Mrs. Pushpa Vijay Bonde Vs. the State of Maharashtra Through In-charge of Police Station - Court Judgment

SooperKanoon Citationsooperkanoon.com/345138
SubjectCriminal
CourtMumbai High Court
Decided OnMar-06-2009
Case NumberCriminal Writ Petition Nos. 2160 of 2005 and 2593 of 2008
JudgeS.B. Mhase, ;D.B. Bhosale and ;A.S. Oka, JJ.
Reported in2009(111)BomLR1712; 2009CriLJ3204
ActsScheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Sections 3 and 3(1); Code of Criminal Procedure (CrPC) , 1973 - Sections 154 and 482
AppellantMrs. Pushpa Vijay Bonde;rajiv Ram Bhadbhade
RespondentThe State of Maharashtra Through In-charge of Police Station;The State of Maharashtra
Appellant AdvocateM.V. Gangal, Adv. in Writ Petition No. 2593 of 2008 and ;V.T. Tulpule, Sr. Adv. and ;Harshad Bhadbhade, Adv. in Writ Petition No. 2160 of 2005
Respondent AdvocateP.H. Kantharia, A.P.P.
Excerpt:
criminal - quashing of fir - non mentioning of caste of accused - sections 3 and 3(1) of scheduled casts and scheduled tribes (prevention of atrocities) act, 1989 - sections 154 and 482 of code of criminal procedure code, 1973 - fir under various provisions of scheduled casts and scheduled tribes (prevention of atrocities) act, 1989 registered against petitioner/accused - petitioner filed writ petition for quashing of fir on the ground that caste of petitioner/accused not disclosed in complaint - matter referred to full bench in view of conflicting judgments - held, merely because the caste of the accused is not mentioned in the fir stating whether he belongs to scheduled caste or scheduled tribe cannot be a ground for quashing the complaint - always open to the investigating officer to record that the accused either belongs to or does not belongs to scheduled caste or scheduled tribe - accused to bring to the notice of the court that the materials do not show that the accused does not belong to scheduled caste or scheduled tribe even at the time of framing of charge or during trial - if there is no mention of the caste of the accused in the fir, that cannot be a ground for either not registering the offence under section 3 of the atrocities act or for quashing such complaint - reference answered accordingly. - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not mentioned in the fir stating whether he belongs to scheduled caste or scheduled tribe, it cannot be a ground for quashing the complaint. after ascertaining the facts during he course of investigation it is always open to the investigating officer to record tht the accused either belongs to or does not belongs to schedule caste or scheduled tribe. after final opinion is formed, it is open to the court to either accept the same or take cognizance. even if the charge sheet is filed at the time of consideration of the charge, it si open to the accused to bring to the notice of the court that the materials do not show that the accused does not belong to scheduled caste or scheduled tribe. even if charge is framed at the time of trial materials can be placed to show that the accused either belongs to or does not belong to scheduled caste or scheduled tribe. even if charge is frame d at the time of trial materials can be placed to show that the accused either belongs to or does not belong to scheduled caste or scheduled tribe. it is not a requirement und4r section 3 of the atrocities act that the complainant should disclose the caste of the accused in the complaint. in other words, if there is no mention of the caste of the accused in the fir, that cannot be a ground for either not registering the offence under section 3 of the act or for quashing such complaint - 3. it would be advantageous to reproduce the order of reference dated 21.1.2009 passed by the division bench for better appreciation of the question referred to the full bench: the opening words of section 3 of the said act are like this: thus, the law laid down in anant vasantlal sambre and manohar martandrao kulkarni's cases is no more a good law to that extent.d.b. bhosale, j.1. the order of reference dated 21st january, 2009 which has occasioned the constitution of this full bench, has been passed by the division bench holding that the view taken by the another division bench in anant vasantlal sambre v. state of maharashtra in writ petition no. 49 of 2001 decided on 20th april, 2001 and in the judgment of the learned single judge in the case of manohar martandrao kulkarni v. state of maharashtra and ors. reported in 2006 (1) bom.c.r. (cri.) 778 needs reconsideration. in these judgments the learned judges have observed that it is a requirement under section 3 of the scheduled casts and scheduled tribes (prevention of atrocities) act, 1989 (for short 'the atrocities act') that the complainant should disclose the caste of the accused in the complaint itself and if there is no such disclosure the complaint