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2018 DIGILAW 719 (ORI)

Lakshmi Narayan Das v. State of Orissa

2018-08-07

S.K.SAHOO

body2018
JUDGMENT : S. K. SAHOO, J. 1. "Caste has killed public sprit. Caste has destroyed the sense of public charity. Caste has made public opinion impossible. Virtue has become caste ridden and morality has become caste-bound. Caste is a state of mind. It is a disease of mind. The teachings of the Hindu religion are the root cause of this disease. We practice casteism and we observe untouchability because we are enjoined to do so by the Hindu religion. A bitter thing cannot be made sweet. The taste of anything can be changed. But poison cannot be changed into nectar." Bharat Ratna Dr. Bhimrao Ramji Ambedkar The petitioner Lakshmi Narayan Das is the retired District Inspector of Schools, Aska and he has knocked at the portals of this Court in challenging the order dated 16.01.2010 of the learned J.M.F.C., Aska passed in G.R. Case No.156 of 2008 in taking cognizance of offences under section 294 of the Indian Penal Code and section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereafter 1989 Act') and issuance of process against him. The said case arises out of Aska P.S. Case No.109 of 2008. 2. On 30.04.2008 Smt. Ahalya Patra and others lodged the first information report before theInspector in charge of Aska police station alleging therein that on that day at about 11.00 a.m. while they along with other Sikshya Sahayaks met the petitioner in his office and asked him as to whether he had been to meet the Director of Odisha Primary Education Programme Authority (hereafter 'OPEPA'), the petitioner all on a sudden got frowned and abused the informants and their companions in filthy language such as, "you are low caste people, Hadi, Pana, Dhoba and one would not get food if he looks at you. We are Brahmin by caste and we have to change our sacred thread if we touch you". So saying, the petitioner spitted for two to three times and further told "you and your husband Maghia, Sala. You are doing politics and your future would be ruined. Nobody including no police station, Court and even the Education Department can do anything and your lives would be finished with the help of goondas". So saying, the petitioner spitted for two to three times and further told "you and your husband Maghia, Sala. You are doing politics and your future would be ruined. Nobody including no police station, Court and even the Education Department can do anything and your lives would be finished with the help of goondas". It is further stated in the first information report that on many occasions, the informants and others had met the petitioner who told them to meet him alone separately in his house and after he would be satisfied financially as well as physically, he would do the needful. The petitioner demanded Rs.1,500/- from each of the Sikshya Sahayaks even though they appealed before him that they are poor persons and would not be in a position to arrange money and requested him to complete the formalities. The petitioner did not pay any heed to the request of the informants rather made false allegation against them and threatened them to see that they would not be able to undergo training. The petitioner told that since the informants did not fulfill his demand, he would not do any of their works so long as he was holding the post of District Inspector of Schools and that he has got connection with political leaders and he would see who would help them. The petitioner further told the informants that he would institute false criminal cases and the informants would be sent to jail and no Scheduled Caste and Scheduled Tribe leader would save them and if contingency arises, he would make their service files go 'missing'. On the basis of such first information report, Aska P.S. Case No.109 of 2008 was registered under sections 294, 506 of the Indian Penal Code and section 3(1)(x) of 1989 Act. After registration of the case by the Inspector in charge of Aska police station, Sub-Inspector of Police P.K. Sahu was entrusted with investigation of the case. He examined the informants, visited the spot which was the office of D.I. of Schools situated at Niranjan Nagar, Aska. On 15.05.2008 Sri B.P. Dehury, Deputy Superintendent of police, Aska took up investigation of the case as per the official order of the Superintendent of Police, Ganjam. After verification of the case records received from the previous investigating officer, the D.S.P. reexamined all the witnesses and recorded their separate statements. On 15.05.2008 Sri B.P. Dehury, Deputy Superintendent of police, Aska took up investigation of the case as per the official order of the Superintendent of Police, Ganjam. After verification of the case records received from the previous investigating officer, the D.S.P. reexamined all the witnesses and recorded their separate statements. He also visited the spot and the case was supervised by Sri J. Mohapatra, S.D.P.O., Bhanjanagar. On 25.03.2009 the charge of investigation was taken over by Sri B.K. Kamila, S.D.P.O., Aska who sent requisition to the Tahasildar, Aska for obtaining caste particulars of the petitioner as well as the informant party members and received the reports. On completion of investigation, since prima facie case was made out against the petitioner for commission of offences under section 294 of the Indian Penal Code and section 3(1)(x) of 1989 Act, charge sheet was placed. 