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2007 DIGILAW 1941 (PNJ)

Chaman Lal Goyal v. Kaur Singh

2007-11-06

L.N.MITTAL

body2007
Judgment L.N.Mittal, J. 1. Chaman Lal Goyal has filed the instant petition under Section 482 of the Code of Criminal Procedure (for short `the Code) for quashing of criminal complaint dated 28.10.1999 (Annexure P-4) filed by respondent Kaur Singh as well as quashing of restoration application (Annexure P-2) filed for restoration of earlier complaint dated 19.8.1999 (Annexure P- 9), which was dismissed on 20.10.1999 for want of prosecution on account of non-appearance of complainant-respondent. 2. The respondent initially filed complaint (Annexure P-9) dated 19.8.1999 under Section 3(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short `the Act) read with Sections 500, 504, 323 and 506 of the Indian Penal Code, in the Court of Additional Sessions Judge, Bathinda as Special Court under the Act. The said complaint was dismissed for want of prosecution vide order dated 20.10.1999 on account of non-appearance of the complainant-respondent. Thereafter, the respondent filed application (Annexure P-2) dated 28.10.1999 for restoration of complaint (Annexure P-2) by recalling order dated 20.10.1999 and at the same time, the respondent also filed a second complaint dated 28.10.1999 (Annexure P-4) on the same averments. The case of the respondent is that on 15.8.1999, the petitioner used derogatory words with reference to the Caste of the respondent who belongs to Ramdasi a Sikh Caste which is a Scheduled Caste. Impugned complaint (Annexure P-4) had also been filed in the Special Court under the Act. However, the Special Court vide order dated 3.7.2000 observed that in view of decision of Honble Supreme Court in the case of Gangula Ashok v. State of A.P., 2000(1) RCR(Criminal) 797, Special Court cannot take cognizance of the case under the Act without the case being committed to it by the Magistrate. Accordingly, the Special Court sent the case to Illaqa Magistrate. The Illaqa Magistrate, on receiving the complaint, straightaway issued summons against the petitioner, presumably because the Special Court already ordered the summoning of the petitioner. 3. Learned counsel for the petitioner contended that complaint under the Act could not be filed directly in the Special Court. It was urged that Special Court could not take cognizance of the case without the case being committed by the Magistrate. This question already stands concluded by judgment of Honble Apex Court in case of Gangula Ashok (supra). 3. Learned counsel for the petitioner contended that complaint under the Act could not be filed directly in the Special Court. It was urged that Special Court could not take cognizance of the case without the case being committed by the Magistrate. This question already stands concluded by judgment of Honble Apex Court in case of Gangula Ashok (supra). However, in view of this legal position, the learned Special Court rightly sent the case to Illaqa Magistrate, and so the complaint cannot be quashed on this ground. 4. Learned counsel for the petitioner next contended that first complaint (Annexure P-9) having been dismissed for want of prosecution, second complaint on the same allegations is not maintainable. Learned counsel for the respondent, however, controverted this contention by relying on Jatinder Singh and others v. Ranjit Kaur, 2001(1) RCR(Crl.) 692 : 2001(2) Judgments Today (SC) 198. In that case also, the first complaint was dismissed on the ground default in appearance. It was held that there was no reason to shut the doors of justice once or for all against the complainant. The judgment of the High Court holding the second complaint to be maintainable was upheld by the Honble Apex Court. In the instant case, however, the respondent has not come to the Court with clean hands. The respondent after dismissal of his first complaint (Annexure P-9) for want of prosecution not only filed the second complaint (Annexure P-4) but also filed restoration application (Annexure P-2) for restoration of first complaint. The factum of filing the restoration application was not mentioned in the second complaint (Annexure P-4) and vice versa. It is correct that in the case of Jatinder Singh (supra), it was observed that complainant cannot be said to be lacking bona fides by suppressing the fact of dismissal of the first complaint in the second complaint. However, in the instant case, there is not only suppression of the fact of filing restoration application in the second complaint but also there is another material fact showing lack of bona fides on the part of complainant-respondent. In restoration application (Annexure 2), it has been alleged by the respondent that his counsel wrongly noted the date as 21.10.1999 instead of 20.10.1999 whereas in impugned complaint (Annexure P-4), it has been alleged that the next date was noted as 28.10.1999 instead of 20.10.1999. In restoration application (Annexure 2), it has been alleged by the respondent that his counsel wrongly noted the date as 21.10.1999 instead of 20.10.1999 whereas in impugned complaint (Annexure P-4), it has been alleged that the next date was noted as 28.10.1999 instead of 20.10.1999. Besides it, the respondent simultaneously opted to pursue both the remedies by filing restoration application (Annexure P-2) as well as by filing second complaint (Annexure P-4). All these circumstances show lack of bona fides on the part of the respondent. In view of these peculiar facts and circumstances of the instant case, the second complaint (Annexure P-4) cannot be said to be maintainable. 