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2014 DIGILAW 2463 (BOM)

Rahul v. State of Maharashtra

2014-12-12

S.B.SHUKRE

body2014
JUDGMENT : S.B. Shukre, J. 1. Heard. 2. Admit. 3. Heard finally by consent of the parties. 4. The facts giving rise to the present criminal revision application are stated in brief as under : (i) On 16.12.2013, the respondent No. 2 herein lodged a report with the Police Station Ajni, Nagpur alleging that the Research Officer-Sharad Shankarrao Chavan attached to Gadchiroli Caste Scrutiny Committee using derogatory and humiliating language against the members belonging to Mana, Schedule Tribes Community, based upon a false and frivolous information, caused injury and annoyance to the members of the Mana, Schedule Tribes and thus committed an offence punishable under Section 3(1)(ix) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as, "the Atrocities Act"). (ii) The subject matter of the report lodged with Police Station Ajni, pertained to an area within the jurisdiction of Police Station Gadchiroli and, therefore, it was sent by Nagpur Police on 19.12.2013 to Superintendent of Police, Gadchiroli for taking necessary action in accordance with law. On receipt of the same, the Superintendent of Police, Gadchiroli, instead of sending the report first to the concerned Police Station for registration of the offence, forwarded the report dated 16.12.2013 to the applicant by his letter dated 31.12.2013 for making necessary inquiry and submitting his report to the Office of the Superintendent of Police, Gadchiroli. At that time, the applicant was functioning as Sub-Divisional Police Officer, Gadchiroli. (iii) It appears that the applicant, on receipt of the letter of Superintendent of Police, Gadchiroli on 31.12.2013 did not make any inquiry and simply informed the Superintendent of Police, Gadchiroli by his letter dated 13.1.2014 that the report be filed. It also appears that the applicant confused the present report filed for registration of offence punishable under Section 3(1)(ix) of the Atrocities Act with another report being Crime No. 3038/2012 registered at Police Station Gadchiroli on 19.6.2012 for an offence punishable under Section 3(1)(x) of the Atrocities Act, wherein the informant was a person different than the respondent No. 2. The name of the informant was Devidas Varuji Jambhule. The name of the informant was Devidas Varuji Jambhule. The applicant probably thought that the allegations made in Crime No. 3038/12 were similar to the allegations made in the report dated 16.12.2013 by respondent No. 2 and thought that since the Crime No. 3038/12 was already being inquired into by him, it was not necessary for him to make a separate inquiry in the present report dated 16.12.2013. This can be seen from the remarks in paragraphs 3 and 4 of the letter dated 13.1.2014 sent by the applicant to the Superintendent of Police, Gadchiroli. (iv) After sending the letter dated 13.1.2014, applicant received one letter dated 19.3.2014 from the respondent No. 2, wherein the respondent No. 2 alleged that the applicant, though directed by the Superintendent of Police, Gadchiroli, did not make inquiry which he was duty bound to make under the provisions of the Atrocities Act and failed to perform his duty in a lawful manner. The respondent No. 2 also called upon the applicant to make necessary inquiry within 7 days and cautioned that his failure to do so would lead to registration of offence punishable under Section 4 of the Atrocities Act. (v) It appears that thereafter, applicant sent another letter on 20th March, 2014 to Police Station Officer, Gadchiroli. By this letter applicant forwarded the original report dated 16.12.2013 to the Police Station Gadchiroli and also directed the Police Station Officer to make inquiry into the matter and submit the inquiry report to him while intimating the result of the inquiry also to respondent No. 2. (vi) The Police Station Officer, Gadchiroli thereupon made an inquiry into the matter and sent his report by letter dated 3.5.2014 to the applicant thereby informing him that his inquiry revealed that there was no prima facie substance in the allegations made in the report dated 16.12.2013. Upon receipt of this letter, about which there is no dispute, it appears that the present applicant did not take any action in the sense the right upper at he neither passed any order accepting the report or otherwise nor forwarded this report of Police Station Officer, Gadchiroli to Superintendent of Police, Gadchiroli. Upon receipt of this letter, about which there is no dispute, it appears that the present applicant did not take any action in the sense the right upper at he neither passed any order accepting the report or otherwise nor forwarded this report of Police Station Officer, Gadchiroli to Superintendent of Police, Gadchiroli. Aggrieved by this attitude of the applicant, respondent No. 2 filed a criminal complaint before the Court of Chief Judicial Magistrate, Gadchiroli urging him to set the law in motion by issuing process for an offence punishable under Section 4 of the Atrocities Act. Learned Chief Judicial Magistrate found that as respondent No. 2 failed to establish that the applicant was in law under any duty to take action and therefore held that allegations made against the applicant were groundless and