3. Mr. Sidharth Prasad Das, learned counsel appearing for the petitioner emphatically contendedthat the criminal proceeding has been instituted against the petitioner with malafide intention. He placed reliance in a recent decision of the Hon'ble Supreme Court in case of Dr. Subash Kasinath Mahajan Vrs. The State of Maharashtra reported in (2018) 70 Orissa Criminal Reports (SC) 566, wherein it is held that in respect of offences under the Atrocities Act, to avoid false implication, before F.I.R. is registered, preliminary inquiry may be conducted by the D.S.P. to find out whether the allegations make out a case under the Atrocities Act and that the allegations are not frivolous or motivated. It is the contention of the learned counsel that since no preliminary inquiry has been conducted by the Designated Officer before the registration of the first information report, the institution of the case is bad and defective which goes to the root of the matter. Learned counsel further pleaded that while the petitioner was working as Dist. Inspector of Schools, Aska in the district of Ganjam in the year 2008, one Sikshya Sahayak namely Biswanath Sethy was the President of Sikshya Sahayak Association of Aska Education District. As per the notification of the Department of Schools and Mass Education, Govt. of Odisha, there was restriction to transfer the Sikshya Sahayaks from one centre to another but in deviation to the same, the predecessor of the petitioner had made some illegal transfers of Sikshya Sahayaks including the said Biswanath Sethy in violation of Government guidelines. As per the notification of the Department of Schools and Mass Education, Govt. of Odisha, there was restriction to transfer the Sikshya Sahayaks from one centre to another but in deviation to the same, the predecessor of the petitioner had made some illegal transfers of Sikshya Sahayaks including the said Biswanath Sethy in violation of Government guidelines. The petitioner in his official capacity as D.I. of Schools, Aska reported the illegal transfers to his departmental higher authority despite protest and repeated threatening by some Sikshya Sahayaks under the leadership of Biswanath Sethy. On 30.04.2008 at the behest and leadership of Biswanath Sethy, some Sikshya Sahayaks forcibly entered into the official chamber of the petitioner and threatened him with dire consequences and to file false case against him which was informed to the police by the petitioner and consequently Aska P.S. Case No.110 of 2008 was registered under sections 294, 506 read with section 34 of the Indian Penal Code. It is contended that only to harass and humiliate the petitioner, the false case has been foisted and the police without investigating the case in a fair manner and ignoring the material facts and particulars proceeded against the petitioner and submitted charge sheet. It is argued that the petitioner was not examined by any police officer in connection with the alleged incident which reveals unfairness on the part of the investigating agency and its indifference to arrive at the truth. It is contended that since the petitioner was discharging his duty as a public servant at the relevant point of time and the alleged incident having been taken during the official hour in the office of the petitioner, without obtaining sanction for prosecution of the petitioner from the competent authority as required under section 197 of Cr.P.C., the impugned order of taking cognizance and issuance of process is not sustainable in the eye of law. It is further contended that even though Rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (hereafter 1995 Rules') stipulates that an offence under 1989 Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police but in this case, Sri P.K. Sahu, S.I. of Police of Aska police station was entrusted with the investigation of the case by the Inspector in charge since the date of lodging of F.I.R. i.e. on 30.04.2008 and he continued with the investigation till 15.05.2008 whereafter the case was taken over for investigation by Sri B.P. Dehury, Deputy Superintendent of Police, Aska and therefore, in view of the defective investigation contrary to the mandates provided under 1995 Rules, the criminal proceeding against the petitioner is liable to be quashed. He placed reliance in the case of In Re: Sessions Judge cum Special Judge, Cuttack reported in (2002) 22 Orissa Criminal Reports 92. It is further argued that the official chamber of the petitioner was not within the public view and the contents of the first information report so also the materials collected during course of investigation are silent that any member of the public was present at the time of commission of the alleged offence except the informants who belonged to the SC and ST community and therefore, one of the basic ingredients of the offence under section 294 of the Indian Penal Code that the occurrence should happen in any public place and also as per section 3(1)(x) of the 1989 Act, the offence should take place within public view is conspicuously absent. It is further contended that the basic ingredients of the offence under section 3(1)(x) of the 1989 Act being absent in the F.I.R., this Court should invoke its inherent power under section 482 of Cr.P.C. to quash the proceeding. He relied upon the decision of the Hon'ble Supreme Court in case of Gorige Pentaiah Vrs. State of A.P. reported in (2008) 41 Orissa Criminal Reports (SC) 614. He relied upon the decision of the Hon'ble Supreme Court in case of Gorige Pentaiah Vrs. State of A.P. reported in (2008) 41 Orissa Criminal Reports (SC) 614. It is further contended that some of the signatories of the first information report were of Koli Caste and one of them is Bauri and the first information report did not disclose that the petitioner ever uttered such caste name and there was never any occasion for the petitioner to know the individual or collective caste of the informants particularly when thousands of Sikshya Sahayaks were working under the Education Department. It is further submitted that the official documents of Director, Elementary Education, Odisha