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2019 DIGILAW 538 (BOM)

SHEIKH SHAMA SHIEKH IQBAL v. STATE OF MAHARASHTRA

2019-02-26

S.M.MODAK, SUNIL B.SHUKRE

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JUDGMENT : Sunil B. Shukre, J. 1. Heard. 2. Rule. Rule made returnable forthwith. Heard finally by consent. 3. By this petition, F.I.R. registered as Crime No. 347/2018 for an offence punishable under Section 354 of the Indian Penal Code and also an offence punishable under Section 3(1)(w) (i) & (ii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short, “Atrocities Act, 1989”) against the applicants at Police Station Parwa, District Yavatmal has been sought to be quashed and set aside. 4. The complaint has been filed by the respondent No. 2 and it alleges that in the morning of 31-10-2018 both the applicants outraged her modesty and also abused her on caste lines. 5. We have gone through the F.I.R. It is seen that the allegations of outraging of modesty and alleged caste abuses are made only against the applicant No. 2 and not against applicant No. 1 and, therefore, the offences which have been registered against the applicant No. 1 are not constituted in this case and as such, the registration of the offences vide Crime No.347/2018 as against the applicant No.1 deserves to be set aside. 6. A careful perusal of the F.I.R. further shows that insofar as the offence punishable under Section 3(1) (w) (i) & (ii) of the Atrocities Act, 1989 is concerned, as against applicant No. 2, the allegations do not satisfy the basic requirements of law so as to enable us to say with any reasonableness that these offences are indeed constituted at least in a prima facie manner. 7. It is well settled law that any information received regarding commission of an offence is received, it must be entered into the concerned book kept for the purpose, as per Section 154 or 155 of Criminal Procedure Code as the case may be, by the Investigating Officer, and if the offence disclosed by the complaint is a cognizable offence, after registration of such information, the Investigating officer also gets power, under Section 156 of Criminal Procedure Code, to make investigation into the offence without obtaining any permission from the Judicial Magistrate, First Class within whose jurisdiction the Police Station falls. It is also the law that when an offence is alleged to be committed under any of the provisions of the Atrocities Act, 1989, the basic requirements of such an offence alleged in the complaint must be fulfilled first before other ingredients are seen to be satisfied. These basic requirements are twofold. The first requirement is to the effect that there is an assertion by the complainant that he or she belongs to caste or tribe which is scheduled caste or scheduled tribe. The second requirement is to the effect that the accused belongs to a caste or community or tribe which is not a scheduled caste or scheduled tribe or scheduled community. If these basic requirements are fulfilled, the Investigating Officer is also required to satisfy himself that the allegations made in the complaint prima facie constitute an offence requiring registration of a crime and investigation into the crime so registered. Unless these basic requirements coupled with other necessities of offence are satisfied, we must say, no Investigating Officer would get an authority to register the F.I.R. and make investigation into such an offence. This is the law settled by the Hon'ble Apex Court in the case of Manoj alias Bhau and others. vs. State of Maharashtra, reported in 1994 4 SCC 268, which has been followed by the learned Single Judge of this Court in the case of Bai @ Laxmibai w/o. Nivratti Poul and others vs. State of Maharashtra, reported in, (2001) 1 BCR 321. 8. Upon perusal of the F.I.R, we find that both the aforestated basic requirements of law have not been fulfilled in the present case. There is neither any assertion made on the part of the complainant that she belongs to a scheduled tribe nor does she state in categorical terms that the accused persons belong to some different community not falling within the category of scheduled caste or scheduled tribe. The act attributed to applicant No. 2 is about his giving caste abuses to the complainant alleging that the people like the complainant have gone overboard. To be precise, the relevant allegations in Marathi are : xxx xxx. It is the submission of learned counsel for respondent No. 2 that as the word “Gondale” is used, it has to be presumed that the complainant indeed belongs to Gond Community which is a scheduled tribe. To be precise, the relevant allegations in Marathi are : xxx xxx. It is the submission of learned counsel for respondent No. 2 that as the word “Gondale” is used, it has to be presumed that the complainant indeed belongs to Gond Community which is a scheduled tribe. With due respect to the learned counsel, we would disagree. It is not the knowledge or opinion of the accused which is material but it