respondent is working as Auxulary Nurse Midwife (ANM) at Public Health Center, V.K Rayapuram along with the petitioner. The 2nd respondent lodged a report with the police alleging that she is working as ANM at Public Health Center, V.K Rayapuram village, East Godavari District and she has been residing at Kothur Colony, V.K Rayapuram and that the petitioner and one P.B.A Raj Sekhar is also working as ANM (Multipurpose Health Assistant (Female) & (Male) in the said Primary Health Center. The petitioner herein has been allegedly harassing the 2nd respondent on the ground that she is not attending duties regularly and she has been making false propaganda to higher authorities and also to the Medical Officer that the 2nd respondent herein is 2 MSM, J Crl.P No.9598 of 2014 irregular to her duty. 2nd respondent herein has been residing at very same place and rendering services to the general public and that the petitioner is residing at Kakinada, discharging her duties at V.K Rayapuram and entered into altercation with 2nd respondent frequently by making complaints to higher authorities and has been abusing her in the name of her caste. 2nd respondent made complaint against the petitioner to the Medical Officer Dr. M. Aruna Devi in writing and whereas the petitioner reported duty during July, 2012, ever since, the date of joining the petitioner has been harassing her and also compelled her to affix her signature on a complaint filed by the petitioner against the Medical Officer, 2nd respondent refused to sign the complaint. The petitioner herein intensified the harassment, removing her leave letter. 2nd respondent complained the same to the higher authorities and whereas the petitioner allegedly harassing this petitioner making false complaints to higher authorities against 2nd respondent on, petty issues.
3. While they are working with differences, on 02.06.2014 at about 12.15 PM in Public Health Center, V.K Rayapuram, 2nd respondent herein questioned the petitioner about removal of leave letter submitted by her and the petitioner admitted about removal of leave letter of 2nd respondent by stating that it is available with her and when 2nd respondent questioned 3 MSM, J Crl.P No.9598 of 2014 the same, again the petitioner allegedly grew wild and arrogantly stated that she need not answer the 2nd respondent and abused her in the name of her caste as "Madiga Munda, Madiga Lanjakana" with loud voice, thereby insulted her before P.B.A Raj Sekhar (Multipurpose Health Assistant (Male) and U. Shanti Kumari (Asha Worker) and also in the general public. At that time one Parakala Babu Rao visited the Primary Health Center and when 2nd respondent coming out of her room while weeping, questioned her as to why the petitioner is abusing the 2nd respondent in the name of her caste. The petitioner has been accusing that the said Raj Sekhar and 2nd respondent herein are signing the register and going out without discharging their duties and that 2nd respondent informed to the Sarpanch of the village Kurra Narayana Swamy @ Raju who in turn promised the 2nd respondent, to resolve the issue. However the said issue has not been resolved and the petitioner has been making unfounded allegations abusing her, mentally harassing her, so 2nd respondent was compelled to lodge a report with the police making the above allegations.
4. The main contention of this petitioner/accused before this Court is that no incident took place on 02.06.2014 and that even if the allegations made in the complaint, if accepted on its face value do not constitute the offence punishable under 4 MSM, J Crl.P No.9598 of 2014 the provisions of Schedule Caste and Schedule Tribe (POA) Act or any other offence.
5. The specific contention of this petitioner before this Court is that the petitioner never subjected 2nd respondent to any such harassment in the name of her caste and on the other hand, she being a higher official to 2nd respondent when she was not discharging her duties, the petitioner asked her to discharge the duties properly, thereby lodged the report with false allegations with the police taking advantage of her caste. Thus, the 2nd respondent abused the process of the Court.
6. 2nd respondent was only ANM on contract basis and she tampered the attendance register several times, when the Superintendent of Primary Health Center and other higher authorities cautioned the petitioner several times, that inappropriate signing in the attendance register is a serious offence and requested to cooperate with 2nd respondent herein and P.B.A Raj Sekhar etc., The signatures on 26.11.2013, 03.12.2013, 07.01.2014, 20.02.2014, 21.02.2014, 28.02.2014, 01.04.2014, 14.04.2014, 17.04.2014, 03.05.2014, 06.05.2014 and 25.05.2014, the petitioner signed in the movement register at page 22, however, 2nd respondent and said P.B.A Raj Sekhar were unauthorizedly absent, since the petitioner signed on every working day by putting date. 2nd respondent and P.B.A Raj Sekhar could not 5 MSM, J Crl.P No.9598 of 2014 insert their names, as there is no gap from one day to the other. In those circumstances, they pasted page Nos.22 and 23 in the movement register at page No.24 a separate sheet, signed and requested the petitioner to sign once again, for that she refused to sign. Therefore taking advantage of the caste of 2nd respondent, she lodged report with false allegations.