would indicate that the petitioner had submitted the application forms/ bio-datas of the informants earlier to the date of occurrence i.e. on 12.02.2008 and 19.02.2008 and therefore, the genesis of the offence is also a doubtful feature. It is further submitted that the opposite party no.7 has filed Misc. Case No.497 of 2017 for passing appropriate order in exonerating her to proceed further in Aska P.S. Case No.109 of 2008 which shows that a malicious prosecution has been instituted against the petitioner and therefore, in view of the ratio laid down in case of State of Haryana Vrs. Ch. Bhajan Lal reported in A.I.R. 1992 S.C. 604, the proceeding should be quashed. It is submitted that the petitioner is now seventy years of age and he is suffering from many ailments and since the criminal proceeding is vexatious and it is a product of malice, if it is allowed to continue, it would be an abuse of process of the Court. Mr. Prem Kumar Patnaik, learned Addl. Government Advocate on the other hand contended that the plea taken by the petitioner relating to his false implication cannot be taken into account at this stage which can be taken care of by the learned trial Court at the appropriate stage. He contended that even though at the initial stage, the S.I. of police was investigating the case and he recorded the statements of the witnesses but after the designated police officer as per Rule 7 of 1995 Rules took over charge of investigation, he reexamined all the witnesses and ultimately charge sheet was submitted by the competent police officer and therefore, there is no violation of the provisions of 1995 Rules. It is further contended that the use of obscene language and derogatory remarks are not the part and parcel of official duty and therefore, no sanction for prosecuting the petitioner is necessary. He argued that the contents of the F.I.R. are corroborated by the statements of the witnesses recorded during investigation which make out the basic ingredients of the offences and there was no illegality in passing the impugned order and therefore, the application filed by the petitioner should be dismissed. Mr. Pravash Chandra Jena, learned counsel appearing for the informants submitted that the caste certificates obtained by the investigating agency show that the informants are the members of Scheduled Castes/Scheduled Tribes and the petitioner is a member of General Caste. It is contended that the manner in which the petitioner had used the obscene language and passed derogatory remarks against the informants clearly reveal his intention to humiliate them and since the public had access to the office of the petitioner and the occurrence had also taken within public view, there was every justification for the investigating officer to submit charge sheet. 4. The Hon'ble Supreme Court delivered judgment in the case of Dr. Subash Kasinath Mahajan(supra) on 20.03.2018. The occurrence in the present case took place on 30.04.2008. It is the settled principle that when a law is declared by the Supreme Court, it is the law as it always was and it does not become law only from the date it was so declared. It is also clear from the decision in Golak Nath & others Vrs. State of Punjab reported in A.I.R. 1967 S.C. 1643, that it is only within the competence of the Supreme Court to declare the law declared by it to be prospective and that too only on constitutional questions. (Ref: Regional Director, E.S.I. Corporation Vrs. P.B. Gupta reported in 2002 (I) Orissa Law Reviews 250). Since in Dr. Subash Kasinath Mahajan (supra), while giving directions in the concluding paragraph, it was observed that the directions are prospective, the contentions raised by the learned counsel for the petitioner that since no preliminary inquiry has been conducted by the designated police officer before the registration of the first information report, the institution of the case is defective, cannot be accepted. 5. 5. The plea taken by the petitioner relating to the reason for institution of the criminal proceeding is his reporting to the departmental higher authority about the illegal transfers of some of the Sikshya Sahayaks including one Biswanath Sethy, President of Sikshya Sahayak Association of Aska Education District was not taken in the petition under section 482 of Cr.P.C. when it was filed on 05.08.2018. No document in that connection was also annexed with the petition. Such plea was taken for the first time by way of an additional affidavit filed on 28.07.2017. Some xerox copies of the documents have been annexed to the additional affidavit in that connection. Now the question falls for consideration as to whether the belated plea taken almost after seven years of the presentation of the case and the xerox copies of the documents filed with the additional affidavit are to be taken into consideration at this stage. In case of State of Orissa Vrs. Debendra Nath Padhi reported in (2005) 30 Orissa Criminal Reports (SC) 177, it is held that at the time of framing charge or taking cognizance, the accused has no right to produce any material. In case of Chiranjib Biswal Vrs. Bishnu Charan Das reported in (2016) 63 Orissa Criminal Reports 1131, it is held as follows: "8. Law is well settled that while making a prayer for quashing an order taking cognizance or quashing the entire criminal proceeding, an accused cannot be permitted to use the material which would be available to him only as his defence. The trial Court should be left to consider and weigh materials brought on record by the parties for the purpose of marshalling and appreciating the evidence. While invoking inherent power under section 482 Cr.P.C. to quash a criminal proceeding, the High Court cannot look into any document relied on by the accused which would require proof in accordance with