5. Learned counsel for the petitioner next contended that there is not even an averment in the impugned complaint (Annexure P-4) that the petitioner had knowledge that the respondent belongs to Scheduled Caste and consequently, no offence under the Act is made out. There is considerable merit in the argument. Perusal of impugned complaint reveals that the respondent has nowhere averred therein that the petitioner had knowledge that respondent belongs to Scheduled Caste. In view of failure of the respondent to even allege this essential ingredient of the offence under the Act, no offence under the Act can be said to have been committed by the petitioner by the alleged utterances against the respondent with reference to his caste, even if the allegations made in the complaint are taken at their face value. The aforesaid essential requirement of the offence under the Act is completely missing in the impugned complaint. Consequently, the petitioner cannot be prosecuted for any offence under the Act. 6. Learned counsel for the petitioner also vehemently contended that the respondent has alleged in the complaint that he belongs to Ramdasia Sikh Caste. It was argued that Ramdasia Sikh Caste was, however, not a Scheduled Caste in the State of Punjab at the time of alleged occurrence on 15.8.1999. There is considerable force in the contention. Article 341(1) of the Constitution of India postulates that the President may, with respect to any State, after consultation with the Governor thereof, by public notification, specify the Castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purpose of this Constitution be deemed to be Scheduled Castes in relation to that State. Clause (24) of Article 366 of the Constitution provides the definition of `Scheduled Caste to mean such Castes, races or tribes or parts of groups within such Castes, races or tribes as are deemed under Article 341 to be Scheduled Castes for the purposes of this Constitution. Combined reading of both these provisions would show that only those Castes which are, by public notification under Article 341(1) of the Constitution, specified to be Scheduled Castes in relation to a State, can be deemed to be Scheduled Castes for that State. 7. Learned counsel for the petitioner contended that vide the Constitution (Scheduled Castes) Order, 1950 (in short `the Order) dated 10.8.1950, Castes were specified as Scheduled Castes for different States under the aforesaid provisions of the Constitution, and Ramdasia Sikh Caste, to which the respondent claims to be belonging, does not find mention as Scheduled Caste for the State of Punjab in the Order. Learned counsel for the respondent, however, referred to entry 9 of part XIV-Punjab of the Order. The said entry No. 9 is reproduced hereunder :- "Chamar, Jatia Chamar, Rahgar, Raigar, Ramdasi, Ravidasi." 8. It was contended on behalf of respondent that under Article 341(1) as well as Article 366(24) of the Constitution, even parts of or groups within the Castes, races or tribes specified in the Notification i.e. Order shall be deemed to be Scheduled Castes and consequently, Ramdasia Sikh, which is part of or group within Ramdasi Caste mentioned in the Order, shall also be deemed to be Scheduled Caste. The contention cannot be accepted. Ramdasia Sikh Caste cannot be said to be part of or group within Ramdasi Caste specified in the Order. There is not an averment to this effect on behalf of the respondent. On the other hand, the matter is not res integra. In Election Petition No. 16 of 1997, Sohan Singh v. State of Punjab and others, election of respondent No. 3 to Legislative Assembly Punjab from an assembly constituency reserved for Scheduled Castes was assailed inter alia on the ground that respondent No. 3, who claimed herself to be belonging to Ramdasia Sikh Caste, was not a Scheduled Caste. This Court vide judgment dated 23.11.2000 (Annexure P-10) upheld this contention by interpreting aforesaid entry No. 9 of Part XIV of the Order pertaining to Punjab. This Court vide judgment dated 23.11.2000 (Annexure P-10) upheld this contention by interpreting aforesaid entry No. 9 of Part XIV of the Order pertaining to Punjab. It was concluded that Ramdasia Sikh Caste cannot be treated to be Scheduled Caste in the State of Punjab. Election of respondent No. 3 was consequently set aside. No decision to the contrary has been cited. On the other hand, even on plain reading of aforesaid entry No. 9 of Part XIV of the Order, it becomes evident that `Ramdasi Caste has been specified to be Scheduled Caste, but `Ramdasia, or `Ramdasia Sikh has not been specified as Scheduled Caste. I am, therefore, in agreement with the conclusion in judgment (Annexure P-10) in the case of Sohan Singh (supra) that Ramdasia Sikh Caste is not a Scheduled Caste in the State of Punjab. 