7. The main endeavour of the petitioner is that in view of the judgment of the Hon'ble Apex Court in Gorige Pentaiah Vs. State of A.P1, the basic ingredients to constitute the offence punishable under Section 3(1) (x) of the Act, the complainant ought to have alleged that the accused - appellant was not a member of the Scheduled Caste or Scheduled Tribe and was intentionally insulted or intimidated the complainant who belongs to Scheduled Caste without an intent to humiliate her, within public view, in the absence of those allegations, the appellant cannot register the crime against the accused based on bald allegations. In other judgment in Harshendra Kumar D v. Rebatilata Koley Etc2 the Hon'ble Supreme Court held that:
In our judgment, the above observations cannot be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused which are in the nature of public documents or the materials which are beyond suspicion or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 1 2008 (12) SCC 531 2 (2011) 3 SCC 351 6 MSM, J Crl.P No.9598 of 2014 482 or for that matter in exercise of revisional jurisdiction under Section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents - which are beyond suspicion or doubt - placed by accused, the accusations against him cannot stand, it would be travesty of justice if accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage.
Criminal prosecution is a serious matter; it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. In our opinion, the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to appellant's resignation from the post of Director of the Company. Had these documents been considered by the High Court, it would have been apparent that the appellant has resigned much before the cheques were issued by the Company.
8. Based on the principles laid down in the above judgments, the petitioner requested to quash the proceedings against her in Crime No.130 of 2014 of Indrapalem P.S, East Godavari District for the offence punishable under Section 3 (1) (x) of The Act.
9. During hearing, the learned Counsel for the petitioner Sri M.R.S Srinivas while reiterating the contentions, specifically contended that the material filed along with this petition would clinchingly show that there is malafide intention in lodging report with the police with false allegations and apart from that, 2nd respondent being a subordinate employee working under the petitioner, when she failed to discharge her duties properly, the petitioner being the higher authority insisted her to discharge her duties properly and prevented 7 MSM, J Crl.P No.9598 of 2014 the 2nd respondent and P.B.A Raj Sekhar from tampering the records. In those circumstances, the 2nd respondent lodged a complaint with the police with false allegations and if the staff working under higher officials are allowed to make such allegation against any higher authorities, it is difficult to any officer to discharge duties and to control the subordinate employees in those circumstances. It is also contended that the allegations even if taken of on its face value, would not constitute any offence punishable under Section 3 (1) (x) of The Act, in view of the principles laid down in the above judgments, the proceedings against this petitioner in Crime No.130 of 2014 pending on the file of Indrapalem Police Station are liable to be quashed, as the complaint was lodged with the police to wreck vengeance against this petitioner, taking advantage of the caste of 2nd respondent, being a subordinate employee working on contract basis. He placed reliance on recent judgments of Dr. Subhash Kashinath Mahajan v. The State of Maharashtra and another3 and another judgment of this court in Gorige Pentaiah (1st cited supra) and another judgment of Apex Court in Harshendra Kumar D (2nd cited supra) and requested to quash the proceedings against the petitioner.
10. Whereas the Public Prosecutor for the State, opposed the petition on the ground that investigation is not yet 3 Criminal Appeal No.416 of 2018 dated 20.03.2018 8 MSM, J Crl.P No.9598 of 2014 commenced, on account of the stay granted by this Court and normally Court would not venture to quash the proceedings at the crime stage, more particularly when the investigation is not yet commenced and therefore at this stage, the proceedings in Crime No.130 of 2014 of Indrapalem Police Station cannot be quashed and requested to dismiss the petition.
11. Considering rival contentions, perused the material available on record, the point that arise for consideration is:
Whether the allegations made in the report lodged with the police, which is a subject matter of Crime No.130 of 2014 of Indrapalem Police Station constitute an offence punishable under Section 3(1)
(x) of S.C S.T (POA) Act, 1989, more particularly the offence punishable under Section 3(1) (x) of S.C S.T (POA) Act, 1989, if not the proceedings are liable to be quashed?