law and may be subjected to rebuttal evidence. The Court has to strictly confine itself to the allegation made in the first information report and charge sheet or the complaint petition and the statements collected under sections 200 and 202 Cr.P.C. A mini trial at that stage is impermissible. The Court has to strictly confine itself to the allegation made in the first information report and charge sheet or the complaint petition and the statements collected under sections 200 and 202 Cr.P.C. A mini trial at that stage is impermissible. The acceptance of the documents filed by the defence or consideration of defence plea by the High Court under section 482 Cr.P.C. at the stage of cognizance would certainly open flood gate for mini trial and should be discouraged as it is not neither proper nor legal." In case of Sampelly Vrs. Indian Renewable Energy reported in (2016) 65 Orissa Criminal Reports (SC) 583, it is held that it is well settled that while dealing with a quashing petition, the Court has ordinarily to proceed on the basis of averments in the complaint. The defence of the accused cannot be considered at the stage. The Court considering the prayer for quashing does not adjudicate upon a disputed question of fact. In case of R. Kalyani Vrs. Janak C. Mehta reported in (2009) 42 Orissa Criminal Reports (SC) 162, it is held that while exercising its inherent jurisdiction to quash a criminal proceeding, save and except in very exceptional circumstances, the Court should not look into any documents relied upon by the defence. In case of HMT Watches Vrs. M.A. Abida reported in 2015 (I) Orissa Law Reviews (SC) 1012, it was held that the High Court committed grave error of law in quashing the criminal complaints filed by the appellant in respect of offence punishable under section 138 of the N.I. Act in exercise of powers under section 482 of the Code of Criminal Procedure by accepting factual defences of the accused which were disputed ones. Such defences, if taken before trial Court, after recording of the evidence, can be better appreciated. In case of Harshendra Kumar D. Vrs. Rebatilata Koley reported in (2011) 48 Orissa Criminal Reports (SC) 861, it is held as follows: "21. Such defences, if taken before trial Court, after recording of the evidence, can be better appreciated. In case of Harshendra Kumar D. Vrs. Rebatilata Koley reported in (2011) 48 Orissa Criminal Reports (SC) 861, it is held as follows: "21. In our judgment, the above observations cannot be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused which are in the nature of public documents or the materials which are beyond suspicion or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482 or for that matter in exercise of revisional jurisdiction under Section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents which are beyond suspicion or doubt placed by accused, the accusations against him cannot stand, it would be travesty of justice if accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage." In view of the settled position of law, accepting the defence plea and the documents in support of such plea taken at a belated stage would not be proper and justified. There is nothing on record that the informants acted at the behest of Biswanath Sethy. It is needless to say that the petitioner would get enough opportunity during course of trial to take such plea and adduce evidence in that respect which would be adjudicated by the learned trial Court in accordance with law. 6. There is nothing on record that the informants acted at the behest of Biswanath Sethy. It is needless to say that the petitioner would get enough opportunity during course of trial to take such plea and adduce evidence in that respect which would be adjudicated by the learned trial Court in accordance with law. 6. Adverting to the contention raised by the learned counsel for the petitioner relating to the absence of sanction from the competent authority as required under section 197 of Cr.P.C., even though it is not disputed that the petitioner was a public servant and he was discharging his duty as a public servant at the relevant point of time and the incident in question took place during the official working hours in the office of the petitioner but the vital question is whether the abusive words allegedly hurled at the informants and threat given to them by the petitioner has got any connection whatsoever with official duty. In case of Abani Chandra Biswal Vrs. State of Orissa reported in Vol.64 (1987) Cuttack Law Times 659, a Division Bench of this Court held that the public servant cannot claim blanket privilege for all the acts and uncalled for over doing while discharging any public duty. In that case judging the accusation against the petitioner who was the officer in charge, Komna Police Station in the district of Kalahandi that he had hurled abusive language at the complainant while he was already in the police lockup, it was held that the action cannot by any stretch of imagination, be said to have been committed in course of discharge of official duty as it had no connection whatsoever therewith much less, reasonable. Abusing or threatening is no part of the official duty of a government servant when general public approaches him in connection with an official work which has been assigned to him. A government servant is there to serve the people, look into their genuine grievances and to act diligently with all patience and he is paid for that. He has to set an example for others. It is incumbent on a public servant to maintain decency and decorum of the institution/post which he is serving. Public servant is accountable and responsible for what he is advocating. He has to set an example for others. It is incumbent on a public servant to maintain decency and decorum of