Why no need to mention accused’s caste in SC, ST cases
Posted by humanhorizons on February 17, 2009
Will not this judgement give open hand to police to do away or force FIR Atrocities applicant not to mention the caste of accused. This will automatically help diverting the caste-atrocity cases under CrPc and reduce the importance of SC/ST(PoA) Act. In general also there are increasing number of cases of caste based atrocities which are not registered under SC/ST(PoA) Act, eg. recent case of Khairlanji.
No need to mention accused’s caste in SC, ST cases: Apex court
http://www.thehindubusinessline.com/blnus/28151620.htm
NEW DELHI: It is not necessary to mention the caste of the accused in the FIR in cases relating to atrocities under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the Supreme Court has held.
A three-judge bench of Justices Arijit Pasayat, Mukundakam Sharma and H L Dattu ruled that police can commence investigation on the basis of a complaint from the victim even if he or she had failed to mention the caste of the accused person.
“Whether the accused belongs to Scheduled Caste or Scheduled Tribe can be gone into when the matter is being investigated,” the apex court observed, setting aside a Bombay High Court decision to quash the proceedings against an accused on the grounds tha t the victim Ashabai Machindra Adhagale failed to mention his caste.
The high court citing earlier judicial rulings had quashed the proceedings by invoking Section 482 CrPC under which it can quash a criminal case against any person. It quashed the criminal case after upholding the plea of the accused that the FIR did not disclose his caste, as mandated by the Act.
Aggrieved by the high court’s move Adhagale appealed in the apex court. – PTI
humanhorizons said
*Ashabai Machindra Adhagale Versus State of Maharashtra and Ors. *
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. An interesting question of law arises in this appeal. Background facts in
a nutshell are as follows:
Appellant filed First Information Report under Section 154 of the Code of
Criminal Procedure, 1973 at Newasa Police Station, District Ahmednagar,
alleging commission of offence punishable under Section 3(1)(xi) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
A petition under Section 482 of Code was filed by respondent No.3
(hereinafter referred to as the `accused’). The basic stand was that in the
FIR the caste of accused was not mentioned and therefore the proceedings
cannot be continued and deserved to be quashed. The High Court placing
reliance on earlier decisions of the High Court allowed the petition.
3. In support of the appeal, learned counsel for the appellant submitted
that the view taken by the Bombay High Court is contrary to one taken by the
Orissa High Court. It is submitted that the offence primarily relates to
purported perpetration of crime on the victim because of his or her caste.
It is for the accused to show that he does not belong to higher caste and
that is a matter of evidence. It is not that in the instant case there was
no reference to the caste of an accused as it is clearly mentioned in the
FIR that the offence is relatable to Section 3 (1) (xi) of the Act.
Therefore, there is a reference though indirectly to the caste of the
accused. Even otherwise it is submitted that the non-mention of the caste of
the accused cannot be a ground to quash the proceedings. At the framing of
charge or in case the charge sheet is filed and/or during trial the accused
can establish that he does not belong to higher caste. It is submitted that
FIR is not an encyclopedia of all events and basic ingredients of offence
are clearly made out.
4. Learned counsel for respondent No.3, on the other hand, submitted that
Section 3(1) itself provides that the offence should have been committed by
a person who is not a member of the Scheduled Caste or Scheduled Tribe,
unless that specific mention is made no offence is disclosed.
5. Learned counsel for the respondent referred to various judgments of
Bombay High Court in this regard supporting his stand. e.g. Manohar S/o
Martandrao Kulkarni and Anr. v. State of Maharashtra and Ors. (2005 (4)
Mh.L.J. 588)
6. It is also submitted that the complainant i.e. the appellant is harassing
people by filing frivolous petitions taking shelter of the fact that she
belongs to scheduled caste. Therefore, placing strong reliance on the
observations of this Court in State of Haryana v. Bhajan Lal (1992 Supp (1)
SCC 335), it is submitted that the proceedings deserved to be quashed which
according to him the High Court rightly did.
