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Andhra High Court · body

2002 DIGILAW 738 (AP)

Moganti Srinivasa v. State Of A. P.

2002-06-18

V.V.S.RAO

body2002
( 1 ) ON 15-4-2002, the 2nd respondent lodged a complaint with the 1st respondent against the petitioners. The said complaint was registered as a crime in FIR No. 10 of 2002, dated 15-4-2002 of Gannavaram Police station, East Godavari District. In the complaint, the 2nd respondent alleged that the petitioners committed an offence under section 3 (1) (x) of the Scheduled Castes and scheduled Tribes (Prevention of Atrocities) act, 1989 (for short the Act ) by abusing him and saying that he belonged to a low caste. The petitioners filed the instant writ petition seeking an appropriate writ, to declare FIR no. 10 of 2002 on the file of Gannavaram police Station, as illegal, arbitrary and without jurisdiction and consequently to set aside the same. Be it noted that the petitioners in effect are seeking a direction to quash the FIR which was registered at the instance of 2nd respondent. ( 2 ) IT is the case of the petitioners that 2nd respondent does not belong to Scheduled tribe community, but belongs to adi andhra , a Christian community, falling under Group c of the notified Backward classes. The 2nd respondent filed nomination to the office of Sarpanch of Nellipudi Gram panchayat, East Godavari District, claiming himself to be a Scheduled Tribe. The petitioners and other villagers gave a complaint to the District Collector, East godavari, stating that 2nd respondent is not eligible to contest the office of Sarpanch because he does not belong to Scheduled tribe, but in vain. In that connection, the brother of the 6th petitioner also filed a writ petition, being W. P. No. 2547 of 2002, and this court disposed of the same directing the authorities to consider the representation given by the petitioner and others. Pursuant to such directions, the project Officer, Integrated Tribal development Agency, Rampachodavarm,. issued notice dated 15-2-2002 to the petitioner, through the Mandal Revenue officer, Gangavaram, and directed the mandal Revenue Officer, Gangavaram, to conduct an enquiry into the social status of 2nd respondent. Challenging the said notice, the 2nd respondent filed W. P. No. 3647 of 2002, which was dismissed. Pursuant to such directions, the project Officer, Integrated Tribal development Agency, Rampachodavarm,. issued notice dated 15-2-2002 to the petitioner, through the Mandal Revenue officer, Gangavaram, and directed the mandal Revenue Officer, Gangavaram, to conduct an enquiry into the social status of 2nd respondent. Challenging the said notice, the 2nd respondent filed W. P. No. 3647 of 2002, which was dismissed. ( 3 ) IN the light of the afore-mentioned averments, the petitioners allege that the FIR registered by the 1st respondent at the instance of the 2nd respondent is not proper, and therefore, any investigation into the complaint made by the 2nd respondent against the petitioners or prosecution of the petitioners in pursuance of the said complaint, under the Act, would amount to abuse of the process of the court. ( 4 ) SRI B. Bhaskara Rao, the learned counsel for the petitioners would submit that the 2nd respondent does not belong to Scheduled tribe community, and therefore, any complaintmadeby him, cannotbe registered under Section 3 (1) (x) of the Act. Placing reliance upon certain documents like School transfer Certificate and Community certificate of the 2nd respondent, and also the Voters list of Nellipudi Gram Panchayat, the learned counsel submitted that the very registration of the FIR against the petitioners is bad and would amount to abuse of the process of court for the 2nd respondent cannot derive any protection under the Act. ( 5 ) SRI Srimannarayana, the learned assistant Government Pleader for Home submits that under Article 226 of the constitution of India, an FIR cannot ordinarily be quashed, especially when there are sufficient indications in the FIR that an offence has been committed. He further submitted that when there are ingredients of an offence in the complaint, this court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India, cannot interdict the investigation, and all the questions raised for valid defence have to await the regular criminal trial. In support of his proposition, he placed reliance upon the judgments of the apex court in M/s. Pepsi foods Ltd. v. Special Judicial Magistrate and mahavir Prashad Gupta v. State of NCT of delhi. In support of his proposition, he placed reliance upon the judgments of the apex court in M/s. Pepsi foods Ltd. v. Special Judicial Magistrate and mahavir Prashad Gupta v. State of NCT of delhi. ( 6 ) HAVING regard to the rival submissions, the question that falls for consideration is whether the police can refuse to register a crime under the Scheduled Castes and scheduled Tribes (Prevention of Atrocities) act, 1985 (sic 1989), on the mere allegation of the accused that the complainant does not belong to Scheduled Caste or Scheduled tribe? ( 7 ) THE Act was passed by Parliament to prevent the commission of offences of atrocities against the members of the scheduled Castes and the Scheduled Tribes. The offences under the Act are cognizable and non-bailable. The Act also imposes certain mandatory requirements to be followed by the enforcement agencies in the implementation thereof. Indeed, by reason of Section 18 of the Act, the provisions of section 438 of the Code of Criminal procedure/1973 (for