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2010 DIGILAW 493 (BOM)

Kamlakar Ratnakar Shenoy v. State of Maharashtra

2010-03-30

B.R.GAVAI

body2010
JUDGMENT As these applications give rise to common questions of law and facts, they were heard together and are being disposed of by this common judgment. 2. In Criminal Application No.1899 of 2008, the applicant challenges the F.I.R. dated 9.4.2008 registered with MRA Marg police station vide C.R.No.1526/2008 under section 3(1)(viii), 3(1)(ix) and 3(2)(ii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the "said Act") and subsequent filing of the charge-sheet and institution of proceedings being Criminal Case No.184/PW/2008 in the Court of the learned Chief Metropolitan Magistrate's 30th Court, Ballard Pier, Mumbai. In Criminal Application No.1898 of 2008, the applicant challenges the F.I.R. dated 29.4.2008 registered with Nalasopara police station vide C.R.No.II/33/2008 under section 3(1)(viii) and 3(1)(ix) of the said Act. In Criminal Application No.1898 of 2008, the F.I.R. is registered at the instance of the respondent no.2 making almost similar allegations as have been made in the proceedings initiated in Criminal Application No.1899 of 2008. 3. The facts in brief giving rise to the present applications are as under:- It appears that both the applicant and the respondent no.2 herein were jointly engaged in various business activities. However, it appears that subsequently there arose disputes between them and their relations were severely strained. It appears that alleging that various irregularities were committed by the respondent no.2 and others in the business activities carried on by them in the name of various organisations, a petition came to be filed before this Court being Criminal Writ Petition No.2021 of 2005 for directing registration of F.I.R. against the respondent no.2 and his associates. However, this Court vide order dated 6.2.2006 disposed of the petition on the ground that the petitioner has an alternate remedy to approach the learned Metropolitan Magistrate and seek investigation under section 156(3) of the Cr.P.C. The petition was, therefore, disposed of by relegating the petitioner to the alternate remedy. After disposal of the petition, a complaint came to be filed by the present applicant in the Court of the learned Metropolitan Magistrate's 38th Court, Ballard Pier, Mumbai, being Criminal Case No.95/MISC/2006. In the said case, apart from the respondent no.2, various other persons have been made as accused. After disposal of the petition, a complaint came to be filed by the present applicant in the Court of the learned Metropolitan Magistrate's 38th Court, Ballard Pier, Mumbai, being Criminal Case No.95/MISC/2006. In the said case, apart from the respondent no.2, various other persons have been made as accused. In the said complaint, which is filed for the offences under sections 197, 198, 217, 218, 406, 420, 465, 467, 468, 471, 120-B read with 34 of the I.P.C., an investigation under section 156(3) was directed by the learned Magistrate. After completion of the investigation, a detailed inquiry report came to be submitted by the learned Magistrate requesting for grant of 'C' summary. The learned Magistrate vide order dated 15.3.2008 granted 'C' summary. It further appears that the said order of grant of 'C' summary was challenged before this Court by way of Criminal Writ Petition No.980 of 2008. The learned single Judge vide order dated 6.8.2008 dismissed the said petition. A S.L.P. challenging the same is also dismissed. Thereafter, a complaint came to be filed by the present applicant in MRA Marg police station for offences punishable under sections 3(1)(viii), 3(1)(ix) and 3(2)(ii) of the said Act. In a nutshell, the grievance of the respondent no.2 appears to be that the present applicant has filed various false, malicious or vexatious proceedings against the respondent no.2 who belongs to Scheduled Caste and, as such, has committed an offence punishable as aforesaid. It appears that initially the applicant had filed the present application only for challenging the F.I.R. However, during the pendency of the present application, the charge-sheet also came to be filed and the case instituted before the learned Magistrate. The application is, therefore, amended so as to challenge the charge-sheet and so also the proceedings before the learned criminal Court. 