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2009 DIGILAW 95 (BOM)

Kailas Popat Gaikwad v. Tryambak Kanga Khairnar

2009-01-21

S.S.SHINDE

body2009
Judgment: Oral Judgment: This application is filed with prayer to quash and set aside the orders dated 27.8.1998 and 9.9.1998 passed by the Additional Sessions Judge, Dhule in Special Case No. 93/1998. 2. The back ground facts of the case are as under:- The present applicant is original accused and respondent No. 1 is the original complainant. Both are primary teachers in Zilla Parishad, Dhule. 3. It is the case of the applicant that the respondent No. 1 filed complaint under section 504, 506 (1) of the Indian Penal Code and under section 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Act" for brevity) before the Additional Sessions Judge, Dhule bearing Special Case No. 93/1998, alleging that the complainant Tryambak since last 2 years serving as teacher at Nilghavan. The present applicant is first assistant teacher. It is further alleged that the Headmaster of the school is under the influence of present applicant, therefore, even if the complainant came late in the school only by two or four minutes, the applicant used to show him absent in the absence of Headmaster. 4. On16.1.1998 complainant was asked by Headmaster Shri.Yadhav-Patil in presence of students. The Headmaster made inquiry in respect of late coming by the complainant to the school. It is further case of the applicant that complainant requested the Headmaster to give warning to the applicant from abusing the complainant on the ground of caste. It is further case of the applicant that the applicant threatened the complainant of imputing the hands and legs of the complainant. The said incident was witnessed by one Pitamber Keru and Kamalabai Razar. 5. On 17.1.1998 the applicant again threatened the complaint with his life. The complainant filed complaint with the Deputy Superintendent of Police, apprehending danger to his life. The complainant left the school for 15 days and extended leave for three and half months. However, it was not possible further to extend the leave. He joined the duties on 27th April, 1998. 6. The complainant went to village Sakri and asked accused No.2 G.N.Patil, Block Development Officer, to allow him to join the duties. At that time, the accused No. 2 asked the complainant for withdrawing his complaint filed with Deputy Superintendent of Police and then only he will be allowed to join the services. 7. 6. The complainant went to village Sakri and asked accused No.2 G.N.Patil, Block Development Officer, to allow him to join the duties. At that time, the accused No. 2 asked the complainant for withdrawing his complaint filed with Deputy Superintendent of Police and then only he will be allowed to join the services. 7. It is further case of the complainant that the Senior Officers have directed for not to pay salary of the complainant. In such a situation, on 1st June, 1998 complainant went to Sakri Police Station for filing a complaint. But, the P.S.O. refused to take out the complaint. It is further case of the complainant that he has also filed application with C.E.O. and Education Officer, Zilla Parishad, even then no salary was paid to the complainant nor the complainant is allowed to join his services. On all these allegations, the complaint was filed by the complainant before the District & Sessions Judge and Special Court, Dhule. 8. The learned Sessions Judge after examining the witnesses, directed the office to register the complaint filed by the complainant after following due process. By order dated 27.8.1998 the Sessions Court held that the Special Court is competent to take cognizance of the complaint. The complaint, therefore, be registered by the office after following due process. The learned Sessions Judge by its order dated 9.9.1998 issued process against the accused No.1 Kailas Popat Gaikwad, who is present applicant, for offence punishable under sections 504, 506(1) of Indian Penal Code and under section 3(1)(X) of the Act of 1989. 9. Beingaggrieved by both the orders passed by the Additional Sessions Court, Dhule this Criminal application is filed by the applicant. 10. The learned counsel appearing for the applicants submitted that the proper procedure which was required to be followed, has not been followed by the Additional Sessions Judge while directing the office to register the complaint. It is further submitted that the Sessions Judge has no jurisdiction to entertain and try the offence under section 3(1)(x) of the Act. It is further submitted that the complainant has not led any evidence in support of his contention and not made prima facie case on merits against the present applicant. It is further submitted that the Sessions Judge came to the wrong conclusion that there is prima facie case against the present applicant. It is further submitted that the complainant has not led any evidence in support of his contention and not made prima facie case on merits against the present applicant. It is further submitted that the Sessions Judge came to the wrong conclusion that there is prima facie case against the present applicant. It is further submitted that the private complaint or chargesheet cannot be filed directly before the Sessions Court. He further submitted that this Court in case of Nana Narayan Shinde and others V. State of Maharashtra reported in 2000 Cri.L.J. 4778, has taken a view that no direct complaint or chargesheet can be filed before the Sessions Judge or Special Court as the case may be. It is further submitted that the Special Court cannot take cognizance of the offence under section 3(1)(X) of the Act. It can deal with the matter after only committal by the Magistrate. Therefore, the impugned order passed by the Additional Sessions Judge, Dhule, directing to register the complaint and issuance of process, is required to be quashed and set aside. It is further submitted that the Additional Sessions Judge has ignored the view taken by the various High Courts including Bombay High Court and Supreme Court that the private complaint or charge sheet can not be filed before the Special Court directly. It is further submitted that the Sessions Court, while entertaining the complaint, has not followed the proper procedure as contemplated under law and therefore, the Sessions Court was not justified in directing to register the complaint and issuing the process against the present applicant. Therefore, it is prayed that both the orders dated 27.8.1998 and 9.9.1998, directing to register the complaint and issuance of the process, passed by the Additional Sessions Judge, Dhule in Special Case No. 93/1998 may be quashed and set aside. 11. The learned counsel appearing for the respondent No. 1 supported the order passed by the Additional Sessions Judge. He submitted that even if the provisions under the Act of 1989 and Criminal Procedure Code are read as it is, the Additional Sessions Judge can entertain the complaint directly. According to him, the order passed by the Additional Sessions Judge, directing to register the complaint and issuance of process is perfectly justified and sustainable in law. He submitted that even if the provisions under the Act of 1989 and Criminal Procedure Code are read as it is, the Additional Sessions Judge can entertain the complaint directly. According to him, the order passed by the Additional Sessions Judge, directing to register the complaint and issuance of process is perfectly justified and sustainable in law. He further submitted that in case, this Court comes to the conclusion that the Additional Sessions Judge was not correct in entertaining the complaint directly and issued the process on the basis of said complaint, in that case, the present respondent No. 1 may be given liberty to file a complaint before the appropriate Judicial Magistrate. 12. The learned A.P.P. also appeared and made submissions. 13. I have perused the contents of the application, orders passed by the Additional Sessions Judge, other documents placed on record by the applicant, record available for perusal and after hearing the learned counsel appearing for the respective parties, I am of the view that the point raised in this application is no more res-integra. This Court in case of Nana Narayan Shinde and others Vs. State of Maharashtra, reported in 2000 Cri.L.J. 4778, in para 23 held that :- “ Special Court constituted under the provisions of Act of 1989 has no original jurisdiction. It can take cognizance of the offence punishable under the provisions of the Act of 1989 only after the case is committed to it by the Magistrate in accordance with the provisions of the Criminal Procedure Code. A private complaint or a chargesheet cannot be filed before the Special Court directly.” 14. In the present case, it is admitted position that the complaint was directly filed before the Sessions Judge and same was directed to be registered and process was issued by the Additional Sessions Judge. In my considered view, in view of the law led down by this Court in above mentioned judgment, the point raised in this application is covered. 15. In the result, the application is allowed. Orders dated 27.8.1998 and 9.9.1998 passed by the Additional Sessions Judge, Dhule in Special Case No.93/98 are quashed and set aside. However, it is made clear that if the respondent No. 1 wish to file the complaint before the appropriate for am, as permissible in law, he can do so. The application is disposed of