the institution/post which he is serving. Public servant is accountable and responsible for what he is advocating. It cannot be lost sight of the fact that the petitioner was serving in the Education Department and he was holding the post of District Inspector of Schools. The languages which are allegedly used are certainly not expected from an educated person. When the act alleged and the official duty are so interrelated that one could postulate reasonably that it was done by the accused government servant in the performance of the official duty though possibly in excess of the needs and requirements of the situation, sanction under section 197 Code of Criminal Procedure is required. In case of Devinder Singh and Ors. Vrs. State of Punjab reported in (2016) 64 Orissa Criminal Reports (SC) 380, it is held as follows: "37. The principles emerging from the aforesaid decisions are summarized hereunder: I. Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the best of his ability to further public duty. However, authority cannot be camouflaged to commit crime. II. Once act or omission has been found to have been committed by public servant indischarging his duty, it must be given liberal and wide construction so far its official nature is concerned. Public servant is not entitled to indulge in criminal activities. To that extent Section 197 Code of Criminal Procedure has to be construed narrowly and in a restricted manner. III. Even in facts of a case when public servant has exceeded in his duty, if there is reasonable connection, it will not deprive him of protection under Section 197 Code of Criminal Procedure. There cannot be a universal rule to determine whether there is reasonable nexus between the act done and official duty nor it is possible to lay down such rule. IV. In case the assault made is intrinsically connected with or related to performance of official duties, sanction would be necessary under Section 197 Code of Criminal Procedure, but such relation to duty should not be pretended or fanciful claim. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. The offence must be directly and reasonably connected with official duty to require sanction. It is no part of official duty to commit offence. In case offence was incomplete without proving, the official act, ordinarily the provisions of Section 197 Code of Criminal Procedure would apply. V. In case sanction is necessary, it has to be decided by competent authority and sanction has to be issued on the basis of sound objective assessment. The Court is not to be a sanctioning authority. VI. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of Court at a later stage, finding to that effect is permissible and such a plea can be taken first time before Appellate Court. It may arise at inception itself. There is no requirement that accused must wait till charges are framed. VII. Question of sanction can be raised at the time of framing of charge and it can be decided prima-facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage. VIII. Question of sanction may arise at any stage of proceedings on a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to accused to place material during the course of trial for showing what his duty was. Accused has the right to lead evidence in support of his case on merits. IX. In some case it may not be possible to decide the question effectively and finally without giving opportunity to the defence to adduce evidence. Question of good faith or bad faith may be decided on conclusion of trial." The petitioner has presented an F.I.R. relating to the occurrence in question, on the basis of which Aska P.S. Case No.110 of 2008 was registered under sections 294, 506 read with section 34 of the Indian Penal Code. Question of good faith or bad faith may be decided on conclusion of trial." The petitioner has presented an F.I.R. relating to the occurrence in question, on the basis of which Aska P.S. Case No.110 of 2008 was registered under sections 294, 506 read with section 34 of the Indian Penal Code. In the instant case, the allegation as per the prosecution case is that when the informants who are Sikshya Sahayaks met the petitioner in his office and asked him as to whether he had been to meet the Director of OPEPA, the petitioner all on a sudden got frowned and abused them in filthy language and threatened them whereas the defence of the petitioner is that it was a case of discharge of official duty and at the behest and leadership of one Biswanath Sethy, some Sikshya Sahayaks forcibly entered into his official chamber on the date of occurrence and threatened him with dire consequences and to file false case against him. It is not permissible for this Court at this stage to decide which version is correct. Similarly, it is difficult to arrive at a prima facie conclusion that the overt act allegedly committed by the petitioner has got any connection with the discharge of official duty much less, reasonable. It would be open to both the sides to adduce their evidence at the stage of trial and the trial Court shall decide the question whether there was any reasonable nexus of the incident with the discharge of official duty by the petitioner. 