POINT :-
12. Both petitioner, 2nd respondent and P.B.A Raj Sekhar are working as ANM, whereas the petitioner is permanent employee and 2nd respondent is only a contract employee working as ANM (II), P.B.A Raj Sekhar is also working as Health Assistant in the Primary Health Center, V.K Rayapuram within the limits of Indrapalem Police Station. The employees are governed by A.P Civil Services Conduct 9 MSM, J Crl.P No.9598 of 2014 Rules and the (CCA) rules or any other service rules of the department, if any.
13. The main grievance of this petitioner before this court is that the 2nd respondent manipulated entries in the attendance register and movement register for which she objected and the 2nd respondent and P.B.A Raj Sekhar, insisted this petitioner to sign on the papers affixed in the movement register at page No.24, but she did not agree for the same and thereby foisted a false case. The movement register and attendance register photostat copies are placed on record to show tampering of record by P.B.A Raj Sekhar and 2nd respondent Smt. Kommu Lova Kumari more particularly on 20.02.2014, 21.02.2014, 01.04.2014, 03.05.2014, 06.05.2014 etc., Similarly, the 2nd respondent allegedly tampered attendance register along with P.B.A Raj Sekhar. The petitioner being an employee in the higher cadre for the 2nd respondent, did not accept to the demand of the said P.B.A Raj Sekhar and 2nd respondent herein, permitting them to affix two sheets and sign on the two sheets. Therefore they both abused this petitioner and lodged the report. But, this fact cannot be decided at this stage when the investigation is at feotus stage. Even according to the principles laid down by 10 MSM, J Crl.P No.9598 of 2014 the Hon'ble Apex Court in "State of Haryana v. Bhajan Lal4 the following seven guidelines were laid down:
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.4
1992 Supp (1) SCC 335 11 MSM, J Crl.P No.9598 of 2014 (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
14. As per guidelines 1st and 2nd, if the allegations made in the complaint accepted on its face value as true, do not constitute an offence, the court can exercise its power to quash the proceedings and at the same time the last guideline referred supra permits the court to quash the proceedings, when the report lodged with the police is by abuse of process of law or that the report lodged with a view to wreck vengeance against this petitioner or to come to the terms of the complainant.
15. Even if the principles laid down in the above judgment are applied to the present facts of the case, the specific allegation made in the report lodged with the police, which set the criminal law into motion, discloses an allegation to constitute the offence punishable under Section 3(1) (x) of The Act. Therefore on the basis of guidelines 1 and 2, this court cannot quash the proceedings against this petitioner. Coming to the last guideline, it is not appropriate to decide such an issue even before commencement of the investigation.
16. Time and again, the Apex Court laid down certain guidelines, at what stage the power under Section 482 of Cr.P.C can be exercise when the investigation is not yet commenced. In 12 MSM, J Crl.P No.9598 of 2014 State of Orissa v. Saroj Kumar Sahoo5, the Supreme Court held that the inherent powers under Section 482, Cr. P.C. should not be exercised by the High Court to stifle a legitimate prosecution. The High Court, being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. While exercising jurisdiction under Section 482 of the Cr.P.C., it is not permissible for the Court to act as if it was a trial court. Even when charge is framed at that stage, the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.
5 (2005) 13 SCC 540 13 MSM, J Crl.P No.9598 of 2014
17. Similarly in "Kurukshetra University v. State Of Haryana6 the Apex Court reiterated the same principle. The law declared by the Apex Court in the two judgments, made it clear that normally the Court will not interdict with the process of law and cannot quash the proceedings when the investigation is not yet commenced, more particularly when the allegations made in the complaint discloses commission of offence or allegation to constitute the offence punishable under any penal law. When those principles are applied to the present facts of the case, when the investigation is not yet commenced, the court cannot quash the proceedings against this petitioner in Crime No.130 of 2014.