9. The aforesaid conclusion is further fortified by the Constitution (Scheduled Castes) Order (Amendment) Act, 2002 (Act No. 25 of 2002 assented to on 24.5.2002) (in short the Amendment Act). By this Amendment Act, entry No. 9 in Part XIV relating to Punjab in the Order was substituted as under :- "Chamar, Jatia Chamar, Rahgar, Raigar, Ramdasi, Ravidasi, Ramdasia, Ramdasia Sikh, Ravidasia, Ravidasia Sikh." 10. It thus becomes clear that by way of the Amendment Act only, Ramdasia Sikh Caste was specified to be Scheduled Caste by including the same in entry No. 9 of Part XIV-Punjab in the Order. The Amendment Act was assented to on 24.5.2002. It can, therefore, be said that Ramdasia Sikh Caste become a Scheduled Caste only w.e.f. 24.5.2002 and was not a Scheduled Caste prior thereto. The occurrence in the instant case allegedly took place on 15.8.1999, but at that time, Ramdasia Sikh Caste was not a Scheduled Caste. Learned counsel for the respondent submitted that the aforesaid amendment in entry No. 9 Part XIV in the Order has been made only by way of clarification that Ramdasi a Sikh Caste is also a Scheduled Caste. The argument cannot be accepted. There is no material on record to substantiate this contention. On the other hand, the Amendment Act made amendment in the Order to include Ramdasia Sikh Caste as Scheduled Caste showing that prior to it, it was not a Scheduled Caste. The argument cannot be accepted. There is no material on record to substantiate this contention. On the other hand, the Amendment Act made amendment in the Order to include Ramdasia Sikh Caste as Scheduled Caste showing that prior to it, it was not a Scheduled Caste. Had it been by clarification, the Amendment Act would have said that it shall be deemed to have been specified as Scheduled Caste since inception i.e. since commencement of the original Order. However, no such provision of the Amendment Act was brought to the notice of this Court during the course of arguments. The aforesaid amendment of the Order by the Amendment Act cannot be said to be retrospective in the absence of any provision giving retrospective effect to the same. Consequently, the said amendment is only prospective and Ramdasia Sikh Caste became a Scheduled Caste only w.e.f. 24.5.2002, the date of enforcement of the Amendment Act and was not a Scheduled Caste prior to it. In other words, Ramdasi a Sikh was not a Scheduled Caste on 15.8.1999, the date of alleged occurrence. Learned counsel for the respondent contended that this disputed question of fact cannot be adjudicated upon in the instant petition under Section 482 of the Code. This contention cannot be upheld. The respondent himself has alleged in the impugned complaint that he belongs to Ramdasia Sikh Caste. Therefore, it is not a disputed question of fact. On the other hand, Ramdasia Sikh caste was not a Scheduled Caste at the time of alleged occurrence, as discussed above. If on the admitted facts or if on the averments made by the complainant himself in the complaint, no offence is made out, then this Court could not only be within its power but would also be duty bound to quash the prosecution as continuation of the prosecution would be an abuse of the process of law. In the instant case, taking averments of the respondent in the impugned complaint in its entirety, no offence under the Act is made out, as the respondent did not belong to Scheduled Caste at the time of alleged occurrence. In the instant case, taking averments of the respondent in the impugned complaint in its entirety, no offence under the Act is made out, as the respondent did not belong to Scheduled Caste at the time of alleged occurrence. Learned counsel for the respondent in support of his contention that the question whether the respondent belongs to the Scheduled Caste or not cannot be adjudicated upon in the instant petition under Section 482 of the Code, relied on State of Kerala and another v. Chandramohanan, 2004(1) RCR(Criminal) 845 : 2004(2) Apex Criminal 418 : 2004(3) SCC 429. However, this decision does not help the respondent in the instant caste. In the case of Chandramohanan (supra), the complainant claimed himself to be of a Scheduled Tribe. His parents had converted to Christianity. The accused, in that case, accordingly, contended that on account of conversion to Christianity, the complainant no longer remained a member of the Scheduled Tribe. In this context, the Honble Apex Court observed that a member of a Scheduled