7. Coming to the next contention raised by the learned counsel for the petitioner relating toinfraction of Rule 7 of the 1995 Rules, it appears that even though at the initial stage, the investigation was conducted by the Sub-Inspector of Police P.K. Sahu but on 15.05.2008 Sri B.P. Dehury, Deputy Superintendent of police, Aska took up investigation of the case as per the official order of the Superintendent of Police, Ganjam and after verification of the case records received from the previous investigating officer, he reexamined all the witnesses and recorded their separate statements. The case was supervised by Sri J. Mohapatra, S.D.P.O., Bhanjanagar. The case was supervised by Sri J. Mohapatra, S.D.P.O., Bhanjanagar. On 25.03.2009 the charge of investigation was taken over by Sri B.K. Kamila, S.D.P.O., Aska who ultimately on completion of investigation submitted charge sheet for commission of offences under section 294 of the Indian Penal Code and section 3(1)(x) of 1989 Act. Learned counsel for the petitioner placed reliance in the case of In Re: Sessions Judge (supra), wherein it is held that any investigation made by a police officer below the rank of the officer so provided in the statute is vitiated and a criminal proceeding would be vitiated because of noncompliance with the statutory provision. In the instant case, after initial investigation by the S.I. of police, the reinvestigation has been done by the competent designated police officers as per Rule 7 of 1995 Rules and charge sheet was also submitted by the designated officer. Therefore, it cannot be said that there is either any defect or illegality in investigation or the criminal proceeding is vitiated merely because at the initial stages, the investigation was conducted not by a designated police officer. In case of H.M. Rishbud Vrs. State of Delhi reported in A.I.R. 1955 S.C. 196, it was held that a defect or illegality in investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. In view of the above discussions, the contention raised by the learned counsel for the petitioner relating to infraction of Rule 7 of the 1995 Rules is devoid of any merit and deserves to be dismissed. 8. In order to make out an offence under section 294 of the Indian Penal Code, the prosecution has to prove that (i) the offender has done any obscene act in any public place or has sung, recited or uttered any obscene song, ballad or words in or near any public place and (ii) thereby has caused annoyance to others. If the act complained of is not obscene or is not done in any public place or the song sung, ballad recited or words uttered is not obscene or not so sung, recited or uttered in or near any public place or that it causes no annoyance to others, the offence is not committed. The meaning of the word 'obscene' in Black's Law Dictionary, Oxford Advanced Learner's Dictionary, Collins Cobuild English Dictionary etc. The meaning of the word 'obscene' in Black's Law Dictionary, Oxford Advanced Learner's Dictionary, Collins Cobuild English Dictionary etc. would leave no doubt that the word 'obscene' is connected with sex and extremely offensive under contemporary community standards of morality and decency grossly repugnant to generally accepted notions of what is appropriate. The concept of 'obscenity' would differ from Country to Country, State to State and even from region to region depending on the standards of morals and contemporary society. The word 'Maghia' stated to have been used by the petitioner is no doubt an obscene word which means 'mother fucker'. 'Public place' is one to which members of public have free access without any hindrance or interference. Such place is open to the use by public or they are accustomed to resort which includes public offices also. The place to which the public have a legal right of access and they habitually go and there is no restricted entry to it would come within the purview of 'public place'. If the entry is regulated by permission or is otherwise restricted, it is not a 'public place'. However if the access of public to a place is conditional upon payment and subject to reasonable restriction or in other words there is no unlimited right still then the same would come within 'public place'. As regards the obscene act, the term 'public place' is used in section 294(a) of the Indian Penal Code whereas for obscene song, ballad or words, the term 'in or near public place' is used in section 294(b) of the Indian Penal Code. The term 'in or near public place' is much wider in its sweep than the term 'public place' as it encompasses even those areas which are in the vicinity of public place meaning thereby that if the obscene words uttered in a 'public place' is heard by someone who is in the vicinity of the public place then offence under section 294 of Indian Penal Code can be made out. The term 'in or near public place' contained in section 294 (b) of the Indian Penal Code does not literally mean that the abusive words should be uttered necessarily in a place which is frequented by members of public. The term 'in or near public place' contained in section 294 (b) of the Indian Penal Code does not literally mean that the abusive words should be uttered necessarily in a place which is frequented by members of public. If such utterances though made in private place but are audible in a public place because of being in close vicinity to the private place then in that eventuality also the offence under section 294 of the Indian Penal Code would be attracted. The said offence is not only made out when an obscene act is committed to the annoyance of others in any public place but also when the accused utters words to the annoyance of others in or near any public place. In case of Ashok Kumar Mishra Vrs. State of Orissa reported in (2013) 54 Orissa Criminal Reports 162, it is held as follows: "5. A 'public place' must be held to be a place which is open to the members of the public though in some cases access to it by members of the public may be on fulfilling certain conditions but the right of access to such place must not be limited to any determinate section of public and the person in charge of the place should have no right or discretion to deny access to any member of the public as long as such member is ready to fulfill the conditions attached for access." There cannot be any dispute that the office of the D.I. of Schools, Aska is a public