Subhadra Sushil Anand and Ors. Vs the State of Maharashtra

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	`IN THE HIGH COURT OF JUDICATURE AT BOMBAY` `APPELLATE JURISDICTION` `CRIMINAL WRIT PETITION NO.1019 OF 2007`
`1.`	`Ms Subhadra Sushil Anand, )` `Principal of national College,)` `Age 62 years, )`
`2.`	`Datta R. Bhandarkar, )` `Vice Principal of National )` `College, )`
`3.`	`Mr.Anil Abraharam, )` `Teaching Faculty of National )` `College, )`
`4.`	`Ms Annie Verghese, )` `Teaching Faculty of National )` `College, )`
`5.`	`Mr.Santosh Prasad, )` `Teaching Faculty of National )` `College, )`
`6.`	`Ms Meghna Basu Thakur, )` `Teaching Faculty of National )` `College, )`
`7.`	`Ms Rupali Patil, )` `Teaching Faculty of National )` `College, )`
	`All above are employed in the )` `M/s.R.D.National College, )` `situated at Linking Road, )`
	`Bandra West, Mumbai 400 050. ).. Petitioners`
	`Vs.`
`1.`	`State of Maharashtra, )` `Through Senior Inspector of )` `Police, Khar Police Station. )`
`2.`	`Ms Vidya Bansode, )`
	`Presently employed at )`
	`M/s.R.D.Natinoal College, )`
	`Linking Road, Bandra (West), )`

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 Mumbai - 400 050. ).. Respondents

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--

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 Shri Dinesh Tiwari for the petitioners.

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 Shri A.S.Gadkari, APP for the respondent No.1.

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 Shri S.S.Lanke for the respondent No.2.
 --

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 CORAM : R.M.S.KHANDEPARKAR &
 SMT.V.K.TAHILRAMANI, JJ

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 DATED : 13TH SEPTEMBER, 2007

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JUDGMENT : ( PER R.M.S.KHANDEPARKAR, J )

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 1. Heard. Rule. By consent, the rule is made
 returnable forthwith.

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 2. Shri Gadkari, the learned APP for the
 respondent No.1 and Shri Lanke, the learned advocate
 for the respondent No.2 waive service.

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 3. The petitioners seek direction for quashing
 the FIR No.130 of 2007 lodged at Khar Police Station,
 Mumbai.

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 4. Some time in July, 2006, the complainant Vidya
 Bansode came to be appointed in teaching faculty at
 M/s.R.D.National College at Bandra. A complaint came

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 to be lodged by father of the said Vidya Bansode as
 well as by the complainant Vidya herself to the
 Education Officer in November, 2006 making various
 allegations against the Management of the college. It
 appears that being dissatisfied about the reaction
 from the management and the Education Officer, the
 complainant lodged a complaint with Khar Police
 Station which came to be registered as FIR No.130 of
 2007. The complaint relates to the alleged
 humiliation caused to the complainant on account of
 the alleged use of abusive language in the name of
 caste of the complainant. The said FIR is sought to
 be challenged on three grounds. Firstly and assuming
 that the petitioners had made statement allegedly
 using abusive language in the name and the caste, the
 complaint nowhere discloses alleged incidents having
 taken place in public view. Secondly that the
 complaint on the face of it nowhere discloses the
 caste of the petitioners which is absolutely necessary
 to take cognizance of the offence under the Scheduled
 Castes and Scheduled Tribes (Prevention of Atrocities)
 Act, 1989, hereinafter called as the "said Act", and
 thirdly the complaint nowhere discloses use of abusive
 language in the name and caste with reference to or
 against the complainant by any of the petitioners.

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 5. As regards the first ground of challenge,
 perusal of the complaint discloses the incidents on
 various dates and one of the incidents alleged to have
 taken place in September, 2006 refers to the teachers’
 room. The allegation refers to the use of humiliating
 expression by the petitioner Rupali Patil in the
 presence of one Santosh Madam and similar expression
 by Santosh Madam in the presence of Rupali Patil.
 Obviously, these statements cannot be said to be not
 in public view. Similarly, the allegation against the
 petitioner Anil Abraham refers to the incident in the
 class room while the complainant was teaching her
 students. Obviously, it is in the presence of
 students and hence in public view. Similar is the
 case in relation to the allegations made regarding the
 incident dated 27th November, 2006 in the staff room
 which pertain to the expressions used by the Principal
 Ms. S.S.Anand. So also is the allegations regarding
 the incident dated 30th November, 2006 in the chamber
 of Vice-Principal Datta Bhandarkar which refers to the
 expressions having been used in the presence of peon
 of the college. In the circumstances, it cannot be
 said that the complaint nowhere discloses expressions
 having been used in public view. Prima facie, the
 complaint does disclose some of the expressions having
 been used in the public view.