4. Mr.Naik, the learned counsel appearing on behalf of the applicant, submits that a bare perusal of the police report would reveal that the allegations made by the applicant have not been found to be false or vexacious. It is submitted that 'C' summary has been recommended since on account of the matter being old and the records being not available, the veracity of the allegations of the applicant could not be found out and, as such, it was difficult to establish the allegations as true or false. It is submitted that 'C' summary has been recommended since on account of the matter being old and the records being not available, the veracity of the allegations of the applicant could not be found out and, as such, it was difficult to establish the allegations as true or false. The learned counsel submitted that unless it is found that the legal proceedings initiated are false or vexacious, the proceedings under section 3(1)(viii) would not be maintainable. The learned counsel, on the contrary, submits that some of the allegations have been found to be prima facie correct. However, since on account of proof, the Investigating Officer could not come to a conclusion that the proceedings were true or false has recommended 'C' summary. He, therefore, submitted that the proceedings under section 3(1)(viii) are without any substance. Since the information given by the applicant is not false or frivolous, the said section could not be invoked. The learned counsel further submits that insofar as section 3(2)(ii) is concerned, there is no material to show that the applicant had fabricated false evidence so as to prima facie establish the involvement of the respondent no.2 for the offence punishable under the said section and, therefore, invocation of the said section is also without any substance. Mr.Naik for the applicant further submits that for the offences under the said Act, it is necessary that the offence alleged ought to be with an intention or knowledge that the victim belongs to Scheduled Caste or Scheduled Tribe. He submits that there is no material at all to establish that the offence alleged has been done with an intention or knowledge that the victim belongs to Scheduled Caste or Scheduled Tribe. 5. Mr.Mundargi, the learned senior counsel appearing for the respondent no.2, submits that upon investigation of the crime in question, the investigating agency has found that a prima facie case to implicate the present applicant for the offences charged with has been made out and has also filed a charge-sheet. The learned counsel submits that at this stage, it is not permissible to scrutinise the evidence so as to find out whether a case for conviction of the accused has been made out or not. He submitted that what is relevant is whether a triable case has been made out or not. The learned counsel submits that at this stage, it is not permissible to scrutinise the evidence so as to find out whether a case for conviction of the accused has been made out or not. He submitted that what is relevant is whether a triable case has been made out or not. He, therefore, submits that since upon perusal of the chargesheet, it can be seen that a triable case has been made out, the present applications deserve to be dismissed. 6. The relevant provisions of the said Act are reproduced hereinbelow: "3. Punishment for offences of atrocities.-(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- (i) ............... (ii) ............... (iii) ............... (iv) ............... (v) ............... (vi) ............... (vii) ............... (viii) institutes false, malicious or vexatious suit or criminal or other legal proceedings against a member of a Scheduled Caste or a Scheduled Tribe; (ix) gives any false or frivolous information to any public servant and thereby causes such public servant to use his lawful power to the injury or annoyance of a member of a Scheduled Caste or a Scheduled Tribe; (x) ............... (xi) ............... (xii) ............... (xiii) ............... (xiv) ............... (xv) ............... (2) Whoever, not being a member of a scheduled Caste or a Scheduled Tribe,- (i) ............... (ii) gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offence which is not capital but punishable with imprisonment for a term of seven years or upwards, shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to seven years or upwards and with fine;" 7. It is to be noted that the proceedings which are the subject-matter of the present applications are only at the stage of filing of charge-sheet. Thus, what would be relevant at this stage is as to whether the prosecution case taken at its face value, is such which can, by no stretch of imagination, lead to the conviction of the accused. As to whether the defence of the accused is acceptable or not cannot be gone into at this stage. Thus, what would be relevant at this stage is as to whether the prosecution case taken at its face value, is such which can, by no stretch of imagination, lead to the conviction of the accused. As to whether the defence of the accused is acceptable or not cannot be gone into at this stage. The only scrutiny that would be permissible is as to whether the material on which the prosecution relies points towards a triable case or not. 8. Insofar as the contention of the learned counsel for the applicant that for the offences with which the applicant is charged, it is necessary