Karnataka High Court
T. Nageshwara Rao And Ors vs State Of Karnataka And Anr on 24 June, 2021
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24 TH DAY OF JUNE, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
WRIT PETITION NO.200425/2021 (GM-RES)
BETWEEN:
1. T. NAGESHWARA RAO,
S/O. T.U. PRASAD RAO,
AGED ABOUT 50 YEARS,
WORKING AS SPECIAL
GENERAL MANAGER,
HR DEPARTMENT,
ACC WADI FACTORY.
R/O. H. NO. SSB/5,
ACC COLONY, WADI,
HITTAPUR TALUK
KALABURAGI DISTRICT - 585 225.
2. SHASHER SINGH
S/O. DAYANAND,
AGED ABOUT 58 YEARS,
WORKING AS
MANAGER SECURITY
ACC WADI FACTORY.
R/O. H. NO. JSQD4/2,
ACC COLONY, WADI,
CHITTAPUR TALUK
KALABURAGI DISTRICT - 585 225.
3. GOKULKRISHNA,
S/O.SADASHIVAM,
AGED ABOUT 48 YEARS,
WORKING AS GENERAL MANAGER
LOGISTICS DEPARTMENT,
ACC WADI FACTORY.
R/O. H. NO. SSQ/3,
2
ACC COLONY, WADI,
CHITTAPUR TALUK
KALABURAGI DISTRICT - 585 225.
... PETITIONERS
(BY SRI. C.V. NAGESH, SENIOR COUNSEL FOR
SRI. ASHOK MULAGE, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
BY WADI POLICE STATION,
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING,
KALABURAGI - 585103.
2. BHIMRAO DORE @ BHIMRAO DHORI
S/O. BHAGAPPA DORE,
AGE: MAJOR,
PILKAM AREA, WADI
CHITTAPUR TALUK,
KALABURAGI - 585 225.
... RESPONDENTS
(BY SRI. GURURAJ V. HASILKAR, HCGP FOR R1;
SRI. B. BHASHANKAR, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 OF THE CRIMINAL PROCEDURE CODE PRAYING TO
QUASH THE FIR DATED 14.02.2021 IN CRIME NO.36/2021 FOR
THE OFFENCE ALLEGED UNDER SECTIONS 323, 504, 341, 34 OF
IPC. R/W SECION 3(1)(r) AND 3(1)(s) OF SC & ST (PA) ACT,
1989 REGISTERED BY RESPONDENT NO.1-WADI POLICE
STATION, KALABURAGI, AGAINST THE PETITIONERS, PENDING
ON THE FILE OF V-ADDITIONAL DISTRICT AND SESSIONS
JUDGE AT KALABURAGI.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 15.06.2021, COMING ON FOR 'PRONOUNCEMENT
OF ORDERS' THIS DAY, THE COURT MADE THE FOLLOWING:
3
ORDER
The petitioners have filed this petition under Articles 226 and 227 of the constitution of India read with 482 of Cr.P.C. to quash the FIR dated 04.02.2021 in Crime No.36/2021 of Wadi Police Station, registered for the offence punishable under Section 323, 504, 341 r/w 34 of Indian Penal Code (for short, 'IPC') and Sections 3(1)(r) and 3(1)(s) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short, 'SC & ST Act'), pending on the file of V Additional District and Sessions Judge, Kalaburagi and consequently sought for quashing the complaint itself.
2. The brief facts leading to the case are that, the petitioners are employees of ACC Cement Company working at Wadi Cement Factory; that the Company is in the business of manufacturing Cement and the Company required services of transporters for the purpose of transporting and distributing cement within the State and to the neighbouring States. In this regard, the Company 4 had also appointed the 2nd respondent/complainant, who is the proprietor of M/s. Dhanalaxmi Road Lines as a non- exclusive transporter by entering into an agreement on 16.04.2019. It is the duty of the transporter to observe good industry practice and to follow all safety measures while performing duties and required to cover the goods by tarpaulin so as to ensure that there is no dust residue due to cement trucks not being covered and to over come the vagaries of nature. On night of 11.02.2021 at about 7.30 pm., the 3rd petitioner observed a lorry bearing Registration No. KA.32.D.5357 plying without tarpaulin cover in the Factory premises and hence, he took photographs of the said lorry and circulated the same in the whatsapp group, to which lorry owners are also members, for their information and necessary action.