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 6. As regards the second ground of challenge, it
 relates to the absence of reference to the caste of
 accused persons in the complaint and in that regard,
 attention is drawn to the decision of the learned
 Single Judge of this Court in Manohar S/o.Martandrao
Kulkarni & Anr. v. State of Maharashtra & Ors.,
 reported in 2005 ALL MR (Cri) 2602. The learned
 Single Judge in the said decision while relying upon
 another unreported decision of a Division Bench of
 this Court in Anant Vasantlal Sambre v. State of
Maharashtra, delivered on 20th April, 2001 in Criminal
 Writ Petition No.49 of 2001, has held that :-

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 "It is a precondition that persons committing
 the alleged offence must not be belonging to
 Scheduled Castes or Scheduled Tribes. 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 Castes or Scheduled Tribes. 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 castes or scheduled tribes, the

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 offence under Section 3 of the said Act cannot
 be registerd.

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 Reliance was also placed on another decision of this

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 Court in the matter of Bai @ Laxmibai Nivrutti Poul &

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Ors. v. State of Maharashtra, reported in 2001 ALL
 MR (Cri) 219, wherein it was held that the caste of
 the complainant should be apparent on the face of
 record in the complaint lodged by the complainant so
 as to enable the police authorities to take cognizance
 of the said complaint under the said Act. It was also
 held that unless the F.I.R. discloses basic
 requirement of law which could enable the police
 authorities to initiate investigation by considering
 the allegations to be in the nature of cognizable one,
 no complaint can be registered as F.I.R. and the
 police cannot take cognizance of such complaint. In
 fact, that was the decision of the Apex Court in
Superintendent of Police, C.B.I. & Ors. v. Tapan
Kumar Singh, wherein it was held that :-

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 "the information given must disclose the
 commission of a cognizable offence and the
 information so lodged must provide a basis for
 the police officer to suspect the commission
 of a cognizable offence. ....................

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 The information given disclosing the

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 commission of a cognizable offence only sets
 in motion the investigative machinery with a
 view to collect all necessary evidence, and
 thereafter to take action in accordance with
 law."

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 It was also held in Manoj @ Bhau and Ors. v. State

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of Maharashtra, reported in (1999)4 SCC 268 that a

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 distinction should be drawn between disclosure of all
 facts and details relating to a cognizable offence and
 disclosure of essential substantial facts which are
 necessary to conclude that a cognizable offence has
 been committed.

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 7. Undisputedly, the F.I.R. in the case in hand
 has been lodged for commission of the alleged offence
 punishable under Section 3(1)(x) as also Section
 7(1)(d) of Protection of Civil Rights Act, 1955.

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 8. Section 3(1)(x) of the said Act provides that
 whoever, not being a member of a Scheduled Caste or a
 Scheduled Tribe, intentionally insults or intimidates
 with intend or humiliate a member of a Scheduled Caste
 or a Scheduled Tribe in any place within public view
 shall be punishable with imprisonment for a term which

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 shall not be less than six months but which may extent
 to five years and with fine. It is pertinent to note
 that in terms of Section 18 of the said Act, nothing
 in Section 438 of the Code of Criminal Procedure would
 apply in relation to any case involving the arrest of
 any person on an acquisition of having committed an
 offence under the said Act. Further in terms of
 Section 20 thereof save as otherwise provided in the
 said Act, the provisions of the said Act shall have
 effect notwithstanding anything inconsistent therewith
 contained in any other law for the time being in force
 or any custom or usage or any instrument having effect
 by virtue of any such law.

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 9. Plain reading of the provisions of law
 comprised under Section 3(1)(x) of the said Act
 therefore would reveal that in order to enable the
 police to take cognizance of the offence committed
 under the said provisions of law, it would be
 necessary for the complainant to disclose that the
 person who is accused of commission of offence under
 the said Act is not a member of the Scheduled Caste or
 Scheduled Tribe and that he intentionally insults or
 intimidates with intend or humiliate the complainant
 or any other person who is a member of a Scheduled
 Caste or a Scheduled Tribe and lastly that such