Tribe, despite change in his religion, may still remain a member of the Scheduled Tribe if he continues to follow the tribal, traditions and customs. Consequently, it was held that the question whether the person continued to follow the customs and traditions of the tribe must be determined at the trial and the prosecution cannot be quashed. Thus, in that case, there was disputed question of fact whether after conversion to Christianity, the complainant still continued to follow the customs and traditions of the Scheduled Tribe and the said question could only be determined at the trial. In the instant case, however, no such disputed question of fact is involved. The respondent-complainant claimed himself to be belonging to Ramdasia Sikh Caste. Taking the said admitted fact, it has been found that the respondent did not belong to Scheduled Caste at the time of alleged occurrence. So, there is no disputed question of fact in this regard involved in the instant case to be determined at trial. 11. Learned counsel for the respondent referred to documents Annexures A-1 to A-4. Annexure A-1 is a certificate issued by Sub-Divisional Officer (Civil) that the respondent belongs to Ramdasia Caste which is recognised by the Government as Scheduled Caste as has been certified by the Tehsildar, Bhatinda. 11. Learned counsel for the respondent referred to documents Annexures A-1 to A-4. Annexure A-1 is a certificate issued by Sub-Divisional Officer (Civil) that the respondent belongs to Ramdasia Caste which is recognised by the Government as Scheduled Caste as has been certified by the Tehsildar, Bhatinda. Vide Annexure A-2, the respondent was appointed in Government job as a member of Scheduled Caste and vide Annexure A-3, the respondent was promoted as a member of Scheduled Caste. Annexure A-4 is certificate dated 15.10.2007 again certifying that respondent who belongs to Ramdasia Caste which is Scheduled Caste. In so far as certificate Annexure A-4 is concerned, the same is of no help to the respondent because this certificate is dated 15.10.2007 and in view of the Amendment Act, the respondent now certainly belongs to Scheduled Caste. Similarly, order (Annexure A-3) dated 13.1.2005 has been issued after enforcement of the Amendment Act whereby Ramdasia Sikh Caste was included as Scheduled Caste and therefore, order Annexure A-3 is also of no help to the respondent. Remaining documents Annexures A-1 to A-2 also do not help the respondent. Vide Annexure A-1, it was certified that the respondent belongs to Scheduled Caste as recognised by the State Government. However, the State Government has no power to add any Caste as Scheduled Caste. Only the Castes mentioned in the Order, as amended from time to time, can be deemed to be Scheduled Castes and no other Caste, even if recognised by any State Government or even by Central Government as Scheduled Caste, can be deemed to be a Scheduled Caste for the purpose of the Act or the Constitution. This aspect has also been discussed in judgment (Annexure P-1) in the case of Sohan Singh (supra). It was observed therein that the fact that Punjab Government has been treating Ramdasias Scheduled Caste can be no help because under Article 341 of the Constitution, it is only prerogative of the President to include any Caste as Scheduled Caste after consultation with the Governor of the concerned State. It is not within the power of the State Government or within power of the Court to include or exclude any Caste from the category of Scheduled Caste. Certificate Annexure A-1 does not certify that respondent belong to Scheduled Caste as specified in the Order. It simply certifies that respondent belongs to Scheduled Caste as recognised by Punjab Government. It is not within the power of the State Government or within power of the Court to include or exclude any Caste from the category of Scheduled Caste. Certificate Annexure A-1 does not certify that respondent belong to Scheduled Caste as specified in the Order. It simply certifies that respondent belongs to Scheduled Caste as recognised by Punjab Government. Similarly, orders Annexures A-2 and A-3 of appointment and promotion of the respondent as member of Scheduled Caste have been issued by State Government. Consequently, on the basis these documents Annexures A-1 to A-3, it cannot be said that the respondent belongs to Scheduled Caste for the purpose of the Act or the Constitution. On the other hand, the respondent as Ramdasia Sikh did not belong to Scheduled Caste on the date of alleged occurrence as discussed in detail hereinabove. For the detailed reasons recorded hereinabove, it becomes manifest that no offence under the Act is made out even if all the allegations made in the impugned complaint are assumed to be correct in entirety. Consequently, the instant petition is allowed and impugned complaint (Annexure P-4) as well as restoration application (Annexure P-2) are quashed along with all consequential proceedings arising therefrom.