AI Structured Summary
Not yet generated for this judgment
Judgment
Heard Mr.Ramakant Sharma, learned senior
counsel for the petitioners, Mr. Uma Shankar , learned counsel
for the respondent No.2 and learned counsel for the State in both
the applications.
The petitioners abovenamed are accused in
connection with Patna SC/ST P.S.Case No. 21 of 2016 registered
under Sections 314, 323, 504 and 506 / 34 of the Indian Penal Code
as well as for offences under Sections 3(i) (r)(s)(p)(q), 3(2) (va) of
SC/ST (Prevention of Atrocities) Act vide Annexure-1.
The present writ application has been filed for
quashing the F.I.R. of the aforesaid case lodged by the
respondent No.2 on the ground that a bare perusal of the F.I.R.
does not disclose ingredient of any of the cognizable offences for
which F.I.R. has been registered and the F.I.R. has been lodged
with malafide intention of respondent No.2 to wreck vengeance
when the respondent No.2 failed to take desired result on his
application, by undue favour from the petitioners.
It is worth to mention that at the relevant time
(the alleged date of occurrence) Dr. Girish Kumar Singh was
posted as Director at All India Institute of Medical Sciences (in
brief AIIMS) at Patna and petitioner Dr. Prem Prakash Gupta
was working as Head of the Department of Pharmacology at
AIIMS , Patna, whereas the informant was working as a Senior
Resident thereat appointed on direct job outsourcing on the
consolidated amount of Rs. 55,000/- as per the memorandum of
appointment at Annexure-2 series to the counter affidavit filed by
the respondent No.2.
The informant has narrated in the FIR that
initially he was appointed as Senior Resident on 06.03.2014 at
AIIMS , Patna , his appointment was for maximum three years
extendable after lapse of every 11 months on the basis of
performance of the work. On 10.06.2016, the informant filed an
application for grant of experience certificate to be used for
extension of his joining period on some different posts of the
State Govt., on which the informant was already selected. Some
other Doctors were granted such certificate, however no
certificate was granted to the informant. All of a sudden, the
letter dated 30.07.2016 was served on the informant on
01.08.2016, stating therein that the informant has been relieved
from the post of Senior Resident, as the authorities have not
found him fit for grant of extension. Thereafter, the informant
met the administrative officers of AIIMS, Patna to know the
reason for his removal. Petitioner, Dr. Prem Prakash Gupta
Head of the Department and was competent authority to grant
extension to the informant, was contacted in his Chamber on
01.08.2016 itself by the informant. Dr. Gupta did not pay any
heed to the request of the informant and threaten the informant,
in loneliness, that the informant is a member of scheduled caste,
AIIMS is not a place for the members of scheduled caste,
therefore he should not come to his chamber in future. At one
occasion, the informant was willing to lodge an FIR, however,
considering the reputation of AIIMS as an Institution, he did not
lodge any FIR and thereafter met the guardian of AIIMS i.e. the
Director, Dr. Girish Kumar Singh. Petitioner , Dr.Girish Kumar
Singh had advised him to file the application in his office and
accordingly on 02.08.2016, the informant filed an application. On
24.09.2016, the informant again met the petitioner, Dr. Girish
Kumar Singh as no action was taken till date on his petition
dated 02.08.2016. This time the informant raised the
discrimination meted to him on caste line. Again, no action was
taken by the Director for 15 days. Thereafter, on 15.10.2016 at
about 11.00 AM, the informant went to meet the Director in his
chamber. The Director was alone in his chamber when the
informant enquired about his application, the behaviour of the
Director was very rough. He took the caste name of the informant
and asked to not to see and spoke as follows:
"How the informant thought it to go to high post"
Further allegation is that the Director took the
caste name of the informant and asked him to leave the chamber.
The informant did not disclose the aforesaid occurrence to anyone
in the Institution. The informant was terrorized and conscious
about his career. However, subsequently decided to lodge the
present FIR.
Learned senior counsel for the petitioners
submits that no part of the occurrence allegedly took place
within the public view, as such the offences under the provisions
of SC/ ST Act is not attracted. Ingredients of other offences are
not disclosed in the first informant report. He further submits
that when the informant failed to get the desired result from the
petitioners who were in administrative control, the present FIR
was lodged. Reliance has been placed on case of Gorige Pentaiah
Vs.State of Andhra Pradesh & Ors reported in (2009) 1 SCC (Cri)
446.
Respondent No.2 has filed detailed counter
affidavit disclosing the narration of the background of the
allegation which is stated in brief in the FIR also. However,
admitted that the belated experience certificate was granted by
the administration, not adding the period when the services of
the informant was taken as tutor and also stating that the said
certificate was granted after lapse of the period for prayer to the
State Govt. to extend the period of joining on the State post.
Submission of learned counsel for respondent
No.2 is that the offences are prima facie disclosed in the FIR ,
hence the FIR cannot be scuttled at the threshold. Further
contention is that the FIR need not be an encyclopedia of the
occurrence and the informant as well as one more witness have
supported the allegation in their statement recorded under
Section 164 Cr.P.C.