cannot be registered and if it is registered, it is liable to be quashed.2. in the present writ petition it is contended by the petitioner-accused that nowhere in the complaint, the complainant has disclosed the caste of the petitioner-accused and it is a requirement under section 3 of the atrocities act that the offence should be committed by a person who does not belong to a scheduled caste and scheduled tribe. it is further contended that since there is no such assertion made in the complaint or the report it is liable to be quashed.3. it would be advantageous to reproduce the order of reference dated 21.1.2009 passed by the division bench for better appreciation of the question referred to the full bench:1. one of the grounds agitated in this writ petition challenging the fir registered under the provisions of the scheduled casts and scheduled tribes (prevention of atrocities) act, 1989 is that the fir does not disclose the caste of the accused. the petitioner relied on the division bench judgment of this court in the case of anant vasantlal sambre v. state of maharashtra in writ petition no. 49 of 2001 decided on 20th april, 2001, and the judgment of the learned single judge in the case of manohar martandrao kulkarni v. state of maharashtra and ors. reported in 2006(1) bom.c.r. (cri.) 778. according to these judgments, learned counsel for the petitioner submits that it is a requirement under section 3 of the scheduled casts and scheduled tribes (prevention of atrocities) act, 1989 that the complainant should disclose the caste of the accused in the complaint itself. the similar case came before a division bench of this court to which one of us and justice a.p. deshpande were members. the bench had passed an order on 3rd april, 2008 referring the matter to the full bench as one of the judges (justice bilal nazki) had not agreed with the opinion expressed in the above mentioned cases. later on, the order was recalled by another order dated 23rd september, 2008 realising that one of the members of the bench (justice a.p. deshpande) was a party to an earlier judgment and also realising that two judges differing perhaps should not have referred the matter to a full bench but should have followed the judgment of the division bench.2. today, similar controversy is raised before us and this bench feel that the law laid down in the above mentioned judgments needs reconsideration. therefore, let this matter be placed before a full bench.4. in anant vasantlal sambre's case, which was extensively referred and relied upon by the learned single judge in manohar martandrao kulkarni's case, the division bench held that if the first information report does not contain an averment that the accused does not belong to a scheduled caste or scheduled tribe the offence under section 3 of the atrocities act cannot be registered. the relevant observations in paragraph 6 of the judgment in anant sambre's case read thus:6. the report, which is filed by the petitioner at the police station, mentions that the petitioner belongs to hindu khatik caste, which is a scheduled caste. however, in the report, it is nowhere mentioned that the person against whom the complaint is made, viz., shri kailash gorantyal, does not belong to schedule caste or scheduled tribe. the opening words of section 3 of the said act are like this:whoever, not being a member of scheduled caste or scheduled tribe....so, it is a precondition that person committing the alleged offence must not be belonging to scheduled caste or scheduled tribe. in the report filed at the police station, there ought to have been some averment indicating that shri kailash gorantyal does not belong to scheduled caste or scheduled tribe. in the absence of such averment, or any other material before the police station officer for coming to the conclusion that the accused named in the said report does not belong to scheduled caste or scheduled tribe, the offence under section 3 of the said act cannot be registered. so, even if in this matter, there is the reference that the petitioner belongs to scheduled caste or scheduled tribe, the report itself is not complete and, in such circumstances, if the police officer has not taken any further steps, he cannot be blamed. at the most the police station officer could have directed the informant to give some material before him to show that the accused does not belong to scheduled caste or scheduled tribe. if that had been before the police station officer, then there could have been ground for the police station officer to register the offence as being cognizable under section 3(x) of the said act. as the basic requirement is not fulfilled in this complaint lodged before the police station, the police cannot be blamed for not registering the crime. so, in such circumstances, the relief sought for by the petitioner cannot be