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 incident should occur in public view. In other words,
 the complaint has not only to reveal the caste of the
 person who is sought to be insulted or intimidated or
 humiliated but he should also disclose that such
 person belongs to a Scheduled Caste or a Scheduled
 Tribe and simultaneously the complaint should also
 reveal that the person who is accused of commission of
 such offence does not belong either to a Scheduled
 Caste or to a Scheduled Tribe. It is only when the
 accusation with an intention to insult or intimidate
 or to humiliate has been made by a person not
 belonging either to a Scheduled Caste or a Scheduled
 Tribe and addressed to the person belonging to a
 Scheduled Caste or a Scheduled Tribe, and such
 incident occurs in public view, only in that case, it
 could be said to have committed an offence under
 Section 3(1)(x) of the said Act and not otherwise.
 Obviously, therefore, if the complaint does not
 disclose that the accused person does not belong to a
 caste other than Scheduled Caste or Scheduled Tribe,
 it would not disclose an offence in terms of the said
 Section, sufficient to take cognizance thereof by the
 police.

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 10. Reverting to the facts of the case, the
 complaint on the face of it discloses that the

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 complainant belongs to the caste "Mahar." There is a
 clear statement to that effect in the very first
 paragraph of the complaint by the complainant. At the
 same time, the complainant in the last but one
 paragraph thereof has specifically stated that she
 believes that the accused persons are "Uchhavarniya" (
 higher or upper caste ). Undoubtedly, the complaint
 nowhere states that the petitioners do not belong to
 Scheduled Caste or Scheduled Tribe. There is no
 specific assertion to that effect. Nevertheless the
 complaint does disclose that the complainant has
 reason to believe that the accused belong to higher or
 upper caste. In common parlance, the expression
 "Uchhavarniya" means that the persons belonging to
 higher caste. The said expression is commonly used
 with reference to the people belonging to a caste
 other than the Scheduled Caste or Scheduled Tribe.
 Being so, it cannot be said that the complaint does
 not disclose anything about the caste of the accused
 persons.

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 11. As already observed above, the Apex Court in
Manoj @ Bhau’s case (supra) had clearly held that the
 F.I.R. is not an encyclopedia of events though it
 should disclose the basic facts sufficient to the
 investigating machinery to take cognizance of an

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 offence. When the complaint on the face of it
 discloses an allegation to the effect that the accused
 persons belong to the higher caste, at once it would
 reveal allegation to the effect that the accused
 persons do not belong to the caste of the complainant
 which is apparently revealed to be a scheduled caste.
 In fact, the statement in the complaint in the case in
 hand specifically makes an averment to the effect that
 the complainant belongs to "Dalit Samaj" whereas the
 accused persons are believed to be of higher castes.
 This apparently discloses that the accused do not
 belong to the scheduled caste or scheduled tribe. In
 our considered opinion, this would disclose basic
 facts necessary to take cognizance under the
 provisions of law comprised under Section 3(1)(x) of
 the said Act and to enable the investigating machinery
 to investigate into the matter. In the circumstances,
 it cannot be said that the complaint does not disclose
 caste of the accused persons in terms of Section 3(1)
 of the said Act.

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 12. As regards third ground, the complaint at
 various places refers to the allegations of use of
 humiliating expressions with reference to the
 complainant. It is not that only in case of abusive
 language used against the people belonging to the

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 scheduled caste or scheduled tribe that would warrant
 prosecution against such persons but even in case of
 expression used to or with the intention to humiliate
 the member of the scheduled caste or scheduled tribe
 by the persons who are not belonging to the scheduled
 caste or scheduled tribe that could invite prosecution
 under the said Act. Such expressions used in public
 view can constitute an offence under the said Act.
 Hence, we do not find any substance in the last ground
 of challenge to the F.I.R.

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 13. Needless to say that all the above

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 observations have been made in order to deal with the
 challenge to the impugned F.I.R. Neither the courts
 below nor the investigating agency should get
 influenced in any manner by the aforesaid observations
 either for the purpose of investigation or for any
 other proceedings dealing with the matter. The said
 observations are not the findings relating to the
 merits of the case in the complaint. They have been
 made merely to ascertain whether prima facie the
 impugned F.I.R. discloses necessary ingredients of
 the offences under the said Act.

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 14. For the reasons stated above, therefore, there
 is no case made out for interference in the impugned

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 F.I.R. at this stage. Hence, the petition fails and
 is hereby dismissed. Rule discharged with no order as

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 to costs.

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 ( R.M.S.KHANDEPARKAR, J )

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 ( SMT.V.K.TAHILRAMANI, J )

Subhadra Sushil Anand and Ors. v. the State of Maharashtra

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Subhadra Sushil Anand and Ors. v. the State of Maharashtra

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