place. The contention of the learned counsel for the petitioner that the spot was the official chamber of the petitioner and no public was present at the relevant time and therefore, it cannot be said that the place was within public view, is not acceptable. There is nothing on record that the occurrence took place in the official chamber of the petitioner where there is any restricted entry. In fact, the materials on records indicate as per the statements of the informants that all the nine of them had been to meet the petitioner in the office of the D.I. of Schools, Aska to ventilate their grievances, during course of which the occurrence took place. Therefore, I am of the humble view that prima facie case under section 294 of the Indian Penal Code is made out. Therefore, I am of the humble view that prima facie case under section 294 of the Indian Penal Code is made out. So far as the offence under section 3(1)(x) of 1989 Act is concerned, it requires intentional insult or intimidation by an offender who is not a member of Scheduled Caste or Scheduled Tribe to a member of Scheduled Caste or Scheduled Tribe with intent to humiliate him in any place within public view. The F.I.R. indicates the presence of nine persons and even if one is excluded in view of the filing of Misc. Case No.497 of 2017, it makes no difference. Judicial notice can be taken regarding the presence of the staff of the D.I. of Schools during the official hour. The statements of the witnesses recorded during course of investigation corroborate to the facts narrated in the first information report. All the witnesses have stated regarding the intentional insult and intimidation to them and they are the members of Scheduled Castes/Scheduled Tribes. The nonuse of names of specific caste of some of the informants like 'Koli Caste' and 'Bauri' by the petitioner makes a little difference. The tenure and the context in which the language is stated to have been used prima facie show the intention of the user to humiliate the informants. Even if one makes remarks or utterances with a view to humiliate a member of the Scheduled Caste or Scheduled Tribe inside the building, he would be liable to be prosecuted provided such remarks or utterances are either visible or audible to the public. In case of Swaran Singh Vrs. State reported in (2008) 41 Orissa Criminal Reports (SC) 414, it is held as follows: "28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by appellants 2 and 3 (by calling him a `Chamar') when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression `place within public view' with the expression `public place'. A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaonsabha or an instrumentality of the State, and not by private persons or private bodies. Learned counsel for the petitioner submitted that basic ingredients of the offence under section 3(1)(x) of the 1989 Act being absent in the F.I.R., this Court should quash the proceeding. He relied upon the decision of the Hon'ble Supreme Court in case of Gorige Pentaiah Vrs. State of A.P. reported in (2008) 41 Orissa Criminal Reports (SC) 614 wherein it is held as follows: "7. 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. 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 basic 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." The citation placed by the learned counsel for the petitioner is no way helpful to him in the facts and circumstances of the case. First of all, the instant case arises out of a first information report and not a complaint petition. In case of Lalita Kumari Vrs. Govt. of U.P. reported in (2014) 57 Orissa Criminal Reports (SC) 1, it is held that registration of F.I.R. is mandatory under section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. If the inquiry discloses the commission of a cognizable offence, the F.I.R. must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the F.I.R. if information received by him discloses a cognizable offence. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence. In the instant case, the first information report discloses commission of a cognizable offence. During course of investigation, the Addl. Tahasildar, Aska submitted his report dated 08.12.2009 which indicates that one of the informants namely, Baruna Kumar Barua is 'Dhoba' by caste. In the instant case, the first information report discloses commission of a cognizable offence. During course of investigation, the Addl. Tahasildar, Aska submitted his report dated 08.12.2009 which indicates that one of the informants namely, Baruna Kumar Barua is 'Dhoba' by caste. The Tahasildar, Aska submitted his report dated 09.12.2009 which indicates that the informants namely, Ahalya Patra, Abanikant Behera and Bhabani sankar Patra are 'Koli' by caste, informant Prakash Chandra Das is 'Bauri' by caste and the petitioner is 'Brahmin' by caste. List of Scheduled Castes notified (after addition/deletion) as per the Constitution (Scheduled Castes) Order, 1950, as amended vide Modification Order 1956, Amendment Act, 1976 and the Constitution (Scheduled Castes) Order (Amendment) Act 2002 No. 25 dated 27.5.2002 of Ministry of Law, Justice and Company Affairs, read with The Constitution (SCs) Order (Second Amendment) Act, 2002 No. 61 of 2002 dated 18.12.2002 of Ministry of Law & Justice republished vide Notification No. 7797I Legis 5/2002 L dated 7.6.2003 of Law Deptt, Govt. of Orissa and, vide Gazette of India No.381 dt.30.8.2007, Gazette of India No.40 dt.18.12.2014, Gazette of India No.7 dt.23.03.2015, Gazette of India No 27 dt 9.05.2016 & Gazette of India No 17 dated 01.05.2017 indicates that 'Bauri' and 'Dhoba' are Scheduled Castes. Similarly, list of Scheduled Tribes notified (after addition/deletion) as per the Scheduled Castes and Scheduled Tribes Order, 1950 as amended by