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2009 DIGILAW 732 (CAL)

Radha Biswas v. STATE OF WEST BENGAL

2009-09-11

PARTHA SAKHA DATTA

body2009
Judgment : PARTHA SAKHA DATTA, J. (1). CRR No. 2136 of 2009 and CRR No. 2137 of 2009 are being disposed of by this common order. The O.P. No. 1, 87 years old, lodged an FIR with the OC, Jadavpur PS on 27th July, 2007 alleging the following incident. (2). He had been residing with his family for 45 years at A/35 Rabindra Pally, Baghajatin under the PS Jadavpur. One Chandana Ghosh Dastidar a member of the Mayor-in-Council and a leader of Democratic Women Association under the direction of Pranab Kumar Das, Secretary of Rabindra Pally Colony Committee with his companions and associates had subjected himself and his wife to physical and mental torture in a preplanned way and evicted him from his residential house by force and installed his sons wife Radha Ghosh and the members of the family of Radhas father in his house. For last 5 years preceding the presentation of the FIR, Radha deserted her husband and had been residing in her fathers house but now Radha has been residing in his house with the members of the family of his fathers house. In this illegal work, the then Officer-in-Charge of Baishnabghata- Patuli one Arunava Das and one ASI Bonogopal Ghosh took the active role. His younger son Dhiraj Biswas, husband of Radha would educate his daughter Deboshruti in a residential school. A litigation had been going on in Alipore Court over the custody of the daughter. In spite of the matter being subjudice the aforesaid persons perpetrated inhuman physical and mental torture upon him on demand that the daughter of Dhiraj would have to be handed over to Chandana Ghosh Dastidar, a member of the Mayor-in-Council or else he would be evicted from the house. Even when the child was handed over to Chandana he was not spared. His house is comprised in 12 cottahs of land and a conspiracy was hatched for demolition of the building for the purpose of making it over to a promoter by Chandana. A very influential political person was also involved in Chandana Ghosh Dastidar has converted a very clean doba of him in a dirty place by dumping garbage therein. Protest did not yield any result. She was such an influential person that he could not muster courage to lodge complaint with the police station as he was threatened with eviction. A very influential political person was also involved in Chandana Ghosh Dastidar has converted a very clean doba of him in a dirty place by dumping garbage therein. Protest did not yield any result. She was such an influential person that he could not muster courage to lodge complaint with the police station as he was threatened with eviction. Because of dumping garbages for last 5-6 years he has become ill. These incidents were pre-planned only with a view to evict him. On 24.6.2007 Chandana Ghosh Dastidar and Pranab Kr. Das started spreading canard against him and the members of his family in a meeting of Rabindra Pally Colony Committee and it was done with, a view to pave the way of divesting himself of his property so that promoter can usurp it. The complainant is at the door of death, he is a founder of two Higher Secondary Schools and an author of 37 social and religious books, a founder President of "Hari Chand Mission" and he is also a widely known writer. He was a founder Secretary of South- Eastern Railway SC and ST Railway Employees Welfare Organisation and is a distinguished citizen belonging to scheduled caste. (3). On this aforesaid FIR Jadavpur PS recorded Jadavpur PS Case No. 401 dated 27th July, 2007 under section 448/325/506/34 of the IPC and chargesheet was submitted under the aforesaid sections of the law against 19 accused persons including Chandana Ghosh Dastidar, Pranab Kr. Das and Radha Ghosh. In the chargesheet there was addition of section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short the Act), (4). Before the Additional Chief Judicial Magistrate, prayer was made by the learned Public Prosecutor to forward the case to the Special Court in terms of section 14 of the said Act 1989. Section 14 of the Act provides as follows : "14. Special Court.-For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district a Court of Session to be a Special Court to try the offences under this Act." (5). Special Court.