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Judgment
Honourable Mr. Justice M.R. Shah
Present Criminal Miscellaneous Application u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "CrPC") has been preferred by the applicants herein - original accused - Officers of Surat Municipal Corporation, at the relevant time working in the Estate Department, to quash and set aside the impugned FIR being II-C.R. No.82/2008 registered with Kapodara Police Station, for the offences punishable u/s 3(1)(x) of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Act").
Respondent No.2 herein - original complainant has lodged the impugned FIR against the applicants - Officers of Surat Municipal Corporation with Kapodara Police Station on 12.05.2008 for the offences punishable u/s 3(1)(x) of the Act for the offences alleged to have happened on 05.02.2007 alleging inter-alia that when the applicants - original accused -Officers came on the spot to remove the encroachment, they called the complainant by his caste and therefore, it is alleged that the applicants have committed the offence u/s 3(1)(x) of the Act. Being aggrieved and dissatisfied with the impugned FIR, the applicants - original accused have preferred the present criminal miscellaneous application u/s 482 of the CrPC.
Shri Prashant Desai, learned senior advocate appearing on behalf of the applicants has vehemently submitted that as such the applicants have not committed any offence as alleged u/s 3(1)(x) of the Act. It is submitted that as such the impugned FIR has been lodged after a period of more than 1 year and 3 months and without explaining any delay for the same. It is further submitted by Shri Desai, learned counsel appearing on behalf of the applicants that even the ingredients for making out a case u/s 3(1)(x) of the Act are not satisfied. Shri Desai, learned counsel appearing on behalf of the applicants has heavily relied upon the recent decision of the Hon''ble Supreme Court in the case of Asmathunnisa Vs. State of A.P. represented by the Public Prosecutor, High Court of A.P., Hyderabad and Another, in support of his submission that as it is not alleged in the FIR that whatever stated by the accused was intentional and to insult and/or intimidate the complainant with intent to humiliate him in place within public view, it cannot be said that the basic ingredients of Section 3(1)(x) of the Act are satisfied. Shri Desai, learned counsel appearing on behalf of the applicants has also relied upon the decision of the Hon''ble Supreme Court in the case of Gorige Pentaiah Vs. State of A.P. and Others, in support of his prayer to allow the present application and to quash and set aside the impugned FIR.
Application is opposed by Shri Brahmbhatt, learned advocate appearing on behalf of respondent No.2 - original complainant. Relying upon the decision of the Hon''ble Supreme Court in the case of Ashabai Machindra Adhagale Vs. State of Maharashtra and Others, it is requested not to exercise powers u/s 482 of the CrPC and not to quash and set aside the impugned FIR at this stage. It is further submitted that the allegations and averments in the FIR prima facie make out a cognizable offence which is further required to be investigated by the Investigating Officer and/or the Officer not below the rank of Dy.S.P. and therefore, it is requested not to exercise powers u/s 482 of the CrPC and not to quash and set aside the impugned FIR at this stage.
Shri Dabhi, learned Additional Public Prosecutor appearing on behalf of the State/I.O. has submitted that there are two statements of the witnesses which support the case of the complainant and therefore, it is requested not to quash and set aside the impugned FIR at this stage.
Heard the learned advocates appearing on behalf of the respective parties at length and considered the averments and allegations made in the impugned FIR. At the outset, it is required to be noted that except bare statement made by the complainant that the accused persons used some word and called the complainant by his caste, there are no further allegations or averments in the FIR. It is also required to be noted that even the impugned FIR has been lodged after a period of 1 year and 3 months and as such there is no explanation at all to explain the delay of 1 year and 3 months. In the case of Asmathunnisa (Supra), relying upon the decision of the Hon''ble Supreme Court in the case of Gorige Pentaiah Vs. State of A.P. and Others, the Hon''ble Supreme Court has specifically observed and held that according to the basis 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 Scheduled Tribe and he was intentionally insulted or intimidated by the accused with intent to humiliate in a place within public view. In absence of such averment in the complaint, the Hon''ble Supreme Court quashed and set aside the complaint in exercise of powers u/s 482 of the CrPC.
6.1 Now, so far as the reliance placed upon the decision rendered in the case of Ashabai Machindra Adhagale (Supra) by the learned advocate appearing on behalf of respondent No.2 - original complainant, it is true that the Hon''ble Supreme Court had specifically observed and held that by not mentioning the caste of accused in FIR for offence u/s 3(i)(xi) of the Act, the FIR cannot be quashed and set aside and as held by the Hon''ble Supreme Court, said issue can be raised during investigation or at the time of framing of the charge or at the time of trial and the accused can prove that he belongs to either scheduled caste or scheduled tribe. In the facts and circumstances of the case, the said decision would not be of any assistance to the complainant as firstly, it was a case for the offence u/s 3(i)(xi) of the Act and the accused pleaded that he belonged to scheduled caste or scheduled tribe and therefore, he cannot be prosecuted for the offence under the Act. However, so far as the alleged offence u/s 3(1)(x) of the Act is concerned, complainant is required to allege that the accused, not being a member of the scheduled caste or scheduled tribe, had intentionally insulted or intimidated him with intent to humiliate in any place within public view. As stated herein above, there are no such allegations or averments in the complaint satisfying the ingredients of the offence u/s 3(1)(x) of the Act. Under the circumstances, the case squarely falls within the case of Asmathunnisa (Supra) as well as Gorige Pentaiah (Supra). Under the circumstances, when the basic ingredients of the offence u/s 3(1)(x) of the Act are missing in the complaint, permitting such a complaint to continue and to compel the applicants to face the prosecution and/or the complaint would be totally unjustified leading to abuse of process of law. In paras 12 and 13 in the case of Asmathunnisa (Supra), the Hon''ble Supreme Court has observed and held as under:
Learned counsel for the appellant has also drawn our attention to a judgment of this Court Gorige Pentaiah Vs. State of A.P. and Others, The relevant paragraph of this judgment is as under:
6... 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.
This Court, in a number of cases, has laid down the scope and ambit of the High Court''s power u/s 482 of the Code of Criminal Procedure. Inherent power u/s 482 of the Code of Criminal Procedure though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the 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 absence of specific provisions in the Statute.
In view of the above and for the reasons stated above, the present application succeeds and the impugned FIR being II-C.R. No.82/2008 registered with Kapodara Police Station, Surat for the offence u/s 3(1)(x) of the Act is hereby quashed and set aside. Rule is made absolute to the accordingly.