7. In Superintendent of Police, CBI and Ors. v. Tapan Kumar Singh (2003 (6)
SCC 175) this Court elaborately dealt with the need of an FIR. It was
inter-alia observed as follows:
“20. It is well settled that a first information report is not an
encyclopaedia, which must disclose all facts and details relating to the
offence reported. An informant may lodge a report about the commission of an
offence though he may not know the name of the victim or his assailant. He
may not even know how the occurrence took place. A first informant need not
necessarily be an eyewitness so as to be able to disclose in great detail
all aspects of the offence committed. What is of significance is that the
information given must disclose the commission of a cognizable offence and
the information so lodged must provide a basis for the police officer to
suspect the commission of a cognizable offence. At this stage it is enough
if the police officer on the basis of the information given suspects the
commission of a cognizable offence, and not that he must be convinced or
satisfied that a cognizable offence has been committed. If he has reasons to
suspect, on the basis of information received, that a cognizable offence may
have been committed, he is bound to record the information and conduct an
investigation. At this stage it is also not necessary for him to satisfy
himself about the truthfulness of the information. It is only after a
complete investigation that he may be able to report on the truthfulness or
otherwise of the information. Similarly, even if the information does not
furnish all the details he must find out those details in the course of
investigation and collect all the necessary evidence. The information given
disclosing the commission of a cognizable offence only sets in motion the
investigative machinery, with a view to collect all necessary evidence, and
thereafter to take action in accordance with law. The true test is whether
the information furnished provides a reason to suspect the commission of an
offence, which the police officer concerned is empowered under Section 156
of the Code to investigate. If it does, he has no option but to record the
information and proceed to investigate the case either himself or depute any
other competent officer to conduct the investigation. The question as to
whether the report is true, whether it discloses full details regarding the
manner of occurrence, whether the accused is named, and whether there is
sufficient evidence to support the allegations are all matters which are
alien to the consideration of the question whether the report discloses the
commission of a cognizable offence. Even if the information does not give
full details regarding these matters, the investigating officer is not
absolved of his duty to investigate the case and discover the true facts, if
he can.
xx xx xx
22. The High Court has also quashed the GD entry and the investigation on
the ground that the information did not disclose all the ingredients of the
offence, as if the informant is obliged to reproduce the language of the
section, which defines “criminal misconduct” in the Prevention of Corruption
Act. In our view the law does not require the mentioning of all the
ingredients of the offence in the first information report. It is only after
a complete investigation that it may be possible to say whether any offence
is made out on the basis of evidence collected by the investigating agency.”
8. Similarly, in Masumsha Hasanasha Musalman v. State of Maharashtra (2000
(3) SCC 557), this Court noted that with reference to Section 3(2)(v) of the
Act that to attract the provisions of said section the sine qua non is that
the victim should be a person who belongs to a Scheduled Caste or a
Scheduled Tribe and that the offence under the Indian Penal Code, 1860 is
committed against him on the basis that such a person belongs to a Scheduled
Caste or a Schedule Tribe. In the absence of such ingredients no offence
under Section 3(2)(v) of the Act arises. The view in Masumsha’s case (supra)
was reported in Dinesh @ Buddha v. State of Rajasthan (2006 (3) SCC 771).
9. The scope for interference on the basis of an application under Section
482 of Code is well known.
10. Section 482 does not confer any new powers on the High Court. It only
saves the inherent power which the Court possessed before the enactment of
the Code. It envisages three circumstances under which the inherent
jurisdiction may be exercised, namely, (i) to give effect to an order under
the Code (ii) to prevent abuse of the process of court, and (iii) to
otherwise secure the ends of justice. It is neither possible nor desirable
to lay down any inflexible rule which would govern the exercise of inherent
jurisdiction. No legislative enactment dealing with procedure can provide
for all cases that may possibly arise. Courts, therefore, have inherent
powers apart from express provisions of law which are necessary for proper
discharge of functions and duties imposed upon them by law. That is the
doctrine which finds expression in the section which merely recognizes and
preserves inherent powers of the High Courts. All courts, whether civil or
criminal possess, in the absence of any express provision, as inherent in
their constitution, all such powers as are necessary to do the right and to
undo a wrong in course of administration of justice on the principle “quando
lex aliauid alicui concedit, concedere videtur et id sine guo res ipsae esse
non potest” (when the law gives a person anything it gives him that without
which it cannot exist). While exercising powers under the section, the court
does not function as a court of appeal or revision. Inherent jurisdiction
under the section though wide has to be exercised sparingly, carefully and
with caution and only when such exercise is justified by the tests
specifically laid down in the section itself. It is to be exercised ex
debito justitiae to do real and substantial justice for the administration
of which alone courts exist. Authority of the court exists for advancement
of justice and if any attempt is made to abuse that authority so as to
produce injustice, the court has power to prevent abuse. It would be an
abuse of process of the court, to allow any action which would result in
injustice and prevent promotion of justice, on exercise of the powers court
would be justified to quash any proceeding if it finds that
initiation/continua nce of it amounts to ‘abuse of the process of court or
quashing of these proceedings would otherwise serve the ends of justice.
When no offence is disclosed by the report, the court may examine the
question of fact. When a report is sought to be quashed, it is permissible
to look into the materials to assess what the report has alleged and whether
any offence is made out even if the allegations are accepted in toto.
11. In R.P. Kapur v. State of Punjab AIR 1960 SC 866 this Court summarized
some categories of cases where inherent power can and should be exercised to
quash the proceedings.
(i) where it manifestly appears that there is a legal bar against the
institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint
taken at its face value and accepted in their entirety do not constitute the
offence alleged;
(iii) where the allegations constitute an offence, but there is no legal
evidence adduced or the evidence adduced clearly or manifestly fails to
prove the charge.