accordingly dismissed the complaint in view of the provision of Section 203 of the Code of Criminal Procedure, on 16.6.2014. (vii) Not satisfied with the order, the respondent No. 2 preferred a revision application before the Court of Sessions Judge, Gadchiroli which was registered as Criminal Revision Application No. 21/2014. Learned Sessions Judge after considering the merits of the arguments advanced before him, disagreed with the reasons given by the learned Chief Judicial Magistrate and found that there was prima facie substance in the complaint and as such by his order passed on 9th September, 2014 quashed and set aside the order dated 16.6.2014 of learned Chief Judicial Magistrate and directed him to proceed with the complaint as per the provisions of law. This time, it were the applicant who has felt aggrieved and therefore, he is before this Court in the present revision application. 5. Learned counsel for the applicant has submitted that basically there was no order issued by Superintendent of Police, Gadchiroli in accordance with law appointing the present applicant as Investigating Officer in this case and, therefore, as rightly held by learned Chief Judicial Magistrate, applicant was not at all under a duty in law to make inquiry into the matter and thus it cannot be said that there was any failure or neglect to perform the duty by the applicant. He submits that there is a format of order to be issued under Rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (hereinafter referred to as "the Atrocities Rules) framed under the provisions of Atrocities Act in which the order appointing Sub-Divisional Police Officer as the Investigating Officer must be issued. He submits that the letter dated 31st December, 2013, can by no stretch of imagination, be construed to be an order issued in accordance with Rule 7. His another contention is that even if it is presumed that it was an order issued in accordance with law, still it cannot be said that the applicant has failed to perform his duty and, therefore, no offence can be said to have been made out under Section (4) of the Atrocities Act against the applicant. 6. Learned counsel for the respondent No. 2 submits that the arguments canvassed on behalf of the applicant are misconceived. According to him, the letter dated 31.12.2013 in its purport and effect is nothing but an order issued in accordance with the spirit of Rule 7 and therefore, ought to have been considered accordingly by the applicant. He submits that even the reasons given by the applicant in his letter dated 13.1.2014 requesting the superintendent of Police to file report dated 16.12.2013 are preposterous inasmuch as they indicate utter disrespect regard for the provisions of law and also neglect to perform duty imposed upon the applicant under the provisions of the Atrocities Act. He also submits that even though some correction was tried to be made by the applicant when he wrote on 20th March, 2014 to the Police Station Officer of Police Station Gadchiroli to make inquiry and submit his inquiry report in the matter, later on when he received the report dated 3rd May, 2014 of the Police Station Officer, Gadchiroli, the applicant did not act any further and thus, from that point onward the applicant certainly has failed and neglected to perform his duty. Such failure of the applicant, according to the learned counsel for the respondent No. 2, would fall within the scope and ambit of Section 4 of the Atrocities Act. He, therefore, submits that the order passed by the learned Sessions Judge is completely legal and cannot be said to be perverse or arbitrary so as to warrant interference with it. 7. He, therefore, submits that the order passed by the learned Sessions Judge is completely legal and cannot be said to be perverse or arbitrary so as to warrant interference with it. 7. Learned Additional Public Prosecutor for respondent/State has submitted that appropriate order be passed in the matter. 8. The first contention of the applicant regarding the letter dated 31.12.2013 being not an order issued under Rule 7 of the Atrocities Rules framed under the Atrocities Act cannot be accepted. Although, it is true that this letter has not been issued in conformity with the form prescribed for issuance of an order under Rule 7, upon a careful perusal of this letter I find that it indicates nothing but a direction issued to the applicant by a competent officer for making inquiry into the report filed under the provisions of the Atrocities Act and submit his report to it. This letter dated 31.12.2013 clearly shows that the Superintendent of Police, Gadchiroli, the competent authority, had forwarded the report dated 16.12.2013 with a direction that the inquiry be made in accordance with rules, emphasis supplied on Rules, and inquiry report be submitted to his Office. When a direction has been issued to make inquiry in accordance with the Rules, it has to be construed as an order passed in conformity with the rules, particularly Rule 7 of the Atrocities Rules. Therefore, after receipt of this letter containing a direction issued under Rule 7, a duty was cast upon the applicant to make an inquiry in accordance with law and this duty, as it appears from the letter dated 13.1.2014 sent by the applicant to the Superintendent of Police was not performed by him. If the applicant was