is the assertion of the complainant which is important and which what makes up for the basic requirements of law regarding registration of an offence punishable under the relevant provisions of the Atrocities Act, 1989. The reason being that the opinion expressed or knowledge displayed by the accused as regards the social status of the victim of crime may be factually wrong and, therefore, the law would not attach much significance to such an opinion or knowledge of the accused unless there is material on record which prima facie discloses that the opinion or knowledge of the accused is correct. Such material could be found to be present on record when there is a positive statement made by the victim of crime disclosing his or her caste or tribe status. Such material could also be in the nature of caste or tribe certificate submitted by the complainant at the time of filing of the complaint. But, if there is no such positive statement made in the complaint itself or no certificate is produced at the time of registration of the crime, that is, at the time of filing of the complaint, we do not think that the law would permit the Investigating Officer to register the crime and start investigation into the matter. 9. We may emphasize here that the law in matters of crime investigation can be set in motion leading to registration of crime and investigation without order of the Magistrate only when there is disclosure, prima-facie, of commission of cognizable offence and not on imagination of facts which otherwise, being sine-qua-non for constituting an offence, must be specifically alleged in complaint or seen to be necessarily arising from the circumstances of the narrative made before the Investigating Officer. Registration of the crime is only starting point of the investigation and registration of the crime cannot take place unless the basic parameters of the alleged offence are shown to be prima-facie fulfilled. Registration of the crime is only starting point of the investigation and registration of the crime cannot take place unless the basic parameters of the alleged offence are shown to be prima-facie fulfilled. As stated earlier, these parameters were absent here at the initial stage itself and, therefore, there could have been no registration of an offence under Section 3(1) (ii) of the Atrocities Act, 1989 against the applicant No. 2 and no investigation made. Even if there is some investigation made on the basis of such erroneous registration of crime, that investigation, it has to be said, has stood vitiated as it is the result of a step which was a non-starter from the view point of crime registration and investigation. 10. In the circumstances, we find that the registration of the offence under section 3 (i) and (w) of the Atrocities Act, 1989 against the applicant No.2 is also illegal, there being non-fulfillment of basic requirements of law and as such, even this offence deserves to be quashed and set aside as against the applicant No. 2. 11. As regards the offence punishable under Section 354 of the Indian Penal Code, we are of the view that at this stage the allegations made in this regard are sufficient to prima facie constitute this offence at least against the applicant No. 2. Of course, there has been some background to the registration of this crime. But, making any comment on such background material at the initial stage of the investigation is likely to prejudicially affect the interest of either of the parties and so we would prefer to refrain from making any comment upon the context and the background material in which the complaint has been filed against the non-applicant No. 2 under Section 354 of the Indian Penal Code. It could be appropriately considered by the Court below or even this Court, if necessary, as and when the stage is ripe to do so. 12. In view of above, we are inclined to partly allow the application. 13. The application is allowed partly. 14. The offence punishable under Section 354 of the Indian Penal Code registered vide Crime No. 347/2008 as against applicant No.1 is hereby quashed and set aside. 15. 12. In view of above, we are inclined to partly allow the application. 13. The application is allowed partly. 14. The offence punishable under Section 354 of the Indian Penal Code registered vide Crime No. 347/2008 as against applicant No.1 is hereby quashed and set aside. 15. The offence punishable under Section 3(1) (w) (i) & (ii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 registered vide Crime No. 347/2018 against both the applicants is hereby quashed and set aside. 16. The investigation is permitted to be made only in respect of offence under Section 354 of the Indian Penal Code as against applicant No. 2, in accordance with law. 17. It is made clear that this Court has not made any comment upon the final report which may be filed by the Investigating Officer upon completion of the investigation either under Section 173 or 169 of the Criminal Procedure Code. 18. Rule is made absolute in these terms.