that there has to be material to prima facie establish that the offence was committed with an intention or knowledge that the victim belongs to Scheduled Caste or Scheduled Tribe is concerned, I am of the view that the said contention is without any substance, insofar as the offence punishable under section 3(1)(viii) and (ix) is concerned. A plain reading of section 3(1)(viii) would reveal that the ingredients to constitute the said offence are as under:- (i) That the offender would not be one who is a member of the Scheduled Caste or Scheduled Tribe. (ii) Institution of false, malicious or vexacious suit or criminal or other legal proceedings. (iii) Institution of such a proceeding should be against a member of Scheduled Caste or Scheduled Tribe. Likewise, the ingredients to constitute an offence under section 3(1)(ix) would be as under:- (i) That the offender would not be one who is a member of the Scheduled Caste or Scheduled Tribe. (ii) Giving of any false or frivolous information to any public servant and thereby causing such public servant to use his lawful power to the injury or annoyance of a member of a Scheduled Caste or a Scheduled Tribe. (iii) That injury or annoyance must be for a member of the Scheduled Caste or the Scheduled Tribe. 9. It is the principle of interpretation of statutes that literal meaning should be given to the provisions of the statute. (iii) That injury or annoyance must be for a member of the Scheduled Caste or the Scheduled Tribe. 9. It is the principle of interpretation of statutes that literal meaning should be given to the provisions of the statute. From the perusal of the said section, it can clearly be seen that if the contention of the applicant that for prima facie establishing the said offences, it is necessary to show that the same was done with the knowledge or intention that the victim belongs to Schedule Caste or Scheduled Tribe is to be accepted it cannot be done without adding something which is not provided in the statute. It can further be seen that in the same statute, the Legislature has clearly provided 'intention' or 'knowledge' being one of the ingredients to constitute the offences whenever the Legislature has so intended. For example, even in the present case, for an offence punishable under section 3(2)(ii), the intention and knowledge is an essential ingredient. It can clearly be seen that insofar as the offence punishable under section 3(1)(i), (iii), (iv), (v), (vi), (vii), (viii) and (ix), (xii), (xiii), (xiv) and (vi) are concerned, the Legislature has not provided any intention or knowledge as ingredient of the offence. However, insofar as section 3(1)((ii), (x) and (xi) are concerned, the Legislature has provided intention as one of the ingredients of the offence. It can further be seen that insofar as the offence punishable under sub-section (2) of section 3 is concerned, for almost all the offences i.e. section 3(2)(i), (ii), (iii), (iv) and (vi), knowledge or intention has been provided as one of the ingredients. Insofar as section 3(2)(v) is concerned, the Legislature has provided that the offence shall be made against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member. It can thus clearly be seen that wherever the Legislature intended that intention or knowledge or ground, that the victim belongs to a Scheduled Caste or Scheduled Tribe should be an ingredient of an offence, the same has been specifically provided. In contra-distinction wherever the Legislature did not intend, the intention, knowledge or ground to be an ingredient of an offence, the same has not been provided. 10. In contra-distinction wherever the Legislature did not intend, the intention, knowledge or ground to be an ingredient of an offence, the same has not been provided. 10. In this background, I will have to consider as to whether the ingredients to constitute an offence charged with are available in the present case or not. 11. Though the learned counsel for the applicant has argued at length on the basis of the report submitted by the Investigating Officer under section 156(3), I do not find it appropriate to go into said submissions inasmuch as any finding thereon would prejudicially affect the right of either of the parties. 12. Insofar as the offence punishable under section 3(2)(ii) is concerned, the requirement is that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, gives or fabricates false evidence intending thereby to cause, any member of a Scheduled Caste or a Scheduled Tribe to be convicted of an offence which is not capital but punishable with imprisonment for a term of seven years or upwards. 