18. The learned Counsel for the petitioner relied on Dr. Subhash Kashinath Mahajan (3rd cited supra) referred above, but the law laid down by the Apex Court is in a different situation and the facts of the judgments are distinguishable with the facts of the present case. The facts of the above judgment are that the petitioner was serving as a Director of Technical Education, Maharashtra at relevant time, a complaint was lodged by an employee working in the department as a Store Keeper of Government College of Pharmacy, Karad and lodged complaint against the petitioner therein on the ground that the petitioner refused to promote the employees working under him and on the strength of the same the police 6 AIR 1977 SC 2229 14 MSM, J Crl.P No.9598 of 2014 registered crime. But the Apex Court laid down certain guidelines at the end of the judgment at para No.83 was as follows:
i) Proceedings in the present case are clear abuse of process of court and are quashed;
ii) There is no absolute bar against grant of anticipatory bail in cases under the Atrocities Act if no prima facie case is made out or where on judicial scrutiny the complaint is found to be prima facie mala fide. We approve the view taken and approach of the Gujarat High Court in Pankaj D Suthar vs. State of Gurajat and Dr. N.T Desai vs. State of Gujarat and clarify the judgments of this court in State of M.P vs. Ram Krishna Balothia and Manju Devi vs. Onkarjit Singh Ahluwalia.
iii) In view of acknowledged abuse of law of arrest in cases under the Atrocities Act, arrest of a public servant can only by after approval of the appointing authority and of a non-
public servant after approval by the S.S.P which may be granted in appropriate cases if considered necessary for reasons recorded. Such reasons must be scrutinized by the Magistrate for permitting further detention.
iv) To avoid false implication of an innocent, a preliminary enquiry may be conducted by the DSP concerned to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated.
v) Any violation of direction (iii) and (iv) will be actionable by way of disciplinary action as well as contempt.
19. But in the present case, there is no material to arrive at similar conclusion and that the petitioner is not the controlling authority of 2nd respondent. In these 15 MSM, J Crl.P No.9598 of 2014 circumstances, it is difficult to accept the contention of the petitioner by applying the principle laid down in the above judgment in view of subsequent amendment to the S.C S.T Act.
20. In Harshendra Kumar D (2nd cited supra), the Apex Court while dealing with dispute relating to Section 138 of Negotiable Instruments Act, held that:
Criminal prosecution is a serious matter; if affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. In our opinion, the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to appellant's resignation from the post of Director of the Company. Had these documents been considered by the High Court, it would have been apparent that the appellant has resigned much before the cheques were issued by the Company. As noticed above, the appellant resigned from the post of Director on March 2, 2004. The dishonoured cheques were issued by the Company of April 30, 2004 i.e. much after the appellant had resigned from the post of Director of the Company. The acceptance of appellant's resignation is duly reflected in the resolution dated March 2, 2004. Then in the prescribed form (Form No.32), the Company informed to the Registrar of Companies on March 4, 2004 about appellant's resignation. It is not even the case of the complainants that the dishonoured cheques were issued by the appellant. These facts leave no manner of doubt that on the date the offence was committed by the Company, the appellant was not the Director; he had nothing to do with the affairs of the Company. In this view of the matter, if the criminal complaints are allowed to proceed against the appellant, it would result in gross injustice to the appellant and tantamount to an abuse of process of the court.
21. More particularly in Gorige Pentaiah (1st cited supra), the court dealt with the petition under Section 482 of Cr.P.C and held that when the complaint did not disclose the ingredients of the offence punishable under Section 3(1) (x) of The Act more particularly insulting or humiliating a person belonging to Scheduled Caste by a member who is not Scheduled Caste 16 MSM, J Crl.P No.9598 of 2014 intentionally in a place of public view, the court can quash the proceedings. But in the present facts of the case, the incident allegedly occurred in the presence of two other persons, P.B.A Raj Sekhar and another and therefore it is in the presence of public and such abuse of 2nd respondent as "Madiga Munda, Madiga Lanjakana" would constitute the offence prima facie and consequently the proceedings against this petitioner cannot be quashed at this stage in view of the law declared by Apex Court in Kurukshetra University (8th cited supra). Consequently the petition is liable to be dismissed.
22. In view of my foregoing discussion, I find no ground to quash the proceedings against this petitioner.
23. In the result, the Criminal Petition is dismissed. However, liberty is given to this petitioner to challenge the proceedings if any at later stage.
24. Consequently, miscellaneous petitions if any pending, shall stand closed.
___________________________________ JUSTICE M. SATYANARAYANA MURTHY 20.09.2019.
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