short the Code )/ which provides for anticipatory bail, is not made applicable to the Act and it is given overriding effect over all other provisions. If a public servant not being a member of Scheduled caste or Scheduled Tribe neglects to perform his duties as per the Act, he is also liable for punishment under Section 4 of the Act. Further as per Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Rules, 1995, an offence committed under the Act, shall have to be investigated by a police officer not below the rank of a deputy Superintendent of Police and the investigation should be completed on top priority, within a period of 30 days. No power inheres in any of the police officers under the act to decide whether the complainant belongs to Scheduled Caste or Scheduled tribe. Such power cannot be conferred on a police Officer. ( 8 ) AS rightly contended by the learned counsel for the petitioners, there would be some doubt as to the social status of a complainant who alleges the commission of offences by persons not belonging to scheduled Castes or Scheduled Tribes. Such power cannot be conferred on a police Officer. ( 8 ) AS rightly contended by the learned counsel for the petitioners, there would be some doubt as to the social status of a complainant who alleges the commission of offences by persons not belonging to scheduled Castes or Scheduled Tribes. However, strong the allegations may be that the complainant does not belong to scheduled Caste or Scheduled Tribe, but this court in exercise of its power under Art. 226 of the Constitution of India cannot go into such allegations for such allegations have to await the regular criminal trial. ( 9 ) IT is well settled that ordinarily this court would not exercise its jurisdiction under article 226 of the Constitution of India and quash the FIR when the FIR discloses the ingredients of an offence. The High Court cannot look for the evidence in the complaint and quash the FIR. What, in effect, the learned counsel for the petitioners would contend is that there is no proof to show that the 2nd respondent belongs to Scheduled Tribe, and on the contrary there is evidence to show that he belongs to adi Andhra , a Christian community, falling under Group c of the notified Backward Classes. This may be a valid ground of defence during the regular criminal trial, but it cannot be a ground for quashing the FIR. ( 10 ) IN M/s. Pepsi Foods Limited case (1 supra), the apex court observed that so as to prevent the abuse of process of any court or otherwise to secure the ends of justice, this court can always exercise its power of judicial review in criminal matter under Article 226 of the Constitution of India, and that rigid and inflexible guidelines cannot be laid down. It was further held that exercise of power under Article 226 of the Constitution of India to interdict the criminal case depends on facts and circumstances of each case, and that even in cases where the allegations made in the FIR or the complaint, are taken on their face value and accepted in their entirety, do not constitute any offence or make out a case against the accused, then in such cases, caution has to be exercised for invoking the powers under Article 226 of the Constitution of India or under Section 482 of the Code, and that it may not always be necessary to invoke the provisions of Article 226 of the constitution of India. ( 11 ) LNMAHAVIR Prashadgupta case (2supra), the apex court considered the scope and power under Article 226 of the Constitution of India to quash an FIR and held as under: the law on the subject is very clear. In the case of State of Bihar v. Murad Ali Khan, it has been held that jurisdiction under section 482 of the Code of Criminal procedure has to be exercised sparingly and with circumspection. It has been held that at an initial stage a court should not embark upon an inquiry as to whether the allegations in the complaint are likely to be established by evidence or not. Again in the case of State of Han/ana v. Bhajan Lal this court has held that the power of quashing criminalproceedings must be exercised very sparingly and with circumspection and that too in the rarest of rare cases. It has been held that the court would not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint. It has been held that the extraordinary or inherent powers did not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. It has been held that the extraordinary or inherent powers did not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. ( 12 ) HAVING heard the learned counsel for the petitioners and the learned Assistant government Pleader for Home, and after perusing the various documents and noticing the law laid down by the apex court, and further having regard to the fact that the Act has taken sufficient safeguards against frivolous complaints, requiring the offences to be investigated by an officer not below the rank of Deputy Superintendent of Police, who upon completion of investigation shall submit his report to the Superintendent of police for necessary orders, I am convinced that this is not a fit case where the investigating agency should be restrained from making an investigation into the complaint lodged by the 2nd respondent against the petitioners. It is open to the investigating Officer to take into consideration all aspects and submit his report to the Superintendent of Police as per rule 7 of the Rules. ( 13 ) IN the result, the writ petition fails, and is dismissed with the observations, as made above. No costs.