(1) That on 11.02.2021 at about 7.30 p.m., after seeing whatsapp message, the 2nd respondent, went to factory and there he found that many number of vehicles are going out of the factory premises without tarpaulin and he approached petitioner No.3, who was working as 5 General Manager in Logistic Department of the Company and secured him to the spot and shown that number of vehicles are plying without tarpaulin. However, petitioner No.3 did not heed to his request and asserted that he will do whatever he wants and at that time, there was a quarrel between them. Then it is alleged that Petitioners-1 & 2 who are working as Special General Manager and Security Manager, rushed to the spot and at that time, Petitioner no.3 referred the complainant that he belongs to Bedara Caste and regularly he is creating problems and abused him in filthy language with reference to his caste in Hindi language and at that time, other two petitioners also abused them in filthy language asserting that they are making goondaism in factory premises and abused them as "zÉÆgÉ ¸ÉÆ¼É ªÀÄPÀ¼Ì ÃÉ ". When complainant is proceeding to lodge a complaint, petitioner No.3 wrongfully restrained the complainant and other two petitioners assaulted him by hands. The alleged incident is said to have been taken place at 8.30 p.m.. Then the complainant since has undergone bye-pass, he went home, took rest and on 6 12.02.2021. by consulting the office bearers of the Transport Union, he lodged a complaint against the petitioners. On the basis of this complaint, the Investigating Officer has issued FIR in Crime No.36/2021 of Wadi Police Station for the offences punishable under Sections 323, 504 341 read with 34 of IPC and Sections 3(1)(r) and 3(1)(s) of the SC & ST Act. Being aggrieved by registration of FIR, the petitioners have filed this petition for quashing the FIR and complaint.
3. Heard the learned counsel for petitioners and the learned High Court Government Pleader (for short, 'HCGP') for Respondent No.1-State and also the learned counsel for Respondent No.2-Complainant. Perused the records.
4. Learned counsel for the petitioners contended that, mere reference of caste does not amount to the offence under Section 3 of the SC & ST Act and the ingredients of complaint do not disclose that the complainant belongs to SC/ST caste and the petitioners do 7 not belong to SC/ST caste. This assertion was mandatory to incorporate the provisions of SC & ST Act. Further, it is asserted that there should an intention to humiliate any member of SC/ST caste in public view and the complaint is in Kannada and admittedly, petitioners are not from Karnataka and it is alleged that they have alleged to have abused in Hindi language and exact verbatim is not produced. He further contended that, prior to lodging of complaint, the contract of the present complainant was terminated and the complaint was also lodged against him in Crime No.35/2021 on 13.02.2021 by the present petitioner No.3 for the offence punishable under Sections 143, 147, 504, 323, 341 red with 149 of IPC. Hence, it is argued that in order to have a counter to the complaint lodged by Petitioner No.3, this false complaint is filed as an after thought story and it is an abuse of the process of law. He has also placed reliance on number of citations in support of his contentions.
5. Per contra, the learned HCGP and the learned counsel for Respondent No.2 have contended that, since 8 the matter is at the preliminary state, this court cannot go into the genuineness of the complaint allegations and the FIR is not an encyclopedia and if the allegations of the complaint discloses cognizable offences, the court should refrain from interfering in the investigation. In support of their contentions, they placed reliance on the decision of the Hon'ble Apex Court in the case of M/s. Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others reported in AIR 2021 SC 1918. They further submitted that, this is not a rarest of rare case and hence, they have sought for rejection of the application.
6. Having heard the arguments and on perusing the records, it is evident that the present petitioners are working in ACC Cement Company. Further, it is an undisputed fact that they are not from Karnataka State and the allegations made in the complaint itself discloses that, they abused in Hindi language. It is necessary to reproduce the specific allegations made in the complaint dated 14.02.2021, here below:
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''...................... J¹¹ PÀA¥À¤AiÀÄ £ÁUÉñÀgé ÀgÁªï ºÉZï.Dgï.f.JªÀiï., ±ÀªÀIJÃgÀ ¹AUÀ, ¸ÉPÆ À åjn C¢üPÁj gÀªÀgÄÀ C°è §A¢zÀÄÝ DUÀ UÉÆÃPÀÄ®PÀȵÀÚ EªÀgÀÄ £À£ÀUÉ ¤ÃªÀÅ ''¨ÉÃqÀgÀ eÁwAiÀĪÀjzÀÄ,Ý AiÀiÁªÁUÀ®Ä ¤Ã£ÀÄ £À£ÉÆßA¢UÉ vÀPÀgÁgÀÄ ªÀiÁqÀÄvÀÛ §A¢¢Ý, ¤£ÀUÀ ¸ÉÆPÀÄÌ ºÉZÁÑVzÉ, QüÀÄ eÁwAiÀÄ ¸ÀƼÉà ªÀÄUÀ£ÉÃ'' CAvÁ »A¢AiÀÄ°è ¨ÉÊzÀÄ, £ÁUÉñÀgé gÀ ÁªÀ ªÀÄvÀÄÛ ±ÀªÀIJÃgÀ EªÀgÀÄ ''¤ªÀÄäzÀÄ PÀA¥À¤AiÀÄ°è UÀÄAqÁVj ºÉZÁÑVzÉ, zÉÆgÉ ¸ÉÆ¼É ªÀÄPÀ¼ Ì ÃÉ '' CAvÁ ¨ÉÊAiÀÄÄwÛzÁÝUÀ £Á£ÀÄ ¥ÉÆðøï oÁuÉUÉ ºÉÆÃV Cfð PÉÆqÀÄvÉÛÃ£É CAvÁ ºÉÆgÀlgÉ UÉÆÃPÀÄ®PÀȵÚÀ EvÀ£ÄÀ £À£U À É ªÀÄÄAzÉ ºÉÆÃUÀzAÀ vÉ vÀqÉ »rzÀ£ÀÄ, £ÁUÉñÀégÀgÁªÀ ªÀÄvÀÄÛ ±ÀªÄÀ ²ÃgÀ¹AUÀ gÀªÀgÄÀ £À£ßÀ JzÉAiÀÄ ªÉÄïÉ, ¨É¤ßUÉ ªÀÄvÀÄÛ PÉʪÉÄÃ¯É ºÉÆqÉ §qÉ ªÀiÁqÀÄwÛzÁÝUÀ C¯Éè EzÀÝ ¹zÉÃÝ ±Àgé À ZÉÆÃ¥ÀqÉ ªÀÄvÀÄÛ ªÀĺÀäzÀ gÀ¦üÃPÀ J£ÀߪÀgÄÀ §AzÀÄ dUÀ¼À ©r¹gÀÄvÁÛg,É DUÀ ¸ÀªÀÄAiÀÄ 08-35 ¦.JªÀiï DVvÀÄ.Û ''
7. The averments made in the complaint disclose that the petitioners have abused the complainant with reference to caste in Hindi language. In that event, if he understood that it was caste abusing with an intention to humiliate the complainant, he should have disclosed the exact verbatim used in Hindi language to ascertain the intention. But, no such verbatim is produced and complaint is referred cleanly in Kannada language only. As such whether the translation is in true verbatim or otherwise requires consideration.10
8. Further, it is important to note here that, allegations were that, they were referred with caste. But, there is no evidence to show that the petitioners were acquainted with accused so that they knew that the complainant is belonging to a particular caste. In the agreement there is no reference of caste of the complainant. Further, there is no specific allegation in the complaint that the complainant is belonging to schedule caste and petitioners are not belonging to schedule caste.
This material assertion is missing. Further, when there is an allegation that the complainant was restrained by Petitioner No.3 and was assaulted, after the incident nothing prevented him from lodging a complaint immediately.
9. Learned counsel for the respondents further contended that, the complaint is not an encyclopedia and in view of the decision reported in the case of M/s. Neeharika Infrastructure Pvt. Ltd. (supra), this Court, at this juncture cannot go into the merits and de-merits of the complaint and scuttle the investigation. No doubt, in the case of M/s. 11 Neeharika Infrastructure Pvt. Ltd. (supra) the Hon'ble Apex Court has issued specific directions regarding exercising of powers under Section 492 of Cr.P.C.. But, it is also made clear that, if prima facie there appears to be abuse of process of law, such powers can be exercised. The Hon'ble Apex Court has cautioned in using such powers in a casual way. Learned counsel for the petitioner, in this context, has placed reliance on the decision reported in (2008) 12 SCC 531 (Gorige Pentaiah Vs. State of Andhra Pradesh and Others), wherein it is specifically observed that, in the complaint under SC & ST Act, there shall be a reference that the complainant was a member of Scheduled Caste or Scheduled Tribe and the accused is not a member of Scheduled Caste or Scheduled Tribe and this aspect was discussed in detail by the Hon'ble Apex Court in Gorige Pentaiah's case and stated that the reference is a mandatory. But, in the instant case, no such reference is forthcoming. A similar view is taken by the Hon'ble Apex Court in Criminal Petition No. 1117/2016 decided on 14th July 2016 (Tejinder Pal Singh Bagga Vs. State of 12 Karnataka reported in 2016 SCC On Line Kar 5458). Hence, it is evident that, assertion in this regard is mandatory as per requirement of Section-3 of SC & ST Act. The Hon'ble Apex Court in the decision reported in 2018(13) SCC 612 (Eshwar Pratap Singh and others Vs. State of Uttar Pradesh and Another) has held that, there is no prohibition in law to exercise jurisdiction under Section 482 of Cr.P.C. for quashing the charge sheet in part. Further, no allegation was made in the complaint that the harassment as alleged was based on account of caste. Further, in the decision reported in (2011) 11 SCC 259 (State of Andhra Pradesh represented by the Public Prosecutor, High Court of Andhra Pradesh, Hyderabad and Another), the Hon'ble Apex Court has observed that, the authority of the Courts exists for 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 justified in preventing injustice by invoking inherent powers in the absence of specific provisions in the Statute.