under an impression that an order in conformity with the prescribed form was necessary, nothing had prevented the applicant from bringing this fact to the notice of the Superintendent of Police, Gadchiroli. If the applicant was of the opinion that first offence ought to have been registered at Police Station Gadchiroli and then order under Rule 7 should have been issued, the applicant was free to communicate his such opinion to the Superintendent of Police, Gadchiroli. If the applicant was of the opinion that first offence ought to have been registered at Police Station Gadchiroli and then order under Rule 7 should have been issued, the applicant was free to communicate his such opinion to the Superintendent of Police, Gadchiroli. But, the applicant did not do so and, therefore, one must say that the applicant at this point of time was in the wrong box which displayed his failure and neglect to perform duty cast upon him under the provisions of the Atrocities Act. 9. However, the matter does not end here and further developments which took place in this case require consideration by this Court. It appears that the applicant received a letter dated 19.3.2014 from the respondent No. 2 accusing him of failure to perform duty under the Atrocities Act and also warning him that his such failure, unless he made any amends, would lead to filing of a complaint against him under Section 4 of the Atrocities Act. It was at this point of time, the applicant appears to have woken up to the need for performance of duty and, therefore, he shot a letter dated 20th March, 2014 to the Police Station Officer, Gadchiroli directing him to make inquiry and submit his report in the matter. Learned counsel for the respondent No. 2 submits that the duty cast upon the Sub-Divisional Police Officer is about making of inquiry by himself and not shifting the responsibility for the same upon somebody else. I do not think that the Sub-Divisional Police Officer in directing the Police Station Officer, Gadchiroli Police Station to make inquiry into the matter had shrugged off his responsibility. The reason being that while making an inquiry, a Sub-Divisional Police Officer is at liberty to take assistance from all concerned which would include a Police Station Officer of the concerned Police Station. By directing the Police Station Officer, Gadchiroli to make an inquiry and submit his report, the Sub-Divisional Police Officer has only sought assistance of an officer who was in a better position to make more effective inquiry than himself as the alleged offence had been committed in the area over which Police Station Gadchiroli had jurisdiction. By directing the Police Station Officer, Gadchiroli to make an inquiry and submit his report, the Sub-Divisional Police Officer has only sought assistance of an officer who was in a better position to make more effective inquiry than himself as the alleged offence had been committed in the area over which Police Station Gadchiroli had jurisdiction. Upon receipt of the inquiry report from the Police Station Officer, further inquiry could possibly have been made by the applicant and, therefore, I find no substance in the argument that the applicant had shirked his responsibility altogether in the matter. Thus, from the letter dated 20th March, 2014 what can be seen is that the applicant corrected his mistake and initiated inquiry into the matter. Therefore, the lapse committed and the neglect shown by the applicant at the initial stage had been amended by the applicant subsequently. Now from this stage onwards that we have to consider whether the neglect or failure to perform the duty by the applicant was continued or not. 10. On 3rd May, 2014, the Police Station Officer, in response to the direction given to him by the applicant vide his letter dated 20th March, 2014, had sent his report to the applicant. This report disclosed that the inquiry made by the Police Station Officer, Gadchiroli did not yield any material warranting registration of the offence alleged against Sharad Shankarrao Chavan in the report dated 16.12.2013. Therefore, the Police Station Officer, Gadchiroli opined that there was no substance in those allegations. Now, as rightly submitted by the learned counsel for the respondent No. 2, some action on this report was expected to be taken by the applicant and there is no record available to show that any action on this report dated 3rd May, 2014 was taken by the applicant. Learned counsel for the applicant also could not show to me any material indicating that the applicant had acted in one way or the other on the report dated 3rd May, 2014. If the applicant had not acted upon this report, an inference of continued failure or neglect to perform duty under the Atrocities Act would certainly be there. But, before we come to any final conclusion, it is also necessary to take into account subsequent developments. 11. If the applicant had not acted upon this report, an inference of continued failure or neglect to perform duty under the Atrocities Act would certainly be there. But, before we come to any final conclusion, it is also necessary to take into account subsequent developments. 