In paragraph-6 of the judgment in Gorige
Pentaiah case , the Hon''ble Apex Court in almost identical facts
observed as follows:-
"6. In the instant case, the allegation of Respondent 3 in the entire complaint is that on 27-5-2004, the appellant abused them with the name of their caste. According to the basic ingredients of Section 3(1)(x) of the Act, the complainant ought to have alleged that the appellant- accused was not a member of the Scheduled Caste or a Scheduled Tribe and he (Respondent 3) was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In the entire complaint, nowhere it is mentioned that the appellant-accused was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate Respondent 3 in a place within public view. When the basic ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law."
The offences of the SC/ ST Act for which FIR
has been registered are being reproduced below:
"3(i)(r) Whoever, not being a member of
Scheduled Caste or a Scheduled Tribe ,
intentionally insults or intimidates with
intent to humiliate a member of
Scheduled Caste or a Schedule Tribe in
any place within public view;
(s) abuses any member of Scheduled Caste
or a Scheduled Tribe by caste in any place
within public view;"
In the present case, the FIR does not disclose
that the occurrence took at a place within public view. Chamber
of any officer is not a public place as no one is authorizing to
enter without permission. The FIR does not disclose that there
was any one else in the chamber, save and except, the single
accused and the informant. Therefore, an important ingredient of
aforesaid offences is missing. Moreover, there is no averment that
the accused persons were not member of a scheduled caste or
scheduled tribe.
The case of Swaran Singh & Ors Vs. The
State & Anr reported in (2008) 8 SCC 435 does not support the
case of respondent No.2, as in Swaran Singh case, the occurrence
allegedly took place near the car parking place which was a place
in a lawn outside a house and the lawn was visible by some one
from the road or outside the boundary wall.
The FIR has further been instituted for
offence under Section 3(i) (p)(q) of the SC/ ST Act, the said
provisions are reproduced below :
"p. institutes false, malicious or vexatious suit or criminal or other legal proceedings against a member of a Scheduled Caste or a Scheduled Tribe; "q. gives any false or frivolous information to any public servant and thereby causes such public servant to use his lawful power to the injury or annoyance of a member of the Scheduled Caste or Scheduled Tribe;"
There is no averment in the FIR regarding
the institution of any false or malicious or vexatious case civil or
criminal or giving of any false or frivolous information, against
the informant, by the petitioners. Therefore the aforesaid
offences apparently are not attracted .
The FIR has further been registered under
Section 3(2) (va) of SC/ ST Act which reads as follows:
"3(2) Whoever not being a member of the
Scheduled Caste or Scheduled Tribe,--- (va) commits any offence specified in the
Schedule, against a person or property,
knowing that such person is a member of
scheduled caste or scheduled tribe or such
property belongs to such member, shall be
punishable with such imprisonment as
specified under the Indian Penal Code for
such offences and shall also be liable to
fine."
Again, the ratio had decided in Gorige
Pentaiah Case is applicable as there is no averment that the
petitioners not being the member of scheduled caste or scheduled
tribe have committed offences of the Indian Penal Code as
alleged.
There is no allegation of commission of any
offence of hurt or wrongful restraint, hence offences under
Sections 323 and 341 of the Indian Penal Code is apparently not
applicable. There is no allegation of commission of any act in
furtherance of common intention of the accused persons, hence
offence under Section 34 of the Indian Penal Code is also not
attracted. A bare perusal of the FIR would reveal that there is
complete lack of requirement of intentional insult giving
provocation to the informant with intent or knowledge that
provocation will cause the person, provoked to breach the peace
hence, offence under Section 504 of the Indian Penal Code is also
not attracted in the facts and circumstances of this case.
The statement of witness Karan Anand
recorded under Section 164 CR.P.C. would reveal that he is not
an eye witness of the occurrence rather is a hearsay witness.
Similarly, statement of the informant recorded under Section 164
Cr.P.C. (enclosed as Annexure-20 series of the counter affidavit)
would reveal that he has not alleged that at the time of any of the
alleged occurrence, anyone else was present or the occurrence
allegedly took place in the public view.
Though there is bald allegation of commission
of criminal intimidation by the petitioners in the first information
report. However, in the case of State of Haryana & Ors
Vs.Bhajan Lal & Ors reported in 1992 Supp (1) SCC 335, the
Hon''ble Apex Court considered that 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 of Criminal Procedure. The same
would be a ground to exercise power under Article 226 of the
Constitution of India or inherent power under Section 482
Cr.P.C. to quash the FIR. The offence under Section 506 of the
Indian Penal Code is a non-cognizable offence, hence the
petitioners cannot be prosecuted for that offence only, considering
the background of the allegation as discussed above, in the ends
of justice. Moreover, the law should not be allowed to be used as
a weapon of attack by a vindicative person to take revenge after
having failed to achieve the desired results at the hands of their
administrative Boss who are accused in the case. The entire
background of this case as discussed above, it is evident that at
the time of initial selection of the informant, one of the petitioner
was a Member of the Selection Board which selected the
informant. Thereafter, extension of engagement of the informant
was allowed by the same Committee. The whole FIR is the result
of non-grant of experience certificate by the petitioners within
time to the informant. The petitioners have got no criminal
antecedent. They were holding high offices since long. In the
circumstances, allowing the petitioners to be prosecuted for
offence under Section 506 of the Indian Penal Code would
certainly amount to abuse of the process of the court.
In result, the entire FIR of Patna SC/ST
P.S.Case No. 21 of 2016 is hereby stand quashed and both the
writ applications are stand allowed.