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(1) Further, in the decision reported in (2020) 4 SCC 727 (Prithvi Raj Chauhan Vs. Union of India and others), the Hon'ble Apex Court has clearly observed that, the Court can, in exceptional cases, exercise powers under Section 482 of Cr.P.C. for quashing the cases to prevent misuse of the provisions on settled parameters. The same view is also reiterated in case of M/s. Neeharika Infrastructures Pvt. Ltd. (supra). This view is again followed by this Court in Criminal Petition No.21/2018 (Ravi and others Vs. State of Karnataka), while granting bail and similar proposition of law is considered regarding reference to caste pertaining to petitioner or the complainant/accused, which is missing in the instant case.
(2) Hence, on perusal of the citations and dictum laid down by Hon'ble Apex Court, it is evident that the complaint should contain a specific assertion that the complainant belongs to scheduled caste or scheduled Tribe caste and accused does not belong to the said caste. But, this specific aspect is exactly missing in the case on hand. 14 When this basic ingredient itself is missing, the other issues automatically come into play, as there is delay in lodging the complaint. Further, it is also important to note here that, petitioner No.3 himself has lodged the complaint in Crime No.35/2021 on 13.02.2021 and on next day, the complaint in the instant case came to be lodged. Further, no evidence is placed to show that, petitioners are knowing Kannada language. Apart from that, the allegations were that, they abused in Hindi language with reference to caste in order to humiliate, but said verbatim was not produced. Even otherwise, if the wordings asserted in Kannada are taken into consideration, it does not establish that there was any intention to humiliate and there is only simple reference to the caste with reference to earlier transactions.
10. Under these circumstances, looking to the facts and circumstances of this case, incorporation of the provisions of SC & ST Act, without there being relevant ingredients, is an abuse of the process of law and the petitioners are intended to use the same as a sword. 15 Hence, matter requires to be interfered with by this Court to the said extent.
11. Though it is the argument of learned counsel for the petitioners that the entire incident is an after thought story and concocted one, as the complaint was filed at a belated stage, but, there are allegations regarding the complainant being man-handled by abusing him in filthy language. This aspect requires an investigation. Further, the complaint lodged by the petitioner itself discloses that the incident has taken place at 8.40 p.m. but the present incident is said to have taken place at 7.30 p.m.. Hence, it is evident that there is co-relation and some incident ought to have occurred and this requires a detailed investigation. Regarding the offences relating to IPC provisions, when prima facie certain allegations have been made, they are required to be examined and investigated. This Court relying these aspects cannot act as an Investigating Agency, as observed in M/s. Neeharika Infrastructures Pvt. Ltd. (supra) and cannot go into merits and de-merits of the allegations to ascertain as to whether the allegations were 16 made only to over-come the earlier complaint filed or not, which can be ascertained only after the investigation. Hence, the claim for quashing the complaint in its entirety cannot be accepted and the claim only in respect of quashing FIR so far as it relates to registering FIR under Section 3(1)(r) and 3(1)(s) of SC & ST Act, requires to be quashed.
(1) The argument of learned counsel for petitioners that, 'there is no role of Petitioners Nos. 1 & 2 and they have been falsely implicated' holds no water at this juncture, in view of the allegations in the complaint that they have also abused and assaulted the complainant and that is required to be tested during investigation.
12. Looking to these facts and circumstances, the petition requires to be allowed partly so far it relates to the provisions of quashing FIR to the extent of provisions of SC & ST Act only, but the whole complaint cannot be quashed in its entirety. Accordingly, I proceed to pass the following:-
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ORDER The petition is allowed in part. The FIR dated 14.02.2021 in Crime No. 36/2021 of Wadi Police Station, Kalaburagi, so far as it relates to the offence punishable under Section 3(1)(r) and 3(1)(s) of the SC & ST Act, pending on the file of the V- Additional District and Sessions Judge, Kalaburagi, is quashed.
However, the Investigating Officer is at liberty to investigate the matter regarding the offences alleged against the petitioners under Sections 323, 504 and 341 r/w 34 of IPC, in connection with the said crime.
Sd/-
JUDGE KGR*