11. It appears that after receipt of the report dated 3rd May, 2014 the applicant did not take any action, in the sense that he neither accepted the report nor rejected the report nor sought any guidance or directions from the Superintendent of Police, Gadchiroli. In other words, the applicant seems to have kept the report dated 3rd May, 2014 under wraps and pending with him. Some time thereafter, the complainant i.e. respondent No. 2 filed a complaint before the Court of Chief Judicial Magistrate, Gadchiroli requesting the Chief Judicial Magistrate to take action against the person, Sharad Shankarrao Chavan, accused to have committed an offence punishable under Section 3(1)(ix) of the Atrocities Act. This complaint was dismissed by the Chief Judicial Magistrate, Gadchiroli against which a revision application was preferred by the respondent No. 2 before the Sessions Judge, Gadchiroli. The Sessions Judge, Gadchiroli allowed this revision application and quashed and set aside the order of dismissal of the complaint filed by the respondent No. 2 against Sharad Shankarrao Chavan and directed the Chief Judicial Magistrate, Gadchiroli to proceed in the matter in accordance with law. Thus, by an order of Sessions Judge, Gadchiroli the complainant or respondent No. 2 succeeded in achieving what he could not achieve by filing a report against Sharad Shankarrao Chavan on 16.12.2013 and pursuing the matter with the present applicant. 12. As the respondent No. 2 succeeded in setting the law into motion, the respondent No. 2 also simultaneously filed another complaint under Section 4 of the Atrocities Act against the present applicant urging the Chief Judicial Magistrate, Gadchiroli to proceed against him in accordance with law. As stated earlier, this complaint was dismissed and later on it was restored by an order of the Sessions Judge passed in Criminal Revision Application No. 21/2014, on 9th September, 2014. As stated earlier, this complaint was dismissed and later on it was restored by an order of the Sessions Judge passed in Criminal Revision Application No. 21/2014, on 9th September, 2014. While these legal proceedings were going on, the order of the Sessions Judge, Gadchiroli restoring the complaint filed against Sharad Shankarrao Chavan before the Chief Judicial Magistrate, Gadchiroli came to be challenged before this Court in the criminal revision application bearing Criminal Revision No. 138 of 2014 filed by Sharad Shankarrao Chavan. After hearing rival parties, this Court quashed and set aside the order of the Sessions Judge, Gadchiroli and confirmed the order of dismissal of the complaint against Sharad Shankarrao Chavan, passed by the Chief Judicial Magistrate, Gadchiroli by its Judgment rendered on 27th November, 2014. This development would raise a question that if the complaint which lies at the base of whole issue involved in this case itself has been dismissed, whether the applicant could be said to have neglected or failed to perform his duty in the matter, when he did not pass any specific order on the inquiry report dated 3rd May 2014 and kept the report pending with him. 13. The answer to the issue would obviously be in the negative. The reasons are not too for to seek. Even though the applicant did not take any specific action, though under a duty in law to take it upon the report dated 3rd May, 2014, if the complaint which lies at the root of the whole issue itself has been found to be groundless and has been dismissed by the learned Chief Judicial Magistrate, Gadchiroli, which order has also been confirmed by this Court, the inaction of the applicant cannot be said to be falling within the expression "willful neglect of duty," an essential ingredient of the offence punishable under Section 4 of the Atrocities Act. The applicant had kept the matter pending as he did not pass any order on the report and during pendency of the matter, as a subsequent development, the complaint itself was found to be groundless by Courts of law. In a given case, keeping a matter pending for inordinately long time can amount to willful neglect of duty. The applicant had kept the matter pending as he did not pass any order on the report and during pendency of the matter, as a subsequent development, the complaint itself was found to be groundless by Courts of law. In a given case, keeping a matter pending for inordinately long time can amount to willful neglect of duty. But, as the complaint itself has been dismissed by a Criminal Court, no mala fides can be attributed to the applicant and, therefore, no willful act on his part can be found in keeping the matter pending. 14. The learned Sessions Judge did not consider the aspect of failure or neglect to perform the duty in its proper perspective. In the circumstances noted in earlier paragraph, it is difficult to imagine that the applicant could have been held to be liable for willful neglect or performance of the duty. Therefore, the order impugned herein has to be termed as illegal and arbitrary and it deserves to be quashed and set aside. That apart the subsequent developments as discussed earlier have also rendered the whole issue infructuous. 15. Accordingly, the revision application is allowed and the impugned order dated 9th September, 2014, passed by the learned Sessions Judge, Gadchiroli is hereby quashed and set aside. 16. The order passed by the learned Chief Judicial Magistrate, Gadchiroli on 16.6.2014 dismissing the complaint under Section 203 of the Criminal Procedure Code is hereby confirmed.