-For the purpose of providing for speedy trial, the State Government shall, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specify for each district a Court of Session to be a Special Court to try the offences under this Act." (5). Learned ACJM, accordingly forwarded the case to the 1st Court of learned Additional Sessions Judge at Alipore in terms of Government of West Bengal Notification number 2974-J dated 15.2.1990 for the purpose of trial of the accused persons. (6). Out of 19 accused persons, 9 accused persons preferred the CRR No. 2136 of 2009 and the remaining 10 accused persons preferred the CRR No. 2137 of 2009 praying for quashing of the proceeding, and the contents of two applications are identical. (7). Though prayer was made for quashing of the enure proceeding, learned Advocate for the petitioners in both the cases Mr. Sekhar Basu appearing with Mr. Joymalya Bagchi, confined his submissions with respect to the applicability of section 3(1)(ii)(iv)(x) (xv) of the said Act. Section 3(1) of the Act provides that when a person not being a member of Scheduled Castes or Scheduled Tribes commits act enumerated from (i) to (xv) shall be punishable with imprisonment for a term which shall not be less than 6 months but it may extend to 5 years and with fine. Now acts dealt with section 3(ii)(iv)(x) and (xv) are as follows : (ii) acts with intent to cause injury, insult or annoyance to any member of a Scheduled Caste or a Scheduled Tribe by dumping excreta, waste matter, carcasses or any other obnoxious substance in his premises or neighbourhood; (iv) wrongfully occupies or cultivates any land owned by, or allotted to, or notified by any competent authority to be allotted to, a member of a Scheduled Caste or a Scheduled Tribe or gets the land allotted to him transferred; (x) intentionally insults or intimidates with intent to humiliate a member of a Caste or a Scheduled Tribe in any place within public view; (xv) forces or causes a member of a Scheduled Caste or a Scheduled Tribe to leave his house, village or other place of residence. (8). Mr. (8). Mr. Basu submitted that given the tenor of the FIR and the statements of the witnesses examined by the IO it would not at all appear that the provisions of the Act 1989 are at all applicable to the facts and circumstances in the case. It is submitted by Mr. Basu that firstly uncontroverted allegations in the FIR and in the chargesheet did not enclose that the alleged acts attributed against the O.P. No. 2 and his family members were perpetrated on them on the ground that they are members of a Scheduled Caste or a Scheduled Tribe. The mere fact that incidentally the de facto complainant happened to be a member of the SC the provisions of the Act are not necessarily attributed and the learned Magistrate lost sight of this fact and illegally look cognizance of offence under section 3(1) of the said Act 1989. It is further submitted that the provisions of section 3(1) of the Act is attributed when the perpetrator of the crime is a person other than a member of SC or ST. When two accused persons, namely, Pranab Kumar Das and Swarup Sarder are also members of the SC then the provisions of the said Act are no longer maintainable against them. Accordingly the benefit available to Pranab Kr. Das and Swarup Sarder has to be extended to the other accused persons who are alleged to be abettors in the crime and the principle of exclusion has to be extended to them also. It is submitted that sine qua non for applicability of the provisions of the Act is that an offence must have been committed against a person on the ground that such a person is a member of the Scheduled Castes and/or Scheduled Tribes. In the instant case there is no material on record to establish this requirement of the law. It is not the case of the prosecution that the alleged illegal acts were committed because of the fact that the complainant and the members of the family were members of Scheduled Caste; in the absence of materials to that effect the provisions of the said Act have no manner of application. Mr. It is not the case of the prosecution that the alleged illegal acts were committed because of the fact that the complainant and the members of the family were members of Scheduled Caste; in the absence of materials to that effect the provisions of the said Act have no manner of application. Mr. Basu further submitted that under Rule 7 of the Rules 1995 an offence under the Act shall be investigated by a police officer not below the rank of Deputy Superintendent of Police who has to be appointed under that Rule by the Government but here in the instant case investigation was conducted by a police officer who was not appointed under the said Rule. (9). Mr. Asish Sanyal, learned Senior Advocate appearing with Mr. Rajdeep Biswas for the O.P. No. 2, the de facto complainant submitted that the alleged fact, not yet proved, that Swarup Sarder and Pranab Kr. Das happened to be member of the Scheduled Caste does not alter the situation. The test for applicability of the Act is that the person offended must belong to a member of the Scheduled Caste or Scheduled Tribe and that test having been fulfilled the provisions of the said Act are automatically applicable. It is submitted by Mr. Sanyal that in