given.5. thus, the questions that fall for our consideration are whether it is a requirement under section 3 of the atrocities act that the complainant should disclose the caste of the accused in the complaint itself, 'and if there is no such mention, whether it could be a ground for quashing the complaint'.6. after the order of reference was passed by the division bench on 21.1.2009 the very same question arose for the consideration of the supreme court in ashabai machindra adhagale v. state of maharashtra and ors. bearing criminal appeal no. 287 of 2009 decided on 12.2.2009. the basic stand in the case before the supreme court was that in the fir the caste of accused was not mentioned and therefore the proceedings cannot be continued and deserved to be quashed. the appellant before the supreme court had filed the fir under section 154 of the code of criminal procedure, 1973 (for short 'the code') alleging commission of offence punishable under section 3(1)(xi) of the atrocities act. the petition under section 482 of the code before the high court was filed by the accused contending that his caste was not mentioned in the fir and therefore the proceedings deserved to be quashed. the high court had allowed the petition.the supreme court after considering its judgment in superintendent of police, cbi and ors. v. tapan kumar singh : 2003crilj2322 which elaborately dealt with the need of an fir and the judgment in masumsha hasanasha musalman v. state of maharashtra : [2000]1scr1155 so also the provisions of section 482 of the code and the judgment in r.p. kapur v. state of punjab : 1960crilj1239 in paragraphs 14 and 16 held thus:14. it needs no reiteration that the fir is not expected to be an encyclopedia. as rightly contended by learned counsel for the appellant whether the accused belongs to scheduled caste or scheduled tribe can be gone into when the matter is being investigated......16. after ascertaining the facts during the course of investigation it is open to the investigating officer to record that the accused either belongs to or does not belongs to scheduled caste or scheduled tribe. after final opinion is formed, it is open to the court to either accept the same or take cognizance. even if the charge sheet is filed at the time of consideration of the charge, it is open to the accused to bring to the notice of the court that the materials do not show that the accused does not belong to scheduled caste or scheduled tribe. even if charge is framed at the time of trial materials can be placed to show that the accused either belongs or does not belong to scheduled caste or scheduled tribe.7. in the concluding paragraph the supreme court observed that 'needless to say during investigation or at the time of framing of charge or at the time of trial it is open to the accused to show that he either belongs to scheduled caste or scheduled tribe so that applicability of section 3(1)(xi) of the act is ruled out'.8. from bare perusal of the judgment of the supreme court in ashabai adhagale's case it is clear that the question referred to the full bench is no longer res-integra and stands squarely answered. thus, we hold that merely because the caste of the accused is not mentioned in the fir stating whether he belongs to scheduled caste or scheduled tribe, it cannot be a ground for quashing the complaint. after ascertaining the facts during the course of investigation it is always open to the investigating officer to record that the accused either belongs to or does not belongs to scheduled caste or scheduled tribe. after final opinion is formed, it is open to the court to either accept the same or take cognizance. even if the charge sheet is filed at the time of consideration of the charge, it is open to the accused to bring to the notice of the court that the materials do not show that the accused does not belong to scheduled caste or scheduled tribe. even if charge is framed at the time of trial materials can be placed to show that the accused either belongs to or does not belong to scheduled caste or scheduled tribe as observed in ashabai machindra adhagale's case.9. in the result we hold that it is not a requirement under section 3 of the atrocities act that the complainant should disclose the caste of the accused in the complaint. in other words if there is no mention of the caste of the accused in the fir, that cannot be a ground for either not registering the offence under section 3 of the atrocities act or for quashing such complaint. thus, the law laid down in anant vasantlal sambre and manohar martandrao kulkarni's cases is no more a good law to that extent.10. office is directed to place this writ petition before the regular court to decide the same in the light of this judgment and/or in the light of the judgment of the supreme court in ashabai machindra adhagale's case.
Judgment:

D.B. Bhosale, J.

1. The order of reference dated 21st January, 2009 which has occasioned the constitution of this Full bench, has been passed by the Division bench holding that the view taken by the another Division bench in Anant Vasantlal Sambre v. State of Maharashtra in Writ Petition No. 49 of 2001 decided on 20th April, 2001 and in the judgment of the learned Single Judge in the case of Manohar Martandrao Kulkarni v. State of Maharashtra and Ors. reported in 2006 (1) Bom.C.R. (Cri.) 778 needs reconsideration. In these judgments the learned Judges have observed that it is a requirement under Section 3 of the Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the Atrocities Act') that the complainant should disclose the caste of the accused in the complaint itself and if there is no such disclosure the complaint cannot be registered and if it is registered, it is liable to be quashed.

2. In the present writ petition it is contended by the petitioner-accused that nowhere in the complaint, the complainant has disclosed the caste of the petitioner-accused and it is a requirement under Section 3 of the Atrocities Act that the offence should be committed by a person who does not belong to a scheduled caste and scheduled tribe. It is further contended that since there is no such assertion made in the complaint or the report it is liable to be quashed.

3. It would be advantageous to reproduce the order of reference dated 21.1.2009 passed by the Division Bench for better appreciation of the question referred to the Full Bench:

1. One of the grounds agitated in this writ petition challenging the FIR registered under the provisions of the Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is that the FIR does not disclose the caste of the accused. The petitioner relied on the Division Bench Judgment of this Court in the case of Anant Vasantlal Sambre v. State of Maharashtra in Writ Petition No. 49 of 2001 decided on 20th April, 2001, and the judgment of the learned Single Judge in the case of Manohar Martandrao Kulkarni v. State of Maharashtra and Ors. reported in 2006(1) Bom.C.R. (Cri.) 778. According to these judgments, learned Counsel for the petitioner submits that it is a requirement under Section 3 of the Scheduled Casts and Scheduled Tribes (Prevention of Atrocities) Act, 1989 that the complainant should disclose the caste of the accused in the complaint itself. The similar case came before a Division Bench of this Court to which one of us and Justice A.P. Deshpande were members. The Bench had passed an order on 3rd April, 2008 referring the matter to the Full Bench as one of the Judges (Justice Bilal Nazki) had not agreed with the opinion expressed in the above mentioned cases. Later on, the order was recalled by another order dated 23rd September, 2008 realising that one of the members of the Bench (Justice A.P. Deshpande) was a party to an earlier judgment and also realising that two Judges differing perhaps should not have referred the matter to a Full Bench but should have followed the judgment of the Division Bench.

2. Today, Similar controversy is raised before us and this Bench feel that the law laid down in the above mentioned judgments needs reconsideration. Therefore, let this matter be placed before a Full Bench.

4. In Anant Vasantlal Sambre's case, which was extensively referred and relied upon by the learned Single Judge in Manohar Martandrao Kulkarni's case, the Division Bench held that if the first information report does not contain an averment that the accused does not belong to a scheduled caste or scheduled tribe the offence under Section 3 of the Atrocities Act cannot be registered. The relevant observations in paragraph 6 of the judgment in Anant Sambre's case read thus:

6. The report, which is filed by the petitioner at the Police Station, mentions that the petitioner belongs to Hindu Khatik caste, which is a Scheduled Caste. However, in the report, it is nowhere mentioned that the person against whom the complaint is made, viz., Shri Kailash Gorantyal, does not belong to Schedule Caste or Scheduled Tribe. The opening words of Section 3 of the said Act are like this:

Whoever, not being a member of Scheduled Caste or Scheduled Tribe....

So, it is a precondition that person committing the alleged offence must not be belonging to Scheduled Caste or Scheduled Tribe. In the report filed at the Police Station, there ought to have been some averment indicating that Shri Kailash Gorantyal does not belong to Scheduled Caste or Scheduled Tribe. In the absence of such averment, or any other material before the Police Station Officer for coming to the conclusion that the accused named in the said report does not belong to Scheduled Caste or Scheduled Tribe, the offence under Section 3 of the said Act cannot be registered. So, even if in this matter, there is the reference that the petitioner belongs to Scheduled Caste or Scheduled Tribe, the report itself is not complete and, in such circumstances, if the police officer has not taken any further steps, he cannot be blamed. At the most the police station officer could have directed the informant to give some material before him to show that the accused does not belong to Scheduled Caste or Scheduled Tribe. If that had been before the Police Station Officer, then there could have been ground for the police station officer to register the offence as being cognizable under Section 3(x) of the said Act. As the basic requirement is not fulfilled in this complaint lodged before the Police Station, the police cannot be blamed for not registering the crime. So, in such circumstances, the relief sought for by the petitioner cannot be given.