Modification Order, 1956, Amendment Act, 1976 and The Scheduled Castes and Scheduled Tribes Order (Amendment) Act 2002 No. 10 dated 8.1.2003 of Ministry of Law & Justice republished by the Notification No. 7799/ L dated 7.6.2003 of Law Department, Govt. of Orissa indicates that 'Koli' is Scheduled Tribe. The petitioner is not a member of Scheduled Caste or Scheduled Tribe. First information report is not the encyclopedia or be all and end all of the prosecution case. It is not a verbatim summary of the prosecution case. The principal object to the first information report is to set the criminal law into motion. Non mentioning of some facts or details or meticulous particulars is not a ground to reject the prosecution case. The informant who is a member of either Scheduled Caste or Scheduled Tribe while presenting the first information report might not be aware to mention his caste as well as the caste of the accused while narrating the incident. Non mentioning of some facts or details or meticulous particulars is not a ground to reject the prosecution case. The informant who is a member of either Scheduled Caste or Scheduled Tribe while presenting the first information report might not be aware to mention his caste as well as the caste of the accused while narrating the incident. Whether it would be proper and justified not to register the case under section 3 of 1989 Act even though cognizable offence and particularly, the ingredients of such offence are prima facie made out, merely because of the non mention of the caste details of the accused as well as the informant? The answer is emphatically 'No'. In the format of formal F.I.R., in Column No.6, it is to be mentioned whether the informant is S.C./S.T. It is the duty of the concerned police officer while registering the F.I.R. to elicit from the informant about his caste particulars. In the instant case, the same has not been done and that part has remained blank. Even if the informant/victim indicates in the F.I.R. that he/she is a member of Scheduled Caste or Scheduled Tribe and the accused is not a member of such caste or tribe, nonetheless it is the duty of the investigating officer to ascertain the caste particulars of the informant/victim so also that of the accused from the competent authority. Where the first information report is registered, inter alia, for commission of offence under section 3 of 1989 Act, the non-ascertainment of the caste particulars of the informant/victim as well as the accused during course of investigation would result in causing grave prejudice to the parties. Therefore, I am of the humble view that the prima facie ingredients of offence under section 294 of the Indian Penal Code and in view of the caste particulars collected during course of investigation, the ingredients of offence under section 3(1)(x) of 1989 Act are attracted. 9. The submission of the learned counsel for the petitioner that the petitioner had submitted the application forms/bio-datas of the informants earlier to the date of occurrence i.e. on 12.02.2008 and 19.02.2008 and therefore, the genesis of the offence is also a doubtful feature, cannot be adjudicated at this stage. 9. The submission of the learned counsel for the petitioner that the petitioner had submitted the application forms/bio-datas of the informants earlier to the date of occurrence i.e. on 12.02.2008 and 19.02.2008 and therefore, the genesis of the offence is also a doubtful feature, cannot be adjudicated at this stage. In spite of submission of application forms/bio-datas, why the informants had grievances for which they approached the petitioner on the date of occurrence is not within the scope of purview of this application under section 482 of Cr.P.C. to be decided. 10. The submission of the learned counsel for the petitioner that the petitioner was not examined by any police officer in connection with the alleged incident which reveals unfairness on the part of the investigating agency is not correct. When the S.I. of police was investigating the case, the whereabouts of the petitioner could not be ascertained which is noted in the case diary. When the S.D.P.O., Aska was investigating the matter, the statement of the petitioner was recorded on 09.07.2009 in which he highlighted about the filing of Aska P.S. Case No. 110 of 2008. 11. There is nothing on record to show that a malicious prosecution has been instituted against the petitioner or the criminal proceeding is manifestly attended with malafide or it has been instituted with an ulterior motive for wreaking vengeance on the petitioner and with a view to spite him due to private and personal grudge and therefore, the ratio laid down in case of Ch. Bhajan Lal (supra) is not applicable. 12. The submission of the learned counsel for the petitioner that petitioner is now seventy years of age and he is suffering from many ailments, cannot be a ground to quash the criminal proceeding. These aspects may be relevant for determination of the quantum of sentence at the end of trial. 13. In view of the foregoing discussions, I am of the considered opinion that the impugned order does not suffer from any illegality and therefore, it would not be proper to interfere with the same invoking the inherent powers under section 482 of Cr.P.C. which is to be used sparingly and with circumspection In the result, the CRLMC application being devoid of merit, stands dismissed. Lower Court Record be sent back immediately. 14. Lower Court Record be sent back immediately. 14. Before parting with the case, I must record my deep sense of appreciation for the able assistance rendered by Mr. Sidharth Prasad Das, learned counsel for the petitioner. He had prepared the case minutely and presented it nicely and discharged his duty as an officer of the Court to the best of his ability.