the FIR it has been alleged that the complainant is a member of the Scheduled Caste and in his house wastes, excreta were intentionally dumped on the ground that the complainant is a member of Schedule Caste. Again it is on account of his being a member of the Scheduled Caste that attempt is made to divest him of his property. Further it was because of his being a member of the Scheduled Caste that he has been forced to leave his own residential house. Therefore, the acts committed by the accused persons do come within the ambit of section 3(i) of the Act. (10). The question is whether on the allegations raised in the FIR and the chargesheet the provisions of the Act can be said to be applicable prima facie. A close reading of the section 3(1) of the Act would reveal that the commission and omission enumerated in the said section 3(1) are committed only because the person wronged happens to be a member of a Schedule Castes or Scheduled Tribes. A close reading of the section 3(1) of the Act would reveal that the commission and omission enumerated in the said section 3(1) are committed only because the person wronged happens to be a member of a Schedule Castes or Scheduled Tribes. The Act has been enacted to prevent the commission of offence of atrocities against the members of the Scheduled Caste and Scheduled Tribe. It is a legislation keeping in view of Article 15(4) of the Constitution of India. The preamble of the Act is a clear pointer to the fact that the Act is designed to prevent commission of offences of atrocities against the members of the Scheduled Caste and Scheduled Tribe. Thus, act of atrocities are made offences under the Act when they are committed against a member of Scheduled Caste and Scheduled Tribe only because the victim happens to be a member of the SC/ST community. It is only because of the person wronged being a member of the scheduled caste or scheduled tribe that acts of atrocities are committed. A person who is not a member of scheduled castes and scheduled tribe can be an offender under the Act. This being the rationale of the enactment if I turn to the FIR I find that FIR relates to some allegations of fact which did not at all show that these acts were committed only because of the fact that the complainant belonged to a member of the scheduled caste. And, more importantly, that is not the case of the complainant at all. Only a passing reference has been made in the penultimate paragraph of the FIR that the complainant is a founder President of two higher secondary schools, writer of 37 social and religious books, an acknowledged writer and a founder Secretary of South-Eastern Railway Scheduled Castes and Scheduled Tribes Railway Employees Welfare Organisation. At no corner of the FIR, has it been alleged or whispered that it was because of his being a member of the Scheduled Caste or Scheduled Tribe community that these acts were committed. The penultimate paragraph of the FIR has been presented to give a picture of social standing of the complainant and a mere reference that he is a distinguished citizen belonging to scheduled caste does not change the colour of the FIR. The colour of the FIR is otherwise, and it speaks for itself. The penultimate paragraph of the FIR has been presented to give a picture of social standing of the complainant and a mere reference that he is a distinguished citizen belonging to scheduled caste does not change the colour of the FIR. The colour of the FIR is otherwise, and it speaks for itself. The matter of the tact as it appears from reading the FIR, is that complainants younger son Dhiraj was married to Radha but Radha allegedly deserted Dhiraj and left for her fathers house and resided there for five years, a girl was born to them. The girl stayed with the de facto complainant and his son. The girl was admitted in a very well-known residential school. Chandana Ghosh Dagtidar and Pranab Kr. Das constantly subjected the de facto complainant to inhuman physical and mental torture in order that the de facto complainant may leave the house so that Radha could be installed in the house. Therefore, it has been alleged in the petition of complaint itself that with a view to installing Radha in the house that he was evicted. It is not the allegation that because of his being a member of the scheduled caste he was forced to leave the house. Further, the de facto complainant was forced to hand over the grand-daughter to Chandana so that Radha may live in his house with the girl. A litigation between Radha and Dhiraj had been going on in the Civil Court for custody of the child. Then a conspiracy was allegedly hatched to divest the complainant of his property so that a promoter can be set up to raise a multi-storied building and with that end in view garbages and wastes were dumped in that place. Dumping