Azmat Ali vs State of West Bengal

Ranjit Kumar Bag, J. - The petitioner has preferred this revision praying for quashing of the proceeding of G.R. no.1009 of 2009 arising out of Goalpokher Police Station Case no. 163 of 2009 dated July 10, 2009 under Sections 448/323/325/326/354/34 of the Indian Penal Code and under Section 3(i)(iii)(iv) and (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 pending before the court of learned Additional Chief Judicial Magistrate, Islampur, Uttar Dinajpur.

The backdrop of the present revision is as follows:

On July 10, 2009, the opposite party no. 2 filed a written complaint before the Officer-in-Charge of Goalpokher Police Station on the basis of which Goalpokher Police Station Case no.163 of 2009 dated July 10, 2009 came into existence. The police investigated the said criminal case and submitted charge-sheet against the petitioner and other co-accused persons on the allegation of committing offence under Sections 323/326/354/447/307/34 of the Indian Penal Code and under Section 3(i)(iii)(iv)(v) and under Section 3(2)(iv) and (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

With the above factual matrix, Mr. Kushal Paul, learned counsel for the petitioner contends that no offence is made out against the petitioner under Section 3 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Mr. Paul emphatically submits that the contents of the written complaint treated as FIR do not disclose that members of family of the opposite party no.2 were assaulted because they belonged to either Scheduled Castes or Scheduled Tribes and as such criminal proceeding cannot continue against the petitioner and other co-accused persons for the offence under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Mr. Paul has relied on the decision of Bombay High Court in "Manohar and another v. State of Maharashtra and others" reported in 2005 Cri LJ 4653 in support of his above contention.

Mr. Subir Banerjee, learned counsel for the opposite party/State has pointed out from the statement of the witnesses recorded under Section 161 of the Code of Criminal Procedure that the offence under Section 3(i)(iii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is made out against the petitioner and other co-accused persons. The specific submission of Mr. Banerjee is that the caste of the defacto complainant and the injured and the caste of the accused persons can be ascertained during investigation of the case and that can be decided in the domain of facts after recording of evidence before the trial court. Mr. Banerjee has specifically submitted that the caste certificate has been procured by the Investigating Officer in course of investigation and a supplementary charge-sheet is submitted before the appropriate court of learned Magistrate. Mr. Banerjee has relied on the decision of the Supreme Court in "Ashabai Machindra Adhagale v. State of Maharashtra and others" reported in (2009)1 C Cr. LR (SC) 878 in support of his contention that the view of the Bombay High Court is not accepted by the three Judges Bench of the Supreme Court.

On consideration of the materials available in the case diary in general and the statements of Sankar Tudu, Mamoy Hansda, Jula Mandi and Shiblal Tudu, I find that they have specifically stated how their clothes were torn and removed during the incident. The materials in the case diary also indicate that the Investigating Officer has procured the caste certificate of the injured persons and a supplementary charge-sheet has been filed before the court of learned Magistrate. It is, thus, clear that the Investigating Officer has ascertained the caste of the defacto complainant and the injured persons, though the caste of the defacto complainant was not disclosed in the written complaint treated as FIR. In "Monohar and another v. State of Maharashtra and others" reported in 2005 Cri. LJ 4653 learned Single Judge of Bombay High Court has observed in paragraph 11 as follows:

"11. In my view, after the passing of the aforesaid two judgments, holding that there can be no registration of a crime under the Atrocities Act, or investigation as regards the said crime, if the caste of the complainant and/or the accused is not contained in the body of the F.I.R., all investigations and further Court proceedings on the basis of such investigations, cannot be maintained in law. Such First Information reports and Court proceedings on the basis of crimes registered on the basis of such First Information Reports will, therefore, have to be quashed and set aside."

On perusal of the said report, I find that the FIR in group of 59 matters dealt with by learned Single Judge of Bombay High Court relates to an offence under Section 3(I)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. On perusal of the provision of Section 3(I)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, I find that such offence can be made out only if a member of Scheduled Castes or Scheduled Tribes is humiliated or insulted intentionally by a person not belonging to Scheduled Castes and Scheduled Tribes. In the instant case, the caste certificate of the defacto complainant and the injured persons have been procured by the Investigating Officer in course of investigation and the admitted position is that the petitioner and other co-accused persons do not belong to the members of Scheduled Castes and Scheduled Tribes. The facts of the present case are clearly distinguishable from the facts of reported case in "Manohar and another v. State of Maharashtra and others" (supra) and as such the said decision of Bombay High Court has no relevance in the present case. Moreover, in "Ashabai Machindra Adhagale v. State of Maharashtra and others" reported in (2009) IC Cr LR 878 the Supreme Court has referred to the decision of Bombay High Court in "Manohar and another v. State of Maharashtra and others" (supra) and held that the view taken by Bombay High Court does not appear to be the correct position in law. In paragraph 14 of the said report the Supreme Court has categorically observed that the issue of caste of the parties can be gone into during the investigation of the criminal case. In the instant case, the caste of the defacto-complainant has already been ascertained during investigation of the case. In view of the proposition of law laid down by three Judges'' Bench of the Supreme Court in "Ashabai Machindra Adhagale v. State of Maharashtra and others" (supra), I cannot persuade myself to hold that the petitioner has made out a case for quashing the proceeding against him under Section 3(i)(iii)(iv) (v) and Section 3(2) (iv)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

As a result, I do not find any merit in this revision. Criminal revision is, thus, dismissed.

However, the petitioner is at liberty to urge all the points before the trial court at the appropriate stage of the proceeding.