13. At this stage, it will be relevant to refer to the order passed by the learned Magistrate while granting 'C' summary. The true translation of the operative part of the said order reads thus: "26. Upon perusing the entire records and for the reasons mentioned in the aforesaid Paragraph No.24, I am arriving at a decision (conclusion) that the allegations made by the complainant are without any substance (meaningless), misleading and the same have been made with an intention to cause harassment to the accused, over the personal dispute with the accused persons. This matter was pending for a long time and in that regard investigation was made twice. However in the meantime, the complainant has not produced any evidence corroborative to the allegation or prima facie evidence. On the contrary, at the end of the investigation, it appears that the accused persons have not committed any offence. Moreover, here, it is imperative to mention that no personal loss of property or money has been caused to the Complainant in this matter. Moreover, Nallasopara, Municipal Council, CIDCO as well as other financial institutions and residents have not lodged any kind of complaints against the accused persons. Moreover, here, it is imperative to mention that no personal loss of property or money has been caused to the Complainant in this matter. Moreover, Nallasopara, Municipal Council, CIDCO as well as other financial institutions and residents have not lodged any kind of complaints against the accused persons. In such circumstances, there is no doubt in my mind about sanctioning the said offence to `C' Classification, pursuant to the report submitted by M.R.A. Marg P.Stn for `C' Classification. ORDER 'C' Classification has been sanctioned." 14. It is pertinent to note that Criminal Writ Petition filed by the applicant challenging the said order being Criminal Writ Petition No.980 of 2008 has been rejected by this Court vide order dated 6.8.2008. It is further pertinent to note that S.L.P. challenging the said order has also been dismissed by the apex Court. It can thus be seen that the learned Magistrate while granting 'C' summary has prima facie come to the conclusion that the allegations made by the present applicant were without any basis, misleading and made in order to harass the respondent no.2 on account of the personal rivalry between them. The learned Magistrate has also prima facie come to the conclusion that upon investigation, he has found that the accused therein has not committed any offence. It can thus be seen that a prima facie case regarding false, malicious legal proceedings have been made out. It can further be seen that the learned Magistrate has himself come to a prima facie conclusion that the information given by the present applicant on which the machinery was set in motion in the criminal complaint filed by the present applicant was false, without any basis and misleading. It is not in dispute that the applicant-accused is not a member of Scheduled Caste or Scheduled Tribe. It is also not in dispute that the victim belongs to Schedule Caste. It would thus be seen that at least prima facie all the three ingredients to constitute an offence under section 3(1)(ix) have been made out. 15. I am of considered view that the applications are without merit insofar as the charge under section 3(1)(viii) and (ix) is concerned. 16. It would thus be seen that at least prima facie all the three ingredients to constitute an offence under section 3(1)(ix) have been made out. 15. I am of considered view that the applications are without merit insofar as the charge under section 3(1)(viii) and (ix) is concerned. 16. However, perusal of section 3(2)(ii) would reveal that the most important ingredient of the said offence is giving or fabricating false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any member of a scheduled Caste or a Scheduled Tribe to be convicted of an offence. Perusal of the entire charge-sheet would reveal that there is no material at all to show that the present applicant has given or fabricated any false evidence, leave aside, with an intention or knowledge germane to section 3(2)(ii) of the said Act. In that view of the matter, I find that insofar as the charge for offence under section 3(2)(ii) is concerned, the same is not sustainable in law. Criminal Application No.1899 of 2008 will, therefore, have to be allowed insofar as the said charge is concerned. 17. The rule in Criminal Application No.1899 of 2008 is, therefore, partly made absolute by quashing and setting aside the charge punishable under section 3(2)(ii) of the said Act. Needless to say that the rule in both the applications stands discharged insofar as the other charges are concerned. The rule is, therefore, made partly absolute in Criminal Application No.1899 of 2008 in the aforesaid terms and the rule stands discharged in Criminal Application No.1898 of 2008. The observations made in this judgment are for the purpose of disposal of the applications and the trial Court shall not be influenced by the same. 18. In view of the disposal of Criminal Application No.1899 of 2008, Criminal Application No.232 of 2009 does not survive and the same stands disposed of.