of garbages were only with a view to compel the de facto complainant to leave his house so that a multi storied building could be constructed there. Dumping of garbages was done, as far as the FIR is concerned, not because of the fact that the complainant is a member of the scheduled caste. Offences alleged will come under section 3(1) of the Act only when it is prima facie made out that these acts were committed only because of the fact that the petitioner is a member of the Scheduled Caste and Scheduled Tribe. It is not the case here like that. Offences alleged will come under section 3(1) of the Act only when it is prima facie made out that these acts were committed only because of the fact that the petitioner is a member of the Scheduled Caste and Scheduled Tribe. It is not the case here like that. The principal allegation is installation of Radha in the house and taking away the child from the custody of the facto complainant in order that Radhas child and the members of Radhas father family can reside there to the exclusion of the de facto complainant. At the cost of repetition it has to be said that there is no allegation in the FIR at all that these acts were committed on the ground that he belongs to the scheduled caste community. I have gone through the statements of the witnesses which did not at all reveal that the offence was alleged because of the complainant being a member of the scheduled caste community. Thus, in fact, it is an infighting between the complainant and his younger sons wife Radha. The witnesses have also not alleged that because of the complainant being a member of the scheduled caste, the acts were committed. (11). In this connection certain decisions of the Honble Supreme Court may be, cited. In Dinesh @ Buddha vs. State of Rajasthan, reported in 2006(2) SCC (Cri) 1, it has been held by Their Lordships at paragraph 15 that sine qua non for application of section 3 is that an offence must not have been committed against a person on the ground that such a person is a member of the Scheduled Castes or Scheduled Tribes. In Ramdas vs. State of Maharashtra, reported in 2007(1) SCC (Cri) 546, it has been observed as follows : "At the outset we may observe that there is no evidence whatsoever to prove the commission of offence under section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The mere fact that the victim happened to be a girl belonging to a Scheduled Caste does not attract the provisions of the Act. Apart from the fact that the prosecutrix belongs to the Pardhi community, there is no other evidence on record to prove any offence under the said enactment. The mere fact that the victim happened to be a girl belonging to a Scheduled Caste does not attract the provisions of the Act. Apart from the fact that the prosecutrix belongs to the Pardhi community, there is no other evidence on record to prove any offence under the said enactment. The High Court has also not noticed any evidence to support the charge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and was perhaps persuaded to affirm the conviction on the basis that the prosecutrix belongs to a Scheduled Caste community. The conviction of the appellants under section 3(2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)Act, 1989 must, therefore, be set aside." (12). In Gorige Pentaiah vs. State of Andhra Pradesh and Ors., reported in JT 2008(9) SC 543, it has been held as follows: "In the instant case, the allegation of respondent No. 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 accused-appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he (respondent No.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 accused appellant was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimidated with intent to humiliate respondent No. 3 in a place within public view. When the basis 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." (13). Accordingly, there cannot be any applicability of the provisions of section 3(1) of the said Act 1989. The applications succeed and are allowed. (14). The order dated 8th June, 2009 parsed by learned ACJM, Alipore is set aside. The case shall be tried in a regular manner in respect of the offences under the Indian Penal Code. (15). The two applications are thus allowed tu the extent that the case shall be tried in a regular manner in respect of the offences under the IPC. The case shall be tried in a regular manner in respect of the offences under the Indian Penal Code. (15). The two applications are thus allowed tu the extent that the case shall be tried in a regular manner in respect of the offences under the IPC. The prayer for quashing of the entire criminal proceeding is however refused. (16). Urgent xerox certified copy, if applied for, be given to the parties as expeditiously as possible. Appeals allowed.