12. In dealing with the last category, it is important to bear in mind the
distinction between a case where there is no legal evidence or where there
is evidence which is clearly inconsistent with the accusations made, and a
case where there is legal evidence which, on appreciation, may or may not
support the accusations. When exercising jurisdiction under Section 482 of
the Code the High Court would not ordinarily embark upon an enquiry whether
the evidence in question is reliable or not or whether on a reasonable
appreciation of it accusation would not be sustained. That is the function
of the trial Judge. Judicial process should not be an instrument of
oppression, or, needless harassment. Court should be circumspect and
judicious in exercising discretion and should take all relevant facts and
circumstances into consideration before issuing process, lest it would be an
instrument in the hands of a private complainant to unleash vendetta to
harass any person needlessly. At the same time the section is not an
instrument handed over to an accused to short-circuit a prosecution and
bring about its sudden death. The scope of exercise of power under Section
482 of the Code. and the categories of cases where the High Court may
exercise its power under it relating to cognizable offences to prevent abuse
of process of any court or otherwise to secure the ends of justice were set
out in some detail by this Court in State of Haryana v. Bhajan Lal (1992
Supp (1) 335). A note of caution was, however, added that the power should
be exercised sparingly and that too in rarest of rare cases. The
illustrative categories indicated by this Court are as follows:
“(1) Where the allegations made in the first information report or the
complaint, even if they are taken at their face value and accepted in their
entirety do not prima facie constitute any offence or make out a case
against the accused.
(2) Where the allegations in the first information report and other
materials, if any, accompanying the FIR do not disclose a cognizable
offence, justifying an investigation by police officers under Section 156
(1) of the Code except under an order of a Magistrate within the purview of
Section 155 (2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and
the evidence collected in support of the same do not disclose the commission
of any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence
but constitute only a non-cognizable offence, no investigation is permitted
by a police officer without an order of a Magistrate as contemplated under
Section 155 (2) of the Code.
(5) Where the allegations made in the FIR or “complaint are so absurd and
inherently improbable on the basis of which no prudent person can ever reach
a just conclusion that there is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar engrafted in any of the provisions
of the Code or the Act concerned (under which a criminal proceeding is
instituted) to the institution and continuance of the proceedings and/or
where there is a specific provision in the Code. or Act concerned, providing
efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or
where the proceeding is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to spite him due to
private and personal grudge.”
13. As noted above, the powers possessed by the High Court under Section 482
of the Code are very wide and the very plenitude of the power requires great
caution in its exercise. Court must be careful to see that its decision in
exercise of this power is based on sound principles. The inherent power
should not be exercised to stifle a legitimate prosecution. The High Court
being the highest court of a State should normally refrain from giving a
prima facie decision in a case where the entire facts are incomplete and
hazy, more so when the evidence has not been collected and produced before
the Court and the issues involved, whether factual or legal, are of
magnitude and cannot be seen in their true perspective without sufficient
material. Of course, no hard and fast rule can be laid down in regard to
cases in which the High Court will exercise its extraordinary jurisdiction
of quashing the proceeding at any stage. (See State of Orissa v. Saroj Kumar
Sahoo (2005) 13 SCC 540 and Minu Kumari v. State of Bihar AIR 2006 SC 1937).
14. It needs no reiteration that the FIR is not expected to be an
encyclopedia. As rightly contended by learned counsel for the appellant
whether the accused belongs to scheduled caste or scheduled tribe can be
gone into when the matter is being investigated. It is to be noted that
under Section 23(1) of the Act, the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Rules, 1995 have been framed.
15. Rule 7 deals with the investigating officer. Under Rule 7 investigation
has to be done by an officer not below the rank of Deputy Superintendent of
Police.
16. After ascertaining the facts during the course of investigation it is
open to the investigating officer to record that the accused either belongs
to or does not belongs to scheduled caste or scheduled tribe. After final
opinion is formed, it is open to the Court to either accept the same or take
cognizance. Even if the charge sheet is filed at the time of consideration
of the charge, it is open to the accused to bring to the notice of the Court
that the materials do not show that the accused does not belong to scheduled
caste or scheduled tribe. Even if charge is framed at the time of trial
materials can be placed to show that the accused either belongs or does not
belong to scheduled caste or scheduled tribe.
17. So far as the scope for investigation is concerned it is relevant to
note that sub-Section (2) of Section 156 of the Code provides that no
proceedings of a police officer in any such case shall at any stage be
called in question on the ground that the case was one which such officer
was not empowered under the section to investigate. (underlined for
emphasis).
18. Above being the position, the view taken by the Bombay High Court does
not appear to be the correct view while that of the Orissa High Court is the
correct view. Accordingly, we allow this appeal. Needless to say during
investigation or at the time of framing of charge or at the time of trial it
is open to respondent No.3 to show that he either belongs to scheduled caste
or scheduled tribe so that applicability of Section 3(1)(xi) of the Act is
ruled out.