5. Thus, the questions that fall for our consideration are whether it is a requirement under Section 3 of the Atrocities Act that the complainant should disclose the caste of the accused in the complaint itself, 'and if there is no such mention, whether it could be a ground for quashing the complaint'.

6. After the order of reference was passed by the Division Bench on 21.1.2009 the very same question arose for the consideration of the Supreme Court in Ashabai Machindra Adhagale v. State of Maharashtra and Ors. bearing Criminal Appeal No. 287 of 2009 decided on 12.2.2009. The basic stand in the case before the Supreme Court was that in the FIR the caste of accused was not mentioned and therefore the proceedings cannot be continued and deserved to be quashed. The appellant before the Supreme Court had filed the FIR under Section 154 of the Code of Criminal Procedure, 1973 (for short 'the Code') alleging commission of offence punishable under Section 3(1)(xi) of the Atrocities Act. The petition under Section 482 of the Code before the High Court was filed by the accused contending that his caste was not mentioned in the FIR and therefore the proceedings deserved to be quashed. The High Court had allowed the petition.

The Supreme Court after considering its judgment in Superintendent of Police, CBI and Ors. v. Tapan Kumar Singh : 2003CriLJ2322 which elaborately dealt with the need of an FIR and the judgment in Masumsha Hasanasha Musalman v. State of Maharashtra : [2000]1SCR1155 so also the provisions of Section 482 of the Code and the judgment in R.P. Kapur v. State of Punjab : 1960CriLJ1239 in paragraphs 14 and 16 held thus:

14. It needs no reiteration that the FIR is not expected to be an encyclopedia. As rightly contended by learned Counsel for the appellant whether the accused belongs to scheduled caste or scheduled tribe can be gone into when the matter is being investigated......

16. After ascertaining the facts during the course of investigation it is open to the investigating officer to record that the accused either belongs to or does not belongs to scheduled caste or scheduled tribe. After final opinion is formed, it is open to the Court to either accept the same or take cognizance. Even if the charge sheet is filed at the time of consideration of the charge, it is open to the accused to bring to the notice of the Court that the materials do not show that the accused does not belong to scheduled caste or scheduled tribe. Even if charge is framed at the time of trial materials can be placed to show that the accused either belongs or does not belong to scheduled caste or scheduled tribe.

7. In the concluding paragraph the Supreme Court observed that 'Needless to say during investigation or at the time of framing of charge or at the time of trial it is open to the accused to show that he either belongs to scheduled caste or scheduled tribe so that applicability of Section 3(1)(xi) of the Act is ruled out'.

8. From bare perusal of the judgment of the Supreme Court in Ashabai Adhagale's case it is clear that the question referred to the Full Bench is no longer res-integra and stands squarely answered. Thus, we hold that merely because the caste of the accused is not mentioned in the FIR stating whether he belongs to scheduled caste or scheduled tribe, it cannot be a ground for quashing the complaint. After ascertaining the facts during the course of investigation it is always open to the investigating officer to record that the accused either belongs to or does not belongs to scheduled caste or scheduled tribe. After final opinion is formed, it is open to the Court to either accept the same or take cognizance. Even if the charge sheet is filed at the time of consideration of the charge, it is open to the accused to bring to the notice of the Court that the materials do not show that the accused does not belong to scheduled caste or scheduled tribe. Even if charge is framed at the time of trial materials can be placed to show that the accused either belongs to or does not belong to scheduled caste or scheduled tribe as observed in Ashabai Machindra Adhagale's case.

9. In the result we hold that it is not a requirement under Section 3 of the Atrocities Act that the complainant should disclose the caste of the accused in the complaint. In other words if there is no mention of the caste of the accused in the FIR, that cannot be a ground for either not registering the offence under Section 3 of the Atrocities Act or for quashing such complaint. Thus, the law laid down in Anant Vasantlal Sambre and Manohar Martandrao Kulkarni's cases is no more a good law to that extent.

10. Office is directed to place this writ petition before the regular Court to decide the same in the light of this judgment and/or in the light of the judgment of the Supreme Court in Ashabai Machindra Adhagale's case.